Commercial Litigation and Arbitration

Circumstantial Authentication of Text [or Email] Evidence — Testimony That Person Said He’d Send Text and Text Was Then Received from His Account is Sufficient — Social Media Authentication by Testimonial Stip

People v. Harris, 2014 Cal. App. Unpub. LEXIS 7086 (Cal. Ct. App. Oct. 1, 2014):

D. Failure to Object to Inadequately Authenticated Electronic Evidence

1. Background

The prosecution's evidence included the following items derived from electronic messages or material posted on social media: (1) Manning's email transcribing and compiling text messages Manning received from appellant after the murders (the text message email); (2) material posted on a Facebook account maintained under the name "Airitout Gasteam" (the Facebook posts); and (3) photographs posted on the photo sharing site Photo Bucket, in an account belonging to appellant (the Photo Bucket photographs).12

12   The prosecution also introduced two videos posted on YouTube: (a) the "Party in the [*35]  Jetz" rap video, and (b) a video showing appellant in Seattle wearing a distinctive medallion that belonged to Jackson and which could not be located after his death (the Seattle video). Appellant's opening brief does not question his trial counsel's failure to object to the authenticity or admissibility of the Seattle video, or to the authenticity of the "Party in the Jetz" rap video.

2. Analysis

"Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) "'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' [Citation.]" (People v. Sarpas (2014) 225 Cal.App.4th 1539, 1571.)

With regard to the text message email, Manning, appellant's former girlfriend, testified at appellant's preliminary hearing regarding its genesis. She explained that she spoke with appellant on the telephone while he was in Seattle; he told her he would text her shortly; and she soon received electronic [*36]  messages from an account that she knew belonged to appellant. She copied and pasted her text message conversation with appellant into an email, without altering the contents of the messages. She identified the printout of this email as an accurate representation of the message exchange.

Manning's personal participation in the text message exchange and in the creation of the text message email, together with her knowledge of appellant's social media accounts and the circumstances surrounding the text message exchange, permitted the prosecution to lay a sufficient foundation for the authenticity of the text message email through Manning's testimony. In our view, this constitutes an adequate foundation for the introduction of the text message email into evidence--subject, of course, to appellant's right to cross-examine Manning regarding her account of how the document was generated, or to introduce other evidence casting doubt on its veracity.13

13   Appellant argues that the text messages could have originated from someone other than appellant, or that Manning could have changed their content when she copied them into the text message email. Manning testified that neither of these things occurred, [*37]  however. The record reflects that appellant's trial counsel attempted to find an expert who could cast doubt on this testimony, but apparently was unable to do so.

Based on Manning's testimony at the preliminary hearing, appellant's trial counsel was aware that the prosecution had sufficient evidence to authenticate the text message email. It is clear from the record that trial counsel relied on this fact in arriving at a tactical decision not to put the prosecution to its proof. That tactical decision did not constitute ineffective assistance of counsel. (Cf. People v. Diaz (1992) 3 Cal.4th 495, 559-560 [failure to object to introduction of evidence on chain of custody grounds did not constitute ineffective assistance of counsel where prosecution would have been able to establish chain of custody if required to do so].) Appellant's trial counsel's tactical decision not to object on authenticity grounds to the admission of the text message email therefore was not ineffective assistance of counsel.

The Facebook posts were authenticated at trial by a stipulation that Dorgan McDade, a relative of Hampton's, if called as a witness, would testify that he printed the pages out from a Facebook account belonging to appellant under the name Airitout Gas Team. Similarly, the Photo Bucket photographs were authenticated by a stipulation that a prosecution investigator downloaded them on a certain date from an account on the website maintained by someone using the name "GasTeamNick." Both of these stipulations were based on extensive information provided in the prosecutor's in limine motion regarding the origin and authenticity of these documents, including statements appellant made in his telephone calls from jail that tended to show the material was genuine. For the reasons articulated above with respect to the text message email, we are not persuaded that appellant's trial counsel's rendered ineffective assistance in making a tactical decision not to require the prosecution to present its authenticating information to the jury.

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