EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, January 28, 2012

Do You Yahoo?: NJ Court Applies Federal Rule Of Evidence 901(b)(4) To Find Proper Authentication Of Yahoo! Chats

Similar to its federal counterpartNew Jersey Rule of Evidence 901 provides that

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

That said, the New Jersey Rules of Evidence do not have a counterpart to Federal Rule of Evidence 901(b)(4), which provides that evidence can be authenticated through

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

As the recent opinion of the Superior Court of New Jersey, Appellate Division in State v D.D., 2012 WL 246378 (N.J.Super.A.D. 2012), makes clear however, New Jersey courts do look to Rule 901(b)(4) for guidance.

In D.D., D.D., was convicted of two counts of first-and one count of second-degree sexual assault on three boys all under the age of twelve and three counts of child endangerment. After he was convicted, D.D. appealed, claiming, inter alia, that the trial court erred in allowing for the admission of a computer printout of Yahoo! text messages or "chats" he had with his alleged co-conspirator Robert Pelle because they were improperly authenticated. Specifically, D.D. claimed that the printouts were improperly authenticated because the person who printed them out from Pelle's computer did not testify at trial.

In response, the Superior Court of New Jersey, Appellate Division noted that Federal Rule of Evidence 901(b)(4) permits "authentication based on such distinctive characteristics as proof of a communication's contents or substance." The court then found that

There is sufficient circumstantial evidence to support the authentication of the Yahoo! chats, even though the individual who retrieved them from Pelle's computer did not testify. Specifically, the contents of the chats are consistent with the trial testimony of Pelle and defendant. For example, the chats showed that: "Robert," identified as Pelle, was conversing with someone named "Dave" who lived nearby; "Dave" met Robert at a campground; and Pelle asked if "Dave" and "J" wanted to stop by after a game. Moreover, Pelle identified his screen name on the chats, acknowledged that he participated in the chats, and confirmed that the contents of the chats were the same as his offline conversations with defendant. Pelle also testified that the chats took place over seven days in March 2004; that the federal government retrieved the chats from his hard drive; and the chats were the ones he had not deleted from his computer with the wiping program. And despite his denial of any online communications with Pelle, defendant's testimony was also consistent with the matters addressed in these chats. Thus, there was sufficient circumstantial evidence for a reasonable juror to conclude that these chats were taken from Pelle's computer.



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