Introducing Digital Evidence in California State Courts
In order to introduce documentary and electronic evidence obtained in compliance with California Electronic Communication Privacy Act (Penal Code §§ 1546.1 and 1546. 2) in court, it must have four components:
it must be relevant.
it must be authenticated.
its contents must not be inadmissible hearsay; and
it must withstand a “best evidence” objection.
If the digital evidence contains “metadata” (data about the data such as when the document was created or last accessed, or when and where a photo was taken) proponents will to need to address the metadata separately, and prepare an additional foundation for it.
Relevance of Evidence
Only relevant evidence is admissible. (Evid. Code, § 350.) To be “relevant,” evidence must have a tendency to prove or disprove any disputed fact, including credibility.(Evid. Code, § 210.) All relevant evidence is admissible, except as provided by statute. (Evid. Code, § 351.)
For digital evidence to be relevant, the defendant typically must be tied to the evidence, usually as the sender or receiver. With a text message, for example, the proponent must tie the defendant to either the phone number that sent, or the phone number that received, the text. If the defendant did not send or receive/read the text, the text-as-evidence might lack relevance. In addition; evidence that the defendant is tied to the number can be circumstantial. And evidence that the defendant received and read a text also can be circumstantial.
Theories of admissibility include:
Direct evidence of a crime
Circumstantial evidence of a crime
Identity of perpetrator
Intent of perpetrator
Credibility of witnesses
Negates or forecloses a defense
Basis of expert opinion
Lack of mistake
Introducing Documentary and Electronic Evidence
Authentication of Evidence
To “authenticate” evidence, you must introduce sufficient evidence to sustain a finding that the writing is what you say it is. (Evid. Code, § 1400 (a).) You need not prove the genuineness of the evidence, but to authenticate it, you must have a witness lay basic foundations for it. In most cases you do this by showing the writing to the witness and asking, “what is this?” and “how do you know that?” It is important to note that the originator of the document is not required to testify. (Evid. Code, § 1411.) The proponent should present evidence of as many of the grounds below as possible. However, no one basis is required. Additionally, authentication does not involve the truth of the document’s content, rather only whether the document is what it is claimed to be. (City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 411-412.) Digital evidence does not require a greater showing of admissibility merely because, in theory, it can be manipulated. Conflicting inferences go to the weight not the admissibility of the evidence. (People v. Goldsmith (2014) 59 Cal. App.258, 267) In Re KB (2015) 238 Cal.App.4th 989, 291-292 [upholding red light camera evidence].) Goldsmith superseded People v. Beckley (2010) 185 Cal. App.4th 509, which required the proponent to produce evidence from the person who took a digital photo or expert testimony to prove authentication. Documents and data printed from a computer are considered to be an “original.” (Evid. Code 255.) Printouts of digital data are presumed to be accurate representation of the data. (Evid Code §§ 1552, 1553.) However, that resumption can be overcome by evidence presented by the opposing party. If that happens, the proponent must present evidence showing that by a preponderance, the printouts are accurate and reliable. (People v. Retke (2015), 232 Cal. App. 4th 1237 [successfully challenging red light camera data].)
A. You can authenticate documents by:
Calling a witness who saw the document prepared. (Evid. Code, § 1413.)
Introducing an expert handwriting comparison. (Evid. Code, § 1415.)
Asking a lay witness who is familiar with the writer’s handwriting to identify the handwriting. (Evid. Code, § 1516.)
Asking the finder of fact (i.e. the jury) to compare the handwriting on the document to a known exemplar. (Evid. Code, § 1470.)
Showing that the writing refers to matters that only the writer would have been aware. (Evid. Code, § 1421.)
Using various presumptions to authenticate official records with an official seal or signature. (Evid. Code, § 1450-1454.) Official records would include state prison records, Department of Motor Vehicle documents or documents filed with the Secretary of State. There is a presumption that official signatures are genuine. (Evid. Code, § 1530, 1453.)
Any other way that will sustain a finding that the writing is what you say it is. The Evidence Code specifically does not limit the means by which a writing may be authenticated and proved. (Evid. Code, § 1410; See also People v. Olguin (1994) 31 Cal.App.4th 1355, 1372-1373 [rap lyrics authenticated in gang case even though method of authentication not listed in Evidence Code].)
B. Common ways to authenticate email include:
Chain of custody following the route of the message, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
Security measures such as password-protections for showing control of the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
The content of the email writing refers to matters that only the writer would have been aware.
Recipient used the reply function to respond to the email; the new message may include the sender’s original message.
After receipt of the email, the sender takes action consistent with the content of the email.
Comparison of the e-mail with other known samples, such as other admitted e-mails.
E-mails obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.
In the majority of cases a variety of circumstantial evidence establishes the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) . See also, Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241F.R.D. 534, 546 [seminal case law on authenticating digital evidence under F.R.E.].)
C. Common ways to authenticate chat room or Internet relay chat (IRC) communication include:
Evidence that the sender used the screen name when participating in a chat room discussion.
For example, evidence obtained from the Internet Service Provider that the screen name, and/or associated internet protocol (IP address) is assigned to the defendant or evidence circumstantially tying the defendant to a screen name or IP address.
Security measures such as password-protections for showing control of the account of the sender and excluding others from being able to use the account. (See generally, People v. Valdez (2011) 201 Cal.App.4th 1429.)
The sender takes action consistent with the content of the communication.
The content of the communication identifies the sender or refers to matters that only the writer would have been aware
The alleged sender possesses information given to the user of the screen name (contact information or other communications given to the user of the screen name).
Evidence discovered on the alleged sender’s computer reflects that the user of the computer used the screen name. (See U.S. v. Tank (9th Cir. 2000) 200 F.3d 627.)
Defendant testified that he owned account on which search warrant had been executed, that he had conversed with several victims online, and that he owned cellphone containing photographs of victims, personal information that defendant confirmed on stand was consistent with personal details interspersed throughout online conversations, and third-party service provider (Facebook) provided certificate attesting to chat logs’ maintenance by its automated system. (U.S. v. Browne (3d Cir. Aug.25, 2016) 2016 WL 4473226, at 6.)
In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)
D. Common ways to authenticate social media postings include:
Testimony from a witness, including a police officer, with training and experience regarding the specific social media outlet used testified about what s/he observed. (In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
Evidence of social media postings obtained from a phone, tablet or computer taken directly from the sender/receiver, or in the sender/receiver’s possession.
Testimony from the person who posted the message.
Chain of custody following the route of the message or post, coupled with testimony that the alleged sender had primary access to the computer where the message originated.
The content of the post refers to matters that only the writer would have been aware, publicly broadcasted writings (web post that anyone can copy and paste would not fall under this).
After the post on social media, the writer takes action consistent with the content of the post.
The content of the post displays an image of the writer. (People v. Valdez (2011) 201 Cal.App.4th 1429.)
Other circumstantial evidence including that the observed posted images were later recovered from suspect’s cell phone and the suspect was wearing the same clothes and was in thesame location that was depicted in the images. (In re K.B. (2015) 238 Cal.App.4th 989.)
Security measures for the social media site such as passwords-protections for posting and deleting content suggest the owner of the page controls the posted material. (People v. Valdez (2011) 201 Cal.App.4th 1429.)
In the majority of cases it is a variety of circumstantial evidence that provides the key to establishing the authorship and authenticity of a computer record. “Mutually reinforcing content” as well as “pervasive consistency of the content of the page” can assist in authenticating photographs and writings. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1436.) For further information, please consult Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) For examples of sufficient circumstantial evidence authenticated social media posts see, Tienda v. State (Tex. Crim. App. 2012) 358 S.W.3d 633, 642; Parker v. State (Del. 2014) 85 A.3d 682, 687. Contrast, Griffin v. State (2011) 419 Md. 343, 356–359.
E. Common ways to authenticate web sites include:
Testimony from a witness, including a police officer about what s/he observed. (See In re K.B. (2015) 238 Cal.App.4th 989.) What is on the website or app, at the time the witness views it, should be preserved in a form that can be presented in court.
Testimony from the person who created the site.
Website ownership/registration. This is a legal contract between the registering authority (e.g.
Network Solutions, PDR Ltd, D/B/A PublicDomainRegistry.com, etc.) and the website owner, allowing the registered owner to have total dominion and control of the use of a website name (domain) and its content. (See People v. Valdez(2011) 201 Cal.App.4th 1429 [password protection suggest the owner of the page controls the posted material].) It may be possible to admit archived versions of web site content, stored and available at a third party web site (See https://archive.org/web/ [Wayback Machine].) First, it may be authenticated by a percipient witness who previously saw or used the site. It may also be possible to obtain a declaration or witness to testify to the archive. (See e.g. Telewizja Polska USA, Inc. v. Echostar Satellite Corp., 2004 WL 2367740, at 16 (N.D.Ill. Oct.15, 2004)[analyzing admissibility of the content of an achieved website].) The underlying challenge for web sites in not the authentication of the site; rather the content or hearsay material contained therein.
