Linde v Arab Bank, PLC, 2015 U.S. Dist. LEXIS 45903 (E.D.N.Y. April 8, 2015):

A. Authentication Generally

Federal Rule of Evidence 901 "does not erect a particularly high hurdle" for authenticating evidence. United States v. Dhinsa, 243 F.3d 635, 658 (2d Cir. 2001). "[T]he standard for authentication is one of 'reasonable likelihood,' and is 'minimal.'" United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007). "Generally, a document is properly authenticated if a reasonable juror could find in favor of authenticity." Id. The proponent does not need to eliminate "all possibilities inconsistent with authenticity or to prove beyond any doubt [*157]  that the evidence is what it purports to be." Id. (quotations omitted). The hurdle for authenticating evidence may be cleared by circumstantial evidence. See Dhinsa, 243 F.3d at 659. Although Rule 901(b) sets forth examples of evidence that satisfy the authentication requirement, these methods are not exhaustive. See id.

 

Most relevant here is Rule 901(b)(4), which permits authentication by "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." The Advisory Notes to Rule 901(b)(4) state that "[t]he characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety."

1. Authentication of Website Postings

A proponent seeking to authenticate a website posting must show a reasonable likelihood that the information was posted by the individual or organization to which the postings were attributed. See, e.g., Boim III, 549 F.3d at 703 (explaining that authentication of similar web postings "would typically require some type of proof that the postings were actually made by the individual or organization to which they are being attributed -- in this case, Hamas -- as opposed to others with access to the website") (quoting Boim v. Holy Land Found. for Relief and Dev., 511 F.3d 707, 752-54 (7th Cir. 2007)).

In [*158]  this case, plaintiffs' expert Evan Kohlmann authenticated two websites, Palestine-info.com and alqassam.ps, as authentic mouthpieces for Hamas. Mr. Kohlmann has given similar testimony in criminal prosecutions, see United States v. Ali, 2011 WL 4583826, and was more than qualified to give such testimony in the context of this civil case.

At trial, Mr. Kohlmann testified in detail as to the factors, both extrinsic and intrinsic, that led him to conclude that these two websites were authentic. Those factors included: the reliance of the United States and other governments on the webpages as authentic sources of Hamas communications; the language and facts used in postings; the posting of exclusive interviews with Hamas leaders and nonpublic details of their lives; and the fact that the websites contained official Hamas seals and watermarks. Cf. United States v. Vayner, 769 F.3d 125, 131 (2d Cir. 2014) (finding a website to be inadequately authenticated where witness testified only that he visited the website and that it was presently accessible, without providing evidence that the defendant was the webpage's author or otherwise tying the webpage to the defendant). In Mr. Kohlmann's expert opinion, Hamas had posted authentic claims of responsibility for each of the 24 attacks at [*159]  issue in this case. His testimony was sufficient to show a "reasonable likelihood" that the postings were authentic, and to allow a reasonable jury to conclude that the claims of responsibility were indeed issued by Hamas.

2. Authentication of Videos

The Court also admitted certain video recordings at trial. Videos may be authenticated "on the same principles as still photographs," Mikus v. United States, 433 F.2d 719, 725 (2d Cir. 1970) (citations omitted), and still photographs may be authenticated by a witness familiar with what is pictured. See Kleveland v. United States, 345 F.2d 134, 137 (2d Cir. 1965) ("The witness qualifying a photograph, however, does not need to be the photographer or see the picture taken. It is only necessary that he recognize and identify the object depicted and testify that the photograph fairly and correctly represents it."). "Evidence of how the tapes were made and handled" before they came into the proponent's possession is not necessarily required to authenticate them. United States v. Damrah, 412 F.3d 618, 628 (6th Cir. 2005) (district court did not err in admitting video tapes seized from a third party that depicted the defendant speaking at Palestinian Islamic Jihad fundraising events, where defendant offered no proof that the Government had altered the tapes after their seizure, and there was no dispute that [*160]  they accurately depicted the defendant's likeness and words). As described below, the circumstantial evidence in the record was sufficient such that a reasonable juror could find that the video recordings were authentic.

B. Declarations Against Interest

1. Website Postings

All the web postings that the Court admitted, save one, were claims of responsibility by Hamas for terrorist attacks. The Court has noted its disagreement with decisions by other district courts that have held that a claim of responsibility by a terrorist group categorically cannot qualify as a declaration against interest. See Gilmore v. Palestinian Interim Self-Gov't Auth., No. CV 1-853, 2014 WL 3719160, at *9-10 (D.D.C. July 28, 2014); Strauss, 925 F. Supp. 2d at 449; Gill, 893 F. Supp. 2d at 569.

