Stored Communication Act (SCA) & Admissibility of Text Messages

A Defendant convicted of murder and attempted murder challenged the admission of three text messages at his trial. The Supreme Court of Arkansas found no error in admitting the text messages.

Texting-Hand

The Stored Communication Act

The Defendant challenged the admission of the text message content based on the Stored Communication Act. The SCA challenge included three separate arguments:

The State incorrectly used a prosecutor’s subpoena to obtain the text messages rather than a search warrant, as required by the SCA;

The Government’s acquisition of the substance of the text messages via subpoena violated his constitutional rights under the Fourth Amendment to the United States Constitution;

The State conducted an illegal search under the Arkansas Constitution.

Gulley, at *3.

The State argued the Defendant failed to preserve his claims under the SCA and State Constitution for appellate review. As to the 4th Amendment argument, the State claimed the argument was without merit because the text messages were procured by prosecutor’s subpoena pursuant to a statutory power granted to state prosecutors without any allegations of abuse of power. Gulley, at *4.

The Court agreed the Defendant failed to preserve the Stored Communication Act and the State illegal-search arguments for appeal. Gulley, at *4.

Admissibility of Text Messages

The Defendant challenged the admissibility of the text messages on hearsay and authentication grounds.

The hearsay argument quickly failed, because the issue preserved from the trial was another sender’s text messages on hearsay grounds, not from the Defendant’s text messages. As such, the Defendant could not change arguments on appeal, thus resulting in the hearsay argument being barred from review. Gulley, at *17-18.

However, there was enough of a challenge as to whether the Defendant sent the messages to preserve an authentication argument.

Arkansas Rule of Evidence 901(a) states that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” Gulley, at *18. Moreover, “the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate evidence, and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence.” Gulley, at *19, citing Ark.R. Evid. 901(b)(1) &(4).

The Court reviewed each text message and held each was properly authentication by witnesses with knowledge, plus other circumstances showing authenticity. Gulley, at *19.

The first text message was properly admitted based on the testimony of three witnesses and the contents of the message, which demonstrated sufficient facts to authenticate the text message. Gulley, at *19-20.

The second message stated, “I’m getting dropped off over there.” One witness testified that the phone number was assigned to the Defendant and another witness testified to seeing the Defendant dropped off near the victim’s apartment before the murder. Based on the testimony and the timing of the message to the victim’s murder, the Court held authentication was proper. Gulley, at *20-21.

The third text message focused on the content of the message and witness testimony. The message included in part, “Dat’s okay too, I got a car out of the deal…” Gulley, at *21.

The witness testified that the Defendant had called her from the phone number that also sent her the text messages. Moreover, the witness knew the victim assisted the Defendant in financing a car, which was evidenced in the statement, “I got a car out of the deal.”

The Court held all the evidence was sufficient to authenticate the text messages were sent from the Defendant and each was properly admitted at trial. Gulley, at *21-22.

Bow Tie Thoughts

How we live surfaces in how we litigate. Additionally, while civil cases have addressed many eDiscovery issues, criminal cases have addressed admissibility issues of ESI.

Here is a very important take away from admissibility: the same rules of evidence apply to ESI just as they have applied to everything else for 200 years.

Text messages are one of the most common forms of ESI today. For example, teens are estimated to send 60 text messages a day (boys around 50; older girls around 100). Put in other terms, approximately 1.5 trillion text messages were sent in 2009. That number will only go up as more people have smartphones.

What does this mean for civil and criminal litigation? First, the ESI must be preserved. There are many technologies that can preserve text messages, from a collection directly off the phone, to texts backed up to a computer, to screen shots, to photos of the phone, to from the service provider. Second, attorneys cannot forget to request the ESI if text messages are relevant to a case. Third, the same rules of admissibility apply, just as they have applied for the last 200 years.

PhotoCop & The Red Light of Admissibility

Are photos and data from a red light camera hearsay?  The answer is “no” according to the Court of Appeal in People v Goldsmith and conflicts with People v. Borzakian, discussed on the blog Developments in California Trial Practice.

Goldsmith also addressed whether the admission of computer-generated photographs and a video of the traffic violation were unsupported by evidence that the computer operated properly. People v. Goldsmith, 203 Cal. App. 4th 1515, 1518 (Cal. App. 2d Dist. 2012).

The California Supreme Court has held that that “our 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.’ ” Goldsmith, at *1523.

