EVIDENTIARY PROBLEMS ASSOCIATED WITH THE INTRODUCTION OF WEB-BASED EVIDENCE

Transcription

1 EVIDENTIARY PROBLEMS ASSOCIATED WITH THE INTRODUCTION OF WEB-BASED EVIDENCE G. Michael Fenner 1 (fenner@creighton.edu) James L. Koley 54 Professor of Constitutional Law Creighton University School of Law The short-piece format of this web-based publication seems to call for getting right to the point, and I will do just that, with this one sentence introduction: It seems appropriate to publish this piece on the introduction of web-based evidence in a web-based journal. I. THE NOVELTY OF THE QUESTION By and large, the novel question regarding the admissibility of web-based evidence business and personal websites, social-media pages, and the like is going to be authentication. Once the evidence is shown to be what its proponent claims it is, that is, once it is authenticated, most of the rest of the evidentiary problems are the common problems lawyers face all the time: Is the printout itself hearsay, and are some of the matters asserted on the printout or in the rerecording hearsay? Does the printout run afoul of the rule requiring the production of the original, a.k.a., the best evidence rule? Can the court take judicial notice of the site, and of matters found on the site? Having in mind that the novel questions are, by and large, questions regarding authentication, I will start there in a moment. But first, let me point out this interesting fact. Electronic evidence has been with us for a long time web pages, electronically stored information, digital recordings of voice messages, and even Facebook. If that causes you to wonder why the law of evidence has not adopted new and special rules for dealing with the admissibility of this kind of evidence, the answer is this: The rules that preexisted this kind of evidence provide an adequate framework for resolving the evidentiary problems involved with the introduction of this kind of evidence. The technology is new, but the evidentiary problems are not. II. AUTHENTICATION AND IDENTIFICATION A. RULES 901 AND 902 OF THE FEDERAL RULES OF EVIDENCE Hereafter are parts of Evidence Rule 901 and 902. The text of the rule appears in italics. My comments follow each subpart of the rule and appear in Roman type. Rule 901. Requirement of Authentication or Identification 2 1 I express my gratitude to Laura Sova, a second-year student at the Creighton University School of Law, for her very valuable assistance in putting this together in very short order. 2 Nebraska s rule is the same, except that the where the federal rule uses letters to designate subparagraphs, Nebraska s uses numbers, and where the federal rule uses numbers, Nebraska s uses letters. Neb. Rev. Stat and

2 (a) General provision. 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 its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of a witness with knowledge. Testimony that a matter is what it is claimed to be. This will work sometimes. Your witness can identify his or her s, phone messages, social-networking pages. Counsel may be able to get other witnesses to testify that he or she sent the , made the phone call, did the Facebook post, or sent the tweet, or that the MySpace page is his or her page. Sometimes the person in question will be in the courtroom and either will willingly admit or have no way to deny the authenticating facts. (Also, though it is not testimony, offering counsel may be able to get opposing counsel to admit or stipulate to authenticity. See Fed.R.Civ.Pro. 16 & 32, infra.) Sometimes a witness will not have any recollection of a particular exhibit say, for example, an from a business but will be able to testify that the exhibit in question is the kind regularly made by the organization in question. This should authenticate the exhibit and get it around the hearsay rule. It is a record of a regularly conducted activity. Rule 803(6) (a.k.a., the business records exception). See generally G. Michael Fenner, THE HEARSAY RULE , (Carolina Academic Press, 2d ed., 2009). Sometimes an affidavit from someone with knowledge of the website, the webmaster, for example, will satisfy the authentication requirement. * * * * (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. There will be cases where an expert witness can compare the matter in question with other previously authenticated matter and conclude that the evidence is from the same source. I certainly do not understand how this is done; this is why we need an expert; I do, however, understand that it is done. Perhaps even a lay witness could do it, just not the lay-witness author of this handout. (4) Distinctive characteristics and the like. Appearance, content, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. This method of authentication will work to authenticate some websites. This method should work to authenticate the exhibit as a Facebook or MySpace page. (See also the discussion of Rule 902(7), below.) This method might also work to authenticate the Facebook or MySpace page as the page of the person or business in question. The entry might disclose information peculiarly known to the person offering counsel contends wrote the entry, photographs uniquely available to that person, and so on. Content and circumstances might indicate the 2