Defendant's Rule 59 motion, which again objects to the admission of these claims of responsibility, raises no new arguments. It merely reiterates defendant's reliance on these cases, without addressing the Court's previous decision expressing its disagreement with them and the authorities cited therein. Nevertheless, I will explain my rationale once more.

First, claiming responsibility for a terrorist attack is plainly against Hamas' penal interest. For a statement to be admissible under Rule 804(b)(3), a court must determine that "a reasonable person [*161]  in the declarant's shoes would perceive the statement as detrimental to his or her own penal interest." United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004). The rule does not require that the declarant be aware that the incriminating statement could subject him to immediate criminal prosecution, but only that it tended to subject him to criminal liability. See United States v. Lang, 589 F.2d 92, 97 (2d Cir. 1978).

This part of the analysis is relatively straightforward. It is beyond reasonable dispute that Hamas' claim of responsibility for a violent terrorist attack on Israeli civilians could subject the organization and its members to penal consequences, including crackdowns, arrests and even assassination by Israel. For example, on August 19, 2003, a suicide bomber blew himself up on a bus in Jerusalem, and Hamas claimed responsibility that night. According to Mr. Spitzen's expert report, Ismail Abu Shanab, a senior Hamas leader, was killed by the IDF two days later, on August 21, 2003. This is not to say that Shanab's killing was solely in response to Hamas' claim of responsibility. However, it cannot be disputed that Israel takes punitive action against Hamas when it perceives that Hamas has committed a terrorist attack. Hamas claiming responsibility for a terrorist attack tends [*162]  to increase that perception, and Hamas is aware of these facts.²⁵

25   Claiming responsibility for terrorist attacks can also contribute to other sanctions. The United States' August 22, 2003 designation of several Hamas fundraising charities and leaders as SDGTs specifically cited Hamas' claim of "responsibility for the despicable act of terror on August 19."

In its Rule 59 motion, defendant does not seriously contest that claiming responsibility for a terrorist attack could subject Hamas to the criminal consequences described above. Rather, it relies on select quotations from plaintiffs' experts to argue that Hamas had an ulterior motive to lie, negating the assumption underlying Rule 804(b)(3) that people "do not make statements which are damaging to themselves unless satisfied for good reason that they are true." This effort is not persuasive.

As I have previously held, the fact that Hamas may have other motivations for claiming responsibility for a terrorist attack does not automatically render such claims inadmissible. After all, it is rare for anyone to say anything purely for the sake of getting himself in trouble. Courts regularly admit statements under Rule 804(b)(3) despite the argument that the declarant had another [*163]  motive for making the statement. See United States v. Gupta, 747 F.3d 111, 128-29 (2d Cir. 2014) (rejecting argument that the declarant "was merely attempting to impress" the person to whom he was speaking); see also United States v. Williams, 506 F.3d 151, 155 (2d Cir. 2007) (noting that declarant "was boastful regarding his participation in the murders"); United States v. Hamilton, 19 F.3d 350, 357 (7th Cir. 1994) (rejecting argument that statements were mere "jailhouse boasting"); United States v. Mills, 704 F.2d 1553, 1562 (11th Cir. 1983) (rejecting as "disingenuous" the argument that "that under the circumstance of one inmate bragging to another about crimes committed, the statement was not against penal interest at the time it was made" because the declarant "well understood the possibility that his statement might be overheard by prison guards . . . and that penal consequences might result").

Thus, the question is not whether Hamas' claims of responsibility were undiluted by other motives, but whether Hamas, or rather, its members, were aware that they faced severe penal consequences for making these claims. The fact that Hamas claimed responsibility for these attacks signals only that it thought the risk of penal consequences was outweighed by its collateral goals, not that there were no penal consequences attached to the statements. Plaintiffs were entitled to argue to the jury that Hamas would not have made [*164]  these statements unless they had a least a kernel of truth. With the potential penal consequences as severe as they are in this case, Hamas' propaganda motives are insufficient to render its statements inadmissible.

It bears mentioning that this is not a criminal case. Thus, Rule 804(b)(3)(B)'s requirement that a statement against interest "supported by corroborating circumstances that clearly indicate its trustworthiness" does not apply, because the statement is not "offered in a criminal case as one that tends to expose the declarant to criminal liability." Nevertheless, many of the claims of responsibility in this case were corroborated by Israeli government reports assigning blame to Hamas, and by court records showing convictions of Hamas operatives for the attacks.

