Commercial Litigation and Arbitration

Internet Evidence — Authentication

The defendant, a member of the armed forces, was tried and convicted of fraud against the United States and other offenses in United States v. Hernandez, 2007 CCA LEXIS 183 (U.S. Navy-Marine Corps Ct. Crim. App. June 12, 2007). To prove the defendant’s misuse of government telephony, the prosecution called a Chief Warrant Officer to testify that the defendant made telephone calls from her base in Okinawa to the United States and to provide details relating to those calls. The Chief Warrant Officer based his testimony on a spreadsheet prepared in the following way. First, the witness gathered raw data from technicians who worked for him containing the dates of defendant’s outgoing calls, their length, and the numbers called. Second, he entered the phone numbers into databases available on the internet to determine the time zones called and the recipients’ names. Third, he compiled all of this information into a summary spreadsheet in accordance with Rule 1006. The defense did not object to the document.

Reviewing for plain error, the appellate court found no problem with the spreadsheet insofar as it summarized data provided by technicians subordinate to the witness — all of that data comprised business records. But the inclusion of information drawn from the internet was held to be error because it ‛was categorically hearsay, and the Government failed to establish any foundation bringing that source within any hearsay exception.“ The hearsay analysis is correct. More on this topic can be found in the article entitled: Internet and Email Evidence on the Recent Articles page.

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