Commercial Litigation and Arbitration

Authentication of Website Evidence by Testimony of Downloading Witness That Printout Accurately Reflects Page at Time Printout Was Made

Smoot v. State, 316 Ga. App. 102, 729 S.E.2d 416 (Ga. Ct. App. 2012):

"Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made" before they can be introduced into evidence. Kenneth S. Broun, 2 McCormick on Evidence § 227 (6th ed. 2006). See Nightlight Systems v. Nightlites Franchise Systems, No. 1:04-CV-2112-CAP, 2007 U. S. Dist. LEXIS 95538, at *16 (N.D. Ga. May 11, 2007) (order) (noting that "to authenticate a printout from a web page, the proponent must present evidence from a percipient witness stating that the printout accurately reflects the content of the page and the image of the page on the computer at which the printout was made"). Then, to be relevant and material to the case at hand, the printouts often will need to be further "authenticated as having been posted by a particular source." 2 McCormick on Evidence, supra, § 227. See, e.g., Twiggs v. State, 315 Ga. App. 191, 197 (2) (726 SE2d 680) (2012); Hollie, 298 Ga. App. at 3 (1).

(4) With regard to the Ifshewontiwill website, one of the investigating officers testified that he made the printouts of the website, which were "a fair and accurate representation of the actual things" that he personally viewed on the website as part of his investigation. Moreover, the State presented circumstantial evidence that Smoot was the source of the website by introducing business cards found in her residence that were entitled "Adult Social Network," listed the web address for the Ifshewontiwill website, and contained the statement "Created by Gold," which Smoot admitted to police was her nickname. Smoot also admitted to the officers that she was "familiar" with the website. Under these circumstances, the State sufficiently authenticated the printouts from the Ifshewontiwill website to create a prima facie case of genuineness. See generally Simon, 279 Ga. App. at 847 (2) (documents can be authenticated through circumstantial evidence).

We reach a different result with regard to the printouts from the website. (5) These printouts were introduced through the police lieutenant, but there was no testimony from her that the printouts fairly and accurately represented the contents of the website she personally viewed as part of her investigation. Accordingly, the State failed to elicit testimony sufficiently authenticating the printouts from, and the trial court abused its discretion in admitting those printouts into evidence.

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