EvidenceProf Blog

Word Perfect?: 11th Circuit Finds Prosecution Properly Authenticated IMs Cut-And-Pasted Into Word Document

On Wednesday, I posted an entry about the Court of Appeals of Maryland finding that the prosecution failed to properly authenticate a MySpace page containing a threat to prospective witness as one belonging to the defendant's girlfriend. Today's post deals with the recent opinion of the Eleventh Circuit in United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), which dealt, inter alia, with the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

In Lanzon, 

Detective George Clifton, a member of the Miami–Dade Police Department's Sexual Crimes Bureau, signed online using the undercover persona "Tom." Detective Clifton created an AOL profile for "Tom" that described him as a male living with his girlfriend and his girlfriend's 14–year–old daughter. "Tom" entered an internet chat room entitled "Florida Couples.” [Keith] Lanzon, under the username "SlingerHD," was a participant in this chat room. Lanzon and Detective Clifton then communicated by instant message for approximately 30 minutes.

At the beginning of their text conversation, Lanzon asked, "she play too?" Detective Clifton replied, "yes."Lanzon stated that he had "never crossed into that situation yet." Lanzon asked Detective Clifton to describe the 14–year–old daughter's appearance, and indicated his interest in meeting her. Detective Clifton asked what Lanzon wanted to do with the 14–year–old, and Lanzon responded, "[I] love oral," "hot passionate sex," and "totally satisfying a female." Detective Clifton and Lanzon arranged to speak again later.

Detective Clifton and Lanzon later IM'd on two later occasions, and the two set up a meeting at a bookstore, during which Clifton would introduce Lanzon to the 14 year-old daughter, and Lanzon would take her to a hotel for sexual intercourse.

Detective Clifton saved these online conversations by copying the instant message communications and pasting them into a Microsoft Word document. He then saved the Word document to a floppy disc, where the conversations could be printed in hard copy form as transcripts. Detective Clifton did not save any of the instant message conversations in their original format to his computer's hard drive, but he compared the actual instant message "chat screens" to the word processing document he had created to ensure that they exactly matched and that he had accurately recorded the conversations in their entirety.

Thereafter, "Lanzon drove to the designated bookstore and parked his truck near the bookstore. When he entered the bookstore, he approached...two undercover officers posing as 'Tom' and the 14–year–old girl. He was promptly arrested." He was later charged with violating 18 U.S.C. § 2422(b), which provides that

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

At trial, the prosecution introduced the Microsoft Word document with the cut-and-pasted IMs, and, after he was convicted, Lanzon appealed, claiming, inter alia, that the document was improperly admitted. Lanzon claimed that the admission of the document violated the Due Process Clause and the Best Evidence Rule, but the Eleventh Circuit easily turned these arguments aside, finding that Lanzon failed to prove bad faith by the government is failing to preserve the original IMs. The court also turned aside Lanzon's rule of completeness argument, finding that "[t]here [wa]s no indication that additional parts of the conversation exist[ed]."

FInally, Lanzon claimed that the prosecution failed to properly authenticate the Word document, but the Eleventh Circuit again disagreed, finding that

 

Pursuant to FRE 901(a), a document submitted as evidence must be properly authenticated "by evidence sufficient to support a finding that the matter in question is what its proponent claims." Evidence may be authenticated through the testimony of a witness with knowledge. FRE 901(b)(1). The proponent need only present enough evidence "to make out a prima facie case that the proffered evidence is what it purports to be."... 

The district court did not abuse its discretion by admitting the transcripts, or clearly err in accepting as fact Detective Clifton's authenticating testimony. Detective Clifton testified that he participated in the online chats and the transcripts were accurate copies of those conversations. His testimony was sufficient "competent evidence" to authenticate the transcripts....

-CM

 

Article Of Interest: Cynthia Jones' A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. I have been interested in the question of when evidence is "material" for quite some time. Indeed, the first evidence article that I ever wrote addressed the circuit split over whether and when inadmissible evidence is "material" and can form the basis for a Brady violation (see here). And, I've taken up the issue a few times on this blog, writing about cases in which courts decided whether the following evidence was "material": (1) evidence of a jailhouse snitch's prior convictions (No) (here); (2) evidence that an eyewitness was legally blind (No, but then Yes) (here and here); (3) evidence that a confidential informant had been giving false reports (Yes) (here); and (4) inadmissible evidence (as noted, courts are split (here).

In her terrific recent article, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010), Cynthia Jones, a professor at the American University Washington College of Law, took up a Brady issue I hadn't previously considered: What should be the remedy/penalty for a Brady violation? And, I think that the solution(s) she poses are fascinating and could be a real game changer in terms of how we think about Brady.

