Electronic Evidence and Rules of Evidence

Transcription

1 Use of Electronic Evidence Evidentiary Considerations for Trial Don Mason Associate Director, NCJRL Research Professor Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Electronic Evidence and the Rules of Evidence In general, the Rules of Evidence apply to electronic evidence in the same ways they apply to more traditional forms of evidence. Leading Case Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D.Md D.Md ). This courtaddressed the five hurdles to admitting electronic evidence in great detail. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 1

2 5 Hurdles to Clear Hurdles 1. Relevance Authenticity Best Eid Evidence 4. Hearsay 5. More Prejudicial than Probative Preliminary Rulings Rule 104(a) Questions of admissibility generally. This applies to the admission of expert testimony, whether a privilege exists, and whether a statement is hearsay. Not bound by Rules except of privilege. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 2

3 Conditional Relevancy Rule 104(b). This applies to authenticity. Jury not the court makes findings of fact. Predicate facts must be admissible ibl under the Rules. Rule 104 Example In admitting an e mail the jury would determine whether or not the e mail was what it purports to be, but a judge would determine whether or not the e mail was an admission by a party opponent. First Hurdle - Relevance Rule 401 tends to make some fact of consequence more or less probable. Admissibility distinguished from weight or sufficiency. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 3

4 Second Hurdle Authentication Is evidence what it is purported to be? A party need only submit evidence sufficient to supporta finding that the evidence is what the party claims it to be. Circumstantial evidence can be used to authenticate evidence Ways to Prove Authentication Testimony of a witness with knowledge Comparison by expert or trier of fact Distinctive characteristics Authenticity of a Computer Printout Bookkeeper testifies she inputted sales, inventory, payroll and tax info regularly; the printout accurately reflected that information; and the company regularly printed such reports. United States v. Catabran,, 836 F.2d 453 (9th Cir. 1988). Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 4

5 Authenticity of a Mirrored Hard Drive Police Officer testifies as to his method in mirroring the drive, software used to examine the contents, and thatthe the information extracted accurately represented information on the original drive. Bone v. State,, 771 N.E.2d 710 (Ind. Ct. App. 2002). Authenticity of Chat Log Defendant argued gov t could not prove he made the statements contained in the log. Chatter gave defendant s first initial, last name, and street address. Police found the name, street address, e mail address, and telephone number the undercover officer gave chatter on a pad near defendant s computer. Court found log admissible. United States v. Simpson,, 452 F.3d 1241, (10th Cir. 1998); see also United States v. Tank, 200 F.3d 629 (9th Cir. 2000). Not Authentic Chat log pasted into a Word document could not be authenticated. Defense expert testified the process did not properly p reproduce the chat and that there were several errors in the copies made. All copies of the full transcript were lost or destroyed. United States v. Jackson,, 488 F.Supp.. 2d 866 (D.Neb D.Neb ). Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 5

6 Authenticity of a Text Message Text messager identified himself as Sean and stated that he was driving a Ford Contour. This coupled with testimony about how text messages are sent was enough to authenticate texts as being from murder victim, Sean, who was in a Contour on the night of his disappearance. State v. Taylor,, 632 S.E.2d 218 (N.C. Ct. App. 2006) Authentication of Social Media Information Authentication of Social Media Information MySpace account used defendant s name and hometown. Account had pictures of defendant. This was sufficient evidence to authenticate that the account belonged to the defendant. Tienda v. State,, 2010 WL (Tex. Ct. App. Dec. 17, 2010). Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 6

7 Need Testimony to Authenticate Evidence? Two exceptions: Self authenticating evidence; and Eid Evidence turned over as part of discovery Self Authentication Rule 902 Public Documents Trade Inscriptions i Certified Records of Regularly Conducted Business Activity Is Self Authenticating? Rule of Evid. 902(7) makes self authenticating documents with inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 7