InSt. Clair v. Johnny’s Oyster & Shrimp, Inc. (S.D.Tex.1999) 76 F.Supp.2d 773, 774-75 the court noted that “voodoo information taken from the Internet” was insufficient to withstand motion to dismiss because “[n]o web-site is monitored for accuracy” and “this so-called Web provides no way of verifying the authenticity” of information plaintiff wished to rely on. (See also Badasa v. Mukasey (8th Cir. 2008) 540 F.3d 909 [Nature of Wikipedia makes information from the website unreliable].) However, at noted in Section III Hearsay, the contents of the web site could be admitted as an operative fact or under a number of exceptions including an admission of a party opponent.
F. Authenticating Texts:
A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidencewithout being authenticated. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)
A text message may be authenticated “by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing” (Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).
As of August 2016, there are no published California cases that specifically discuss what is required for authenticating a text message. Unpublished California opinions are consistent with the rule set forth above for authenticating e-mails and chats through a combination of direct and circumstantial evidence based on the facts of the case. Because of the mobile nature of smart phones, the proponent must take care to tie the declarant to the phone from which texts were seized or to the phone number listed in records obtained from the phone company. Often this done through cell phone records or the phone being seized from the defendant, his home or car or other witnesses testifying that this was how they communicated with the defendant.
Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:
Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or
received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].)
Several California laws dictate how electronic communications can be authenticated. Below are the evidence code numbers and examples of when they may apply:
Evidence Code § 1410 – the evidence code does not limit the means by which communication may be authenticated
Evidence Code § 1413 – a witness saw the person send the message and attests to witnessing this action
Evidence Code § 1420– the context of the message shows the message was a reply from the person in question
Evidence Code § 1421 – in the message itself, the person says something that only they would know
Cal. Evid. Code § 1414
Section 1414 – Admissions of authenticity
(a) The party against whom it is offered has at any time admitted its authenticity; or
(b) The writing has been acted upon as authentic by the party against whom it is offered. Ca. Evid. Code § 1414 Enacted by Stats. 1965, Ch. 299.
G. Authenticating Metadata:
Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’ Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include:
a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it). Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4).
Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer. Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary. Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a useful tool for authenticating electronic records by use of distinctive characteristics.” (Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].)
H. Challenges to Authenticity
Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created.
Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.” (People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.)
Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., [click here] or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)
I. Hearsay Rule
The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include;
operative facts and
data that is generated by a mechanized process and not a human declarant and,
A statement being used to show its falsity not its truth.
J. Operative Facts
Where “ ‘the very fact in controversy is whether certain things were said or done and not … whether these things were true or false, … in these cases the words or acts are admissible not as hearsay[,] but as original evidence.’ ” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 31, p. 714.) For example, in an identity theft prosecution, there will be no hearsay issue for the majority of your documents. The documents are not being offered for the truth of the matter asserted; they are operative facts. In Remington Investments, Inc v. Hamedani (1997) 55 Cal.App.4th 1033, the court distinguished between the concept of authentication and hearsay. The issue was whether a promissory note was admissible. The court observed that: ‘The Promissory Note document itself is not a business record as that term is used in the law of hearsay, but rather an operative contractual document admissible merely upon adequate evidence of authenticity. (Id. At 1043.)
Under Remington, promissory notes, checks and other contracts are not hearsay, but operative facts. Moreover, forged checks, false applications for credit, and forged documents are not hearsay. They are not being introduced because they are true. They are being introduced because they are false. Since they are not being introduced for the truth of the matter asserted there is no hearsay issue.
Other examples of non-hearsay documents would include:
The words forming an agreement are not hearsay (Jazayeri v. Mao (2009) 174 Cal.App.4th
301, 316 as cited by People v. Mota (Cal. Ct. App., Oct. 8, 2015, No. B252938) 2015 WL 5883710 (Unpublished)
A deposit slip and victim’s identification in a burglary case introduced to circumstantially
connect the defendant to the crime. (In re Richard (1979) 91 Cal.App.3d 960, 971-979.)
Pay and owes in a drug case. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1222-1226.)
Items in a search to circumstantially connect the defendant to the location. (People v. Williams (1992) 3 Cal.App.4th 1535, 1540-1543.)
Invoices, bills, and receipts are generally hearsay unless they are introduced for the purpose of corroborating the victim’s damages. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267.)
Defendant’s social media page as circumstantial evidence of gang involvement. (People v. Valdez (2011) 201 Cal.App.4th 1429.
Logs of chat that was attributable to Defendant were properly admitted as admissions by party opponent, and the portions of the transcripts attributable to another person were properly classified as “non hearsay”, as they were not “offered for the truth of the matter asserted.” Replacing screen names with actual names appropriate demonstrative evidence. (U.S. v. Burt (7th Cir., 2007) 495 F.3d 733.)
“To the extent these images and text are being introduced to show the images and text found on the websites, they are not statements at all—and thus fall outside the ambit of the hearsay rule.” (Perfect 10, Inc. v. Cybernet Ventures, Inc. (C.D.Cal.2002) 213 F.Supp.2d 1146, 1155.)
Generally, photographs, video, and instrument read outs are not statements of a person as defined by the Evidence Code. (Evid.Code §§ 175, 225; People v. Goldsmith (2014) 59 Cal.4th 258, 274; People v. Lopez (2012) 55 Cal.4th 569, 583.)
Although the check itself is not hearsay, the bank’s notations placed on the back of the check showing that it was cashed is hearsay. The bank’s notations would be introduced for the truth of the matter asserted – that the check was cashed. Evidence Code sections 1270 and 1271 solve this problem by allowing the admission of these notations as a business record.
Two helpful rules that apply to business records. First, it may be permissible to infer the elements of the business record exception. In People v. Dorsey (1974) 43 Cal.App.3d 953, the court was willing to find that it was common knowledge that bank statements on checking accounts are prepared daily on the basis of deposits received, checks written and service charges made even though the witness failed to testify as to the mode and time of preparation of bank statements. The second rule is that “lack of foundation” is not a sufficient objection to a business record. The defense must specify which element of the business record exception is lacking. (People v. Fowzer (1954) 127 Cal.App.2d 742.)
K. Computer Records Generated by a Mechanized Process
The first rule is that a printout of the results of the computer’s internal operations is not hearsay evidence because hearsay requires a human declarant. (Evid.Code §§ 175, 225.)
The Evidence Code does not contemplate that a machine can make a statement. (People v. Goldsmith (2014) 59 Cal.4th at 258, 274 [rejecting hearsay claims related to red light cameras];
People v. Hawkins (2002) 98 Cal.App.4th 1428; People v. Lopez (2012) 55 Cal. 4th.569).These log files are computer-generated records that do not involve the same risk of observation or recall as human declarants. Thus, email header information and log files associated with an email’s movement through the Internet are not hearsay. The usual analogy is that the clock on the wall and a dog barking are not hearsay. An excellent discussion on this issue can be found in Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009)
Metadata such as date/time stamps are not hearsay nor do they violate the confrontation clause because they are not testimonial. (See, People v. Goldsmith 59 Cal.4th at 258, 274-275; People v. Lopez (2012) 55 Cal. 4th.569, 583.)
L. Business Records
Log files and other computer-generated records from Internet Service Providers may also easily qualify under the business records exception to the hearsay rule. (Evid.Code §§1270, 1271, 1560, 1561.) Remember, you do not need to show the reliability of the hardware or software. (People v. Lugashi (1988) 205 Cal.App.3d 632.) Nor does the custodian of records need to completely understand the computer. (Id.) Additionally, the printout (as opposed to the entry) need not be made “at or near the time of the event.” (Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769.) Finally, a cautionary note from the Appellate Court in People v. Hawkins (2002) 98 Cal.App.4th 1428: “the true test for admissibility of a printout reflecting a computer’s internal operations is not whether the printout was made in the regular course of business, but whether the computer was operating properly at the time of the printout.” If the computer is used merely to store, analyze, or summarize material that is hearsay in nature, it will not change its hearsay nature and you will need an applicable exception for introduction. Common exceptions for the contents of email include: statement of the party, adoptive admission, statement in furtherance of a conspiracy, declaration against interest, prior inconsistent statement, past recollection recorded, business record, writing as a record of the act, or state of mind. Note also that records obtained by search warrant, and accompanied by a complying custodian affidavit, are admissible as if they were subpoenaed into court (Evid. Code §§ 1560-1561, effective January 1, 2017) and records obtained from an Electronic Communication Service provider that is a foreign corporation, and are accompanied by a complying custodian affidavit, are currently admissible pursuant to Penal Code § 1524.2(b)(4). (See also Pen. Code § 1546.1(d)(3).)