California Courts understand there might be errors with computer records; however, the witness offering the records can be questioned on cross-examination about any errors. Goldsmith, at *1523.

As the Court explained:

Evidence Code sections 1552, subdivision (a) and 1553 establish a presumption that printed representations of computer information and of images stored on a video or digital medium are accurate representations of the computer information and images they purport to represent. Thus the images and information (including the date, time, and location of the violation and how long the light had been red when each photograph was taken) imprinted on the photographs are presumed to accurately represent the digital data in the computer. Goldsmith produced no evidence that would support a finding of the nonexistence of this presumed fact. Therefore the trier of fact was required to assume the existence of the presumed fact. (Evid. Code, § 604.)

Goldsmith, at *1522-1523.

As such, the California Court of Appeal found there was no error in admitting the computer-generated photos from the red light camera, because there was no evidence offered to show the red-light camera was not functioning correctly or issues of errors raised on the cross-examination of the police officer offering the evidence. Goldsmith, at *1524.

Is the PhotoCop Testifying?

The Defendant claimed the photos and data imprinted on them were hearsay. Moreover, the Defendant claimed the State did not prove the business records or public records exceptions to the hearsay rule applied to the computer-generated reports. Goldsmith, at *1525.

The Court of Appeal did not agree, holding the photos and video were not hearsay, thus the hearsay rule did not apply. Goldsmith, at *1525.

Pursuant to California Evidence Code section 1200(a), ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” Pursuant to California Evidence Code section 1200(b), hearsay evidence is inadmissible, except as provided by law. Goldsmith, at *1525.

California Evidence Code section 175 defines a “statement” as being made by a “person,” which by definition does not include a computer. As the Court explained:

The Evidence Code does not contemplate that a machine can make a statement, and a printout of results of a computer’s internal operations is not a “statement” constituting hearsay evidence.

The hearsay rule stems from the requirement that testimony shall be tested by cross-examination, which can best expose possible deficiencies, suppressions, sources of error, and untrustworthiness that may lie beneath a witness’s bare, untested assertions; the hearsay rule should exclude testimony which cannot be tested by such cross-examination. It is not possible, however, to cross-examine computer-generated photographs or videos. (Nazary, supra, 191 Cal.App.4th at pp. 754–755.)  As “demonstrative evidence,” photographs and videos are not testimony subject to cross-examination, and are not hearsay. Thus the hearsay rule did not require their exclusion from evidence.

Goldsmith, at *1525-1526.

The Court specifically stated they disagreed with People v. Borzakian (2012) 203 Cal.App.4th 525, because the Borzakian Court did not cite the rule that “that testimony of the accuracy, maintenance, and reliability of computer records is not required as a prerequisite to their admission, and did not agree that computer-generated photographs are not hearsay evidence.” Goldsmith, at *1526.

Bow Tie Thoughts

The Rules of Evidence are creatures of statute to ensure the trustworthiness of legal proceedings, burdens of proof and accurate factfinding (See, Evidence, 3rd Edition, Mueller & Kirkpstrick, Aspen Publishers). Without the Rules of Evidence, proceedings could turn into the Wild West.

Electronically stored information is still “new” to many attorneys, despite social media and smartphones being a societal norm. Many attorneys have significant trouble with ESI in discovery and even more difficulties with the Rules of Evidence.

Computers do not make statements; computers produce data. Human beings make statements and are the ones who program computers, maintain the machines and set parameters for producing reports. If there is a challenge to the evidence, it is best explored either on cross-examination of the witness offering the computer-generated report. Another option is to offer evidence of errors with the computer-generated report with another witness. However, the Rules of Evidence do not require the proffering party to disprove any possible errors as a condition of admissibility if no issue has been raised.

I am presented a webinar on Admissibility of ESI for iConect on March 29, 2012.  If interested in learning more about the Admissibility of ESI from Relevance to Unfair Prejudice, you can view the webinar on the iConect website. The password is Purple.

Email Authentication: More Than Reading an Email

A Plaintiff sued after being a fraud victim in a “Nigerian advance fee scheme,” with emails allegedly from the Defendant’s CFO.  The email addresses at issue did not have the domain name of the Defendant, but instead yahoo.com and privatelcientsubs.cjb.net. Jimena v. UBS AG Bank, Inc., 2011 U.S. Dist. LEXIS 68560 (E.D. Cal. June 24, 2011).

