Saturday, August 10, 2013
Stories about electronic data (social media posts, email and text messaging) are a constant theme in recent news. There are usually two legal angles in these stories: (1) the government's ability to access the data, and (2) its use in litigation/admissibiliy in court.
While I usually focus on the second question on this blog, I couldn't resist posting about a fascinating story emerging on the first question that doesn't seem to have gotten much coverage. According to the Times, two secure email service providers Lavabit and Silent Circle “essentially committed suicide” rather than respond to government requests to turn over customer data. Reading between the lines it looks like Silent Circle “destroyed” their email servers rather than respond to future government requests for customer data. Lavabit has apparently suspended operations and is contemplating legal action, but it is less clear that it actually destroyed existing files -- a wise hint of caution if it faces a pending legal request. Here is a cryptic note from its founder on its web site. (The Guardian notes that Lavabit previously complied “with a warrant concerning a child pornography suspect in Maryland.”)
Lavabit is known for being the email service of Edward Snowden (probably the best endorsement an encrypted email service could obtain), apparently through the so-obvious-it-can’t-be-real email address: firstname.lastname@example.org
Lavabit’s founder urges those in search of privacy to use non-US based email providers, which brings me to the title of the post: Will we see the emergence of Swiss-bank-like offshore email providers in the wake of these developments?
As an aside, I thought I would announce EvidenceProf Blog's new complaints policy. All complaints regarding postings on the site should be directed to: email@example.com
Friday, August 9, 2013
Jack Kirby is one of the fathers of many of the most iconic characters that still have cultural currency today, including the X-Men, the Hulk, Captain America, Thor, and the Fantastic Four. Yesterday, however, the Second Circuit found that these characters were "works for hire" now owned by Marvel Entertainment, a Walt Disney Co. subsidiary. Specifically, in Marvel Characters, Inc. v. Kirby, 2013 WL 4016875 (2nd Cir. 2013), rejected the claims that Kirby's heirs made to reclaim the rights to the famed comic book characters that he helped create. In doing so, the court made an interesting evidentiary ruling.
Wednesday, August 7, 2013
Broken Record?: Does a Judge Have to Make an On-The-Record Determination of Unavailability Under Rule 804(a)?
Similar to its federal counterpart, Mississippi Rule of Evidence 804(a)(4) provides that a witness is "unavailable" at trial if he "Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity...." In turn, if a witness is "unavailable," a party may admit some of his statements pursuant to the hearsay exceptions contained in Rule 804(b). So, does a court have to make an on-the-record determination that a witness is "unavailable" before admitting his hearsay under Rule 804(b)? According to the recent opinion of the Court of Appeals of Mississippi in McKenzie v. State, 2013 WL 3985012 (Miss.App. 2013), the answer is "no."
Tuesday, August 6, 2013
Federal Rule of Evidence 803(6), the business records exception, provides an exception to the rule against hearsay for
A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Since the pre-Federal Rules case of Palmer v. Hoffman, 318 U.S. 109 (1943), courts have consistently held that accident reports do not qualify for admission as business records because they are not prepared in the regular course of business and instead are prepared with an eye toward litigation. Given this, how does the recent opinion of the Third Circuit in United States v. Brown, 2013 WL 3970157 (3rd Cir. 2013), make any sense?