3 authenticity of the entry. E.g., Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007). That an message came from a party s work address might be enough to satisfy the evidentiary burden of showing authenticity, shifting the burden of raising doubts to the other side. The header on the , perhaps together with some a minimal amount of other circumstantial evidence, or perhaps just the hearer alone, should be enough. That a website posting was found at a distinctive web address might be enough to satisfy the evidentiary burden of showing authenticity, shifting the burden of raising doubts to the other side. Either may be enough to kick in a presumption of authenticity rebuttable, of course, as with every other true presumption. If the was sent from a phone, the authentication problem is the typical one of showing the person to whom, or business to which, the phone number was assigned. See 901(b)(6) below. Examining the document s metadata information describing the history, tracking, or management of an electronic document might authenticate the document under this part of Rule 901. See, e.g., Lorraine v. Markel American Ins. Co., supra. If the information was found on a seized computer, that is circumstantial evidence that the information is authentically that of the owner of the computer. Perhaps combine this with part (1), above as follows: Have the witness who printed off the Facebook page testify that he or she went to Facebook.com, saw the Facebook page in question, and printed it off, and that the printout is an accurate depiction of the what he or she saw on the Web. The larger point to be made here is that often exhibits of the kind under discussion can be authenticated with circumstantial evidence. (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. Sometimes this will work as a way to authenticate a voic message as being the voice of the person in question. The voic message left on a cell phone is, after all, just one more example of an audio recording. Keep in mind, however, that this does not authenticate the message itself as an accurate, unaltered recording of what that person said. For that, counsel may need a witness who overheard as the message was being left and can say that the message offered into evidence is the same, or chain of custody evidence. (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (a) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. The logic behind this part of the rule applies just as well to messages. Altering the rule by substituting for telephone conversations, 3

4 and underlining the alterations, the rule would appear as follows: , by evidence that the was sent to the address assigned at the time to a particular person or business, if (a) in the case of a person, circumstances, including self-identification, and perhaps the content of a reply , show the person answering to be the one called, or (B) in the case of a business, the was sent to a place of business and the content related to business reasonably transacted over the telephone. And if the came as a text message from a phone, then the problem is no different than if it had been in the form of a telephone conversation rather than a telephone text-message. Consider, for example, a lawsuit against a business. If your client (a person or another business) has exchanged s with the business, this logic could serve to authenticate an exchange with that business. You still have to show that the address is the one assigned at that time to that business. Sometimes that will be easy, sometimes not as easy. Easy: Sometimes the address of the business will have distinctive characteristic or the like that, taken in conjunction with the circumstances, including the content of the s exchanged, that will be enough to authenticate the s. See Rule 901(4), above. Sometimes you will have the testimony of a witness with knowledge. See Rule 901(1), above. Sometimes you will get the s not only from your client, but also from your opponent, through discovery. This will authenticate the exchange as one between your client and the business in question. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. Change this rule ever so slightly, with my additions underlined, to read as follows: Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office s website where items of this nature are kept. (8) Ancient documents or data compilations. Evidenced that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (b) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. The World Wide Web has been around in some form since the late 1980s. There are documents or data compilations on the Web that have been in existence 20 years or more. (Nebraska s rule requires 30-or-more.) Ancient-document authentication, along with the ancient documents exception to the hearsay rule, Rule 803(16), might make ancient websites and the facts contained thereon admissible to prove the truth of the facts. Surely such evidence can present probative value problems. The judge can handle this as an admissibility problem under the relevance rules, particularly Rule 403. Or the jury can handle it in the normal way, as a credibility problem. 4