The Plaintiff transferred $51,000 in the hopes of getting $19 million a Nigerian bank.  Jimena, at *2.  Litigation followed after the Plaintiff did not get $19 million.

The Defendant moved for summary judgment, claiming the Plaintiff failed to offer admissible evidence, specifically the email messages involving the wire transfers. Jimena, at *7.

The Plaintiff offered an affidavit that discussed how the Plaintiff had personal knowledge of the “emails since I [Plaintiff] read them immediately after I receive them. Since the wire transfer transaction is important to me I take care that records of email are not deleted from the time they were sent to me up to the present time.” Jimena, at *10.

The Court found the Plaintiff’s affidavit was insufficient to authenticate the emails messages with personal knowledge under Federal Rule of Evidence Rule 901(b)(1).  The Court specifically held:

Plaintiff’s affidavit, by itself, is not sufficient authentication of the Standish E-mails. It does not provide any foundation that Plaintiff knows or had any prior communication with Clive Standish. There are no identifying characteristics that provide any foundation for linking the e-mails to Clive Standish. Plaintiff does not include an affidavit or deposition testimony from the purported author, Clive Standish, stating that he wrote the e-mails. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 777 (9th Cir. 2002) (concluding that letters and memoranda were not authenticated because Plaintiff did not submit an affidavit from the author stating that he wrote the letters and memoranda). Plaintiff also does not declare that he witnessed the writing of the Standish E-mails, only that he received them. See id. (“Mirch’s affidavit does not lay a foundation for Exhibit C. Mirch neither wrote the memo nor witnessed Geerhart do so, and he is not familiar with Geerhart’s signature.”). The Standish E-mails are not authenticated through personal knowledge under Rule 901(b)(1).

Jimena, at *11-12.

The Court further noted that the Plaintiff did not offer any deposition testimony of the purported author of the emails.   Jimena, at *11.

The Court ultimately found the following:

Considering the totality of the characteristics, Plaintiff has not laid a sufficient foundation nor evidentiary reliability to justify admission of the Standish E-mails. The Standish E-mails were unsolicited, contain only publicly available, self-serving information, and do not contain any substantive or unique information that supports authenticity.

Jimena, at *17-18.

Bow Tie Thoughts

Electronically stored information has not changed the basic rules of admissibility.  An affidavit that “I read the email” is by itself not enough to authenticate an email message by itself.  Having past experience or familiarity with the sender’s address may help, but offering publically available information likely will not win the admissibility battle.

One strategy of authenticating an email message is to directly question the purported sender in a deposition or have them submit an affidavit.  The questioning traditionally would ask if the witness recognized the exhibit, whether they wrote the email message and when they did so.

Where electronically stored information has changed the game is ensuring that the data was collected correctly, that no underlining metadata was changed and that the ESI was collected in a defensible manner.

I, Hearsay: Computer Generated Reports as Testimony

Is a computer generated printout a statement according to the hearsay rules?  California law says “no.”  People v. Nazary, 2010 Cal. App. LEXIS 2207 (Cal. App. 4th Dist. Dec. 31, 2010)

People v. Nazary is an appeal from an embezzlement conviction.  Part of the evidence offered against the Defendant included computer generated printouts (receipts).  The Defendant opposed the computer generated evidence as hearsay, because the receipts were “offered for its truth to establish that he had stolen money…” Nazary, at *52-53. 

This raises the computer age-old metaphysical issues of whether a computer is a “person” who can make a statement.  To the eternal dismay of science fiction fans, the Court of Appeal did not once invoke Hal 9000 or reference the Outer Limits “I, Robot” trial. 

The Court of Appeals did, however, review the California Rules of Evidence. 

California Evidence Code 1200(a) defines Hearsay as follows:

“[E]vidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”; 

Nazary, at *53. 

A “statement” is defined under California Evidence Code section 225, as follows:

 “(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression”;

Nazary, at *53. 

A “person” is defined under California Evidence Code section 175 as “a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.” Nazary, at *53. 

In the words of the Court of Appeal, the California Evidence code “does not contemplate that a machine can make a statement.” Nazary, at *53.  However, the witnesses who described the computer generated reports, plus how the computer generated the reports, were subject to examination for the jury.  Nazary, at *54-55.