Defendant rightly pointed out the lack of such corroboration for some of the statements on cross-examination. It also pointed to claims of responsibility by other groups,²⁶ and expounded on its argument that Hamas may have incentives to lie for propaganda purposes. But as a factor countervailing Hamas' motives to lie, plaintiffs' experts also testified that a claim of responsibility that turns out to be false can damage a terrorist organization's [*165]  reputation.

26   The fact that certain of those claims were presented in newspaper articles, however, added an extra level of hearsay and rendered them inadmissible.

These competing contentions were presented where they should have been presented: to the jury. See Gupta, 747 F.3d at 129. It is not the Court's role to determine the weight of the evidence before determining its admissibility, especially where the statements at issue so plainly carry significant penal consequences, and those penal consequences are not clearly outweighed by a motive to fabricate. A jury can and should consider all of the factors that each party pointed out when determining the weight to assign to Hamas' claims of responsibility. These factors do not, however, render the statements inadmissible.

Ironically, had defendant been successful in excluding all reference to Hamas' claims of responsibility for terrorist attacks, I may have been forced to grant a directed verdict to plaintiffs on the issue of attribution of many of the attacks. That is because with few exceptions, the only evidence that defendant offered to show that the attacks were not carried out by Hamas were claims of responsibility by other terrorist groups. Without those [*166]  competing claims, plaintiffs' evidence and expert testimony would have gone uncontradicted. See Boim III, 549 F.3d at 704-05 ("[W]ith [expert testimony regarding attribution] in the record and nothing on the other side the court had no choice but to enter summary judgment for the plaintiffs with respect to Hamas's responsibility for the Boim killing.") (emphasis in original).

Finally, the Court admitted one website posting that was not a claim of responsibility, but was instead a statement on the website Palestine-info.com, which called for donations to Hamas at a particular Arab Bank account. In hindsight, it is not clear what statements on this webpage were being offered for their truth, and thus they may not have been hearsay at all; certainly, plaintiffs were not contending the truth of the statement that supporters of Hamas should donate to a particular account. The document's primary relevance lies in the fact that an Arab Bank account number was listed on an authenticated Hamas website, not in the veracity of the statements featured on the website.

Nevertheless, there is a readily identifiable penal interest implicated by the statements on the website: soliciting donations for Hamas is a crime under the laws of [*167]  the United States, Israel, and other countries. The purportedly "ulterior" motivation for making these statements is equally obvious: the desire to raise money. But again, a statement is admissible as a declaration against penal interest if it is sufficiently self-inculpatory, even though the statement might also serve the declarant's other interests. See Saget, 377 F.3d at 231 n.4 ("To the extent that Saget's argument is that Beckham's statements were not truly against his interest because Beckham made the statements in an attempt to persuade the CI to enter into the conspiracy, it is misplaced. Even if the statements were in Beckham's pecuniary interest, they were clearly self-inculpatory and therefore against his penal interest, as required by Rule 804(b)(3).") (emphasis in original).

Moreover, to the extent that any statements on the website were offered for their truth, they were reliable and well-corroborated. The desire to raise money does not provide a motive to fabricate. Soliciting donations for a fake bank account would have the undesired effect of ensuring that the intended recipient never received those donations. In addition, the statements were corroborated by SWIFT transfers to the account number listed on [*168]  the website -- the account of Osama Hamdan. Some of those transfers bore the notation "Palestine Information Center," the name of the website that posted the statements.

2. Hamas Website Videos

Most of the videos at issue originated from the Hamas websites that Mr. Kohlmann authenticated. That each video was found on a Hamas website supports the finding that it is reasonably likely that the videos were what plaintiffs professed them to be. Another factor in favor of authenticity is that plaintiffs' expert witnesses, Messrs. Kohlmann and Shaked, who were both familiar with the likenesses of these terrorists from their extensive review of other Hamas materials, identified the individuals depicted in the "video wills" as the same individuals who carried out the attacks in question.

The video wills of suicide bombers are declarations against interest -- they expose a declarant to significant criminal liability. For example, if the video fell into Israel's hands before the declarant was able to carry out his attack, Israel would make great efforts to capture or kill the declarant before he could do so.

Defendant's argument that the video wills were not against the declarants' penal interests [*169]  because the statements contained therein "cannot conceivably imply any fear of post-suicide prosecution" is without merit. First, as explained above, at the time the videos were recorded, a declarant did face severe penal consequences if Israeli authorities obtained the video prior to his carrying out the attack. Second, for each video will that was admitted, there was corroborating evidence that the terrorist depicted ultimately did carry out a terrorist attack.