First, let's start with the status quo. As Professor Jones notes,

The Supreme Court has never articulated the range of sanctions that should be imposed when the government fails to comply with the Brady disclosure duty. In practice, when Brady violations are discovered after trial, the usual remedy is a new trial in which the previously withheld evidence can be introduced by the defense. When Brady violations are discovered pretrial, the court usually orders the government to disclose the suppressed evidence and, if necessary, grants a continuance in order to give the defense the opportunity to make effective use of the exculpatory information.

So, what's the problem with these remedies? Professor Jones contends that

Simply ordering the prosecutor to disclose the Brady evidence is, of course, more of a directive than a sanction, because the prosecutor is not required to do anything above and beyond that which was already constitutionally mandated. Under this scheme, the consequences of noncompliance with Brady are identical to the consequences of compliance--disclosure of favorable evidence to the defense. Therefore, simply mandating compelled disclosure as a Brady sanction is not a potent deterrent to prosecutors who would purposely withhold favorable evidence.

Likewise, granting a continuance of the trial date in response to a Brady violation is not an effective sanction alternative because of the wide range of collateral consequences. First, defendants that have been detained pretrial are forced to endure a more prolonged loss of liberty if a continuance of the trial date is necessitated by the government's failure to comply with its Brady disclosure duty. In jurisdictions with crowded court dockets, the length of the delay could extend for several months. Moreover, following the disclosure of the previously suppressed Brady evidence, the defense will be required to spend additional time, money, and effort to make effective use of the new information (locating witnesses, hiring experts, seeking forensic testing, pursuing investigative leads). This, in turn, leads to the needless waste of judicial resources when courts must respond to additional motions and conduct evidentiary hearings stemming from the belated disclosure of exculpatory evidence. Consequently, to create a strong disincentive for prosecutors to suppress Brady evidence, and to prevent this needless waste of time and resources in the criminal justice system, courts must do more than grant a continuance of the trial date to redress Brady misconduct.

So, what's the solution? Well, one solution is the other end of the spectrum: dismissal. But, as Professor Jones notes, "dismissal is a 'disfavored' or 'drastic' sanction that is rarely imposed," and "[a]lthough legal scholars and jurists have proposed Brady reforms that strongly encourage the expanded use of dismissal as a sanction for intentional violations, those reforms have not been adopted by state and federal courts." Therefore, she argues for two possible remedies/penalties:

The "Brady Instruction"

Professor Jones first argues that courts could respond to Brady violations by giving Brady instructions

closely akin to adverse inference instructions, also known as "missing evidence" or "spoliation" instructions. Those specially crafted instructions are traditionally used by courts to address evidentiary imbalances created when discoverable or admissible evidence is suspiciously lost or inexplicably destroyed while in the exclusive possession of an adverse party. Commonly, adverse inference instructions inform jurors that they are permitted to infer that if the absent evidence had been produced at trial, it would have been damaging to the party responsible for its loss.

Indeed, as Professor Jones notes, in the civil context, Federal Rule of Civil Procedure 37(c)(1) specifically authorizes courts to inform jurors of parties' failures to provide information or identify a witness as required by the discovery rules. Moreover, she points out that "[w]hile adverse inference instructions are most commonly given when evidence has been permanently lost, trial judges have infrequently employed the instructions to redress Brady misconduct."

So, what might a Brady instruction look like? According to Professor Jones, something like this:

Under the United States Constitution, in order for the defendant to receive a fair trial, the government is required to inform the defense of any information known to the government that tends to suggest the defendant might not have committed the crime(s) charged as well as information that casts doubt on the credibility of the government's own evidence. In this case, the government intentionally withheld such evidence from the defense. Specifically, the government failed to inform the defense that [ ]. In evaluating the merits of this case, you can decide what weight, if any, to give to the government's misconduct. The government's actions, standing alone, or in combination with other facts presented in this case, may create a reasonable doubt in your mind about the defendant's guilt. This proposed instruction explains what is required under Brady and why disclosure is important (and not a mere "technicality"). This instruction also explains exactly what the government did wrong and appropriately allows the jury to decide the significance of the misconduct. While this instruction will not be outcome determinative in every case (nor should it be), the instruction will likely have a greater impact if the jury finds that the Brady evidence is central to the guilt/innocence determination. Conversely, the Brady instruction will have less impact if the jury believes the government, notwithstanding the Brady violation, has presented compelling evidence of guilt.