8 Signature Thomas K. Clancy Director & Research Professor National Center for Justice and the Rule of Law University of Mississippi School of Law P.O. Box 1848 University, MS author: The Fourth Amendment: Its History and Interpretation (Carolina Press 2008) Is this Different? Authentication & Best Practices Best practices are not necessary to authenticate evidence. However, best practices strengthen arguments that an item is what it purports to be. Best practices also increase the weight that should be given to the evidence presented. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 8

9 Chain of Custody Challenge to the chain of custody goes to the weight rather than the admissibility of the evidence. U.S. v. Lopez,, 758 F.2d 1517 (11th Cir. 1985). A missing link in the chain of custody for a hard drive went to the weight given the evidence by the jury not to the hard drive s admissibility. U.S. v. Gavegnano,, 305 Fed. Appx. 954 (4th Cir. 2009). Hash Values Hash values are created using algorithms which create 32 character (or longer) strings for pieces of digital information. Like DNA, Hash Values are unique to each piece of information and can not be changed. The chances of two different inputs generating the same hash value are 1 in 340 Unidecillion. How are Hash Values Useful for Authentication? A hash value taken from the source of acquisition that matches the copy or mirroredpiece ofinformation verifies that the information is exactly the same. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 9

10 Hash Values Third Hurdle - Hearsay Is it a statement? Was it made out of court by a declarant? Isit offered to provethe truth of the matter asserted? Is it covered by an exception? Is it Hearsay? Chat transcript in an enticement trial not hearsay, but instead the act of enticement itself. State v. Glass,, 190 P.3d 896 (Idaho Ct. App. 2008). Child pornography in a child pornography trial is not hearsay. Images are not statements. They are contraband just like a bag of cocaine. U.S. v. Cameron,, 2011 WL (D. Me. Jan. 18, 2011). Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 10

11 Most Common Exceptions Business Record Statement by Party Opponent Business Record Exception (1) Data entered in the normal course of business (2) Data entered at or near time of the occurrence (3) Source indications of reliability Overlaps with Authenticity Some courts have compressed the authenticity and business record exception analysis. Generally if a document qualifies as a business record it meets the authenticity requirements. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 11

12 Business Record Exception Application Bills of Lading. Sea Land Service, Inc. v. Lozen Intern., LLC,, 285 F.3d 808 (9th Cir. 2002). Fed Ex Delivery Record. Dyno Const. Co. v. McWane, Inc.,, 198 F.3d 567 (6th Cir. 1999). Insurance Payment Register. U.S. v. Sanders, 749 F.2d 195 (10th Cir. 1984). Common Computer Records Objection The vulnerability of computer records to manipulation makes them inherently untrustworty. Are Computer Records Less Reliable? Computer generated records are not less reliable than other business records. U.S. v. Young Bros., Inc.,, 728 F.2d 682 (5th Cir. 1984). To the extent they are less reliable, that fact goes to weight and not admissibility. U.S. v. Glasser,, 773 F.2d 1553 (11th Cir. 1985). Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 12

13 Establishing BR Exception for Monthly inventory printout is a systematic and regularly kept record. E mail is an ongoing electronic message and retrieval system. Monotype Corp. PLC v. Int l Typeface Corp.,, 43 F.3d 443 (9th Cir. 1994). If e mail is a regularly kept record, do you have to show that the content is also regularly kept? New York v. Microsoft Corp.,, 2002 WL (D.D.C. April 12, 2002) Fourth Hurdle Best Evidence Rule Rule 1002 requires an original in order to prove content of a writing, recording, or photo. Rule 1001 defines original to include readable displays which includes printouts. Rule 1003 states accurate duplicates are originals for admissiblity purposes. Rule 1006 allows for summaries of voluminous materials. Best Evidence Rule - Cases A duplicate of a hard drive is admissible. State v. Morris,, No. 04CA0036, 2005 WL , at *2 (Ohio. Ct. App. Feb. 16, 2005); Broderick v. State,, 35 S.W.3d 67 (Tex. Ct. App. 2000). Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 13