5 In addition, and as an ancient-document bonus, some courts say that Rule 805, which requires an exception or exclusion for each level of multiple levels of hearsay, does not apply to ancient documents. See G. Michael Fenner, THE HEARSAY RULE , (Carolina Academic Press, 2d ed., 2009). (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Maybe a useful starting point when authenticating computer simulations. Lorraine v. Markel American. Ins. Co., supra (quoting Weinstein s Evidence). * * * * Rule 902. Self-Authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: * * * * (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. The key question here seems to be this: Is the website intended to serve as the equivalent of an official government publication? (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals. Under this rule, the version of the Wall Street Journal as printed on paper is self-authenticating. Using the logic of this rule, wouldn t the Wall Street Journal as printed on its website be self-authenticating? And wouldn t this be so for other newspapers and periodicals the New York Times ( The Wall Street Journal ( the Kearney Hub ( Consumer Reports ( the Blue Book ( (the one for car values, not the one for citation formats, though that one too, if its contents were ever relevant to a cause of action). And after counsel has authenticated the newspaper or periodical, there are hearsay exceptions that might particularly apply to newspapers and periodicals for example, the ancient documents exception, Rule 803(16), or the exception for market reports and commercial publications, Rule 803(17). (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. This would include fav icons. If you go to and look in the website s address window near the top, you will see that the http in the web-address window is preceded by the LexisNexis icon. It is the same at and The fav icon is the T that precedes in the New York Times website s address window. Were you to go to my Facebook page you would see 5

6 the Facebook fav icon as the first thing in the address line. Many websites have a fav icon a logo, or, in the words of the rule, a sign[], tag[], or label[] purporting to have been affixed in the course of business and indicating ownership, control, or origin. This identification mark alone may be enough to authenticate the website. (Sadly, does not have a fav icon at least not one that popped up on my computer.) B. APPLICATION OF RULE 901 AND 902 At this point, it is worth noting that the party offering the evidence need only make a prima facie showing that the evidence is what he or she claims it is. E.g., Lorraine v. Markel American Ins. Co., supra (citing Weinstein s Evidence). After that, it is up to the opponent to raise sufficient doubts about the authenticity of the evidence so that the trier of law does not allow it into evidence or so that the trier of fact does not give it any, or much, weight. The most difficult problems will involve authenticating pseudonymous sites, a pseudonymous MySpace page, for example. Even there, while the attorney s job may be more difficult, the rules are the same: Principally, evidence Rule 901 and 902 and civil procedure Rule 16 and 36. See Griffin v. Maryland, 995 A.2d 791 (Md. Ct. Spec. App 2010). C. AUTHENTICATION OUTSIDE OF RULE 901 AND 902 Judicial Notice: In addition to Rule 901 and 902, judicial notice can sometimes be used to authenticate the kind of exhibits under discussion here. There is a famous episode from Abraham Lincoln s trial-lawyer days where, while representing a man accused of murder, and on cross-examination of the state s main witness, he whipped out the Farmer s Almanac and asked the judge to take judicial notice that on the night in question the moon was but a sliver and did not rise at all until well after the critical time, impeaching the witness testimony that he could see the crime by the light of the full moon. Today, were the crime committed in Omaha, Nebraska on October 20, 2010, in Omaha, Abraham Lincoln could whip out his ipad, type in and ask the judge to take judicial notice of the fact that the moon was 95% full, and then type in and ask the judge to take judicial notice that it rose at 6:10 and set at 6:24. Perhaps this is not as elegant as Lincoln s way, but, after all, he was Abraham Lincoln and we re not. Furthermore, with resort-to-sources judicial notice, you do not have to enter your ipad into evidence (and get a new one). The evidence is the judge s judicial notice that the fact is true. In fact, you do not even have to present the judge with the source, e.g., State v. Gagnon, 155 N.H. 418, 421, 924 A.2d 384, 388 (2007) ( This is not to say that the source necessarily must be produced in court; rather, the source simply must be identified. ), though, when possible, counsel would be a fool not to do so. Rules of Civil Procedure: In civil cases, a request under Rule 36 of the Federal Rules of Civil Procedure that an opponent admit the genuineness of documents will lead to 6