"Consciousness of a Weak Case" Inference

It is well established that when parties engage in certain behavior, the opposing party can present evidence of that behavior and argue that it supports the inference that the party was conscious that it had a weak case. As Professor Jones notes, however,

In criminal cases, the "consciousness of a weak case" inference is almost exclusively used by the government to show that the defendant has a "guilty mind" or as circumstantial evidence of consciousness of guilt. Evidence of a criminal defendant's consciousness of guilt has been so widely accepted that admissibility is regarded as "universally conceded." Such evidence generally falls into two categories. The first category includes actions taken by the defendant after the crime to elude capture, such as flight from the scene of the crime, escape from custody, alteration of physical appearance, use of an alias, and false exculpatory statements to the police. The second category of consciousness of guilt evidence involves various acts of evidence manipulation by the defendant that are closely analogous to actions that would constitute Brady misconduct, including the subornation of perjury, bribery or attempted bribery of witnesses, or the destruction or concealment of incriminating evidence.

Professor Jones argues that the same inference should apply when the prosecution commits Brady violations. As support, she cites to the recent opinion of the District of Columbia Court of Appeals in Shelton v. United States, 983 A.2d 363 (2009) (Download Shelton opinion), which she characterizes as "perhaps the first (and only) post-Brady case to apply the 'consciousness of a weak case' inference to intentional Brady misconduct." In the opinion, the court concluded that "defense counsel had a basis in law to argue that the government's nondisclosure of exculpatory information was akin to an admission by conduct that the government was conscious that its case was weak (and that it was in fact weak) and that appellant should have been allowed to present that evidence."

Professor Jones also contends that "In addition to the relevance of Brady misconduct evidence in support of a 'consciousness of a weak case' inference, Brady misconduct evidence has particular relevance in cases in which the defense either mounts a challenge to the government's criminal investigation or claims the prosecution is tainted by government misconduct or bias."

Conclusion

I find both of these proposals to be fascinating, and I think that they are viable ideas that courts should take a long look at adopting. Indeed, I made a similar argument that the prosecution's offer of a favorable plea bargain to a defendant (and the defendant's rejection of it) should be admissible by the defendant to support a "consciousness of a weak case" inference in an article earlier this year (see here). But I think that Professor Jones' argument is even more compelling given the (mis)behavior connected with Brady violations.

Earlier, I asserted that the adoption of Professor Jones' proposals could be a real game changer in terms of how we think about Brady. Why? Well, the way I see it, the current Brady landscape is like the Fourth Amendment landscape before adoption of the exclusionary rule. Sure, Brady proscribes certain behavior, but there is no real incentive to comply because the current remedy is merely compliance. If a prosecutor currently has evidence that toes the line between "material" and "immaterial," it is easy to see the prosecutor sitting on the evidence rather than disclosing it. If either or both of Professor Jones' proposals are adopted, I think that decision calculus changes significantly.

I asked Professor Jones what led her to write the article, and she responded,

I am writing a second (related) Brady article this summer. I was originally motivated to write the article because of the close link between wrongful convictions and Brady violations. I had this idea about the punitive jury instruction as a sanction that then developed into the full article. It was purely fortuitous that the Shelton case was decided just as the article was going to print.

-CM

Avoiding A Confrontation, Take 5: My Take On The Supreme Court's Impending Opinion In Bullcoming v. New Mexico

I haven't posted on it yet, so today I thought that I would post an entry about the Supreme Court's impending opinion in Bullcoming v. New Mexico and my take on the case. The issue presented to the Supreme Court is 

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

As readers of this blog know, this is an issue of some interest to me (see, e.g., my posts here, here, and here). So, what did the Supreme Court of Nevada hold in Bullcoming v. New Mexico, 226 P.3d 1 (N.M. 2010), and what is the United States Supreme Court likely to hold?

Well, let's start at the start. In its landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Subsequently, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), police arrested Luis Melendez-Diaz, took what was apparently cocaine from him, and charged him with distributing cocaine and trafficking in cocaine in an amount between 14 and 28 grams. At trial, the police introduced into evidence

three "certificates of analysis" showing the results of the forensic analysis performed on the seized substances.  The certificates reported the weight of the seized bags and stated that the bags “[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine."...The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health.

The analysts who conducted the forensic analysis, however, did not testify, and Melendez-Diaz claimed that their failure to testify violated his rights under the Confrontation Clause. The trial court disagreed, Melendez-Diaz was convicted, and his appeal eventually reached the Supreme Court. As I noted in a post about the case, the Supreme Court deemed these certificates "testimonial" and thus found that their admission violated the Confrontation Clause because the analysts did not testify.

Now, let's consider Bullcoming. In Bullcoming, Donald Bullcoming was arrested for DWI, and an officer thereafter had a nurse draw Bullcoming's blood and then sent the blood sample out for testing. The machine used to analyze the defendant's blood was a gas chromatograph machine. After the test, the machine printed out a result -- that Bullcoming's blood alcohol content was 0.21gms/100ml -- and an analyst recorded this information in a 2 page report that was admitted at trial as Exhibit 1. The analyst did not testify at Bullcoming's trial, but the nurse who drew the blood and the officer who observed the blood draw and sent out the blood sample did testify.