M. Government Records
An official record is very similar to a business record, even if it is obtained from a government website. The chief difference is that it may be possible to introduce an official record without calling the custodian or another witness to authenticate it. (Evid. Code, § 1280; See Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 548–49; EEOC v. E.I dupont de Nemours & Co. (2004) 65 Fed. R. Evid. Serv. 706 [Printout from Census Bureau web site containing domain address from which image was printed and date on which it was printed was admissible in evidence].) The foundation can be established through other means such as judicial notice or presumptions. (People v. George (1994) 30 Cal.App.4th 262,274.)
N. Published Tabulations
Prosecutors are often plagued with how to introduce evidence that was found using Internet-based investigative tools. For example, if your investigator used the American Registry For Internet Numbers (ARIN) programs (WHOIS, RWhois or Routing Registry Information), how is this admissible without calling the creator of these Internet databases? Evidence Code Section 1340 allows an exception to the hearsay rule, which allows the introduction of published tabulations, lists, directories, or registers. The only requirement is that the evidence contained in the compilation is generally used and relied upon as accurate in the course of business. Note that not all data aggregation sites may have the proper characteristics for this exception. In People v. Franzen (2012) 210 Cal.App.4th 1193, 1209–13, the court found that a subscription based service did not possess the characteristics that would justify treating its contents as a published compilation for purposes of section 1340
O. Former Best Evidence Rule
Reminder: The Best Evidence Rule has been replaced in California with the Secondary Evidence
Rule. The Secondary Evidence Rule allows the admissibility of copies of an original document. (Evid. Code, § 1521.) They are not admissible, however, if “a genuine dispute exists concerning material terms of the writing and justice requires the exclusion,” or if admitting the evidence would be “unfair.” (Evid. Code, § 1521.) In a criminal action it is also necessary for the proponent of the evidence to make the original available for inspection at or before trial. (Evid. Code, § 1522.) For email or any electronic document, this is especially important, given the wealth of information contained in its electronic format, as opposed to its paper image. Of interest, Evidence Code Section 1522 requires that the “original” be made available for inspection. Evidence Code Section 255 defines an email “original” as any printout shown to reflect the data accurately. Thus, the protections offered by Evidence Code Section 1522 are stripped away by Evidence Code Section 255. This is where the protections of Evidence Code Section 1521 are invoked: “It’s unfair, your Honor, not be able to inspect the email in its original format.” Also, remember that Evidence Code Section 1552 states that the printed representation of computer information or a computer program is presumed to be an accurate representation of that information. Thus, a printout of information will not present any “best evidence rule” issues absent a showing that the information is inaccurate or unreliable. Oral testimony regarding the content of an email [writing] is still inadmissible absent an exception. (Evid. Code, § 1523.) Exceptions include where the original and all the copies of the document were accidentally destroyed. Of course, none of the above rules applies at a preliminary hearing. (See Pen. Code § 872.5 [permits otherwise admissible secondary evidence at the preliminary hearing]; B. Witkin, 2 California Evidence (3rd ed., 1986) § 932, p. 897 [“secondary evidence” includes both copies and oral testimony].) i This material was prepared by Robert M. Morgester, Senior Assistant Attorney General, California Department of Justice in 2003 for the High-Technology Crime: Email and Internet Chat Resource CD-ROM, and draws heavily upon Documentary Evidence Primer, by Hank M. Goldberg, Deputy District Attorney, Los Angeles County District Attorney’s Office, January 1999. Material from that document was used with Mr. Goldberg’s permission. This material was updated in 2016 by Robert Morgester and Howard Wise, Senior Deputy District Attorney, Ventura County District Attorney’s Office.
P. How does Hearsay Play into the Era of Text Messaging?
With the ubiquitousness of smart phones, text messages have now become a preferred tool of communication for many. Due to the informal nature of text messages, many, if not most people fail to consider the potential evidentiary effect of a text message. As a general proposition, despite the informal usage of text messages, a text message can potentially still be evidence in the case, subject to the rules of hearsay, with further caveats. In this post, we specifically discuss how the lack of response to a text messages cannot qualify as an adoptive admission as an exception to the hearsay rule.
Q. Hearsay evidence in Trial
The concept of “hearsay” as it pertains to trial is well known. As many people know, out of court statements offered for its truth are barred by the hearsay rule due to inherent trustworthiness and reliability concerns. However, there are many exceptions to this rule that would allow an otherwise inadmissible statement to be offered as evidence or for some other purpose in court. One major exception to the hearsay rule are admissions made by a party.
Specifically, an admission for the purposes of the hearsay exceptions in any out of court statement or assertive conduct by a party to the action that is inconsistent with a position the party is taking at current proceeding. The statement itself does not necessarily need to have been against the party’s interest when it was made. Indeed, even a statement self-serving whenmade may be admissible as a party admission if contrary to the party’s present position at trial. (People v. Richards(1976) 17 Cal.3d 614, 617-618 (disapproved on other grounds by People v. Carbajal (1995) 10 Cal.4th 1114, 1126.)
Notably, an admission does not necessarily require an affirmative statement by the party taking the inconsistent position. Indeed, silence may be treated as an adoptive admission if, under the circumstances, a reasonable person would speak out to clarify or correct the statement of another were it untrue. (People v. Riel (2000) 22 Cal.4th 1153, 1189.) However, silence is not admissible as an adoptive admission if another reasonable explanation can be demonstrated. Indeed, in the recent case of People v. McDaniel (2019) 38 Cal.App.5th 986, 999 (“McDaniel”), the Court of Appeal held that failure to respond to a text message accusing defendant of committing a crime was not admissible as an adoptive admission.
In McDaniel, the prosecution attempted to use the defendant’s mother’s statement to show an adoptive admission by the defendant because the defendant did not text his mother back to deny her indirect accusation that he had committed several local robberies. The Court of Appeal rejected that theory. As the Court of Appeal explained, given the nature of text messaging, the fact that the defendant did not text his mother back was not sufficient to show he had adopted his mother’s statement:
Text messaging is different from in person and phone conversations in that text exchanges are not always instantaneous and do not necessarily occur in “real time.” Rather, text messages may not be read immediately upon receipt and the recipient may not timely respond to a text message for any number of reasons, such as distraction, interruption, or the press of business. Furthermore, people exchanging text messages can typically switch, relatively quickly and seamlessly, to other forms of communication, such as a phone call, social-media messaging, or an in-person discussion, depending on the circumstances. In short, in light of the distinctive nature of text messaging, the receipt of a text message does not automatically signify prompt knowledge of its contents by the recipient, and furthermore, the lack of a text response by the recipient does not preclude the possibility that the recipient responded by other means, such as a phone call. source
ARTICLE 2. Means of Authenticating and Proving Writings [1410 – 1421]
1410.Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.
(a) For purposes of this chapter, a writing shall include any graffiti consisting of written words, insignia, symbols, or any other markings which convey a particular meaning.
(b) Any writing described in subdivision (a), or any photograph thereof, may be admitted into evidence in an action for vandalism, for the purpose of proving that the writing was made by the defendant.
(c) The admissibility of any fact offered to prove that the writing was made by the defendant shall, upon motion of the defendant, be ruled upon outside the presence of the jury, and is subject to the requirements of Sections 1416, 1417, and 1418.
1411. Except as provided by statute, the testimony of a subscribing witness is not required to authenticate a writing.
1412. If the testimony of a subscribing witness is required by statute to authenticate a writing and the subscribing witness denies or does not recollect the execution of the writing, the writing may be authenticated by other evidence.
1413. A writing may be authenticated by anyone who saw the writing made or executed, including a subscribing witness.
1414. A writing may be authenticated by evidence that:
(a) The party against whom it is offered has at any time admitted its authenticity; or
(b) The writing has been acted upon as authentic by the party against whom it is offered.
1415. A writing may be authenticated by evidence of the genuineness of the handwriting of the maker.
1416. A witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer. Such personal knowlegde may be acquired from:
(a) Having seen the supposed writer write;
(b) Having seen a writing purporting to be in the handwriting of the supposed writer and upon which the supposed writer has acted or been charged;
(c) Having received letters in the due course of mail purporting to be from the supposed writer in response to letters duly addressed and mailed by him to the supposed writer; or
(d) Any other means of obtaining personal knowledge of the handwriting of the supposed writer.
1417.The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
1418.The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness with writing (a) which the court finds was admitted or treated as genuine by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.
1419.Where a writing whose genuineness is sought to be proved is more than 30 years old, the comparison under Section 1417 or 1418 may be made with writing purporting to be genuine, and generally respected and acted upon as such, by persons having an interest in knowing whether it is genuine.
1420A writing may be authenticated by evidence that the writing was received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing.
1421.A writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.
