Commercial Litigation and Arbitration

Authentication of Email, Internet and Social Media Evidence

Tienda v. State, 2012 Tex. Crim. App. LEXIS 244 (Tex. Ct. Crim. App. Feb. 8, 2012):

In his only issue for discretionary review, the appellant contends that the trial court erred in admitting into evidence the electronic content obtained from MySpace during both the guilt/innocence and punishment phases of his trial. The appellant broadly argues that the State failed to properly authenticate any of the evidence printed from the social networking website; and more specifically, that the "contents of a website cannot authenticate the website" itself. In other words, he complains that the State did not prove that he was responsible for creating and maintaining the content of the MySpace pages by merely presenting the photos and quotes from the website that tended to relate to him. Therefore, the appellant concludes, the trial court erred in overruling his running objections under Texas Rules of Evidence Rule 901, and the court of appeals should not have affirmed its ruling. ***

Like our own courts of appeals here in Texas, jurisdictions across the country have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs. Printouts of emails, internet chat room dialogues, and cellular phone text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity.

Footnote 28. See Jackson v. State, 2009 Ark. App. 466, 320 S.W.3d 13 (2009) (Yahoo instant message conversations); Bobo v. State, 102 Ark. App. 329, 285 S.W.3d 270 (2008) (emails); Hammontree v. State, 283 Ga. App. 736, 642 S.E.2d 412 (2007) (internet instant message conversation); Simon v. State, 279 Ga. App. 844, 632 S.E.2d 723 (2006) (emails); Ford v. State, 274 Ga. App. 695, 617 S.E.2d 262 (2005) (internet chat room); State v. Glass, 146 Idaho 77, 190 P.3d 896 (on-line conversation); People v. Chromik, 408 Ill. App.3d 1028, 946 N.E.2d 1039 (2011) (text message); People v. Downin, 357 Ill.App.3d 193, 828 N.E.2d 341 (2005) (email); Commonwealth v. Purdy, 459 Mass. 442, 945 N.E.2d 372 (2011) (emails); Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 941 N.E.2d 1143 (2011) (emails); Kearley v. State, 843 So. 2d 66 (Miss. App. 2002) ( emails); People v. Clevenstine, 68 A.D.3d 1448, 891 N.Y.S.2d 511 (2009) (MySpace instant messages); State v. Thompson, 777 N.W.2d 617 (N.D. 2010) (text messages); In the Interest of F.P., a Minor, 878 A.2d 91 (Pa. 2005) (instant messages); State v. Taylor, 178 N.C. App. 395, 632 S.E.2d 218 (2006) (text messages); Bloom v. Commonwealth, 262 Va. 814, 554 S.E.2d 84 (2001) (instant messages); United States v. Gagliardi, 506 F.3d 140 (2nd Cir. 2007) (emails and internet chat room); United States v. Barlow, 568 F.3d 215 (5th Cir. 2009) (Yahoo instant message conversations); United States v. Tank, 200 F.3d 627 (9th Cir. 2000) (internet chat room); United States v. Simpson, 152 F.3d 1241 (10th Cir. 1998) (internet chat room); United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000) (email).

Such prima facie authentication has taken various forms. In some cases, the purported sender actually admitted to authorship, either in whole or in part,

Footnote 29 Jackson, supra, Ark. App. at 469, S.W.3d at 16 (defendant admitted to police that he had engaged in instant message conversations and acknowledged transcripts as accurate); Bobo, supra (defendant admitted sending emails, only denying some of the content); Simon, supra, Ga. App. at 847, S.E.2d at 726 (defendant admitted to two witnesses, including police officer, that he participated in the email exchange); Ford, supra, Ga. App. at 697, n.7, S.E.2d at 266, n.7 (defendant gave statement to police admitting to engaging in the on-line chat); Kearley, supra, at 70 (defendant admitted to police that he sent emails); Thompson, supra, at 621-22 (defendant's husband testified that he received text messages from what he knew to be her phone number and that she signed them in a distinctive manner with which he was familiar, and the defendant admitted sending text messages from her phone to her husband's phone that day); Bloom, supra, Va. at 821, S.E.2d at 87 (defendant admitted to police officer that he had communicated with instant message recipient on evening in question).

or was seen composing it.

Footnote 30 Massimo, supra, at 213 (defendant was "witnessed" to have sent similarly threatening email to recipient in the past); Clevenstine, supra, A.D.3d at 1450-51, N.Y.S.2d at 514 ("a legal compliance officer for MySpace explained that the messages on the computer disk had been exchanged by users of accounts created by defendant and the victims, and defendant's wife recalled the sexually explicit conversations she viewed in the defendant's MySpace account while on their computer").

In others, the business records of an internet service provider or a cell phone company have shown that the message originated with the purported sender's personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone.

Footnote 31 Bobo, supra, Ark. App. at 335, S.W.3d at 275 (forensic computer expert testified that some of the emails "matched a temporary unique IP internet address for" the defendant's computer); Hammontree, supra, Ga. App. at 739, S.E.2d at 415 (internet message conversation originated from defendant's son's account, but messages signed by the defendant, he had access to son's computer, and son denied being author); Chromik, supra, Ill. App. at 1047-48, N.E.2d at 1056-57 (phone records show text messages sent from defendant's phone number at particular date and time alleged, and defendant admitted sending some of them, acknowledging accuracy of transcripts); Purdy, supra, Mass. at 450-51, N.E.2d at 381 (emails originated from email account bearing defendant's name and that he admitted was his, were found on computer he acknowledged was his, and contained information about his business that was, if not unique, then at least "unusual").