Moreover, Gerasimos Razatos, an analyst for the New Mexico Department of Health, Scientific Laboratory Division, Toxicology Bureau (SLD), who helps in overseeing the breath and blood alcohol programs throughout the state, testified as well. According to Razatos, the gas chromatograph machine does all of the work and prints out a result, and any human being could transcribe that result as the non-testifying analyst did in creating the subject report.

After Bullcoming was convicted, he appealed, claiming that Exhibit 1 was testimonial and that its admission violated the Confrontation Clause because the analyst preparing it did not testify at trial. The Supreme Court of New Mexico generally agreed, concluding that "Exhibit 1 in the present case, like the certificates in Melendez-Diaz, are testimonial despite the fact that they are unsworn." That said, the court then concluded that

the Confrontation Clause permits the admission of testimonial statements "so long as the declarant is present at trial to defend or explain it."...Although the analyst who prepared Exhibit 1 was not present at trial, the evidence revealed that he simply transcribed the results generated by the gas chromatograph machine. He was not required to interpret the results, exercise independent judgment, or employ any particular methodology in transcribing the results from the gas chromatograph machine to the laboratory report....Thus, the analyst who prepared Exhibit 1 was a mere scrivener, and Defendant's true "accuser" was the gas chromatograph machine which detected the presence of alcohol in Defendant's blood, assessed Defendant's BAC, and generated a computer print-out listing its results.

In this case, Razatos, an SLD analyst, was qualified as an expert witness with respect to the gas chromatograph machine and the SLD's laboratory procedures. Razatos provided live, in-court testimony and, thus, was available for cross-examination regarding the operation of the gas chromatograph machine, the results of Defendant's BAC test, and the SLD's established laboratory procedures. Additionally, Razatos could be questioned about whether the operation of the gas chromatograph machine required specialized skill that the operator did not possess, involved risks of operation that might influence the test results, and required the exercise of judgment or discretion, either in the performance of the test or the interpretation of the results. Because Razatos was a competent witness who provided live, in-court testimony, we conclude that the admission of Exhibit 1 did not violate the Confrontation Clause.

The Supreme Court of New Mexico then "[r]eiterate[d] that the admissibility of Exhibit 1 under the Confrontation Clause was dependent on the live, in-court testimony of a qualified analyst." And, "because Razatos did testify, Defendant's right of confrontation was preserved and the admissibility of the exhibit depend[ed] on the application of [New Mexico's] rules of evidence." The court then found that the applicable rule was New Mexico Rule of Evidence 11-703, which provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

According to the court, "'While experts may rely on hearsay under Rule 703, the hearsay itself is not admissible.'...Thus, Exhibit 1 properly was admitted under Rule 11-703 if it contain[ed] facts or data of the type reasonably relied upon by experts in the field and its probative value substantially outweighs its prejudicial effect."

The New Mexico Supremes then concluded that Exhibit 1 was properly admitted because

the trial court reasonably could have found that the probative value of Exhibit 1 in assisting the jury to evaluate Razatos's testimony substantially outweighed its prejudicial effect. Accordingly, Razatos properly relied on the gas chromatograph machine results in his testimony and the trial court did not abuse its discretion in admitting Exhibit 1 into evidence.

So, was the court right? Could the trial court have found that the probative value of Exhibit 1 substantially outweighed its prejudicial effect? I have argued against this conclusion before (see here), but I think that Julie Seaman, a professor at the Emory University School of Law, describes the problem with this conclusion perfectly in her terrific article, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827 (2008).

According to the Supreme Court of New Mexico, Exhibit 1 was not admitted for its truth but only to assist the jury in evaluating Razatos' testimony. And this is not surprising because, as Professor Seaman notes, 

The most common basis for court holdings rejecting a Confrontation Clause challenge to the introduction of expert opinion is that the statements relied on by the experts in forming their opinions were not offered for their truth, but only as a basis for the expert's opinion. Because the Supreme Court in Crawford clearly stated that the decision applied only to testimonial statements offered for their truth, a finding of a non-hearsay purpose allows these courts to hold that their admission does not amount to a constitutional violation.

A representative example of such non-hearsay reasoning is this statement from a case involving a California gang prosecution:

Crawford limits the introduction of hearsay directly against a defendant but does not affect the type of evidence relied upon by an expert in forming his opinion. In our case, the prosecution did not offer the contents of the police reports as hearsay evidence of the truth of the matters asserted in the reports. The reports were mentioned only as a basis for [the expert's] opinion that [the defendant] was a Sureno gang member. [The defendant] had the opportunity to challenge the testimony by demonstrating the underlying information was incorrect or unreliable. He did not. There was no denial of his confrontation rights.