ARE TEXT MESSAGES ADMISSIBLE IN COURT? AFTER AN ACCIDENT THE OTHER DRIVER ADMITTED SHE WASN’T PAYING ATTENTION. IN A TEXT LATER THE DRIVER SAID SHE WAS SORRY, THAT SHE’D BEEN ON THE CELL PHONE, AND OFFERED TO PAY OUTSIDE OF INSURANCE. NOW THAT HER INSURANCE COMPANY IS INVOLVED SHE DENIES EVERYTHING. IS THE TEXT ADMISSIBLE IN COURT?
If you watch those TV court shows you may have seen them admit texts without a thought. Remember they have to get everything in between the commercials.
In an actual court of law electronically stored information, or “ESI”, faces several tests under the rules of evidence.
ESI includes texts, emails, chat room conversations, websites and other digital postings. In court, admitting ESI requires passing these steps:
Is the electronic evidence relevant?
Can it pass the test of authenticity?
Is it hearsay?
Is the version of ESI offered the best evidence?
Is any probative value of the ESI outweighed by unfair prejudice?
The text must pass each step. Failing any one means it’s excluded. Proving relevance poses a relatively simple challenge. But meeting the authenticity requirement raises larger questions.
Establishing the identity of the sender of a text is critical to satisfying the authentication requirement for admissibility. Showing the text came from a person’s cell phone isn’t enough. Cell phones are not always used only by the owner.
Courts generally require additional evidence confirming the texter’s identity. Circumstantial evidence corroborating the sender’s identity might include the context or content of the messages themselves.
HEARSAY RULE AND ELECTRONICALLY STORED INFORMATION
Text messages and other ESI are hearsay by nature. The hearsay rule blocks admission of out of court statements offered to prove the truth of the matter at issue. But court rules, which vary from jurisdiction to jurisdiction, are full of exceptions and definitions of “non hearsay”.
Here, the text by the other driver that she wasn’t paying attention at the time of the car accident should qualify as an admission, a prior statement by the witness or a statement by a party opponent.
TEXTS AND ‘BEST EVIDENCE’ RULE
Two more layers remain in the evidentiary hurdle. ESI presents its own challenges in passing the ‘best evidence rule’ or the ‘original writing rule’. Essentially the rules require introduction of an original, a duplicate original or secondary evidence proving the version offered to the court is reliable.
The final test requires that the probative value of the evidence not be outweighed by considerations including unfair prejudice, confusion of the issues or needless presentation of cumulative evidence.
ESI AND TEXTS AS EVIDENCE: WHY SO HARD?
Sometimes the challenge isn’t as overwhelming as it seems. In a federal case in which I was involved the court addressed all five steps of the process in ten minutes and admitted a series of texts. But a federal magistrate in Maryland wrote a 101 page decision thoroughly detailing the above process, rejecting some emails.
These are the evidence issues confronting texts and any electronically stored information. But, people who fail to object to evidence waive their right to object later, including upon appeal. Evidence of all kinds sometimes sneaks in despite the rules. So, go through the analysis long before running up the courthouse steps. source
Introducing Digital Evidence in California State Courts
Victim testified he knew the number from which text was sent because Defendant told him the number. The contents of the texts referred to victim as a snitch. The defendant called the victim during the course of the text message conversation. [(Butler v. State, 459 S.W. 3d 595 (Crim. Ct App. Tx. April 22, 2015].)
Testimony of records custodian from telecommunications company, explaining how company kept records of actual content of text messages, the date and time text messages were sent or received, and the phone number of the individuals who sent or received the messages, provided proper foundation for, and sufficiently authenticated, text messages admitted into evidence in trial on armed robbery charges. (Fed.Rules Evid.Rule 901(a), U.S. v. Carr (11th Cir. 2015) 607 Fed.Appx. 869.)
Ten of 12 text messages sent to victim’s boyfriend from victim’s cellular telephone following sexual assault were not properly authenticated to extent that State’s evidence did not demonstrate that defendant was author of text messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
Murder victim’s cell phone recovered from scene of crime. Forensic tools used on phone recovered texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
Defendant laid an inadequate foundation of authenticity to admit, in prosecution for assault with a deadly weapon, hard copy of e‑mail messages (Instant Messages) between one of his friends and the victim’s companion, as there was no direct proof connecting victim’s companion to the screen name on the e‑mail messages. (People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished].) G. Authenticating Metadata: Another way in which electronic evidence may be authenticated is by examining the metadata for the evidence. Metadata, “commonly described as ‘data about data,’ is defined as ‘information describing the history, tracking, or management of an electronic document.’
Metadata is ‘information about a particular data set which describes how, when and by whom it was collected, created, accessed, or modified and how it is formatted (including data demographics such as size, location, storage requirements and media information).’ Some examples of metadata for electronic documents include: a file’s name, a file’s location (e.g., directory structure or pathname), file format or file type, file size, file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it).
Some metadata, such as file dates and sizes, can easily be seen by users; other metadata can be hidden or embedded and unavailable to computer users who are not technically adept.” Because metadata shows the date, time and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all electronic evidence that can be used to authenticate it under Federal Rule 901(b)(4). Although specific source code markers that constitute metadata can provide a useful method of authenticating electronically stored evidence, this method is not foolproof because, “[a]n unauthorized person may be able to obtain access to an unattended computer.
Moreover, a document or database located on a networked-computer system can be viewed by persons on the network who may modify it. In addition, many network computer systems usually provide authorization for selected network administrators to override an individual password identification number to gain access when necessary.
Metadata markers can reflect that a document was modified when in fact it simply was saved to a different location. Despite its lack of conclusiveness, however, metadata certainly is a 7 | Introducing Digital Evidence in California State Courts useful tool for authenticating electronic records by use of distinctive characteristics.”
(Lorraine v. Markel American Ins. Co. (D. Md. 2007) 241 F.R.D. 534, 547–48 [citations omitted].) F. Challenges to Authenticity Challenges to the authenticity of computer records often take on one of three forms. First, parties may challenge the authenticity of both computer-generated and computer-stored records by questioning whether the records were altered, manipulated, or damaged after they were created. Second, parties may question the authenticity of computer-generated records by challenging the reliability of the computer program that generated the records. California state courts have refused to require, as a prerequisite to admission of computer records, testimony on the “acceptability, accuracy, maintenance, and reliability of … computer hardware and software.”
(People v. Lugashi (1988) 205 Cal.App.3d 632, 642.) As Lugashi explains, although mistakes can occur, “ ‘such matters may be developed on cross-examination and should not affect the admissibility of the [record] itself.’ (People v. Martinez (2000) 22 Cal.4th 106, 132.) Third, parties may challenge the authenticity of computer-stored records by questioning the identity of their author. For further information, please consult “Defeating Spurious Objections to Electronic Evidence,” by Frank Dudley Berry, Jr., or Chapter 5 – Evidence of the United States Department of Justice, Computer Crime and Intellectual Property Section Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2009) (accessed Aug. 18, 2016). III. Hearsay Rule The first question to ask is whether or not the information within the document is hearsay. If it is hearsay, then you need an applicable exception, such as business and government records or statement by party opponent. Examples of things that are not hearsay include; 1) operative facts and 2) data that is generated by a mechanized process and not a human declarant and, 3) A statement being used to show its falsity not its truth.
Why Would Someone Need to Authenticate Text Messages for Court?
In the contemporary age of technology, digital evidence is becoming increasingly important in court. Here is how to authenticate text messages for court in California.
Text messages are unfortunately a form of digital media that can easily be photoshopped and manipulated. This puts the evidence at risk of interference or invalidity. Additionally, text messages fall under the jurisdiction of California Evidence Code Section 250, which prevents any evidence from being used without first being authenticated.
How to Introduce Digital Evidence in California State Courts
Smartphones allow endless mobile communication that can be crucial evidence for a court case. In order to present documents and electronic evidence in a California state court, the accumulation of evidence must follow the California Electronic Communication Privacy Act (CPOA). The California Electronic Communication Privacy Act protects the privacy of individuals and their electronic devices, and it requires law enforcement to receive a warrant before they can access any electronic information.
To be in compliance with the CPOA, digital evidence must prove to be necessary for furthering the case. Additionally, in order to be sustainable in court, digital evidence must meet the following four components:
It must be relevant.
It must be authenticated.
Its contents must not be inadmissible hearsay (able to be disproven as fake).
It must withstand a “best evidence” objection.
Proposed digital evidence must meet the standards of both the CPOA and the four aforementioned components. The only exceptions to the protection of privacy that the CPOA ensures are if the individual gives consent or if the exception qualifies as an emergency situation. In order to meet the requirements of an emergency circumstance, the government entity must “in good faith, believe that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information” (CPOA).
Additionally, if the evidence contains metadata, the proponents must address the metadata separately. Metadata is data about the date, for example, a time stamp on a screenshot in a text message. The proponents would need to consider the time and prepare an additional foundation for it.
