Tag:Admissibility

Key Insight: Circuit Court found no abuse of discretion in admission of text messages where statements were not hearsay and where evidence established phones belonged to defendant sufficient to support a finding that the messages were sent and received by Defendant; Facebook messages also were not hearsay and were authenticated by Defendant?s admission that the posts were his and evidence of his ownership, including use of his nickname, date of birth, etc.

Nature of Case: Criminal

Electronic Data Involved: Text messages, Facebook (social network / social media)

Key Insight: On appeal from a final judgment of foreclosure, the Appellate Court found the Trial Court erred in admitting a screen shot of a computer-generated document purporting to reflect the sale of the mortgage note to Defendant, over Appellant?s hearsay objection. The original note was lost, so Appellee?s witness, who testified regarding the sale of the note, ?relied entirely upon a screen shot of a computer-generated document referred to as a Loan Transfer History (LNTH)? to establish Defendant?s right to foreclose. The witness testified she did not know who entered the information displayed in the screen shot, or if it was entirely computer generated. The Court held ?Ms. Allen?s affirmative answers to business record foundation questions do no overcome her demonstrated lack of knowledge about the creation, accuracy or trustworthiness of the LNTH document.?

Nature of Case: Foreclosure

Electronic Data Involved: Screen Shot

Key Insight: In a criminal matter, the court said that Twitter messages could be authenticated under Indiana Rules of Evidence Rule 901(b) by, for example, ?(1) Testimony of a Witness with Knowledge? and by ?(4) Distinctive Characteristics and the Like? and these examples were satisfied where a witness testified that she had communicated with the defendant on Twitter via the account in question and testified that the account contained both pictures of the defendant and references to activities that were sufficient to indicate that the posts had been authored by the defendant.

Nature of Case: Criminal

Electronic Data Involved: Twitter

Key Insight: Court of Appeals said that a combination of both personal knowledge of the appearance and substance of public Facebook profile pages, taken in conjunction with direct and circumstantial evidence was sufficient to meet threshold admissibility requirements such that a reasonable juror could conclude that the various Facebook profile pages were attributable to appellant; therefore, the trial court did not abuse its discretion in admitting printed pages of images from the public portions of Facebook profiles.

Nature of Case: Criminal

Electronic Data Involved: Facebook (social media/social network)

Key Insight: Court vacated judgment in a medical malpractice case and remanded the case for a new trial where the trial justice admitted 3 exhibits without proper authentication, and exacerbated the error by allowing a biased, incorrect jury instruction which highlighted the information contained in the erroneously admitted exhibits, contributing to their prejudicial effect. Exhibits in question – whose purpose was to impeach plaintiff?s sole medical expert witness – were 2 printed versions of web pages, and a purported printout of an email, all of which were admitted over plaintiff?s objections after plaintiff?s expert witness was asked questions about their contents. With the record indicating no attempt to verify authenticity, no comments or findings from the justice with respect to authentication of any of the documents, nor indication on the record that defendant?s counsel made any representations to the trial justice regarding when or by whom the purported web page print outs were accessed and printed, the court concluded ?While we have not set a ?high hurdle to clear? with respect to authentication ? we hold that the trial justice abused his discretion by admitting exhibits A-C based solely on the brief testimony of one witness who was clearly unfamiliar with all three documents.?

Nature of Case: Medical malpractice

Electronic Data Involved: Email; Web page

Key Insight: Court declined to find that contents of email and chats from gmail account could be authenticated as Google?s business records pursuant to ER 902(11) where the contents of the emails were automatically copied to and maintained upon Google?s servers finding that the ?knowledge? requirement was not satisfied and reasoning: ?Neither SHAHNN28@GMAIL.COM, nor any other originating source whose statements appear in the records produced by Google were under a ?business duty? to convey accurate information in their correspondence. Because the proffered ?finished product? is not the collective effort of ?business insiders,? who share a duty to ensure the accuracy of their statements, the court cannot allow those statements to be authenticated on the theory that they are Google?s self-proving business records under Federal Rules of Evidence 803(6) and 902(11).?

Nature of Case: Intentional damage to a protected computer

Electronic Data Involved: Gmail emails and chats