If, as the court says, the appropriate manner for the defendant to challenge the expert's opinion would be to demonstrate that the underlying information is "incorrect or unreliable," then it is plain that it is in fact being offered for its truth. If it were not offered for its truth, its reliability would be irrelevant. The court's own description of the jury instruction given in the case supports the conclusion that the testimonial statements were indeed offered for their truth. The jury in Valerio “was advised that the expert's opinion was only as good as the facts and reasons on which it was based, and that the jury should consider the proof of such facts in determining the value of the expert's opinion.”

Furthermore, if the opinion is only as good as the facts on which it is based, and if those facts consist of testimonial hearsay statements that were not subject to cross-examination, then it is difficult to imagine how the defendant is expected to "demonstrate the underlying information was incorrect or unreliable." According to Crawford, the only constitutionally sanctioned manner in which the reliability of testimonial hearsay may be tested is by cross-examination.

She then later concludes that

In the post-Crawford cases that rely on this non-hearsay rationale to permit expert witnesses to repeat testimonial statements at trial, courts reason that the statements are offered not for their truth, but only "to show the bases of [the expert's] opinions." Such reasoning is widespread. Of the more than one hundred cases applying Crawford to expert reliance on testimonial hearsay, over thirty rely on this particular non-hearsay rationale to hold that there is no constitutional violation. However, as discussed above, it is not logically possible for a jury to use the hearsay statements to assess the weight of the expert's opinion other than by considering their truth. Unless the jury is thought to evaluate the expert's opinion simply based on the quantity of facts or data on which it relies, or perhaps on the type of data relied upon, it cannot but consider the substance of the hearsay statements that form the basis of the opinion. After all, should the jury find that the hearsay statements are false, it is difficult to imagine how the statements might support the expert's opinion; only if they are true can they reasonably be said to offer any weight to the opinion. (emphasis added). 

I thoroughly agree with this analysis as do the attorneys for Bullcoming, who included it in their reply brief to the Supreme Court (which, along with all of the relevant documents in the case, can be found at SCOTUSBlog).

Indeed, I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diaz, and the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions regarding the entire class of cases identified by Professor Seaman? On that question, we will just have to wait and see.

-CM

It's My Space, That's Why They Call It MySpace, Take 6: Court Of Appeals Of Maryland Reverses MySpace Authentication Ruling

Last June, I posted an entry about the opinion of the Court of Special Appeals of Maryland in Griffin v. State, 2010 WL 2105801 (Md.App. 2010). The facts in that case were as follows:

A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person? 

(Side Note: The "snitches get stitches" threat seems pretty popular, appearing in 20 cases in the Westlaw ALLSTATES database and 13 cases in the ALLFEDS database, with most of its appearances being in the last few years. I wonder whether the threat would be enough, in and of itself, to support a claim of forfeiture by wrongdoing?)

According to the Court of Special Appeals of Maryland, the answer could be found in Maryland Rule of Evidence 5-901(b)(4), which provides that evidence can be authenticated by

Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.

Applying this rule, the court found that the prosecution properly authenticated the MySpace page as a page belonging to the appellant's girlfriend, Ms. Barber, because

The MySpace profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile; and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.....

On the record before us, we have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout. Therefore, the trial court did not err or abuse its discretion in admitting that document into evidence.

Last week, in its opinion in Griffin v. State, 2011 WL 1586683 (Md. 2011), the Court of Appeals of Maryland disagreed and reversed.

Griffin  is really a terrific opinion whether or not you agree with the court's conclusion. If you want a detailed description of what courts across the country have done so far with regard to the authentication of electronically stored information on social networking sites, you need look no further than the court's opinion.

So, why did the court find that the prosecution failed to authenticate the MySpace page properly? The court agreed with the defendant

that the trial judge abused his discretion in admitting the MySpace evidence pursuant to Rule 5-901(b)(4), because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the "snitches get stitches" language.

In doing so, the court "recognize[d] that other courts, called upon to consider authentication of electronically stored information on social networking sites, have suggested greater scrutiny because of the heightened possibility for manipulation by other than the true user or poster." After citing a laundry list of such cases, the court then cautioned that 

we should not be heard to suggest that printouts from social networking sites should never be admitted. Possible avenues to explore to properly authenticate a profile or posting printed from a social networking site, will, in all probability, continue to develop as the efforts to evidentially utilize information from the sites increases.

So, what are the proponents of social media printouts to do in the interim? According to the court, there are at least three existing methods:

The first, and perhaps most obvious method would be to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. "[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be." Rule 5-901(b)(1). 

