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Internet-Based Evidence: Is It What It Says It Is?

By Karen L. Stevenson, Litigation News Associate Editor – July 8, 2011

The Internet can be a valuable source of evidence for trial, but continuing doubts about the reliability of Internet-based evidence make proper authentication problematic. Two recent appellate court decisions illustrate potential dangers for litigators who do not carefully consider how evidence gathered from the Internet will be authenticated.


Maryland Appellate Courts Disagree on Authentication of Post from Social Media Website
In 2010, Maryland’s intermediate appellate court, the Court of Special Appeals, held that a redacted printout from a MySpace webpage was sufficiently authenticated by a police investigator’s testimony that he recognized the information on the page as belonging to the profile’s alleged creator. Griffin v. State of Maryland (Griffin I) [PDF]. The case involved a witness in a murder retrial who explained inconsistencies in his testimony by saying that he lied at the first trial because he was threatened by a posting on the defendant’s girlfriend’s MySpace webpage. To corroborate this explanation, the prosecution offered a redacted portion of the girlfriend’s supposed MySpace page containing the blurb: “JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”


The lead investigator testified that he knew the post to be from the girlfriend’s webpage because of a photograph of her with her boyfriend posted on the page, the birth date listed on the profile, and a reference to the girlfriend’s children. The intermediate appellate court held that the investigator’s testimony was sufficient authentication, concluding that “Maryland Rule 5-901(b)(4), like its federal counterpart, permits authentication of electronic communications based on the content and the circumstances of those messages.”


On review, however, Maryland’s highest court, the court of appeals, determined that the photograph on the webpage, the girlfriend’s birthdate, and other identifying information were not sufficient “distinctive characteristics” to authenticate the printout “given the prospect that someone other than [the girlfriend] could have not only created the site, but also posted the ‘snitches get stitches’ comment.” Griffin v. State of Maryland (Griffin II) [PDF]. The court of appeals expressed concern that “anyone can create a fictitious account and masquerade under another person’s name or gain access to another’s account.” It distinguished a printout from a MySpace webpage, which is published for “all to see,” from emails and instant messages that are “sent directly from one party to an intended recipient or recipients.”


The court stated that “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication.  .  .  .” The court suggested three routes for proper authentication of this type of evidence: (1) ask the purported creator if she created the profile and added the post in question; (2) search the computer of the person who allegedly created the profile to determine if it was that person who originated the profile; or (3) obtain information directly from the social networking website itself that establishes who created and posted the relevant information to the profile.


Eleventh Circuit Accepts Officer’s Authentication of Instant Message Transcripts
The reversal in Griffin II contrasts with the analysis of the U.S. Court of Appeals for the Eleventh Circuit in United States v. Lanzon [PDF]. In Lanzon, the Eleventh Circuit held that a detective’s transcripts of instant messaging conversations with a defendant suspected of soliciting sex acts with a 14-year-old girl were adequately authenticated by the detective’s testimony that he saved the online conversations by copying instant messages and pasting them into a Microsoft Word document.


The Eleventh Circuit rejected the defendant’s arguments that admission of the transcripts was not sufficiently authenticated under Federal Rule of Evidence 901(a). The court noted that, under Rule 901(a), authentication only requires “a prima facie case that the proffered evidence is what it purports to be” and the detective’s testimony that he participated in the online chats and that the transcripts were accurate copies of those conversations was sufficient to authenticate the transcripts. The court rejected arguments that there could have been manipulation and error in the transfer of information from the instant messaging program to the Microsoft Word document. It found no evidence of “bad faith” on the part of the officer and that the defendant “offered no evidence showing that the transcripts were edited or altered.”


To Authenticate Internet Evidence: Prepare Early
“The courts are not uniform in how they treat authentication requirements for Internet-based evidence,” says David J. Wolfsohn, Philadelphia, cochair of the ABA Section of Litigation’s Trial Evidence Committee. “Until clear rules emerge, the practitioner needs to assume that a high standard for authentication applies—higher than for more traditional forms of evidence,” he advises.


Christina L. Dixon, Denver, also a cochair of the Section’s Trial Evidence Committee, observes that the greater degree of authentication that some courts are requiring for evidence gathered from the Internet reminds her of the abundance of caution many courts historically have taken with other new forms of evidence. She advises young lawyers “to turn every stone for a lay witness who can testify from first-hand knowledge about who posted information on a social media website, when it was posted, and whether there is any other identifying information about the post.”


Keywords: litigation, internet-based evidence, Federal Rules of Evidence, Eleventh Circuit


 
Related Resources

 
  • July 14, 2011 – In Massachusetts see also Commonwealth v. Williams, 456 Mass. 857 (2010), regarding authentication of a MySpace computer message.

 

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