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Univ. of South Carolina School of Law

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Monday, August 8, 2011

Facebook Status: Inadmissible: Appellate Court Of Connecticut Upholds Exclusion Of Facebook Messages

A defendant is charged with assault. A witness for the prosecution testifies against the defendant and claims that she had not spoken to the defendant in person, by telephone, or by computer since the assault. The defendant then seeks to impeach the witness with a printout of messages sent back-and-forth between a Facebook account indisputably belonging to the defendant and a Facebook account indisputably belonging to the witness. The witness claims that she could not have authored the messages from her account because her account was hacked, but the evidence reveals that the hacking occurred after the subject messages were sent. Has the defendant properly authenticated the messages as coming from the witness? According to the recent opinion of the Appellate Court of Connecticut in State v. Eleck, 2011 WL 3278663 (Conn.App. 2011), the answer is "no" because the "hacking" "highlights the general lack of security of the medium...." I disagree.

In Eleck, Robert Eleck was charged with assault in the first degree by means of a dangerous instrument based upon a physical altercation between Eleck and Matthew Peacock at a party. Simone Judway was also at the party, and, at trial,
As a witness for the state, Judway offered key testimony that, prior to the physical altercation, the defendant had told her that "if anyone messes with me tonight, I am going to stab them." Subsequently, during cross-examination, defense counsel sought to impeach Judway's credibility by asking her whether she had spoken with the defendant in person since the incident. She responded that she had seen the defendant in public but had not spoken to him in person, by telephone or by computer. Defense counsel then showed Judway a printout purporting to show an exchange of electronic messages between the defendant's Facebook account and another account under the user name "Simone Danielle." Judway identified the user name as her own, but denied sending the messages to the defendant. She also testified that someone had "hacked" into her Facebook account and changed her password "two [to] three weeks" ago such that she had been unable to access it subsequently.
On the following day, during the defendant's testimony, his counsel offered into evidence the defendant's Facebook printout containing messages purportedly from Judway. The state objected on the grounds that the authorship of the messages could not be authenticated and the document was irrelevant. In response, to authenticate the document, the defendant testified that he downloaded and printed the exchange of messages directly from his own computer. He also advanced testimony that he recognized the user name, "Simone Danielle," as belonging to Judway because she had added him as a Facebook "friend" a short time before he received the message. He testified that the "Simone Danielle" profile contained photographs and other entries identifying Judway as the holder of that account. Finally, he testified that when he logged in to his Facebook account after the previous day's testimony, user "Simone Danielle" had removed him from her list of Facebook "friends." The defendant's counsel then argued that based on this testimony and Judway's identification of her user name, there was a sufficient foundation to admit the document for the jury's consideration. The court, however, sustained the state's objection on the ground that the defendant had not authenticated that the messages were written by Judway herself.

After he was convicted, Eleck appealed, claiming, inter alia, that the trial court erred by precluding hom from introducing the Facebook printout into evidence.

The Appellate Court of Connecticut noted that the issue of whether Eleck properly authenticated the Facebook printout was governed by § 9–1(a) of the Connecticut Code of Evidence, which provides that

The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.

The court initially acknowledged "that some have opined that the present lexicon and body of rules for authenticating the authorship of traditional documents is adequate with respect to electronic documents" and "agree[d] that the emergence of social media such as e-mail, text messaging and networking sites like Facebook may not require the creation of new rules of authentication with respect to authorship." That said, the court then "recognize[d] that the circumstantial evidence that tends to authenticate a communication is somewhat unique to each medium." And, according to the court, the uniqueness of Facebook meant that Eleck had not properly authenticated the Facebook printout. 

First, the court held that

While admitting that the messages were sent from her Facebook account, [Judway] simultaneously denied their authorship. She also suggested that she could not have authored the messages because the account had been "hacked." Although this suggestion is dubious under the particular facts at hand, given that the messages were sent before the alleged hacking of the account took place, Judway's testimony highlights the general lack of security of the medium and raises an issue as to whether a third party may have sent the messages via Judway's account. Consequently, we agree with the trial court that the fact that Judway held and managed the account did not provide a sufficient foundation for admitting the printout, and it was incumbent on the defendant, as the proponent, to advance other foundational proof to authenticate that the proffered messages did, in fact, come from Judway and not simply from her Facebook account.

The court then recognized that Eleck contended

that he did offer circumstantial evidence that Judway sent the messages. Specifically, he argue[d] that the content of the messages identified Judway as the author. For example, when he sent the message asking "why would you wanna talk to me," the other party replied, "The past is the past." The defendant contend[ed] that this indicated that the author knew of the criminal case and, therefore, must have been Judway.

The court, however, turned this contention aside, concluding that

We are not convinced that the content of this exchange provided distinctive evidence of the interpersonal conflict between the defendant and Judway. To the contrary, this exchange could have been generated by any person using Judway's account as it does not reflect distinct information that only Judway would have possessed regarding the defendant or the character of their relationship. In other cases in which a message has been held to be authenticated by its content, the identifying characteristics have been much more distinctive of the purported author and often have been corroborated by other events or with forensic computer evidence.

Finally, the court rejected Eleck's claim that "the messages could be authenticated under the 'reply letter' doctrine, finding that

Under that doctrine, "letter B is authenticated merely by reference to its content and circumstances suggesting it was in reply to earlier letter A and sent by addressee of letter A...."...We note, however, that "[t]he mere fact that a letter was sent and a reply received does not automatically authenticate the reply; circumstances must indicate that the reply probably came from the addressee of the letter."...Here, there was a lack of circumstantial evidence to verify the identity of the person with whom the defendant was messaging. Consequently, the reply letter doctrine is inapposite.

As I noted above, I disagree. As noted above, 

The requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the offered evidence is what its proponent claims it to be.

In other words, the trial court should have found that Eleck properly authenticated the Facebook messages as messages coming from Judway if the jury could have found that Judway authored the messages by a preponderance of the evidence. In other words, even if the trial judge thought it was more likely than not that someone else authored the messages, he still should have found that Eleck properly authenticated the messages as long as reasonable jurors might have disagreed. Instead, if I am reading the opinion correctly, the Appellate Court of Connecticut is in effect saying that Facebook messages and similar evidence is only properly authenticated if (1) the author admits writing it; (2) someone saw the author writing it; or (3) there is something so distinctive about the message that only the author could have written. Given the liberal nature of the authentication standard, I think that the court set the bar (way) too high.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/08/901-facebook-state-v-eleck-a3d-2011-wl-3278663connapp2011.html

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