If the alleged creator denied creating the profile or posting the entry,

The second option may be to search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.

Finally,

A third method may be to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it. This method was apparently successfully employed to authenticate a MySpace site in People v. Clevenstine, 68 A.D.3d 1448, 891 N.Y.S.2d 511 (N.Y.App.Div. 2009).

Again, whether or not you agree with the court's opinion, you have to respect the detailed analysis that the court used to reach it. The reliability of evidence from social media sites is certainly a controversial topic, and it is one that has led some to be skeptical of whether we are being too liberal in admitting it. See, e.g.,  Jeffrey Bellin, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, University of Pennsylvania Law Review (forthcoming) (arguing for a corroboration requirement for electronic present sense impressions).

Meanwhile, the dissent disagreed, citing Lynn McLain for the proposition that an

item will be properly authenticated if its proponent has offered foundation evidence that the judge finds would be sufficient to support a finding by a reasonable trier of fact that the item is what it is purported to be. Md. Rule 5-901(a), consistent with prior Maryland case law, establishes that the standard of proof is the same as is found in Md. Rule 5-104(b) for facts on which the relevance of an item is conditioned. In a jury trial, the judge need not be personally satisfied, by even a preponderance of the evidence, that the proffered item is authentic; the judge must find the authentication requirement met, if a reasonable jury could find the evidence to be what its proponent claims it to be.

Applying this standard to the case before it, the dissent found that

a reasonable juror could conclude, based on the presence on the MySpace profile of (1) a picture of a person appearing to Sergeant Cook to be Ms. Barber posing with the defendant, her boyfriend; (2) a birth date matching Ms. Barber's; (3) a description of the purported creator of the MySpace profile as being a twenty-three year old from Port Deposit; and (4) references to freeing “Boozy” (a nickname for the defendant), that the redacted printed pages of the MySpace profile contained information posted by Ms. Barber.

And, according to the dissent, "The technological heebiejeebies discussed in the Majority Opinion go...not to the admissibility of the print-outs under Rule 5-901, but rather to the weight to be given the evidence by the trier of fact."

-CM

Article Of Interest: Jean Fleming Powers' Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?

Back in 2008, I wrote an essay for the Northwestern University Law Review Colloquy entitled, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. The piece was inspired by the Alton Logan case (blogged about here, here, here, and here), in which Alton Logan languished in prison for 26 years while two attorneys failed to reveal that their client told them in confidence that he committed the crime for which Logan had been convicted. The attorneys kept mum based upon the duty of confidentiality owed by lawyer to client, and my argument was that an existing exception to the duty of confidentiality should be read to allow disclosure of client confidences in cases like the Alton Logan case. Specifically, Model Rule of Professional Conduct 1.6(b)(1) provides that

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm....

My claim was that this exception should be read to create a wrongful incarceration/execution exception to attorney-client confidentiality. I think that if an individual like Alton Logan is convicted and sentenced to die, it is easy to see the argument that a lawyer revealing that his client admitted committing the crime for which Logan was convicted would or at least could prevent reasonably certain death. But what about if an individual like Logan is sentenced to something less than death? Would disclosure be reasonably necessary to prevent reasonably certain death or substantial bodily harm? This argument was a bit more of a stretch, but I claimed that the answer was "yes" because 

-in comparison to the non-incarcerated, inmates face an increased risk of physical violence based upon factors such as the concentration of violent individuals, overcrowding, prison culture, the inability of prisoners to physically separate themselves, the prevalence of drug use, and prison guard brutality;

-inmates experience heightened rates of communicable diseases contracted vis a vis the general population, perhaps explained by prison overcrowding (and prisoners accordingly living in close quarters) and compounded by generally poor medical screening and treatment in prisons;

-the consensus that inmates are subjected to an increased risk of same sex rape, with one study revealing that 98% of an inmate sample was aware of at least one sexual assault occurring in the previous year.

So, is this an argument that most states are likely to buy? Well, Alaska did the following year, but I doubt that most states will follow suit. So, if states aren't willing to buy this rationale, what is the alternative? According to the recent article, Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?, 79 UMKC L. Rev. 61 (2010), by Jean Fleming Powers, a professor at the South Texas College of Law, the answer is to create an exception to attorney-client confidentiality when an attorney feels that revealing confidential information is reasonably necessary to prevent a significant loss of liberty.

Professor Powers begins the article by discussing the Alton Logan situation and then discusses several other thorny ethical factual scenarios that confront lawyers. And, if you want some good hypotheticals to discuss in a Professional Responsibility or Evidence class, by all means check out the article for all of Professor Powers' discussion of these scenarios (and the differences between attorney-client confidentiality and the attorney-client privilege).

