Admissibility of Internet Searches About Terminating Pregnancy

Most criminal cases are tragic.  Moira Akers was found guilty of murder and child abuse arising out of the death of her newborn child. Akers v. State, 2024 WL 338958, at *1 (Apls. Ct. Md.  Jan. 30, 2024)(unreported).

While there were many issues on appeal, one was whether evidence of her internet searches related to termination of a pregnancy was properly admitted on the facts presented.  The decision to admit that evidence was affirmed by the intermediate appellate court.

The Supreme Court of Maryland has issued a writ of certiorari on the following question: “Is evidence of a pregnant woman’s forgoing prenatal care or evidence of a pregnant woman’s conducting Internet searches about terminating the pregnancy relevant as a matter of law to show the woman’s intent to kill the newborn at birth, or if marginally relevant, unfairly prejudicial?”  See Case No. 7, Sept. Term 2024.

The facts were awful.  Ms. Akers was pregnant.  She hid her pregnancy from her family and others. She told her husband it was an ectopic pregnancy, which was not true. When emergency medical personnel responded due to excessive bleeding, she told them she was not pregnant.  She was taken to the hospital, where she at first denied that she was pregnant.  Examination showed otherwise and she reported that the baby was stillborn.  Ms. Akers told police “that after the baby was born, she did not inform anyone, did not try to call emergency services, did not try to provide care to the baby, and ‘didn’t really look at the baby that closely.’”  The baby’s body was recovered at her house and an autopsy conducted.

The medical examiner determined that the baby was born alive and that the cause of death was homicide by asphyxia.

This blog focuses on the internet search issues; however, the Court’s discussion of forgoing prenatal care is somewhat intertwined.  Much of the decision focuses on a Daubert analysis of the “HFT test” that was part of the autopsy, and other issues.  They are not discussed here.

On appeal, Ms. Akers asserted error in admitting her prior internet search history related to terminating a pregnancy at home.  The Appeals Court wrote:

As for the evidence of Appellant’s search history, at the suppression hearing, the State indicated the intent to introduce records of Appellant’s internet history related to pregnancy termination. Specifically, the State sought to introduce internet searches including but not limited to: “rue tea for abortion[,]” “does Rue extract cause you to miscarry[,]” “over-the-counter pills that cause miscarriage[,]” “miscarriage at seven weeks[,]” “how to treat ectopic pregnancy naturally[,]” “how to end an ectopic pregnancy[,]” “misoprostol in mid-trimester termination of pregnancy, both oral and vaginal[,]” and navigation to a website titled “woman resort to over-the-counter remedies to end pregnancy[.]”

The Court described the context of the internet searching as follows:

At trial, the State introduced evidence, over objection, that between March of 2018 and May of 2018, Appellant performed the searches listed above using her phone. Notably, during the time frame in which the searches were made, and for several weeks after, Appellant would have been able to legally secure abortion services in Maryland. See Md. Code HG § 20-209(b)(1) (“[T]he State may not interfere with the decision of a woman to terminate a pregnancy … before the fetus is viable[.]”).

The evidentiary ruling to admit the search evidence was analyzed by the Court in the context of other evidence that was before the jury.  The Court wrote:

At the time the court admitted the search history evidence, other evidence which demonstrated Appellant’s consideration of abortion services had already been admitted into the record without objection from Appellant….  Medical records of this visit, introduced without objection at trial, indicated that Appellant “came to discuss termination” of the pregnancy….  Additionally, Dr. Waldrop testified, and the medical records confirmed, that Appellant was “given info for local clinics to complete … second trimester termination.” Dr. Waldrop confirmed on cross examination that Appellant received referrals for pregnancy termination. At no point during Dr. Waldrop’s testimony did Appellant make any objection or motion to strike. [emphasis added].

The Court wrote: “Appellant waived any contention that the court erred in introducing this evidence by failing to object when it was introduced at trial and [Ms. Akers] does not contend on appeal that the court erred by admitted Dr. Waldrop’s testimony or the medical records.”

The medical records contradicted Ms. Akers’ statement that she had been informed that it was too late to seek an abortion. She told a detective that she hoped “something would happen” so that it would “go away.”