As the Court of Appeal explained, the admissibility issues with the computer generated reports were foundational.  The issue was whether the computer was operated correctly or possible data errors.  These issues could be addressed by the cross-examination of the expert who used the computer system.  Nazary, at *54.

The Court of Appeals found the receipts were machine generated and thus not hearsay.  Nazary, at *54-55. 

The “Hearsay Rule” requires “testimonial assertions shall be subjected to the test of cross-examination.”  Nazary, at *55.   In the words of the Court, there was “no possible scenario” where the computer system could have been cross-examined.  Nazary, at *55. 

However, those who used the computer system to create the receipts were subject to cross-examination.  Nazary, at *55.  The evidence of machine error were presented for the jury, which was all that was required under California law.  Id.  

Bow Tie Thoughts

Computers do not take an oath to tell the truth and testify in court.  One day, we might live in that science fiction world.  Given that one can fly across the United States with an Internet connection in 5 hours is something that would have been science fiction to someone 90 years ago, do not be surprise if our grandchildren live in a world where a computer can testify as to how data was generated.

Authenticating Cell Phone Records

In a negligence case where a plaintiff was the victim of a car crash, the Defendant trucking company attempted to introduce out-of-time third-party custodian affidavits and witnesses on the last day of discovery.  Boling v. Mohawk Indus., 2010 U.S. Dist. LEXIS 75674 (D.S.C. July 27, 2010).

The Court denied the out-of-time affidavits because they prejudiced the Plaintiff.  Boling, at *7-8. 

However, the Court left open the possibility for the cell phone provider custodian to testify if there were admissibility issues.  Boling, at *8. 

The Defendants argued the cell phone witness was identified in response to the Plaintiff’s answer to a request for admission regarding the cell phone records.  While the Plaintiff admitted the authenticity of the text message records, he denied the timing of the text messages.  Boling, at *8-9. 

The Court found that the Plaintiff should have expected the cell phone custodian’s involvement in the case, because the text message records were the subject of discovery.  Boling, at *9-10. 

However, the Court did not give the Defendants an unlimited texting plan.  The witness would be a lay witness governed by the Federal Rules of Evidence.  Moreover, the witness could not testify as to when the Plaintiff sent or received text messages, because that would be expert testimony.  Boling, at *10. 

While the third-party witnesses would be allowed to testify, their testimony would be limited to authenticity issues.  Boling, at *10. 

Bow Tie Thoughts

You are hard pressed to find a party living off the grid without a cell phone of some sort.  Authenticating this ESI may require a third-party witness and sometimes an expert. 

SmartPhones are not the only technology that might require third-party testimony.  People are often “cloud” dependant on email and high-speed internet service providers for our App powered lives.

Parties should be prepared for third-parties to testify as to the admissibility of certain electronically stored information.  Attorneys should consider whether a records-custodian is sufficient, or if the case requires an expert to explain the timing of text messages or explain ISP addresses.

Convicted by Text Message: Overcoming Authentication & Hearsay Objections

A wife was convicted of simple assault on her husband.  Text messages were used in her conviction to show her state of mind.  The Defendant appealed her conviction, claiming the text messages from her phone, the victim’s phone and a photo exhibit of a text message were improperly admitted on foundational and hearsay grounds.  State v. Thompson, 2010 ND 10, P1 (N.D. 2010).

The Supreme Court of North Dakota did not agree with her. 

The Facts: An SMS State of Mind of Assault

Halloween 2008: the Defendant “texted” her husband for money to buy their children Halloween costumes. Thompson, at *P3.  One text message sent at 8:20 am contained threatening and profane language. Id.

After the husband and wife drove the children to school, the Defendant demanded money and refused to get out of the victim’s car.  The victim had to drive to the police department for the Defendant to be removed from the car.  Thompson, at *P3.

Police were called to the Defendant’s house after 11:00 pm that night, finding the victim nursing an injured eye and several blows to the face and back.  The husband was hit several times by the wife in a fight over money.  Thompson, at *P3.

The wife was arrested and convicted for assault. 

Motion in Limine to Exclude Text Messages

The Defendant brought a motion in limine to exclude any testimony or evidence of the text messages.  Thompson, at *P6.  The Defendant claimed the texts were not relevant and inadmissible. Thompson, at *P9.  

Text Messages at Trial

The victim testified at trial about a threatening and profane text message sent the morning of the day he was attacked by the Defendant.  Thompson, at *P7.   The State offered a photo of the text message as a trial exhibit.  Id. 