7 authentication. Under Rule 16 of the same rules a party may request that an opposing party stipulate to the authenticity of an exhibit. See, e.g., Lorraine v. Markel American Ins. Co., supra. D. A CONCLUSION RE AUTHENTICATION By now it is apparent that there may be multiple ways to authenticate the same exhibit. Circumstantial evidence and testimony. A combination of circumstantial evidence, a logo, and testimony. Judicial notice of a fav icon to authenticate that the site is Facebook and circumstantial evidence (distinctive characteristics) to authenticate a particular Facebook page. Finally, keep in mind that authentic is not a synonym for accurate. To authenticate an exhibit, offering counsel need not show that the exhibit is accurate, but only that it is what it purports to be. Inaccuracy may cause evidentiary problems, but authentication is not one of them. III. OTHER COMMON EVIDENTIARY PROBLEMS Most of the other evidentiary problems with social-media evidence will be the common problems lawyers face every day. HEARSAY. The hearsay rule may be a consideration in the when web-based evidence is offered. Analysis here starts with the definition. There must be a statement. Rule 801(a). The statement must have been made by a declarant, and the declarant must be a person. Rule 801(b). The statement must be offered to prove the truth of some assertion contained in the statement. Rule 801(c). And the statement must not be excluded from the definition of hearsay. Rule 801(d). See generally, G. Michael Fenner, THE HEARSAY RULE 4-46 (Carolina Academic Press, 2d ed., 2009) (hereinafter THE HEARSAY RULE). If machines automatically generate the evidence intersection photos of cars running red lights then there is no statement. THE HEARSAY RULE, at If the evidence is authenticated as a statement by a party to the litigation and is offered against that party, then it is not hearsay at all. Rule 801(d)(2)(A) excludes it from the definition of hearsay. THE HEARSAY RULE, at Same if it is a statement by an agent of a party opponent concerning a matter within the scope of the declarant s agency and made during the existence of the agency relationship. Rule 801(d)(2)(D). THE HEARSAY RULE, at If a business #1 s website discusses its standard practices, for example, and in that context refers the reader to another website, put up by business #2, the information on #2 s website may be admissible against #1 as an adoptive admission. Some entries are only offered to show notice, and not to prove the truth of the matter asserted. Perhaps the defendant is Dominos Pizza. One of their delivery drivers was in a wreck, and the allegation is that the driver had a severe drinking problem and Dominos knew or should have known about it. Negligent hiring. Counsel for the plaintiff offers the driver s Facebook page, properly authenticated and shown to have existed at the time Dominos hired the driver. On that page there are many photos of their applicant drinking, many photos of him apparently drunk, and one of his head over the toil well, never mind that photo. There are also many 7

8 statements that seem to be from him, such as Boy am I gonna tie one on this weekend. Had some hair of the dog for breakfast. Likes: Gin and vodka, well, and beer too, and bourbon whisky, the cheap kind. Had Dominos only looked, they would have seen these things and known they should not hire this man to deliver pizza, at least not without further investigation.. These Facebook pages are not offered to prove that these things are true, but only that the photos existed and the words were said. The entry may be admissible hearsay. A tweet beginning OMG, big truck not stopping for red light may be a present sense impression (Rule 803(1)) or an excited utterance (Rule 803(2)). As with any other present sense impression or excited utterance, whether that tweet fits under the exception is a function of whether offering counsel can lay the foundation for the exception. THE HEARSAY RULE, at The entry may be a statement of a then-existing mental, emotional, or physical condition (Rule 803(3)), a statement for purposes of medical diagnosis or treatment (Rule 803(4)), a recorded recollection (Rule 803(5)), or a record of a regularly conducted activity (Rule 803(6)). THE HEARSAY RULE, at The key is the foundation. Can offering counsel establish the foundation for the exception? The foundational elements are the same, whatever the form of the out-of-court statement. The ways of proving the foundational elements are the same, whatever the form of the out-of-court statement. If the entry is over 20 years old (30 in Nebraska) and authenticated, it is admissible around the hearsay rule under the ancient documents exception in Rule 803(16). THE HEARSAY RULE, at If the entry is in an authenticated learned treatise, counsel should be able to use the learned treatise downloaded onto counsel s ipad to the same extent that counsel could use the treatise in a hardbound paper edition. Take, for example, Gray s Anatomy. It can be downloaded for approximately $140 the book, I mean, not the first three seasons of the television show Gray s Anatomy of the Human Body. If authenticated by its fav icon and circumstantial evidence, plus the testimony of a doctor who recognizes it, then your witness can read from the treatise and what the witness reads can be admissible as substantive evidence. Under this exception, the witness is allowed to read from the learned treatise, but the book itself is not entered into evidence. Same with the ipad the witness is allowed to read from the learned treatise (ipad version), but the ipad itself is not entered into evidence. (There is no need to come to court with a spare ipad, one to offer up and one to keep.) I could go on and on, mentioning records of religious organizations, market reports and commercial publications, and judgments of previous conviction, but you get the point without me doing that. THE ORIGINAL WRITING RULE. This rule is often called the best evidence rule even though it has nothing to do with the qualitative value of evidence. While the rule may present problems for counsel trying to introduce this evidence, for the most part the exhibit in question will be a duplicate and, therefore, admissible to the same extent as an original. 8