The intermediate appellate court wrote:

Appellant argues that both evidence of her internet search history related to the termination of a pregnancy as well as the absence of prenatal care during the pregnancy were irrelevant and unfairly prejudicial and should have been excluded under Md. Rules 5-401 through 5-403. Specifically, Appellant argues that none of the evidence at issue made any fact of consequence to the determination of the trial more or less likely to have occurred. See Md. Rule 5-401. In the alternate, Appellant asserts that the evidence should have been excluded under Rule 5-403, as the danger of unfair prejudice substantially outweighed any probative value. Appellant claims that any probative value was substantially outweighed by the potential for evidence of use or consideration of abortion services to inflame strong prejudice in jurors due to the “divisive and emotional” nature of debates around reproductive healthcare services, which include abortion. Similarly, Amicus argues that evidence of a defendant’s prior abortion or consideration of abortion, or lack of prenatal care, is both irrelevant to the determination of that person later harming their child and would be so prejudicial that it must categorically be considered to substantially outweigh any theoretical relevance. In support of these contentions, Appellant and Amicus cite to multiple out-of-state cases where appellate courts determined admittance of a party’s prior abortion history was or would have been erroneous, either due to irrelevance, or the potentially prejudicial nature of such evidence.

In the State’s view, the circuit court did not err. The State argues that while it does not disagree with aspects of Appellant’s contentions, here both the evidence of Appellant’s lack of prenatal care and internet searches related to pregnancy termination were relevant to Appellant’s intent to kill Baby A with deliberation once he was born. The State notes that both pieces of evidence “provided insight into [Appellant’s] state of mind at a crucial time: the period where she could have legally terminated the pregnancy but chose not to do so.” The State also contends that the evidence was relevant because Appellant’s credibility had been called into question. Additionally, the State maintains that the evidence was not unfairly prejudicial and asserts that the cases cited by Appellant and Amicus do not apply to the facts herein. In the State’s view, those cases are inapposite because they either dealt with instances when a party had terminated a prior pregnancy unrelated to the facts of the case, or when the death of the child in question occurred months after birth, rather than on the day of the birth, as occurred in the case at bar.

The Court ruled for the State.

RELEVANCE OF THE INTERNET SEARCHES

After discussing other issues, the Court turned to the evidence of internet searches related to abortion.  It began by limiting its decision to the facts presented:

We note at the outset of this discussion that our decision today should be read narrowly, and in strict accordance with the specific facts of this case…. [emphasis added].

As you will see, the Court emphasized that several times in the opinion.

It then wrote:

We conclude that the evidence of Appellant’s search history is relevant. As previously stated, Appellant’s intent during her pregnancy is unambiguously a “fact of consequence” in this case.

After discussing specific evidence, the Court wrote that “we determine that in the specific facts of this case, Appellant’s search history clears the low bar of relevance.”  It explained:

While we agree that evidence of a defendant’s use of abortion services or consideration thereof will frequently be both irrelevant and unfairly prejudicial, under the unique and specific facts of this case, we are not persuaded that the circuit court erred, and find the cited cases are distinguishable…. [I]n this case, … Appellant considered aborting the fetus which would eventually become the victim in this case….  We agree with the central principle adopted by the cases listed above: a person’s prior history with abortion untethered to the material facts of a case will generally not be admissible. However, Appellant’s case does not concern abortion history attenuated from the facts which gave rise to the criminal charge nor does the contested evidence relate to a prior pregnancy. Here, the pregnancy Appellant considered terminating resulted in the birth of Baby A, the same child she was alleged to have murdered immediately after the child’s birth in her home. [emphasis added].

Here, the Court emphasized the relevant factor was the intent to harm the child “at the time of birth.”