The Defendant claimed the victim could have sent himself the threatening text from the Defendant’s phone.  Thompson, at *P7.  

Text Messages State of Mind

The trial court allowed the text messages at trial to show the Defendant’s state of mind the day of the attack.  Thompson, at *P11. 

Defendant’s Arguments

The Defendant claimed the State failed to authenticate the text messages. 

The Defendant argued that “text messages are inherently unreliable because of their relative anonymity and can rarely be connected, to a certainty, with a specific author.” Thompson, at *P12. 

Direct Examination of Victim

The husband stated on direct examination that the text messages were from the Defendant.  The victim explained that he stored his wife’s phone number as “Fr: Jen.”  Each text message began with the Defendant’s stored phone number in the victim’s phone.  The text messages were all “signed” with the Defendant’s signature “cuzImJenIcan.”  Thompson, at *P16. 

The Defendant challenged the admission of the text messages at trial as hearsay.  Thompson, at *P16.  The trial court ruled the text messages were “a declaration against interest and therefore not subject to [the] hearsay rule.” Thompson, at *P16.

Rules of Authentication

Authentication is a “condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”  Thompson, at *P21. 

Pursuant to the Federal Rules of Evidence (which in this case mirrored the state rules), the party offering the evidence “must provide proof sufficient for a reasonable juror to find the evidence is what it purports to be. Thompson, at *P21, citing United States v. Hyles, 479 F.3d 958, 968-69 (8th Cir. 2007).

 

Authentication of Electronically Stored Information

The Supreme Court of North Dakota had not addressed text message authentication before and examined other case law where electronically stored information had been authenticated. Thompson, at *P24.  In all of the cases the Supreme Court of North Dakota discussed, circumstantial evidence was used to authenticate electronically stored information.  Thompson, at *P24.

Authentication examples summarized by the Supreme Court of North Dakota  included:

E-mails properly authenticated when they included defendant’s e-mail address, the reply function automatically dialed defendant’s e-mail address as sender, messages contained factual details known to defendant, messages included defendant’s nickname, and messages were followed with phone conversations on same topic. 

United States v. Siddiqui, 235 F.3d 1318, 1322-23 (11th Cir. 2000)

Foundational requirement for chat room conversation established when defendant admitted he used screen name “Cessna” when he participated in recorded conversations, several co-conspirators testified he used that name, and defendant showed up at meeting arranged with person using screen name “Cessna.”

United States v. Tank, 200 F.3d 627, 630-31 (9th Cir. 2000)

Threatening text messages received by victim on cell phone were properly authenticated when circumstantial evidence provided adequate proof message was sent by defendant.

Dickens v. State, 927 A.2d 32, 36-38 (Md. Ct. Spec. App. 2007)

Text messages properly authenticated when telephone employees testified about logistics for text messages and about how particular text messages were stored and received and messages contained sufficient circumstantial evidence the victim was the person who sent and received the messages.

State v. Taylor, 632 S.E.2d 218, 230-31 (N.C. Ct. App. 2006)

Instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances.

In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005)

 All cases quoted from Thompson, at *P24.

Text Message Authentication

The Supreme Court of North Dakota held that the authentication of the text messages were proper.  The trial court was presented evidence from the victim of his knowledge of the Defendant’s cell phone number and her signature on text messages.  This evidence was sufficient under the Evidence Code to authenticate the text messages.  Thompson, at *P26.

Hearsay Challenge

The Supreme Court of North Dakota curtly dealt with the hearsay challenge: A party’s own statements are not hearsay.  Thompson, at *P31.

The Unreliable Text Message Argument

The Supreme Court of North Dakota quickly shot down the arguments that a text message was “unreliable” and could have been sent by the victim.  Thompson, at *P25-26. 

The Court, echoing a Pennsylvania Superior Court that addressed the authentication of instant messages, rejected the “argument that electronic messages are inherently  unreliable because of the messages’ relative anonymity.”  Thompson, at *P25. 

As noted in by the Pennsylvania court in In re F.P., 878 A.2d 91 (Pa. Super. Ct. 2005), paper documents can also be subject to forgery or signature letterhead stolen and used by another.  Id.  As the F.P. court stated:

We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R.E. 901 and Pennsylvania case law. We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.