For the remaining Hamas website video -- a video of the funeral of a Hamas bombmaker -- plaintiffs' expert Mr. Spitzen testified that he recognized and personally met some of the individuals depicted in the video, and he recognized the area portrayed in the video as the town square of Nablus. The video was not introduced for the truth of any statements made by the individuals appearing in it, but rather to depict those individuals appearing together, which tended to connect them to Hamas.

3. Videos From Other Sources

The Court also admitted several video clips from other sources. All but one of these was adequately authenticated by testimony from plaintiffs' experts, who were familiar with the individuals depicted in the video [*170]  clips. The lone exception was plaintiffs' exhibit 1132, a video depicting children dressed up as terrorists at an event for one of the charities at issue, which was authenticated by testimony from Dr. Levitt based on the fact that he recognized the logo of the television station on which it was broadcast, and that he was personally familiar with this video and its use by law enforcement in several countries.²⁷

27   Defendant argued that this video may have been "staged." But this objection missed the relevance of the video. Obviously, the kindergarten video was staged: Children do not dress up as terrorists unless they are prompted to do so. However, the very fact that this event was "staged" at one of the charities at issue in this case is where the video's relevance is found.

Osama Hamdan's statements on CNN,²⁸ in which he declared Hamas' responsibility for the Park Hotel bombing, were admitted as declarations against penal interest.²⁹ He identified himself as a member of Hamas, and acknowledged that Hamas carried out the bombing. Membership in Hamas is a crime under United States, Israeli, and other law, and a terrorist bombing is illegal everywhere. The penal consequences that Hamdan faced [*171]  from claiming responsibility for this terrorist attack on behalf of Hamas were significant enough to bring them well within the rationale behind the exception, i.e., that a reasonable person would not likely have made these statements unless they were true. These statements were also extensively corroborated by other evidence in the record, including convictions of Hamas operatives for the Park Hotel bombing as well as Israeli government reports assigning blame to Hamas.

28   In terms of authentication, Mr. Kohlmann testified that the individual in the video was Osama Hamdan, the spokesman for Hamas. The record also contained Mr. Hamdan's passport. The picture on that passport demonstrated that the Osama Hamdan in the CNN video was the same individual who held an account at Arab Bank. In addition, the video itself was effectively self-authenticating. It bore CNN logos and showed no signs of being edited. Before beginning the interview, the anchor identified Osama Hamdan, both by name and as a spokesman for Hamas. Simply put, there is no doubt that the CNN video was authentic. Indeed, forging such a video would be extremely difficult. Cf. Advisory Committee Notes to Fed. R. Evid. 902(6) ("The likelihood of forgery [*172]  of newspapers or periodicals is slight indeed. Hence no danger is apparent in receiving them.").

29   The video was also independently relevant for the not-for-truth purpose of rebutting defendant's argument that Hamas operatives like Hamdan hid their Hamas affiliations and conducted their affairs in a secretive manner.

The Court also admitted a video of Khaled Mash'al, a Hamas leader, and Sheik Yousef Al-Qaradawi speaking at a conference in which they discussed raising money for Hamas, supporting suicide bombings, and joking about how they were both terrorists. The video's primary relevance was to show the connection between the Union of Good, the charity led by Al-Qaradawi, and Hamas. Nevertheless, to the extent the truth of certain statements in the video was relevant -- most notably statements that the Union of Good had raised tens of millions of dollars to support Hamas and the Intifada -- the penal interests implicated were clear: Membership in Hamas and raising money for Hamas are crimes under United States and Israeli law. Further, the association between the Union of Good and Hamas was corroborated by the United States' designation of the Union of Good as a SDGT in 2008, which described [*173]  that organization's role in sending "tens of millions of dollars a year to Hamas-managed associations."

The remaining video clip -- one showing Sheikh Bitawi, an individual connected to some of the charities at issue, speaking at the funeral of Jamal Mansur and Jamal Salim, two alleged Hamas leaders -- was not admitted for the truth of any statements contained in it, but to depict the connection between the individuals portrayed therein, Hamas, and the charities at issue in this case.

Finally, with respect to Rule 403, the subject matter of each of these videos was provocative to varying degrees. But for each one, the probative value of the video -- whether proving Hamas' responsibility for a given attack or showing the connection between certain individuals and charities to Hamas -- outweighed the risk of undue prejudice.