9 A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original. Rule 1001(4) of the Federal Rules of Evidence. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Rule 1003 of the Federal Rules of Evidence. Quite a lot of the exhibits under discussion here will be duplicates, such as, for example, computer printouts from the website. If the computer printout is authenticated as from the website, then it is a duplicate of the original and, as such, admissible to the same extent as an original. As such, the rule requiring the production of the original does not stand in the way of its admission. If the exhibit is not a duplicate, Rule 1004 provides a number of other ways around the original writing rule, Rule 1007 provides for the admission of non-original, non-duplicate documents when their contents are admitted by the opposing party, and Rule 1006 provides for the admission of summaries of voluminous writings, recordings, or photographs in the form of a chart, summary, or calculation. RULE 403. Let me quote the whole of Federal Rule of Evidence 403 (with emphasis added). Although relevant, evidence may be excluded 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. Rule 403 gives the trial judge the ability to weigh the probative value of the evidence against the counterweights stated above, and, if one of the counterweights substantially outweighs its probative value, keep the evidence out. As I tell my evidence students, never forget Rule 403. Be ready to use it. Be ready to meet it when used against you. THE CONFRONTATION CLAUSE. The Confrontation Clause guarantees the accused in a criminal trial the right to confront the witnesses against him or her. The relevant case law, culminating in Melendez-Diaz v. Massachusetts, 557 U.S., 1295 S.Ct (2009), says that the Confrontation Clause only applies to testimonial hearsay offered against the accused in a criminal prosecution. In reverse order, the Clause does not apply in civil actions. It does not apply to evidence offered by the accused. It only applies if the evidence is hearsay an out-of-court statement by a person which is offered to prove the truth of a matter asserted in the statement. And it only 9

10 applies if the statement is testimonial. Though this testimonial part can get very complicated, it basically means that the statement offered into evidence must have been made with an eye towards using it at trial, should there be one. Either the one collecting the statement or the one making the statement, or, of course, both, must have collected or made the statement with an eye toward prosecution. See generally, G. Michael Fenner, Today s Confrontation Clause (After Crawford and Melendez-Diaz), 43 CREIGHTON L.REV. 35 (2009). Much social-media and other electronic evidence will not be the kind of evidence, or the kind of use of the evidence, that kicks in the right to confront witnesses. Some will some who post do so hoping that it will lead to criminal prosecution of the person or business that is the subject of the post. IV. CONCLUSION The evidentiary problems associated with the introduction of web-based evidence are not new. Some are simple, resolved intuitively, and require no particular expertise but that possessed by most lawyers. Some are complex, cannot be resolved intuitively, and require technical expertise that many lawyers do not have. Nothing new there. The law of evidence has not adopted new and special rules for dealing with the admissibility of this kind of evidence because the rules preexisting rules handle these admissibility problems as well (or as badly) as they handle all other evidentiary problems. 10