Thompson, at *P25, citing In re F.P., 878 A.2d 91, 93-95 (Pa. Super. Ct. 2005).

The Supreme Court found no error in the trial court’s finding of the victim’s authentication of the text messages and rejected the argument the text messages were “unreliable.”  Thompson, at *P26. 

Bow Tie Thoughts

State v. Thompson is a thoughtful opinion on the rules of Evidence and authenticating text messages.  The one area that could have been worth exploring was how the text messages were collected.

One of the trial exhibits was a photo of the text message.  Thompson, at *P7.  This certainly is a powerful trial exhibit to show the Defendant’s phone number, the text message and signature line. 

However, was the photo the sole means of preserving the text message?  It is possible the investigating officers just took photos to preserve the evidence after the incident. 

I encourage parties to defensibly preserve relevant electronically stored information using a product like Paraben when dealing with something as transitory as a text message on a cell phone.  Alternatively, if the phone is no longer physically available, the cell phone text message history can also be requested from some service provider (this would depend on whether the service provider was retaining any of the text message history).  While taking a photo of a text message has been done before, it is good for attorneys to realize the different methods of collection and preservation at their disposal.

Exclusion of MySpace Evidence in Gang Related Murder Trial

A Defendant in a gang related murder and assault case sought to introduce evidence of the victim’s sister’s MySpace page to show the victim’s violent nature toward a rival gang; a propensity for violence; and that the victim started the fight that ended in his death.  People v. Williams, 2010 Cal. App. Unpub. LEXIS 1251, at *23 (Cal. App. 2d Dist. Feb. 23, 2010). 

The Court excluded the MySpace profile as evidence. 

The Sister’s MySpace Profile

The victims were brother and sister.  The brother was killed in a gun fight with the Defendants. 

The sister’s Myspace profile contained a series of photos (or video, the opinion is not clear) of the siblings dressed as rival gang members.  The MySpace evidence depicted the brother pretending to punch the sister and her falling to the ground.  Williams, at *23. 

The MySpace evidence was described as a videotape of the profile.  Id.  This implies that a video camera was set to record the profile.  It is also highly possible the profile contained video and it was collected as a video file. 

One of the Defendants tried to use the video to show the victim was violent toward members of the rival gang.  Williams, at *23.  The State objected to the video evidence on both foundational and relevancy grounds.  Id.

The victim’s sister testified on cross-examination that the MySpace profile only contained “a picture of me and my brother, not us taking it as being a gang picture.” Williams, at *23-24. 

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury, Cal Evid Code § 352 (2010)).  Williams, at *24.

The Trial Court explained the evidence did not show any crime taking place.  The Trial Court stated: 

 “[T]his is playacting. It is no different than Marlon Brando shooting the Godfather or something. Would that show a propensity to commit violence? No. So I am not going to allow it. I think it is irrelevant.”

Williams, at *24.

Appealing the MySpace Ruling

The Defendant claimed the exclusion of the MySpace evidence violated his Federal Due Process rights.  Williams, at *24.

The Court of Appeals held that the Trial Court did not abuse its discretion or violate any Constitutional rights in excluding the MySpace evidence.  Williams, at *25.

The Court of Appeals explained the videotape would have been repetitive of testimony and other evidence.  Williams, at *25.  As such, excluding the MySpace evidence of the victim playacting did not violate the Defendant’s Constitutional rights.  Id.

Bow Tie Thoughts

This unreported opinion leaves interesting web-collection questions that are not explored or fully explained in the decision.  While the Prosecutor did question foundational issues in the “videotape” of the MySpace profile, the exact collection methodology is not described.   

It is possible the Defendant actually used a video camera to record someone examining the profile.  It is also highly possible a screen capture tool was used to record the MySpace profile.  This would make sense if there was an embedded video on the profile, thus creating a video exhibit.  The resulting video capture might have then simply been called a “videotape” by the Court, instead of a MPEG file or other digital video file format.

The opinion also illustrates how social networking profiles can find themselves in litigation.  In this case, the Defendant attempted to use the profile as a defense.  There are situations where a social networking profile could be offered for impeachment, party admissions or non-party witness statements.

Attorneys should be aware social networking sites might contain relevant evidence supporting a claim or defense.  If there is relevant evidence, the party offering the evidence needs to address the basic admissibility requirements to authenticate the social networking evidence. 