The Four Components of Evidence Required Getting Authentication of Text Messages
Relevance is determined by the evidence’s ability to prove or disprove any disputed fact, including credibility. In order for digital evidence to qualify as relevant, the defendant must usually be tied to the evidence being presented. Specifically, the proponent must be able to make a connection between the defendant and either the phone number that sent or received the text.
Authentication of evidence requires the proponent to introduce sufficient evidence to hold that the writing is what they are claiming it is. To authenticate a text message it must hold that “by evidence the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the prominent of the evidence to be the author of the writing.” California Evidence Code Section 1421.
There are no published California cases that distinctly lay out the requirements for authenticating a text message, but unpublished California opinions are consistent with the rules set for authenticating emails and chats. This includes a combination of both direct and circumstantial evidence. Here are some examples of unpublished opinions from California:
The murder victim’s cell phone was recovered from the scene of the crime. The forensic tools used on the phone recovered the texts back and forth between victim and defendant. (People v. Lehmann (Cal. Ct. App., Sept. 17, 2014, No. G047629) 2014 WL 4634272 [Unpublished].)
10 of 12 text messages sent to the victim’s boyfriend from the victim’s cellular telephone following sexual assault were not properly authenticated to extent that the State’s evidence did not demonstrate that the defendant was the author of the messages. (Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].) source
Getting Authentication of Text Messages
For a text message to be used as evidence in California Divorce Court, it must be authenticated, meaning that the other party must admit to sending the message, a witness must testify that they have seen the message being created or reply authentication must be demonstrated. Reply authentication is demonstrated when a reply message is clearly sent in response to the original message.
The California Evidence Code also dictates ways in which electronic communications can be authenticated, such as if the message references something only the other party would know about or understand.
Authentication is important and necessary in the process of utilizing text messages in California Divorce Court because it verifies that the messages are legitimate evidence and not hearsay.
he court reiterated the 5 step approach set forth by the S. Supreme Court in Neil v. Biggers409 U.S. 188, 189 (1972) for determining the reliability of in-court voice identification: (1) the ability of the witness to hear the assailant speak, (2) the witness’ degree of attention, (3) the accuracy of any prior identifications the witness made, (4) the period of time between the incident and the identification, and (5) how certain the witness was in making the identification.
Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250
Authenticating Texts: A text message is a writing within the meaning of Evidence Code section 250, which may not be admitted in evidence without being authenticated.
(Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1027–1028.)
A text message may be authenticated “by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing”
(Evid.Code, § 1421), or by any other circumstantial proof of authenticity (Id., § 1410).
As of August 2016, there are no published California cases that specifically discuss what is required for authenticating a text message. Unpublished California opinions are consistent with the rule set forth above for authenticating e-mails and chats through a combination of direct and circumstantial evidence based on the facts of the case. Because of the mobile nature of smart phones, the proponent must take care to tie the declarant to the phone from which texts were seized or to the phone number listed in records obtained from the phone company. Often this done through cell phone records or the phone being seized from the defendant, his home or car or other witnesses testifying that this was how they communicated with the defendant. Published opinions from other jurisdictions and unpublished opinions from California provide some guidance:
Can Emails Be Used in Court?
Whether you are bringing or defending a business lawsuit, your litigation attorney has likely asked you to gather and organize relevant documents in preparation for your case. This involves anyone or any location that might have helpful information to confirm your argument.
Unfortunately, not all emails are admissible as evidence in a business litigation case. Emails can be used as admissible evidence in a court of law if they’re found to be authentic. Once they fit the criteria, the emails can be treated as legal documents.
Determining Admissibility of Electronic Evidence
A business lawyer should help you determine which electronic communications are admissible and which are not, but we’ve described two main considerations here to get you started:
Message Must Be Authentic
It may be obvious to you that a specific email or text is the real deal and came from the source you claim. However, it’s not overly difficult for someone with the right skillset to manipulate, fake, or corrupt digital data. For this reason;
Your business litigation attorney must establish authenticity first and foremost.
A litigator may gain authentication by deposing the sender or recipient of the email.
When it comes to business litigation, company emails are normally considered self-authenticating when they:
contain official corporate identifiers, and
are confirmed by redundant records.
Content Must Be Reliable
Even if you can prove that the communication you received is authentic, that doesn’t necessarily mean that its contents are helpful to your business lawsuit. The email in question could say the company is in breach of contract, but simply stating this, doesn’t make it true. This is considered hearsay, whether spoken, emailed, or texted. Varying degrees of admissible evidence vs. hearsay could stem from a multi-email conversation depending on the nature of the content. Consequently;
Your business attorney must prove the communication is an exception to the hearsay rule.
In a business lawsuit, communication could be considered reliable when presented as:
the communication was created by an employer or officer of that company.
the communication was created by an employee of that company as one of their proven and regular official duties.
the communication confirms an event or timeline
the communication confirms relevant actions were taken
the party in question is the creator/sender
the opposing part offered it into evidence
the communication was sent by a proven coconspirator
Of course, there are a variety of circumstances that could cause even emails that fall under these categories to become inadmissible. For example, if the sender was not in their right mind or if their motive is not expertly established, those emails will not hold up in court. Additionally, each state has its own laws surrounding the admissibility of electronic evidence, so the strength of your case is not always straight forward.
Introducing TEXT & EMAIL Digital Evidence in California Courts pdf
Obtaining Electronic Evidence in Criminal Investigations pdf
Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability.Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.
We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386]. We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”
Other States outside of California High Courts CaseLaw
The Georgia Supreme Court ruled on 11/7/2016 that outgoing text messages found in a cell phone are admissible in evidence as admissions of the person who sent them. However, incoming text messages are inadmissible hearsay, though their admission in evidence was “harmless” under the circumstances of the case. Glispie v. State, decided November 7, 2016.
This ruling arose in the context of the criminal prosecution of an alleged drug dealer. That would have been a great interest in my past life as a prosecutor, though of course cell phones had not been invented when I was sending criminals to prison.
Text messages can be obtained by law enforcement with a search warrant based upon probable cause to examine the contents of a cell phone. If I were still a prosecutor, I would probably seek search warrants for contents of cell phones in a lot of cases. In the civil context, however, we do not have that option. We cannot get search warrants in civil cases. Cell phone service providers, e.g., AT&T, Verizon, etc., typically do not keep text messages in the system more than perhaps 72 hours.
The only way to obtain those in a civil case is to obtain a court order for a forensic download of the phone. In addition to records of voice calls placed and received (though not the content of the calls, and text messages, forensic examination of wireless devices such as cell phones can reveal patterns of conduct and communication, including the times that the driver was using an app, typing a text, or watching a video. It has location history for the phone, showing where the driver was at various points in time. It includes calls, texts and emails between the driver and the trucking company. It may include records of communications with employer personnel inconsistent with prudent driver supervision by a motor carrier regarding fatigue management.
Parties opposing forensic download of a cell phone may assert claim of personal privacy. However, where the cell phone user killed someone, that fact may outweigh personal privacy. A trial court judge would be justified in ordering the download subject to a protective order limiting delicate personal information to use in the case after in camera review by the court.
THIS STATE OF GEORGIA RECOGNIZES THE COMLEXITY OF LEGITIMACY AND HOW IT CAN IMPACT FREEDOM IS IT IS SPOOFED BY SOMEONE AND LEAD TO IMPROPER PROSECUTION
(Rodriguez v. State (2012) 128 Nev. Adv. Op. 14, [273 P.3d 845].)
After a seven-day jury trial, Kevin Rodriguez was found guilty of multiple criminal counts. Rodriquez appealed, arguing that the district court erred
(1) in overruling his objection to the admission of twelve text messages because the State failed to authenticate the messages and the messages constituted inadmissible hearsay, and
(2) in overruling his objection to the admission of DNA non-exclusion evidence because the evidence was irrelevant without supporting statistical data.
The Supreme Court affirmed, holding that the district court
(1) abused its discretion in admitting ten of the twelve text messages because the State failed to present sufficient evidence corroborating Appellant’s identity as the person who sent the ten messages,but the error was harmless; and
(2) did not abuse its discretion by admitting the relevant DNA non-exclusion evidence because, so long as it is relevant, DNA non-exclusion evidence is admissible because any danger of unfair prejudice or of misleading the jury is substantially outweighed by the defendant’s ability to cross-examine or offer expert witness evidence as to probative value.
This is yet another STATE SUPREME of NEVADA that clearly understands how text can be manipulated
Federal Rules for E-Mail & Text Message Evidence in Litigation
Many computer and electronic discovery issues are covered by the Federal Rules of Civil Procedure. However, it is also vital to check state and local rules of civil procedure. Below are various applicable Federal Rules of Civil Procedure:
Federal Rules of Civil Procedure
Fed. R. Civ. P. 1001(1) – Writings and recordings include computers and photographic systems.
