The Admissibility of Web-based Evidence

• Publication year: 2012

47 Creighton L. Rev. 63. THE ADMISSIBILITY OF WEB-BASED EVIDENCE

THE ADMISSIBILITY OF WEB-BASED EVIDENCE

G. MICHAEL FENNER(fn*)

I. INTRODUCTION ................................... 64

II. EVIDENTIARY PROBLEMS ASSOCIATED WITH THE INTRODUCTION OF WEB-BASED EVIDENCE ......................................... 65

A. AUTHENTICATION AND IDENTIFICATION OF WEB-BASED EVIDENCE ................................. 65

1. Authentication Using Rules 901 and 902 of the Federal Rules of Evidence ................ 65

2. Authentication Outside of Federal Rules of Evidence 901 and 902 ....................... 79

a. Judicial Notice ........................... 79

b. The Federal Rules of Civil Procedure ..... 84

c. Documents Produced by a Party Opponent ................................ 85

d. Summary Judgment and the Use of Affidavits ................................ 85

3. Sometimes Authentication Simply is not an Issue ........................................ 86

4. All that Is Required Is a Prima Facie Case of Authentication-Authenticity's Low Threshold ................................... 87

5. Anonymous and Pseudonymous Web-based Evidence .................................... 88

6. "Authentic" Is Not a Synonym for "Admissible" ................................. 90

B. OTHER COMMON EVIDENTIARY PROBLEMS WITH WEB-BASED EVIDENCE ............................ 91

1. Hearsay ..................................... 91

2. The Rule Requiring the Production of the Original ..................................... 94

3. Rule 403 .................................... 95

4. Presumptions ................................ 96

C. THE CONFRONTATION CLAUSE AND WEB-BASED EVIDENCE ....................................... 97

D. MAKING THE RECORD ............................ 97

III. CONCLUSION ..................................... 98

I. INTRODUCTION(fn1)

By and large, the novel question regarding the admissibility of web-based evidence-business and personal websites, social-networking pages, and the like-is going to be authentication. (But even this, as I will explain below, is not as novel as it seems at first glance.)

Once the evidence is authenticated, that is, once it is shown to be what its proponent claims it is, most of the rest of the evidentiary problems are the common problems lawyers face all the time. For example, is the printout itself hearsay or are some of the matters asserted on the printout or in the recording 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 website and of matters found on the website?

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 illuminating fact. Electronic evidence has been with us for a long time-web pages, electronically stored information, digital recordings of voice messages, Facebook, Twitter, and MySpace pages are not new. 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 that the rules that pre-existed electronic evidence provide an adequate framework for resolving the evidentiary problems involved with the introduction of this kind of evidence as well. The technology is new; the evidentiary problems are not.

While the evidentiary issues are not new, the evidence itself is new enough that it may take some work to convince some judges that the associated evidentiary problems are not new.

II. EVIDENTIARY PROBLEMS ASSOCIATED WITH THE INTRODUCTION OF WEB-BASED EVIDENCE

A. AUTHENTICATION AND IDENTIFICATION OF WEB-BASED EVIDENCE

1. Authentication Using Rules 901 and 902 of the Federal Rules of Evidence

Hereafter are parts of Evidence Rules 901 and 902. The text of the rule appears in italics and is indented at the left-and right-hand margins. My comments follow each subpart of the rule and appear in Roman type without margin indention.

Rule 901. Authenticating or Identifying Evidence

(a)In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b)Examples. The following are examples only-not a complete list-of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

Testimony of a witness with knowledge will sometimes work to authenticate web-based evidence. The person with firsthand knowledge may be in the courtroom, on the stand, and either willingly admit or have no way to deny the authenticating facts. Your witnesses can identify their own emails, phone messages, and social-networking pages.(fn2) The witness to an online chat might be a police officer involved in a chat-room sting.(fn3) Counsel may be able to get other witnesses to testify that the purported sender did in fact send the email, make the phone call, post the material on Facebook, send the tweet, or that the MySpace page was the page of the particular person. Perhaps the third-party witness was there and saw the chat, watched the posting, or overheard the use of speech recognition software(fn4)-analogous to a witness authenticating a signature on a will through personal observation. (Also, though it is not testimony, offering counsel may be able to get opposing counsel to admit or stipulate to authenticity.(fn5))

A photograph from a Facebook page showing the criminal defendant half-dressed and fully-drunk at a party during the thirty-one days when she had not yet reported that her nearly-three-year-old daughter was missing, or during the five months between the time her daughter was reported missing and the little girl's body was found, can be authenticated by someone who was at the party, remembers when the party occurred, and can identify the defendant from the photo. It does not matter where the photo was found: on Facebook, on a camera's flash memory card, or in a shoebox. They are all just photos and can be authenticated in the ordinary, old-fashioned way. When it is irrelevant whether the Facebook page was the source of the photo, then just because it was found on the web does not make authentication any more complicated.

Sometimes a witness will not have any recollection of a particular exhibit-say, for example, an email 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 (perhaps in conjunction with other evidence such as the emails' "From" and "To" addresses(fn6)) should authenticate the exhibit and, at the same time, get it around the hearsay rule. It is a record of a regularly conducted activity. Often, in fact, the evidentiary burden for establishing the business records exception to the hearsay rule will also authenticate the document.(fn7)

The witness with personal knowledge can be an expert witness. From the standpoint of the criminal, one of the worst things aboutbeing investigated by the federal government is all of the resources federal law enforcement agents have at their disposal. The FBI has, for example, experts in the identification of counterfeit money, the origin of firearms, and all anyone would ever need to know about illegal drugs. Likewise, they have experts in tracing and identifying the source of web-based materials. Their knowledge, including their education and experience, will allow them to form conclusions that can authenticate web-based evidence.(fn8) And there are a growing number of experts available for hire by the other side of a criminal case or either side of a civil case.(fn9) There are also experts who work for the companies upon whose platforms the web-based evidence is found: a webmaster, for example.(fn10)

On motions for summary judgment-or other situations where an affidavit can be used in spite of the hearsay rule and, against the accused in a criminal setting, in spite of the Confrontation Clause-an affidavit from someone with knowledge of the website, the webmaster, for example, will satisfy the authentication requirement.(fn11)

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(3) Comparison by an Expert Witness or the Trier or Fact. A comparison with an authenticated specimen by an expert witness or the trier or fact.

There will be cases where the trier of fact or, perhaps more commonly, an expert witness can compare the evidence in question with other previously authenticated evidence and conclude that the former is from the same source. This could include a string of emails where some can be authenticated standing alone and others can be authenticated by consistencies or similarities among the emails.(fn12) This is no different, really, than authenticating handwritten material with a witness who testifies to unique uses of language, punctuation, spelling, and the like.(fn13) (Other than that, I certainly do not understand how this is done in the context of web-based evidence; this is why we may well need an expert; I do, however, understand that it is done, perhaps even by a lay-witness, just not the lay-witness author of this article.)

(4)Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the...