Conversely, a party cannot simply mine social networking profiles in the hopes of making an opposing party look bad.   Evidence must to be relevant to be admissible.

Brewing Issues in Social Networking Litigation: How to Freak Out Co-Workers and Get Fired

A barista was fired from Starbucks for “inappropriate conduct and threatening violence to Starbucks and its employees.” Mai-Trang Thi Nguyen v. Starbucks Coffee Corp., 2009 U.S. Dist. LEXIS 113461 (N.D. Cal. Dec. 7, 2009). 

The Plaintiff in turn sued for sexual harassment, retaliation, religious discrimination, violations of the California Occupational Safety and Health Act, and the Fair Employment and Housing Act Section 12940(j)(1). Nguyen, at *1.

Starbucks brought a motion for summary judgment because there were “no material issues of fact sufficient” to support her claims. Nguyen, at *1-2.  Federal District Judge Charles Breyer agreed and granted Starbucks summary judgment. 

Part of the evidence that justified Starbuck’s concern for the safety of their employees was a posting the Plaintiff did on MySpace shortly before being terminated.  The posting stated:

Starbucks is in deep [Redacted] with GOD!! I am now completely disenchanted with humans n I have NO MO Energy left 2 deal w/ their negativity. I’ve worked Tirelessly 2 not cause trouble, BUT I will now have 2 to turn 2 my revenge side (GOD’S REVENGE SIDE) 2 teach da world a lesson of stepping on GOD. I thank GOD 4 pot 2 calm down my frustrations n worries or else I will go beserk n shoot everyone . . . Prepare to See Crazy Trang in public eye soon IN UR TELEVISION n other news vehicles. I don’t know when EXACTLY ’cause only GOD knows of our Exact timing in his PERFECTED-CREATED NETWORK (fate!) BUT all I know is I will fight 2 be heard beyond my death.;) N I will not be happy unless I win because I AM GOD N GOD DON’T LOSE.

            Nguyen, at *5-6.

Brewing Issues in Social Networking Litigation

The “Friend Request” of social networking litigation will only continue to brew in civil litigation and criminal law.  Lawyers, clients and experts face several issues on how to collect, preserve and review this electronically stored information.

In the above fact pattern, the easiest option would have been for the Starbucks employee who saw the MySpace post to simply print the page.  The analysis required for admitting a printed copy into evidence would parallel the requirements for authenticating a printed page from a website.  For more on admissibility and authentication of electronically stored information, please look at the CT Summation Whitepaper e-Admissibility.

A party or investigator can also print the suspect profile as a PDF.  Conversely, Adobe Professional has a webpage capture feature which would also be effective.  There are also numerous screen capture tools that can be used to preserve relevant social networking evidence.

Attorneys should be vigilant in understanding how to collect and preserve social networking ESI.  This might require the client immediately preserving the evidence, due to the highly transitory nature of actions on MySpace or Facebook.  Other situations may require a third-party who can testify to the collection methodology deployed to collect a “Tweet” or social networking profile.

An Email State of Mind: Confessions of an Online Fraudaholic

GuiltyA Criminal Defendant maintained an online business that was a shame: Orders were made and money paid, but the items ordered were either not sent or non-conforming goods instead.  This is all fun and games for the Defendant until an undercover FBI agent placed orders in a sting operation. 

The Defendant challenged the admission of customer email messages from the trial as they “were hearsay and that their admission was highly prejudicial and violated the spirit of the Confrontation Clause of the Sixth Amendment.”  United States v. Levy, 2009 U.S. App. LEXIS 14163, 8-9 (4th Cir. Va. June 30, 2009).   The Court did not agree.

Background Facts: Online Business Fraud

An online business owner ran two companies selling women’s fashions.  The Defendant served as the victim’s supplier.  Levy, 1-2. Both online businesses failed because of customer’s complaining they did not receive the ordered merchandise and demanded refunds.  Levy, 2-3.

The Defendant set up her own online business, with a laundry list of people not getting what they ordered for several years.  

Shopping SpreeOne person made several attempts to get her merchandise through the Defendant’s website, which cost the Defendant a transaction fee with each attempt.  The Defendant sent the customer fraudulent documents from a make believe law firm that included a falsified complaint, apparently to scare the victim off.  Levy, 3-4.  

An undercover FBI agent placed an order through the Defendant’s website and true to form, did not get what she ordered.  The FBI eventually searched the Defendant’s house after the FBI orders were never shipped. Levy, 4.