Fed. R. Civ. P. 26(a)(1)(C)– Obligates parties to provide opponents with copies of or descriptions of documents, data compilations, and tangible things in a party’s possession, custody, or control.
Fed. R. Civ. P. 34 – Permits a party to serve on another party a request to produce data compilations (subpoena). This can include word processing files, spreadsheet files, investment data or databases, calendars, browser histories, contact lists, digital photographs, email, and social media. These and other miscellaneous information can be found on hard drives, floppy disks, optical disks, flash drives, network storage, remote storage, cell and smartphones and virtually any electronic source.
Missouri Court Rules
In Missouri, there is not a lot of guidance provided in our Rules of Civil
Procedure. However, Rule 58.01(a) allows for the inspection and production of documents, which would seem to broadly cover email and text message evidence. Rule 58.01 states the following:
(a) Scope. Any party may serve on any other party a request to:
(1) Produce and permit the party making the request, or someone acting on the requesting party’s behalf, to inspect and copy any designated documents (including writings, drawings, graphs, charts, photographs, phonograph records, electronic records, and other data compilations from which information can be obtained, translated, if necessary, by the requesting party through detection devices into reasonably usable form) or to inspect and copy, test, or sample any tangible things that constitute or contain matters within the scope of Rule 56.01(b) and that are in the possession, custody or control of the party upon whom the request is served; (emphasis added).
Ultimately, this means that litigants certainly can and should where relevant
request text and email evidence through the use of a Request for Production. It is certainly appropriate as well to inquire about text and email evidence through written Interrogatories. Further, a properly obtained text or email could be attached to a Request for Admission where the other party is asked to admit or deny the authenticity of the communication. It is certainly possible as well to make a request pursuant to Rule 58.01 or Federal Rule of Civil Procedure 34 for a forensic computer expert to inspect the hard drive of a computer, smartphone or tablet for relevant text or email evidence (provided that safeguards are put into play, where appropriate, for the protection of privileged and confidential communication through a special master or otherwise).
The use of email by opposing spouses falls within the interplay of wiretapping and electronic stored communications laws, and consequently, courts have had some difficulty in determining which laws, if any, apply. The predominant approach seems to be that emails prior to being sent or once received do not fall within wiretapping statute.
Take for example a case from the North Carolina Court of Appeals, Evans v. Evans, where sexually explicit emails offered by the husband in a divorce action did not violate ECPA where interception of emails was not contemporaneous with transmission.The emails were recovered from the hard drive of the family computer.
However, one Florida Court has concluded that spyware-capturing emails in a family law case did violate ECPA and admission of these emails was within the discretion of trial court.In this case, the court granted an injunction against using or disclosing the information gained.
Most spyware/keystroke capture programs remain legal, as long as they are not capturing contemporaneous transmission of communication (outside of Florida). It is not, however, wise to advise a client to use these because the law on the topic is vague. You can counsel your client to search for spyware planted by the opposing party, but often such programs are not really there.
In Gurevich v. Gurevich, a wife sought to introduce as evidence emails she obtained from her estranged husband’s email account, in a divorce proceeding.The wife contends that the husband gave her the password and never revoked her from accessing his email account.The court references CPLR 4506 Penal Law section 250.05, which states that “[a] person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.”The court took the position that even if the husband’s facts were true, the wife may have unlawfully retrieved information from his computer but there was no interception, which does not violate CPLR 4506.The emails were admissible at trial as long as the email did not violate the attorney-client privilege.
In White v. White, the wife hired a computer expert to find and copy her husband’s e-mails that were stored on the hard drive of the computer in the family home.The court held that the wife did not violate the SCA, because it determined the e-mail was not in electronic storage when it was accessed because the computer hard drive was not electronic storage.They also determined that the access was not without authorization.
With further regard to the discovery of emails, subpoenaing internet service providers will typically only generate the sender and recipient of a message. ISP’s, like cell phone providers, often delete this information quickly. However, certain service providers retain the data. Thus, it may be worth the attempt.
Further, it is vitally important that any email evidence is obtained in an appropriate and ethical manner. In, In re: Joel B. Eisenstein, which was a litigated divorce, an attorney received emails contained privileged and confidential information after his client hacked into the opposing parties’ personal email account without permission.In particular, Husband obtained and delivered to his attorney Wife’s most current payroll documents and a list of direct examination questions e-mailed to her in preparation for trial.Attorney did not “immediately disclose the receipt of the information to opposing counsel,” but instead improperly obtained payroll information during a pre-trial settlement conference.Attorney also sent a “[t]hreatening” email to opposing counsel to “avoid an ethics complaint.”The OCDC filed an Information charging the attorney with violating Rules 4-4.4(a) for using methods of obtaining evidence in violation of the rights of a third person; 4-8.4(c) and (d) for reviewing and using improperly obtained evidence; and 4-3.4(a) for unlawfully concealing a document having evidentiary value.The attorney admitted that he had viewed the information and that he did not immediately disclose his receipt of this information to the opposing party.The Missouri Supreme Court held that this was misconduct warranted such suspension of his law license, under Standards 6.1 and 6.12., for a minimum period of six months.
Email Messages and Chains
An e-mail often has attached to it the email or series of emails to which it is responding, creating an email “chain,” also known as a “string” or “thread.” Some courts have found that each email in a chain is a separate communication, subject to separate authentication and admissibility requirements. A lawyer should thus be prepared to authenticate every step of a chain.
Most email systems, for instance, allow a person forwarding an email to edit the message being forwarded. Such alteration would not be discernible to the recipient. Emails are also more prone to a kind of hearsay-within-hearsay problem: an “email chain” attaches to an email every email that came before it in a discussion. It isn’t enough to get the most recent email into evidence when that email attaches a string of previous emails. All of the prior emails may need to be separately authenticated and found admissible.
A court might deem attachments to authenticated emails are themselves authenticated. However, it is important to not take this for granted at the same time. In Madison Holdings, LLC v. Punch Int’l, Plaintiffs objected to documents attached to Maes’ executed declaration filed on June 30, 2008.Specifically, Plaintiffs objected to an email from Vandekerckhove to Maes dated July 14, 2004, a certified translation of the email, and two marked-up drafts of the APA, which were attachments to the email.Although these documents were not originally attached to Maes’ unexecuted declaration when it was first filed on June 13, 2008, the Court, in its discretion, allowed them.Defendants contend that Maes discovered, upon final review of the materials, that these documents were missing and, as such, produced them when he executed the declaration.Additionally, Plaintiffs contended that Defendants failed to properly authenticate the email attachments. The Court, however, disagreed. These documents were attachments to an email that was authenticated by Maes’ declaration. Accordingly, Plaintiffs objections were overruled.
Images and photos are often attached to email and text communication and can present admissibility challenges. Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony. When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed so long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying. In these situations, it is generally not necessary that the authenticating witness be the same as the photographer or as a competent person who observed the making of the photograph.Videos are typically authenticated in the same manner as a still photograph.I will illustrate some portions of this discussion using a series of decisions by the Alaska Supreme Court whose evidentiary rules and interpretations typically closely follow majority federal views.
Under Evidence Rules 1001 through 1004, an original document (including a photograph) is required to prove the truth of the facts for which any document is offered. However, over many years, the definition of an original has been greatly expanded, particularly with regard to electronically stored information, and the requirement for an original is honored more in the breach than to the letter. Indeed, duplicates, including electronically made prints or digitally identical electronic file duplicates, are typically admissible to the same degree as an original document unless admitting the duplicate would prove inaccurate or unfair.
Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair. Generally, a trial courts admission or exclusion of proffered photographs is reviewed under an abuse of discretion standard. Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of facts evaluation of non-demeanor evidence like photographs (as contrasted with live witness testimony) is theoretically subject to a less deferential standard of appellate review, but this more stringent approach is often not strictly applied. However, when photographs are to be used as the basis for expert witness testimony or to actually prove the existence of an allegedly depicted condition, then they will be held to a higher standard and you will need to be much more cognizant of subtle technical and photographic parameters.
Admissibility of photographs varies, depending upon the evidentiary context and the purpose for which a photograph is offered. Courts are usually willing to tolerate some inaccuracies in a photograph so long as these are explained to the trier of fact so that they may be taken into account. However, where a photograph is used as a basis for establishing critical ultimate facts or as the basis for expert testimony, courts are less willing to overlook major gaps. For example, the Alaska Supreme Court, in Kaps Transport, Inc. v. Henry, stated the majority rule:
That there are inaccuracies or defects in the photograph does not necessarily render it inadmissible as long as there is an explanation of these imperfections so that the jury is not misled.
