Internet Chat — Authenticated and Best Evidence Satisfied by Credible Testimony of One Participant in Chat
United States v. Lebowitz, 2012 U.S. App. LEXIS 6859 (11th Cir. April 5, 2012):
III. AUTHENTICITY AND BEST EVIDENCE
Lebowitz argues that the district court abused its discretion by admitting into evidence printouts of internet chat conversations between K.S. and Lebowitz. This court reviews a district court's evidentiary rulings for abuse of discretion. United States v. Lanzon, 639 F.3d 1293, 1300 (11th Cir. 2011). The factual findings underlying those rulings are reviewed for clear error. Id.
Lebowitz argues that admission of the printouts violated the authentication requirement in Federal Rule of Evidence 901. To authenticate a document, Rule 901 only requires a proponent to present "sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be." United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010) (quotation omitted). After meeting the prima facie burden, the evidence may be admitted, and the ultimate question of authenticity is then decided by the jury. Id. "A district court has discretion to determine authenticity, and that determination should not be disturbed on appeal absent a showing that there is no competent evidence in the record to support it." United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). "Evidence may be authenticated through the testimony of a witness with knowledge." Lanzon, 639 F.3d at 1301 (citing Fed. R. Evid. 901(b)(1)).
Here, K.S. testified that he had printed out the chats and that the printouts submitted into evidence accurately reflected the chat messages. K.S. also told the jury he could not remember certain aspects of how the printouts were created. However, "[a]ppellate courts reviewing a cold record give particular deference to credibility determinations of a fact-finder who had the opportunity to see live testimony." Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir. 1983). We find that the district court did not clearly err by finding K.S. credible. Accordingly, the Government met its prima facie burden under Rule 901, leaving the ultimate question of authenticity for the jury.
Lebowitz also argues that the admission of the printouts violated the best evidence rule because the printouts did not accurately reflect the data stored in K.S.'s computer. See Fed. R. Evid. 1001-1004. Federal Rule of Evidence 1002 requires introduction of an original document. Federal Rule of Evidence 1001(3) defines "original" to include a printout of computer data shown to accurately reflect that data. Accuracy of the printout is a preliminary question of admissibility to be determined by the court. Fed. R. Evid. 104(a) & 1008. Here, the district court credited K.S.'s testimony concerning the accuracy of the printouts, and we defer to that credibility determination. See Owens, 698 F.2d at 1113. The district court did not clearly err by admitting the printouts as originals.
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