The Government introduced into evidence at trial emails collected from the Defendant’s computer.  The emails were exchanges with angry customers and the Defendant’s replies.  Levy, 5.

The Defendant was convicted of three counts of mail fraud and four counts of wire fraud.  Levy, 5-6.  The Court estimated at least eighty-two victims who suffered $ 168,300.77 in damages.  Id. The Defendant was sentenced to 46 months’ imprisonment and pay $ 168,300.77 in restitution. Levy, 1.

The Defendant’s appealed followed.

Email & Hearsay: The Truth of the Matter Asserted

The Defendant challenged the customer email evidence on appeal as 1) hearsay and 2) the evidence was highly prejudicial and violated the 6th Amendment Confrontation Clause.  Levy, 8-9.

The Court did not agree.  The Court held the email messages were not hearsay, because they were not offered for the truth of the matter asserted.  Levy, 9.

The customer email messages were offered so the Defendant’s party admissions in her email would show the context of the Defendant’s “intent, lack of mistake, and notice.” Levy, 9.

As such, the customer email messages were not hearsay and thusly did not violate the Confrontation Clause.  Levy, 9.

The Defendant’s conviction was upheld, but her sentence was vacated on sentencing grounds and remanded. Levy, 13.

Bow Tie Thoughts

Many of the e-Discovery admissibility examples are coming from criminal cases, since they go to trial more.  As more civil cases go to trial, Courts will likely look to the “e-admissibility” cases from criminal convictions for guidance in authenticating ESI, addressing hearsay and other evidentiary issues.

Admissibility of Text Messages: Challenging Authenticity

A criminal defendant appealing his conviction on ineffective counsel and insufficient evidence to support his convictions challenged text message evidence.  State v. Loye, 2009 Minn. App. Unpub. LEXIS 660, 1 (Minn. Ct. App. 2009).

The Defendant’s key argument at trial was challenging his victim’s credibility as the only witness to his attack upon her.  Loye, 2. Judging by his conviction, this obviously did not work out well for him. 

Texting EvidenceThe Defendant argued the court erred in excluding text messages the victim sent after the assault.  The Defendant claimed these messages were relevant and were not barred as hearsay.  Loye, 3.    

The Court found no error.  Loye, 3.

Trial Procedure & Rules of Evidence

The trial court did allow some text message evidence that the victim “loved” the Defendant.  Loye, 3. 

Instead of offering text messages acquired from a cell phone with a tool such as Paraben, a collection expert who could explain collection methodology or a subpoena to a cell phone service provider to produce text messages, the Defense counsel offered a handwritten transcript of the text messages.  Loye, 4.

There was no one offered to authenticate this handwritten text message transcript.  The Prosecution objected to introducing the trial exhibit.  Loye, 3. 

The Defense successfully used the handwritten transcript to refresh the victim’s recollection and read into the record.  Loye, 4.  The handwritten notes were only admitted as a court exhibit and never went to the jury.

Flashbacks to Trial Advocacy 

Ready to RuleTrial Advocacy and Evidence professors teach law students that “authenticity is a precondition to the admissibility of evidence.” Loye, 4.  

The Court found that the Defendants failed to lay any foundation with the handwritten text message transcript, thus the trial court properly excluded the evidence.  Loye, 4.  This might have been different if the Defendant had offered either the cell phone or a transcript from the cell phone service provider.

 

“If I Can’t Have It, No One Can”

The Defense tried arguing in the alternative that no text message evidence should have been admitted.  Loye, 4-5.  The Defense claimed that since the handwritten transcript was read to the jury to refresh the victim’s recollection, “The court erred by letting defense counsel cross-examine the alleged victim with the evidence without an accurate record that could be entered into evidence.”  Loye, 5.

Claiming prejudice because a jury has to rely on their own memories instead of text messages did not fly with the Court.  The Court noted jurors often rely on testimony and there was no explaination how this was prejudicial.  Loye, 5.

Admissibility Battles Can Be Avoided

Defense counsel could have avoided their inability to authenticate text messages with better case planning.  A subpoena could have been sent to the cell phone service provider on the victim’s text messages over the relevant time period.  A collection examiner could have defensibly imaged the victim’s (or the Defendant’s) text messages.  Photos could have been taken of the phone itself with the text messages.  However, none of those things happened.