However, in Kaps, the Alaska Supreme Court excluded the photograph in question because the defendant’s accident reconstruction expert was attempting to use the photograph, in conjunction with a reconstructive technique known as perspective analysis, to establish how far across the highway centerline the Plaintiff had alleged strayed. In order to use a photograph as a basis for perspective analysis reconstruction, the focal length used to take the photograph and the conditions under which the photograph was taken must be known with a substantial degree of precision, which the Defendant could not show. In this case, the photograph was to be used to provide actual data about the accident scene rather than merely illustrating the area. Hence, it was subject to a more rigorous authentication process which it ultimately failed.
Similarly, where a photograph is offered to prove that some condition did not exist, a court will look closely at the time frame when a photograph was purportedly taken. but still use a common-sense case by case analysis. For example, if a photograph is offered of criminal defendants’ hands purporting to show that there was no gunshot residue, and then the offering party must establish that the photograph was taken at a time when gunshot residue would still be apparent. Absent that showing, the photograph may not be admitted. On the other hand, where direct evidence of a condition provided by an otherwise authenticated photograph is only one link in a logical fact structure, the photograph will likely be admitted to prove the depicted condition.
In cases where there is sufficient countervailing testimony, the admission of photographs with a shaky time frame may be harmless error. For example, the Alaska Supreme Court refused to reverse a verdict despite the trial courts admission into evidence of the defendant highway departments arguably inaccurate photographs that purported to show that an accident site was well-sanded despite the Plaintiffs contrary contentions. The time frame when these photographs were taken, relative to the time of the accident, was never precisely established but was sufficient contrary testimonial evidence by the investigating State Troopers actually at the accident establishing that photographs were inaccurate and that the road was poorly sanded. Hence, admitting these allegedly misleading photographs with an imprecise time frame was harmless error.
Video and Audio
Videos and photos can also often be attached to email and text communication and can, likewise, present admissibility challenges. One of the questions we are asked more often than any other is “can you tell me if this audio or video recording has been edited?” It is always best to preserve the original recording to remove all doubt about the genuineness of the recording. In other words, the original evidence is only original if it has not been copied or cloned for analysis.
With today’s advanced audio and video editing software being readily available, it is becoming easier and easier to edit or tamper with forensic evidence. Establishing the authenticity of audio or video is extremely important when presenting admissible evidence to the court. Primeau Forensics’ examiners continue their education yearly in both audio and video forensics.
Audio authentication process:
(1) Evidence marking for later identification by the forensic expert;
(2) Physical inspection of the evidence for specific characteristics that are noted by the expert;
(3) Digital data imaging and playback optimization;
(4) Critical listening to the audio for auditory anomalies;
(5) High-resolution waveform analysis, visual inspection of sound wave formation;
(6) Narrowband spectrum analysis;
(7) Spectrographic analysis;
(8) Digital data analysis;
(9) Miscellaneous analysis based on the investigation thus far;
(10) Work notes and work product; and
(11) Creating a forensic report.
Video authentication has similarities to audio authentication in that it is always best to preserve the original recording to remove all doubt about genuineness. When the original recording is not available, the video forensic expert has to investigate several aspects of the video recording, including the metadata and hex information, to determine if a video recording has been edited. Much of the video authentication process is scientific. The video forensic expert not only investigates the elements of the video recording itself, but also investigates the way the video recording surfaced, how it was created and the type of equipment that was used to create the video recording in question.
Video authentication process:
(1) Establish that of the quality of the recording in question is acceptable and workable;
(2) Evidence marking for later identification by the forensic expert;
(3) Physical inspection of the evidence for specific characteristics that are noted by the expert;
(4) Digital data imaging and playback optimization;
(5) Examine the electronically recorded information on the digital or analogue video signal;
(6) Vector and Waveform scope analysis to detect anomalies;
(7) Miscellaneous analysis based on the investigation thus far;
(8) Work notes and work product; and
(9) Creating a forensic report.
Cell Phones and Text Messages
In the realm of cell phones and tablets lurk two significant federal statutes: Title III of the Omnibus Crime Control Act 1968-2522 and the Electronic Communications Privacy Act of 1986. Together, they prohibit interception of oral and electronic communication without the consent of at least one party to the communication. These apply to traditional telephones, wireless phones, and cell phones. As a practical note, secretly recorded oral communications are almost always excluded at trial, whereas electronic communications are almost never automatically excluded. For example, in Conner v. Tate, a woman had a cause of action against her lover’s wife who was intercepting phone conversations and recording voicemail messages.
The most common application for cell phones in a divorce matter is to subpoena the carrier for itemized billing, but that is changing. Text messages or Short Message Service (SMS) messages may be worth tracking down because a lot may be said in the 224 characters that some phones now allow. SMS messages may also transmit photos, sounds, and videos. As many people now communicate far more frequently through text message than phone calls, these may provide an excellent source of information when it comes to proving the behavior of the opposing party.
Outside of intercepting telephone conversations or voicemails, smartphone data and tablets are akin to a computer.
Subpoenaing Cell Phone and Email Records
Typically, subpoenaing cell phone records through providers is much easier than subpoenaing social media or email providers. This is because unlike social media websites, cell phone providers, at least more likely than not, do business in your state. Therefore, you simply serve a subpoena on a registered agent if they have one within the state. If they do not have a registered agent, physically serve the subpoena on a company store. Like any subpoena, it must be calculated to produce relevant evidence, and remember, if you decide to subpoena the provider, you are unlikely to receive the content of any text message conversations. If text messages or emails are what you seek, you are likely better off trying to get them from the opposing party via appropriate discovery mechanisms. However, you might be able to subpoena email records from a business located in your state.
The Stored Communications Act (SCA) imposes different levels of restrictions and protections, depending on whether the service provider at issue is providing electronic communication services or remote computing services.An “electronic communication service” means any service which provides to users thereof the ability to send or receive wire or electronic communications.And, with certain exceptions, the SCA prohibits “a person or entity providing an electronic communication service to the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.”For this restriction to apply, it must be in “electronic storage,” and it is limited to the following scenarios:
Any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and
Any storage of such communication by an electronic communication service for purposes of backup protection of such communication.
Thus, the SCA only prohibits an electronic communications service from knowingly divulging communications that are either in temporary storage (such as a message waiting to be delivered) or kept for the purposes of backup protection.
On the other hand, the restrictions on “remote computing service providers,” are much broader and not limited to communications kept in temporary storage or for backup purposes.The Act defines “remote computing services” as a service which provides the public with computer storage or processing services by means of an electronic communications system.The SCA imposes the following restriction on such services:
A person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service–
solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing.
Several courts disagree when to classify certain types of communications with respect to these two categories.As a general rule of thumb, however, it is safe to assume that if a message has not been opened by its recipient, it operates as part of an electronic communication service.If the recipient has opened and retained the message, however, it operates as a remote computing service.
Thus, in order to work with phone companies (and social media companies), you should always first check that company’s website and/or terms of service to understand their approach to responding to third-party discovery requests.Depending on a company’s terms of service and the extent of SCA protection, a service provider may be able to quash even a subpoena for relevant information. Therefore, it is best to try and first procure voluntary consent, since the SCA stipulates that a service provider may divulge communications where the originator or recipient of the communication gives their consent.Notice that the consent of the originator or recipient is required-meaning if consent is denied from one, you may be able to procure it from the other. Once this consent is obtained, there should be no trouble in procuring the relevant data from the service provider. Otherwise, attempt to seek a court order compelling the consent or a subpoena.
Keep in mind that negotiating for consent takes time and that digital information may be lost before consent can be obtained.Therefore, it is important you put the service provider on notice that you will be seeking their voluntary or compelled consent to obtain the sought-after information and request that they preserve that information for the purposes of litigation.Afterward, follow up with them and seek assurance that the information is being preserved, and offer to compensate them for any reasonable expenses incurred in preserving that information.Note that most jurisdictions hold that such a request does not create a real duty in a third-party to preserve any information.That is why it is extra important that you offer the service provider as much accommodation as you can afford to ensure their cooperation. One way around would be to obtain a preservation subpoena-but that would require that your court have jurisdiction over the non-party.However, the jurisdictional requirement harshly limits the usefulness of this strategy.
Once a subpoena has been issued, perhaps the most common defense is that it violates the rights to privacy. In State v. Clampitt,it was held that individuals have a reasonable expectation of privacy in their text messages and anything else on their phones including emails. Unlawful access to cell logs or text messages breaches that right to privacy under the Fourth Amendment, and that getting such records requires a search warrant.In this case, the police sought to get text message logs via investigative subpoenas that did not specify which particular recipient messages were needed, and which were extended each time the time period specified lapsed.This meant in effect police went through his all incoming and outgoing text messages searching for an admission or something to use against him, and if they found none, applied for an extension of the dates in the hope of getting such information.This was held to be a violation of, inter alia, his Fourth Amendment rights.
