Peter A. Crusco (NYLJ/Rick Kopstein)
Just think of all the technological advancements in the last 30 years. From laptops and cellular phones, to wireless video cameras, just about every hour of our day we utilize some type of digital technology. Is there a street in New York City in which at least one wireless camera is not monitoring a residence or a business that can be accessed from some distant site from the owner’s laptop? With the transition from paper and other 20th century medium to a digitized format, a recurring question in litigation is does the new medium require different authentication procedures for admissibility in court? “What’s in a name? That which we call a rose by any other name would smell as sweet.”1 New evidence brings new authentication issues for the courts to decide as that technology becomes integrated in our lives. This article will address some of those authentication issues.
More than 80 years ago, before the atomic age or the information age, in a prelude to 21st Century technology advancements, an appellate court in Boyarsky v. G.A. Zimmerman,2 faced the question of the admissibility of that day’s new technology, known then as “moving pictures,” later to be known as motion pictures. In Boyarsky, the plaintiff sued for severe head injuries he allegedly suffered while working as a laborer on a construction site. He claimed he had been struck by a metal bolt dropped from a work platform 35 feet above him, and that as a result of the injury he was totally disabled. Eleven months after the accident, before the commencement of the trial, the corporate defendant conducted surveillance of the plaintiff and obtained “moving pictures” of him walking along a public street clearly contrary to his total disability claim. At trial, the court refused to admit the moving pictures, and on appeal the appellate court found the lower court’s ruling was reversible error. In determining that the moving pictures were admissible, the appellate court found that such evidence was admissible with a proper foundation, and noted that if there “is any exaggeration made by it, it may be pointed out by the court, or the moving picture wholly rejected.” Moving pictures, the court opined, had become “so general that it may be necessary in the near future to frequently permit their introduction in evidence.”3 Thus the moving picture was admissible provided the requisite precautions by the trial court were applied and exercised in the trial court’s discretion.4
Boyarsky fits into the legal milieu that includes the general rule that all evidence is admissible if it is relevant and authentic. Relevance simply means that the evidence has any tendency in reason to prove any material fact. Authenticity can be demonstrated by proof that the electronic evidence sought to be admitted is actually the same incriminating and prejudicial electronic evidence that was contained within and properly extracted, if applicable, from the subject digital device.5 The fact finder may either accept or reject this evidence, and determine the weight to be given it by what it may or may not prove; however, before the digital evidence may be presented in court, the proponent must make a preliminary showing that the evidence is what it is claimed to be.
More recently, in People v. Patterson,6 the New York Court of Appeals opined that traditional methods of proof would be applicable to new and developing technologies although cautioning that “the obligation and need for responsible accuracy and careful reliability should not be sacrificed to some of the whims and weaknesses of fast moving and rapidly changing technology.”7
Circumstantial evidence may be the foundation for the admission of new technology. For instance, in People v. Pierre,8 the Appellate Division, First Department, determined that the trial court properly admitted an Internet text message authenticated by circumstantial evidence. The sender, a defendant on trial for murder, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution’s proof did not include authentication by the Internet service provider, and the witness who testified to its origination did not print or save the message. A witness did testify that she knew the defendant’s screen name, and she had sent an instant message to that name. The First Department noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Furthermore, absent was any suggestion of third-party impersonation of the defendant. Given these factors, the court determined there was sufficient foundation to support the admission of the text message. “[A]uthenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it,” and “[t]he foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted.”9
The defense opposed admission of the messages, contending that although they were sent under the suspect’s name, they were not done by him. Nevertheless, the court determined that although the defense claimed that someone else accessed the suspect’s account and used the suspect’s name, in the absence of other exculpatory evidence, the evidence was admissible, and the weight to be accorded it was for the jury to determine.10 Moreover, developing case law supports that the distinctive or unique nature of a text message, and its timing or relation to other evidence, may greatly enhance its admissibility.11
Burden on Proponent Is Slight
Authentication of digital evidence was an issue in United States v. Mebrtatu,12 which involved a car stop by police resulting in the seizure of the defendant’s mobile phone and text message evidence contained therein. The defense made a motion in limine to exclude the electronic evidence. The court stated that the government’s burden of proof for authentication was slight.13 The government presented “substantial evidence from which a jury could infer” that the text messages were authentic and attributable to the defendant. The officer testified that the mobile phone was seized from defendant’s person, and the context of the messages indicated that defendant was the user of the seized phone and “hence the sender and receiver of the messages found on the phone.” The content included references to the defendant by her moniker and other statements linking the defendant to the messages.
In United States v. McLee,14 a case involving the use of wiretaps, defendant claimed that the government failed to seal the original recordings as per 18 U.S.C. §2518(8)(a). In McLee, the prosecutors stored the intercepted audio recordings by encoding three pieces of information (the session data, the actual audio, and the “pointers” or decoding map that the system can later use to decode the encoded portion) on a central hard drive buffer and then merging the information from the hard drive buffer onto a magneto-optical disk. The agents in McLee presented the magneto-optical disks to the district court for sealing. The defendants argued that the section required the government to deliver the original intercepts, that is, the hard drive buffer to the court for sealing because it was the true original recording of the intercepted call. The Seventh Circuit affirmed the district court’s denial of defendant’s motion to suppress, concluding that because the primary purpose of the section was to ensure the reliability and integrity of evidence obtained via electronic surveillance, and because the magneto-optical disks appeared to be the only secure and readable storage medium for the intercepted recordings, the disks constituted the proper evidence to be submitted for sealing under the statute.