In this post, however, I want to focus upon the scenario presented in the Alton Logan case: A client tells his attorney that he committed the crime that led to another man's incarceration. According to Professor Powers,

The rules already allow revelation to prevent death or substantial bodily harm. This article suggests that revelation should also be allowed to prevent a significant loss of liberty. Such an exception would include wrongful incarceration for any significant time period and prevent the extreme miscarriages of justice in wrongful conviction cases in which the conviction involves incarceration of the defendant. Adding this exception is consistent with both the importance placed on liberty in this country and with other current exceptions. For example, in the so-called "self-defense" exception, an attorney is allowed to reveal confidential information to defend himself against claims even of third parties, even if all that is at stake is civil liability. Surely allowing revelation to prevent loss of liberty to an innocent third party is consistent with that exception. Likewise, the Model Rules recently added limited exceptions for the prevention of substantial financial harm. It appears that the then prevalent culture of corporate misdeeds and the resulting widespread financial harm, such as in the Enron situation, had a lot to do with the exception. As dramatic as the consequences of such cases may have been, they pale in comparison to the plight of a wrongfully incarcerated innocent person. Thus, if the financial harm exceptions are justifiable, and do not (apparently) undermine in any significant way the willingness of clients to confide in their attorneys, certainly a loss of liberty exception would also be justified.

I strongly agree with this analysis. Indeed, it could even be argued that wrongful incarceration in and of itself would cause the wrongfully incarcerated person substantial financial harm, justifying disclosure. But explicitly recognizing that a loss of liberty justifies disclosure makes this analysis clearer and would also allow disclosure in other situations currently not covered by Model Rule of Professional Conduct 1.6(b)(1). As Professor Professor Powers notes

A loss of liberty exception could further provide relief in another potentially difficult area-kidnapping cases. While kidnapping could result in death or substantial bodily harm in some cases, that result will not always be as clear as the current rule would seem to demand and thus may not fit within that exception. However, it can fit within the loss of liberty exception: One who has been kidnapped is not free to return to his original location and thus has significantly lost his liberty. This reasoning, along with the fact that kidnapping often involves some risk of death, bodily harm, or other demonstrable harms in addition to the urgency of the situation, justifies an exception for kidnapping cases. Because the loss of liberty is the clearest result of a kidnapping, it should be included within the loss of liberty exception. 

Again, I agree with this analysis and think that it can be couched in due process terms. The exception to confidentiality for death or substantial bodily harm protects life. The exception to confidentiality for substantial financial injury protects property. And, an exception to confidentiality for a significant loss of liberty would protect liberty.

I asked Professor Powers what led her to write the article, and she responded,

I wish I had a great story to tell about this, but in fact it was the culmination of some ideas and concerns that I had been thinking about for some time: the importance of understanding and maintaining the distinction between privilege and confidentiality, the disconnect that sometimes occurs between an attorney's professional obligations and the public's perception about what is the right thing to do, and the importance of looking at the purpose of rules to find better ways of applying them.  Ultimately, my interest was pretty much as I indicated -- to find ways of dealing with some difficult issues that seem to cry out for a solution.  I hope this helps -- I tend to puzzle over issues for some time before putting them on paper, and by the time I do I think I end up bringing more than one of my pet concerns to it.  

-CM

Jumping To Conclusions: Northern District Of Illinois Quickly Deems Plaintiff's Robbery Conviction Inadmissible Under Rule 609(a)(1)

Federal Rule of Evidence 609(a)(1) provides that

evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

In turn, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Sometimes, when a part seeks to admit (or exclude) evidence of a prior conviction for impeachment purposes, you get a great court opinion that really digs into the probative value and unfair prejudice of the subject conviction. Other times, you get an opinion like the recent opinion of the United States DIstrict Court for the Northern District of Illinois in Blackwell v. Kalinowski, 2011 WL 1557542 (N.D.Ill. 2011).

In Kalinowski,

According to the allegations in the complaint, in the early morning hours of October 17, 2007, plaintiff Vincent Blackwell (“Blackwell”) was seated in the passenger seat of a legally parked car. Plaintiff Angela Ford (“Ford”), who owns the car, had gone into a nearby house. At that time, the individual defendants, who are or were Chicago police officers, approached the car and ordered Blackwell to get out. They searched Blackwell and the car, but found no contraband. Defendants nevertheless arrested Blackwell, and seized the car. At the police station, Blackwell alleges that he was shown bags containing what appeared to be a controlled substance. When Blackwell protested that he did not have any drugs on him, defendants replied, “You do now.” Blackwell was charged with felony drug offenses and traffic charges, and spent two months in jail. After Blackwell prevailed at a suppression hearing, the prosecution dismissed the charges against him. Blackwell alleges that as a result of the defendant officers' conduct, he sustained injuries, humiliation, and indignities, and suffered great emotional pain and suffering. Plaintiffs' complaint alleges claims of false arrest, unconstitutional search of the car, and a state law claim for malicious prosecution.