14 GPS Information U.S. v. Bennett, 363 F.3d 947 (9th Cir. 2004) Police found a GPS unit while searching a boat suspected of importing drugs into the United States. An officer looked through the GPS history showing the boat had just come from Mexican waters. The unit was not confiscated, but the officer testified at trial as to the information he got from the unit. U.S. v. Bennett Was the information obtained from the Unit a writing or recording? Did the testimony regard the content of a writing or recording? Should it have been excluded? U.S. v. Bennett 9th Circuit ruled the officer s testimony regarded a writing or recording and concerned the content of the GPS. Analogizing to testimony regarding the content of a security camera the court found the evidence should have been excluded. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 14

15 U.S. v. Bennett Would a printout from the GPS be sufficient under the best evidence rule? In other contexts some courts have found that format matters because information may be lost in simply printing out the graphical information. In Armstrong v. Executive Office of the President, Office of Admin.,, 1 F.3d 1274 (D.D.C. 1993), a district court ruled that printouts of e mails that did not include directories, distribution lists, acknowledgements, and potentially other information were not complete records. Fifth Hurdle Filter Rule Rule 403 allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. United States v. Caldwell, 586 F.3d 338 (5th Cir. 2009) Defendant was charged with possession of child pornography he downloaded via Limewire. The gov t introduced three CP clips, adult porn videos, and part of adult bestiality film that was downloading via P2P at time search warrant was served and defendant was alone in his home. Defendant was not charged in connection with the bestiality or other adult porn films. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 15

16 The films were used to show the defendant knew how to use Limewire to download movies. Probative Value Unfair Prejudice Jury might punish defendant for his involvement with bestiality instead offor for the crime charged. Other Possibilities What if the videos had been downloaded at a time when the gov t was unsure who was in the home? Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 16

17 Court s Ruling The video downloading at the time of the search was properly admitted. The video previously downloaded might have been improper, but any error was harmless because there was no contemporaneous objection and other similar videos had already been admitted. United States v. Grimes, 244 F.3d 375 (5th Cir. 2001) Defendant was charged with possession of child pornography. The images in question featured nude sexually lascivious behavior by minors. The gov t sought to introduce sexual narratives involving minors found on the same computer. The narratives featured sexual violence and moderate torture. Probative Value Narratives proved the defendant s intent to possess sexually explicit materialinvolving involving children and made it less likely possession was accidental. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 17

18 Unfair Prejudice The violent nature of the narrative which featured young girls in chains, a young girl in handcuffs, and references to blood might cause the jury to act with emotion instead of reason. Court s Ruling The narratives were admitted in error and the defendant was entitled to a new trial. The court did state the narratives had probative value and redacted to exclude violence might be admissible. Expert Testimony Rule of Evidence 702 Allowed when scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or determine a fact in issue. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 18

19 Is Forensic Examination Testimony Expert Testimony? U.S. v. Ganier, 468 F.3d 920 (6th Cir. 2006). Gov t seeks to put on testimony regarding a forensic program run on the defendant s hard drive. Gov t argues testimony ti is not based on specialized ili knowledge, but is simply lay testimony on running commericially available available software. Defendant argues this is not the type of knowledge that is widely known and the gov t should have to qualify witness. U.S. v. Ganier Two Analogies Software programs such as Microsoft Word and Outlook may be as commonly used as home medical thermometers, but the forensic tests [the expert] ran are more akin to specialized medical tests run by physicians. The average layperson... may be able to interpret the outputs of popular software programs as easily as he or she interprets everyday vernacular, but the interpretation [the expert] needed to apply to make sense of the software reports is more similar to the specialized knowledge police officers use to interpret slang and code words used by drug dealers. State v. Intersimone, 2010 WL (N.J. Super. Ct. July 21, 2010). Officer who used EnCase to examine a computer was not an expert, but simply a lay witness using a forensics computer program of unquestioned reliablity. No expert needed to introduce forensic examination results. Is this the same as admitting GPS evidence? Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 19

