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May 12, 2011
11th Circuit Upholds Cut-And-Paste Electronic Evidence in a Criminal Case
The Evidence Prof Blog highlights a very interesting technology case in a recent post. It is the 11th Circuit case of United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011). In that case Lanzon was convicted of attempting to persuade, entice, or coerce a minor to engage in sexual activity, a violation of 18 U.S.C. § 2422(b). Part of the evidence against Lanzon was the transcript of the various chats had with a detective who posed an intermediary in setting up the meeting with the non-existent minor.
The issue is the form of the transcript, which came in the form of a Word document consisting of the cut and paste text from the original, unsaved chats. The document was saved to a floppy disc, ostensibly to save "hard drive memory." Lanzon argued that the Word document lacked authentication and violated the direct evidence rule. The court turned these and other arguments about jury instructions aside, noting that the detective testified to their authenticity and Lanzon did not offer evidence to the contrary that the contents were inaccurate.
The appellate opinion didn't really say what method the detective used to memorialize the chat transcript other than to repeat his statements that he used standard methods to preserve electronic conversations learned at the police department. I'm not disputing the logic of the Appellate Court in upholding Lanzon's conviction. I do, however, wonder, anyone in the world is doing these days with floppy discs? To save hard drive memory? What?
I'll digress for a moment and head back to those days when I once managed technology in law schools. Hard drives are not memory. They are storage space, as in the file cabinet part of the desktop analogy. I get rankled every time I hear this though I realize how widespread the conception or hard drive space as memory may be. It's just how I am. Moreover, hard drives today are huge, at least 500 Gb or more as a standard desktop or laptop capacity. How is it possible that a police detective doesn't have a machine with a hard drive large enough to hold a Word document? The machine he used for the chat must really be ancient to even have a floppy drive. I haven't seen a machine sold with one in at least four years.
I'm not familiar with AOL, which is where these conversations took place. Most chat clients these days have a facility to record or archive the chat. Barring that, there are screen capture utilities out these that can record screen activity in real time. Wouldn't that better than cut and paste? I am happy that Lanzon's conviction was upheld. I wonder though, that police, even in Miami-Dade where this incident took place, can't do better with their technology. More details on the case are available at the Evidence Prof Blog link above. [MG]
Look, once and for all: If you're not *deleting* the actual text as you copy it, then it's "copy and paste", OK? Not "cut and paste". Is this sloppy error going to take over the world, I wonder? Has it already?
Posted by: Rob T. | May 13, 2011 8:41:51 AM