Consistent also with the ruling in Clampitt is United States v. Warshak,which spoke specifically on email messages, and held emails were similar to telephone calls and letters and, therefore, require the same protections traditionally afforded to telephone and letters under the Fourth Amendment. Third parties, such as service providers who have the capacity to monitor these communications are not compelled to hand over email and text messages without a warrant showing probable cause.
Admissibility of Email and Text Messages
Generally, courts have a broad discretion on ruling on admission or exclusion of any evidence at trial including email and text messages. Electronic messages, particularly emails give rise to the difficulty of authenticating their actual author; even if they have been sent from one’s email address. This is because it is possible that anyone can send an email from someone else’s email address. Additional proof is therefore needed to establish authorship.
In Missouri, foundation requirements for the admissibility of electronic messages were laid out in State v. Harris.The court stated that there should not be assumed authenticity of the origin of the message, based on either ownership or possession of the phone.The standard is this:
[T]he proponent of such evidence must present some proof that the message[s] were actually authored by the person who allegedly sent them.
This rule was also applied in State v. Franciswhere the court examined the admissibility of non-testifying third-party text messages sent to Appellants phone, and text messages sent allegedly by the Appellant from that phone. The Appeals Court held there must be evidence that the messages were actually authored by the person alleged to have sent them.This includes admissions by the person who sent them or circumstantial evidence such as testimony by the recipient that they have in the past received messages or calls from the alleged author from that number.There could also be something which shows the author wrote the message, such as a personalized signature.Mere ownership of the phone or possession, does not presume authorship of all outgoing messages.Further, for non-testifying third party texts (incoming texts), which are ordinarily regarded as hearsay, to be admissible, they must fall under any identified exception to the hearsay rule.Such evidence is also only admissible to give contextual meaning to the reply.
The Missouri Court of Appeals, Eastern District in T.R.P v. B.B., recently (June 2018) confirmed the foundational requirements as stated in Harrison the authorship of the message, and highlighted that evidence of authorship can be circumstantial and need not be onerous. In this case, Respondent testified that the Appellant in addition to sending text messages from that number had also previously called and identified himself and this was enough to determine that Appellant had indeed sent the text message.
In What Form to Submit the Data
Recently, courts have not had great difficulty in accepting the fact that a printout or a screen shot is an accurate representation of various online communications. In United States v. Catraban,the defendant contended that the computer printouts used against him were inaccurate, and he was able to show the inaccuracies in the data. Despite this, the court concluded the discrepancies merely went to the weight of the evidence as opposed to the issue of authentication.One court has even stated that the computer printouts “have a prima facie aura of reliability.”Increasingly, the only bar to admission of ESI is identifying the author and/or finding the applicable hearsay exceptions.
Similarly, in United States v. Tank, it was held that chat room transcripts and printouts, much like e-mails, could be authenticated by the testimony of one of the participants in the online chat.However, the level of proof to authenticate ESI varies from jurisdiction to jurisdiction. In People v. Charlery,there was a detective who retrieved and printed Hotmail messages. He testified as to the process of retrieval and this satisfied the authenticity requirement.Other jurisdictions will require more strenuous proof on the reliability of the computer processing system. Some jurisdictions have allowed distinctive characteristics to authenticate ESI, such as profile pictures on social media accounts.
Rules of Evidence
A common objection to ESI evidence is found under Fed. R. Evid. 901 that the material is not authentic. The attorney should then proceed to various authentication techniques. These techniques include asking the owner or creator of the account if they sent the questioned content under Fed. R. Evid. 901(b)(1); formulating requests for admission with printout of the desired communication attached; third, you can bring in an expert to testify under 901(b)(3) or maybe even 901(b)(0); fourth, you can use distinctive characteristics under 901(b)(4); and finally, you could potentially use conditional relevancy under Fed. R. Evid. 104(a) and (b). Until there is a commonly accepted method of authenticating electronic evidence, the practitioner should be prepared to meet the most exacting standards.
Specifically, e-mails can be authenticated by an admission secured by the author or the sender of the communication that they drafted or sent the communication. It will be given more weight to authenticity if a recipient or non-recipient of the communication had knowledge of it. Additionally, a witness with the knowledge of how the communication carrier sends and receives the information could help authenticate it, as well as information about how it might be stored.
Chat room communications or transcripts may be authenticated if the proponent demonstrates that: (1) the alleged sender had access to the appropriate computer; (2) the chats were conducted at the same time as the person in question admitted to communicate; (3) the chats were being conducted using a screen name created by the person in question; and (4) the content of the chats were similar to what the person in question admitted.
In Campbell v. State,the court upheld the admission and authentication of Facebook messages in a domestic assault case. The court asserted that Facebook presents an authentication concern that is twofold.First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate.The second concern is that any person may gain access to another person’s account by obtaining the user’s name and password.The person viewing the profile cannot be certain that the author is, in fact, the profile owner.However, the most appropriate method for authenticating electronic evidence, as with any kind of evidence, will often depend on the nature of the evidence and the circumstances of the particular case.The appellate court held that the contents of the Facebook messages provide circumstantial evidence supporting the trial court’s ruling.
In United States v. Lanzon,the court upheld the admission of instant messaging transcripts with the defendant and an undercover agent. The defendant argued that copying the instant messaging conversations into a word document altered the conversation such that they could not be authenticated.The court rejected this argument under Fed. R. Evid. 901(b)(1) stating that the proponent need only to present enough evidence to make out a prima facie case that the proffered evidence is what it purports to be.
In State of Hawaii v. Espiritu, the court considered text messages to be a ‘writing’ under Fed. R. Evid. 1002. The court found that the original messages were lost or destroyed.Nevertheless, the court concluded that the text messages were admissible via the complainant’s testimony under the state equivalent of Fed. R. Evid. 1004, finding that 1004 is ‘particularly suited for electronic evidence’ because of the many ways it can be deleted or lost.Fed. R. Evid. 1004 states that an original is not necessary and “other evidence of the content of a writing, recording, or photograph is admissible if all the originals are lost or destroyed, and not by the proponent acting in bad faith.”
New Federal Rules of Evidence
Given the unpredictability and the wide variety of results in judicial decisions concerning authenticating ESI, there have been new rules that have been adopted to supplement the rules as of December 1, 2017. Rule 902 (13) addresses some of the concerns that many have about the current rules and how they address modern day evidence such as ESI.The new Rule 902 (13) addresses Certified Records Generated by an Electronic Process or System.The specific language of the rule states:
Rule 902(13): Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
There is also a new Rule 902 (14) that has been implemented. Rule 902 (14) discusses Certified Copies of Electronic Devices, Storage Media, or Files.The specific language of the new rule states that:
Rule 902(14): Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).
Without a doubt, the addition of these two rules potentially allow for a more uniformed approach to authenticating electronic evidence and smoother trials where: (a) experts are utilized; and (b) there is no dispute over the authenticity of the records. There is the potential concern, however, that there is too much overlap with existing rules. Specifically, that the new rules 902(13) and 902 (14) may create problems with other provisions of 902, 901, 104 (a) and 104 (b).
Dealing with Objections
When there has been an objection to admissibility of a text message, the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission; thus, authenticating a text message or e-mail may be done is much the same way as authenticating a telephone call.An e-mail may be authenticated by circumstantial evidence that allows the finder of fact to determine that the e-mail is what the proponent claims it to be.
The easiest way to authenticate the data is under FRE 901(b)(1), which allows a witness with personal knowledge to authenticate that the data is what it is claimed to be. One simple way to comply with this standard is to introduce the electronic document or evidence during a deposition and have the creator or recipient of the ESI confirm that it is genuine. This will be the strongest and simplest way to prove that your ESI evidence was not manipulated.
The possibility of alternation does not and cannot be the basis for excluding ESI as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population and is of particular importance in the professional world. A party is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are submitted to a jury. In United States v. Safavian, the court found that absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done. The take away from Safavian is that the court in most cases will recognize that manipulation is possible, but there is still the evidence that is required to show that it was. And even then, if it is not overly, convincing, courts have said that information goes to the weight of the evidence, to be considered by the trier of fact.
United States v. Lanzon, 639 F.3d 1293 (11th Cir. 2011).
Id. at 1297.
Id. at 1301.
State of Hawaii v. Espiritu, 176 P.3d 885 (Haw. 2008).
Id. at 892.
Fed. R. Evid. 902(13)
Fed. R. Evid. 902(14)
State v. Koch, 334 P.3d 280 (Idaho 2014).
Zittler, Jay M. Authentication of Electronically Stored Evidence, Including Text Messages and E-mail. 34 A.L.R.6th 253, § 3.5. (Originally published in 2008)(see Donati v. State, 84 A.3d 156 (Md. Ct. Spec. App. 2014).
United States v. Safavian, 435 F. Supp. 2d 36, 40 (D.D.C. 2006), rev’d on other grounds, 528 F.3d 957 (D.C. Cir. 2008).
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