Before trial, Blackwell moved to preclude the defendants from impeaching him through evidence of his 1998 conviction for robbery, which led to him being incarcerated for ten years. In granting the motion, the Northern District of Illinois simply concluded that

admission under Rule 609(a)(1) is subject to Rule 403, which excludes evidence when its potential for unfair prejudice substantially outweighs its probative value....Defendants have not demonstrated that Blackwell's 1998 robbery conviction is probative in this case or relevant to Blackwell's credibility. Therefore, the Court finds that the 1998 conviction has minimal probative value. Moreover, the Court finds that the danger that Blackwell's prior conviction may cause unfair prejudice substantially Outweighs any probative value the 1998 conviction offers....Based on the foregoing, defendants are barred from introducing evidence of the 1998 conviction at trial.

Now, I'm not saying that this conclusion was incorrect, but I find the court's paucity of analysis disturbing. Unlike crimes of violence, property crimes are not thought to be lacking in probative value as a general proposition. A lot depends on the circumstances. Was the robbery committed primarily through force or primarily through deception? The court's opinion did not address this issue. 

Moreover, prior crimes become more prejudicial as they become more similar to the lawsuit at issue. Sure, Blackwell's prior conviction was prejudicial in the general sense, but was there a reason why Blackwell's conviction was prejudicial in this specific case? Did the robbery involve drugs? Were the same police officers involved? Again, the court's curt conclusion skipped any detailed analysis. 

Finally, the court did not even give lip service to the five factor test that governs the issue.

-CM

Call Me: Northern District Of California Finds Prison Phone Call Is Nontestimonial

A prisoner makes a phone call to his acquaintance. The acquaintance makes incriminatory statements during the phone call, which is recorded. At the prisoner's trial, the acquaintance does no testify, and the prosecution introduces the phone call into evidence under an exception to the rule against hearsay. Does the admission of the phone call violate the Confrontation Clause? According to the recent opinion of the United States District Court for the Northern District of California in Ibarra v. McDonald, 2011 WL 1585559 (N.D. Cal. 2011), the answer is "no."

In McDonald, the facts were as states above, with Alvaro Ibarra being the prisoner/appellant. 

During pretrial motions, defense counsel objected to the introduction into evidence of recordings and transcripts of telephone calls appellant made from the jail. At the beginning of the call appellant made to Miguel Ramos's telephone number, a recording of a cheery female voice announced, "This is a collect call from an inmate at the county jail" and gave instructions about how to accept charges. The voice then said, "This call is subject to monitoring and recording. Thank you for using Evercom." Someone other than Ramos answered the phone and appellant asked for "Miguel." When Ramos came to the phone, appellant started talking, and Ramos immediately told him, "Don't say nothing, nothing on the phone...." Appellant and Ramos then had the conversation that included Ramos telling appellant that he had taken the "things far away."

Ramos did not testify at Ibarra's trial on charges of premeditated murder and assault with a firearm, and the prosecution introduced the recording of the phone call. After he was convicted, Ramos appealed, claiming that the introduction of Ramos' incriminatory statement on the phone call violated the Confrontation Clause. After his appeals in the California state court system were unsuccessful, Ramos filed a habeas petition with the Northern District of California. And, in considering this petition, the court conducted what I think is a required three step analysis:

The first step of this analysis involves a discussion of Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  

The second step requires consideration of Davis v. Washington, 547 U.S. 813 (2004), which held that

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

And, the third step consists of a considering the Supreme Court's recent opinion in Michigan v. Bryant, in which it held that

When, as in Davis, the primary purpose of an interrogation is to respond to an "ongoing emergency," its purpose is not to create a record for trial and thus is not within the scope of the Clause. But there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony. In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

Given all of these considerations, I would have imagined that the Northern District of California would have engaged in an extensive analysis of whether the admission of the phone call violated the Confrontation Clause, but it instead quickly concluded that

In Davis the Supreme Court gave as examples of statements that "were clearly non-testimonial," statements made "unwittingly to a Government informant" and "statements from one prisoner to another," statements that are analogous the Petitioner's statement at issue here....The Court concludes that Petitioner's statements in his telephone call from jail clearly were not intended as a substitute for trial testimony, Michigan v. Bryant, 131 S.Ct. 1155, made with an "eye towards trial,"...and thus were not testimonial. Admission of the conversation did not violate Petitioner's Confrontation Clause rights.

-CM