Sometimes the communication has contained information that only the purported sender could be expected to know.

Footnote 32 Downin, supra, Ill. App. 3d at 195, N.E.2d at 344-45 (victim knew defendant personally, had exchanged emails with him in the past at an email address she knew to be his, and the email in issue came from his address, was responsive to an email she had sent him, and "contained information that would be known exclusively to" him); Taylor, supra, N.C. App. at 414, S.E.2d at 230-31 (text messages identified purported sender by name and described car he would be driving on a particular occasion); Simpson, supra, at 1250 (defendant identified himself by name and email address in the course of internet chat room communications, and search of his home revealed specific written information found next to his computer that had been conveyed to him via those communications); Siddiqui, supra, at 1322-23 (emails purported to come from defendant's known email address, referred to the author by defendant's nickname, and contained allusions to events and circumstances that only defendant could reasonably be expected to know about).

Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication, the authentication of which is in issue.

Footnote 33 Shea, supra, at 105 (defendant called recipient to confirm that she had received his email); Glass, supra, Idaho at 82, P.3d at 901 (in on-line conversation, defendant identifies himself by his middle name and then appears at a time and place agreed to, and in a car accurately described, in the conversation); Amaral, supra, Mass. App. Ct. at 674, N.E.2d at 1147 (defendant included photo and phone number in emails, which proved to be his, and one email "indicated that [he] would be at a certain place at a certain time, and [he] appeared at that place and time"); Bloom, supra (defendant revealed his true name and certain biographical information that was accurate, and appeared at the time and place where he had agreed to meet recipient); Gagliardi, supra, at 143 (defendant showed up at meeting place arranged during the course of exchange of electronic messages); Barlow, supra, at 218 (defendant arranged via Yahoo instant messages to meet at a state park, and appeared at the appointed place and time, admitting to police that he was there to meet the recipient); Tank, supra, at 630-31 (defendant admitted that screen name used in text messages was his, and witnesses testified that "when they arranged a meeting with the person who used [that screen name], it was Tank who showed up").

And sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.

Footnote 34 Manuel, supra, at *8 (text messages originated from phone number that the recipient recognized to be the defendant's, from which number she had also received various voice messages from which she recognized the defendant's voice); In the Interest of F.P., a Minor, supra, at 95 (instant messages purportedly sent by defendant referenced him by name as the sender, and threats made and events discussed therein mirrored animosity that defendant had displaying toward recipient contemporaneously with the period during which messages were sent).

However, mindful that the provenance of such electronic writings can sometimes be open to question — computers can be hacked, protected passwords can be compromised, and cell phones can be purloined — courts in other cases have held that not even the prima facie demonstration required to submit the issue of authentication to the jury has been satisfied.

Footnote 35 See People v. Beckley, 185 Cal. App. 4th 509, 518, 110 Cal. Rptr. 3d 362, 368-69 (2010) (purported roster of gang members which appeared on a web page printed from the internet was not properly authenticated where sponsoring police officer did not know who compiled it and did not explain the basis for his assertion that the gang itself did so); Eleck, supra, Conn. App. at 642-43, A.3d at 824 (printout of instant message exchange from defendant's Facebook page not properly authenticated just because the messages appeared to come from the purported sender's Facebook account; the messages fail to "reflect distinct information that only [the sender] would have possessed regarding the defendant or the character of their relationship"); Hollie v. State, 298 Ga. App. 1, 3, 679 S.E.2d 47, 50 (2009) (though email showed on its face that it originated from purported sender's email address, "this alone does not prove its genuineness"); Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162, 1172-73 (2010) (message not properly authenticated, even though it came from purported sender's MySpace page, because "there is no testimony (from [the recipient] or another) regarding how secure such a Web page is, who can access a MySpace Web page, whether codes are needed for such access, etc.[,]" and also no testimony circumstantially to "identify the person who actually sent the communication"); People v. Lenihan, 30 Misc. 3d 289, 293, 911 N.Y.S.2d 588, 591-92 (2010) ("defendant could not authenticate" photographs taken from a MySpace website because he "did not know who took [them] or posted them on MySpace"); Commonwealth v. Koch, A.3d , 2011 WL 4336634, at *6 (Pa. Super. Ct. 2011) (cell phone text messages require more for authentication "than mere confirmation that the number or address belonged to" the purported sender and were inadmissible in the absence of "contextual clues in the . . . messages themselves tending to reveal the identity of the sender"); United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000) (posting on white supremacist group's internet web site not authenticated because no showing that the group actually posted it as opposed to the defendant "herself, who was a skilled computer user"); St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774-75 (S.D. Texas 1999) (random posting on internet web site cannot be authenticated because untrustworthy, given that "[a]nyone can put anything on the Internet").

That an email on its face purports to come from a certain person's email address, that the respondent in an internet chat room dialogue purports to identify himself, or that a text message emanates from a cell phone number assigned to the purported author — none of these circumstances, without more, has typically been regarded as sufficient to support a finding of authenticity.

Footnote 36 See Goode, supra, at 10 ("the mere fact that an e-mail bears a particular e-mail address will often prove inadequate to authenticate the identity of the author; typically courts demand at least a little more evidence"); Purdy, supra, Mass. at 451, N.E.2d at 381 ("Evidence that the defendant's name is written as the author of an e-mail or that the electronic communication originates from an e-mail or social networking Web site such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant."); Koch, supra, at *6 ("In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, court demand additional evidence.").

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