New York State Technology Law §304(2) provides that “unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” In Martin v. Portexit,15 the Appellate Division determined that the affirmations of doctors that bore electronic signatures were admissible. State Technology Law §306 provides that in any legal proceeding where the Civil Practice Law and Rules (CPLR) applies, an electronic record or signature may be admitted into evidence pursuant to article 45 of the CPLR. The court concluded that the electronic signatures complied with CPLR 2106, that the affirmations of defendants’ medical experts were admissible and that the affirmations should have been considered by the motion court.
Issues concerning the admissibility of digital evidence will continue in courts throughout the nation as technology changes and advances. A significant issue is the appropriate standard to be utilized to satisfy authentication for the admission of digital evidence at trial. Authenticity is established by proof that the offered evidence is genuine, and that there has been no tampering with it. The foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted. Ordinarily, the proponent’s proffer of authentication of certain evidence is a decision for the properly exercised discretion of the trial court. Once admitted into evidence it is for the jury (or fact finder) to determine the weight to be accorded the evidence. To be sure, authentication requirements of new technologies may evolve in response to the integration and acceptance of these new technologies into our daily lives. The likelihood that such evidence will be critical in even routine litigation illuminates the importance of the authentication decision process.
Peter A. Crusco is executive assistant district attorney, investigations division, Office of the Queens County District Attorney. The views expressed herein are the author’s, and do not necessarily reflect the policies or views of the office.
2. Boyarsky v. G.A. Zimmerman, 240 A.D. 361 (1st Dept. 1934).
3. Boyarsky v. G.A. Zimmerman, 240 A.D. 361, 365 (1st Dept. 1934).
4. See, e.g., United States v. Netschi, 511 Fed. Appx. 58 (2d Cir. Feb. 7, 2013) (trial courts maintain “broad discretion over the admission of evidence” and review of their evidentiary rulings are limited to abuse of discretion).
5. See Federal Rules of Evidence (FRE) 901(a).
6. People v. Patterson, 93 N.Y. 2d 80 (1999).
7. Id. at 84; see also United States v. Gray, 78 F. Supp. 2d 524 (E.D. Virg. 1999); People v. Ely, 68 N.Y. 2d 520 (1986); People v. McGee, 49 N.Y. 2d 48 (1979); People v. Rendon, 273 A.D.2d 616 (3d Dept. 2000).
8. People v. Pierre, 41 A.D.3d 289, 291 (1st Dept. 2007), lv. den. 9 N.Y.3d 880 (2007).
9. People v. Clevenstine, 68 A.D.3d 1448 (3d Dept. 2009); McGee, 49 N.Y.2d at 59; Prince, Richardson on Evidence §§4-203, 4-213 (Farrell 11th ed.); see People v. Lynes, 49 N.Y.2d 286, 291-93 (1980).
10. Clevenstine, 68 A.D.3d at 1448.
11. See, e.g., United States v. Culberson, 2007 U.S. Dist. LEXIS 31044 (E.D. Mich. April 27, 2007) (threatening text messages were admitted at trial based on the victim testifying to the peculiar details of the message, and significant linked surrounding circumstances); see also People v. Granger, 19 Misc. 3d 1129A (Crim. Ct. Kings Co. 2008).
12. United States v. Mebrtatu, 2013 U.S. App. LEXIS 22093 (3d Cir. 2013).
13. See, e.g., United States v. Gagliardi, 506 F. 3d 140 (2d Cir. 2007) (standard for authentication under the Federal Rules of Evidence are minimal; transcripts of emails and instant-message chats admitted as they met the standard of authentication, “reasonable likelihood,” which is satisfied by the testimony of a witness with knowledge that a matter is what it is claimed to be); Fed. R. Evid. 901(b)(1); United States v. Echostar, 2004 U.S. Dist. LEXIS 20845 (N.D. Ill. 2004) (pages from the Internet Wayback Machine entered into evidence over challenge of their reliability; the court found that only a prima facie showing of genuineness was required and left for the jury to determine the question of authenticity).
14. United States v. McLee, 436 F. 3d 751, 763-65 (7th Cir. 2006). Cf., United States v. Parker, 2006 U.S. Dist. Lexis 77762, *15-17 (N.D. Ill. Oct. 10, 2006).
15. Martin v. Portexit, 98 A.D. 3d 63 (2d Dept. 2012); see, e.g., People v. DiRose, 2014 N.Y. Misc. LEXIS 608, (Justice Ct., Monroe Co., Feb. 12, 2014) (electronic documents admitted into evidence per CPLR 4518[a]).