We again emphasize the exceedingly narrow scope of this determination. Under the facts of this case, Appellant considered surreptitiously inducing a miscarriage while she was pregnant with the victim, the challenged evidence involved a self-induced abortion not under the direction of a medical professional, the evidence demonstrated that the child died the same day of his birth, both the pregnancy and the child’s body were hidden, and Appellant indicated she did not prepare for the child’s birth in any way. Additionally, Appellant’s intent during her pregnancy was of central importance to the determination of the action, and her credibility was at issue due to the discrepancy between her statement to Det. Weigman that she was informed by her doctor at the time she was 15 weeks pregnant that it was too late to secure an abortion, although the records from the same visit noted that she was instead 11 weeks pregnant, and was provided with multiple referrals for abortion services. As to the specific facts of this case, we conclude that the evidence, again, clears the low bar of relevancy.

The core relevancy decision was:

Similarly, in the context of other admitted evidence, Appellant’s actions, which demonstrate that at least at one point, she considered inducing an abortion without the assistance of a medical professional, make it more probable that she intended to prevent others from discovering her pregnancy or child at any point. This in turn permits an inference that she would be inclined to harm or cause the death of the child to keep the pregnancy and birth secret.

Id. at *10. [1]

WEIGHING THE PREJUDICE AGAINST THE PROBATIVE VALUE

Maryland Rule 5-403, like Fed. R. Evid. 403, permits relevant evidence to be excluded when it substantially outweighs the probative value.

The Court next evaluated “whether the [trial] court abused its discretion in concluding that the probative value of the evidence was not ‘substantially outweighed’ by the danger of unfair prejudice. Md. Rule 5-403….”

Initially, it reiterated that the evidence was probative of intent.  It also went to credibility.  For example, Ms. Akers had denied pregnancy.

Next, the Court added: “Importantly, the court could also consider the fact that the record already contained evidence, admitted without objection, that Appellant had sought abortion services. Because evidence regarding Appellant’s consideration of abortion was already in the record, it is reasonable to conclude that the evidence of Appellant’s search history was less prejudicial than it might otherwise have been absent other admitted evidence showing that Appellant had previously considered abortion.”  In short, at least to some degree, the challenged evidence was cumulative.

Then, the Court noted that a Rule 5-403 weighing of the degree of relevance against any unfair prejudice is a discretionary decision of the trial court.

Although we recognize that abortion and other forms of reproductive healthcare carry with them the potential risk of unfair prejudice, we are unable to determine that the court below was “fragrantly and outrageously” wrong, and therefore, cannot find error under the abuse of discretion standard.

The Court added: “[T]he [trial] court employed voir dire questioning meant to guard against improper bias in the jury. Specifically, the court asked, ‘many people have strong opinions about the morality of having considered getting or having an abortion. Would your beliefs about abortion prevent you from giving a fair and impartial verdict in this case?’ In so doing, the court used Appellant’s requested voir dire question verbatim.”

CONCLUSION

Akers is a narrow holding:

We again emphasize the exceedingly narrow scope of this determination. Under the facts of this case, Appellant considered surreptitiously inducing a miscarriage while she was pregnant with the victim, the challenged evidence involved a self-induced abortion not under the direction of a medical professional, the evidence demonstrated that the child died the same day of his birth, both the pregnancy and the child’s body were hidden, and Appellant indicated she did not prepare for the child’s birth in any way. Additionally, Appellant’s intent during her pregnancy was of central importance to the determination of the action, and her credibility was at issue due to the discrepancy between her statement to Det. Weigman that she was informed by her doctor at the time she was 15 weeks pregnant that it was too late to secure an abortion, although the records from the same visit noted that she was instead 11 weeks pregnant, and was provided with multiple referrals for abortion services. As to the specific facts of this case, we conclude that the evidence, again, clears the low bar of relevancy.

The Court addressed many other issues and affirmed the conviction. This is an unreported opinion of the intermediate appellate court. This opinion may not be cited as precedent within the rule of stare decisis. It may be cited for its persuasive value only if the citation conforms to Rule 1-104(a)(2)(B).  As noted at the outset, however, certiorari has been issued by the Supreme Court of Maryland.

____

[1] As to relevancy of forgoing prenatal care, the Court wrote: “We further recognize that electing not to seek prenatal care is both a legally protected activity in Maryland, and observe that as a general principle, a lack of prenatal care is typically either irrelevant or minimally probative of a mother’s intent to subsequently harm her child after birth…. However, the facts of this case are far from typical.”