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Archive for the ‘Chat Room Content’ Category

Case Blurb: US v. Lebowitz; Authentication of Chat Printouts

Posted by rjbiii on April 9, 2012

As to the authenticity of the chat printouts, Investigator Suber testified that [minor child] K.S. printed the chats and delivered them to her. K.S. confirmed to Investigator Suber that the messages were exactly what was on his computer. Investigator Suber testified that a section of chat messages was missing, but that the remainder appeared unaltered. In his trial testimony, K.S. confirmed Investigator Suber’s account.

In response, [Defendant] offered the testimony of Jim Persinger, a computer forensics expert. Persinger testified that K.S.’s method of producing the printouts created a possibility for alteration. However, Persinger admitted that he had no evidence of any alteration or tampering. Persinger also admitted that the substance of many of the chats was corroborated by e-mail messages and subsequent events. The district court determined that the Government had made a prima facie showing of authenticity, and refused to exclude the printouts.

U.S. v. Lebowitz, 2012 WL 1123845, 3 (C.A.11 (Ga. (C.A.11 (Ga.),2012)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content | Leave a Comment »

Case Blurb: Lebowitz; Authentication of ESI Discussed

Posted by rjbiii on May 17, 2010

The Defendant questioned the authenticity of email transcripts, “instant messages,” and “chats” due to the incompleteness and integrity of the evidence. “The requirement of authenticity . . . as a condition precedent of admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Though K.S. did not testify at the hearing, Officer Suber testified that the communications were provided to her by K.S. FN2. Also, other evidence, including recorded telephone conversations, corroborated the communications. There are obvious omissions in some of the communications. However, the Court finds that those omissions do not support excluding the communications. The omissions go to the weight rather than the admissibility of the evidence. Based upon the evidence presented at the hearing, the Court finds that Defendant has not demonstrated that the evidence should be excluded at this time. Defendant’s Motion on the Authenticity of Purported Electronic Communications is DENIED.

FN2: For purposes of the hearing, Officer Suber’s testimony was sufficient. However, before the communications will be admissible at trial, the testimony of K.S. or someone with actual knowledge about the communications will be required.

United States v. Lebowitz, 2010 U.S. Dist. LEXIS 7026 at *4-5 (N.D. Ga. Jan. 27, 2010)

Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content, email, FRE 901(a), Instant Messaging, Judge Richard W. Story, N.D. Ga., Uncategorized | Leave a Comment »

ABA Section Journal Addresses Admissibility of Text & Instant Messages

Posted by rjbiii on March 14, 2008

The March Issue of Litigation News (no link available to current issue) contains an article relating to the Admissibility of text and instant messages. According to the article, the major challenge for authenticating the messages is “usually proving the identity of the persons in the conversation.” These challenges are, however, navigable. To wit:

The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstatial evidence. People v. Pierre. The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.

Even so, the witness testified that she knew the defendant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission.

The article contrasts this situation with a decision by a California court to exclude a text message, because prosecutors failed to properly authenticate it, and circumstances were such that more than one person could have sent it. The Second Circuit recently rejected a court’s decision to admit a chat session’s transcript made by cutting a pasting the text from the chat window into another file format (presumably Word?). The article concludes by emphasizing the need for attorneys to engage experts:

“As a practical matter,” says Steven A. Weiss, Chicago, former Co-Chair of the Section’s Technology for the Litigator Committee, “because of the myriad of devices being used to send and receive electronic messages, lawyers will usually need an IT expert to access and retrieve IMs and text messages, and to explain to the cour how the information is stored in a particular device and how it was retrieved.”

Posted in Admissibility of ESI, Articles, Authentication, Chat Room Content, Data Sources, Texting, Trends | Leave a Comment »

Case Blurb: Lorraine; Authenticating Text Messages and Chat Room Content

Posted by rjbiii on September 22, 2007

Many of the same foundational issues found encountered when authenticating website evidence apply with equal force to text messages and internet chat room content; however, the fact that chat room messages are posted by third parties, often using “screen names” means that it cannot be assumed that the content found in chat rooms was posted with the knowledge or authority of the website host.

One commentator has suggested that the following foundational requirements must be met to authenticate chat room evidence:

  1. [e]vidence that the individual used the screen name in question when participating in chat room conversations (either generally or at the site in question);
  2. [e]vidence that, when a meeting with the person using the screen name was arranged, the individual … showed up;
  3. [e]vidence that the person using the screen name identified [himself] as the [person in the chat room conversation];
  4. evidence that the individual had in [his] possession information given to the person using the screen name;
  5. [and][e]vidence from the hard drive of the individual’s computer [showing use of the same screen name].

Courts also have recognized that exhibits of chat room conversations may be authenticated circumstantially.

  • (References In Re F.P., A Minor, in which the defendant argued that the testimony of the internet service provider was required, or that of a forensic expert. 878 A.2d at 93- 94). The court held that circumstantial evidence, such as the use of the defendant’s screen name in the text message, the use of the defendant’s first name, and the subject matter of the messages all could authenticate the transcripts.
  • (References United States v. Simpson, the court held that there was ample circumstantial evidence to authenticate printouts of the content of chat room discussions between the defendant and an undercover detective, including use of the e-mail name of the defendant, the presence of the defendant’s correct address in the messages, and notes seized at the defendant’s home containing the address, e-mail address and telephone number given by the undercover officer. 152 F.3d at 1249).
  • (References United States v. Tank, the court found sufficient circumstantial facts to authenticate chat room conversations, despite the fact that certain portions of the text of the messages in which the defendant had participated had been deleted. 200 F.3d at 629-31). There, the court found the testimony regarding the limited nature of the deletions by the member of the chat room club who had made the deletions, circumstantial evidence connecting the defendant to the chat room, including the use of the defendant’s screen name in the messages, were sufficient to authenticate the messages.

Based on the foregoing cases, the rules most likely to be used to authenticate chat room and text messages, alone or in combination, appear to be:

  • 901(b)(1) (witness with personal knowledge) and
  • 901(b)(4) (circumstantial evidence of distinctive characteristics).

Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).

Posted in 3d Circuit, Admissibility of ESI, Authentication, Case Blurbs, Chat Room Content, D. Md., FRE 901(b)(1), FRE 901(b)(4), Magistrate Judge Paul W. Grimm, Texting | Leave a Comment »