20 Is the Expert Qualified? Generally a low standard. Louisiana Court of Appeals found the trial court did not err in qualifying a police officer as a forensic computeranalyst whereshe had been doing this type of work for seven months, had worked on seven cases, and had fifty hours of on the job training. State v. Mazique,, 40 So.3d 224 (La. Ct. App. 2010). Is the Science Reliable? Two Standards Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Frye v. United States,, 293 F (D.C. Cir. 1923). Daubert Whether the theory or technique can be or has been tested. Whether the theory or technique has been subject to peer review and publication. Whether a high known or potential rate of error exists. Whether the theory or technique enjoys general acceptance within the relevant scientific community. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 20

21 Frye Whether the theory or technique has achieved general acceptance in the scientific community. Cell Site Testimony Where is the line between lay testimony and expert testimony when police rely on and testify about cell phone location? Lay or Expert Testimony? Some courts allow lay testimony based on experience within the field. See U.S. v. Feliciano,, 300 Fed. Appx. 795 (11th Cir. 2008). Fed. R. Evid. 702 states that scientific, technical, or other specialized knowledge based on knowledge, experience, training or education is expert testimony. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 21

22 U.S. v. Feliciano, 300 Fed. Appx. 795 (11th Cir. 2008) Court allowed lay testimony that a particular cell phone call was not made from near the scene of a crime. Police officer testifiedabout telephonerecords which identified the cell tower from where the call was made. The court reasoned that this was within the officer s personal knowledge because of his years of investigative experience. Wilder v. State, 991 A.2d 172 (Md. Ct. App. 2010) The court found a police officer testifying about plotting location data based on cell phone records required the kind of specialized skill used by experts and not by lay witnesses. Why? Procedure was not commonplace. Jury could not understand without expert explanation. Required specialized knowledge. Wilder v. State Dicta: It may well be that information in a cellular phone record about when a call was placed, and whether it was from or to the subscriber s cell phone would be admissible without expert testimony. Why? A juror could get this type of information by looking at their own cell phone bill. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 22

23 Cell Phones & Other Courts General Background information about cell phones and cell towers does not require expert testimony. Gordon v. State,, 863 So. 2d 1215 (Fla. 2003). Cell site analysis showing unauthorized use of a cell phone required expert testimony. United States v. Sepulveda,, 115 F.3d 882 (11th Cir. 1997). Event Data Recorder Vehicle EDR Evidence By 2013 all cars in the U.S. will be equipped with Event Data Recorders (EDR). These devices act similarly to airplane black boxes. EDRs record speed, whether or not a passenger was wearing his or her seatbelt, the severity of a crash, and many other constantly updated facts. Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 23

24 Admissibility of EDR Evidence Likely requires expert testimony. See People v. Xinos,, 121 Cal.Rptr.3d 496 (Cal. Ct. App. 2011). In this case of first impression an expert testified as to how EDR works, how he retrieved the data, and to the accuracy of the data retrieved. At least one court has rejected EDR evidence as scientifically unreliable. McAlonan v. Tracy, 2011 WL 6125, at *7 8 (N.J. Super. Ct. March 16, 2010). Admissibility of EDR Evidence Another court found EDR evidence was so widely accepted that the defendant was not entitled to a Frye hearing. People v. Hopkins,, 848 N.Y.S.2d 460 (N.Y.A.D. 2007). What testimony would support admission of EDR evidence? Other EDR Issues Does a defendant have a reasonable expectation of privacy in EDR data? In Xinos,, the court found he did. How does the best evidence rule apply? Is an EDR like a GPS? Federal law likely answers this question after 2013, by requiring EDRs be able to print out all data in a uniform manner. Is EDR information hearsay? Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 24

25 Contact Information Don Mason Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Copyright 2011 National Center for Justice and the Rule of Law All Rights Reserved Page 25