Authentication and the Erased Hard Drive

As I explained in an earlier post, evidence must be authenticated before it can be admitted in a trial or other court proceeding. That is, the party offering the evidence (the proponent) must show that it is what it purports to be.

Rule 901(a) of the Federal Rules of Evidence governs authentication in federal cases. It says the “requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims” it to be. Rule 901(b) gives some examples of how evidence can be authenticated: testimony by someone who can identify it; an expert’s comparing it with “specimens which have been authenticated:’ distinctive characteristics; public records; or any other method prescribed by law. Every state has a similar rule that governs authentication in court proceedings in that state.

This post is about a case in which the issue of authentication became way more complicated than it needed to be. The case is State v. Ross, 2009 WL 118958 (Ohio Court of Appeals 2009), and it arose from these facts:

Officer Rob Kohli . . . posed as a fourteen-year-old girl who lived in Lima, Ohio on the internet with the screen name `sarah2hot420.’ Ross, . . . who was residing in Texas at that time, engaged in on-line chats with sarah2hot420. Some of their conversations involved discussions of various sexual activities, which included Ross asking sarah2hot420 if she would engage in oral sex . . . with him.

In January of 2007, Ross arranged a meeting with sarah2hot420 telling her he was going to be in Lima for business and wanted to engage in sexual activities with her while he was in town. Ross and sarah2hot420 agreed to meet at the Taco Bell on Shawnee Road in Allen County, Ohio. Ross arrived at the scheduled time, driving a vehicle that matched the description he had given sarah2hot420. Subsequently, Ross was arrested and taken into custody.

State v. Ross, supra. Ross was indicted on one count of importuning (soliciting a child to have sex with him) and one count of attempting to have sex with a minor. He pled not guilty and his defense lawyer served the prosecution with discovery requests to learn more about the evidence against Ross. The state responded with a written summary

of Ross' statements to law enforcement officers and a copy of the transcript of the conversation between Ross and the police officer who had posed as sarah2hot420. On April 10, 2007, Ross filed a motion to expand his discovery request, seeking copies of his computer hard drive and the law enforcement computer hard drive, as well as records concerning logs, testing and maintenance records of the police department. The State filed a response objecting to copying the entire hard drive of the police department's computer arguing that it contained other law enforcement information which was not discoverable.

State v. Ross, supra. The parties seemed to resolve the discovery issues at a June, 2007 hearing, but on October 2, 2007, Ross filed a motion to produce the

police department's hard drive based upon his expert witness being unable to authenticate the transcript of the online conversation. On October 15, the State responded stating that the hard drive had been erased due to computer problems and asked the trial court to overrule the motion or . . . conduct an in camera inspection of the hard drive to determine whether any relevant contents remained and were discoverable.

State v. Ross, supra. On January 17, the trial court issued this ruling:

[T]he State claims the direct evidence, i.e. the police hard drive, no longer exists so there is not direct evidence of the conversation through which defense can verify the accuracy of the printed transcript. However, there is the testimony of Kohli. . . and apparently, a copy of defendant's hard drive that could be used to verify whether the transcript is accurate. . . . [A]ccording to the discovery responses filed, there are also alleged statements of defendant that verify the contents of the transcript or at least the alleged criminal nature of the conversation.

If there is no direct evidence, i.e. the police hard drive, then there is nothing to turn over to defendant. However, so there is no question about what the State represents, to wit, that the police hard drive was erased and no longer exists, the Court hereby orders an in camera review, using a computer expert of the Court's own choosing, to verify whether there is any evidence relevant to this case on the police hard drive.

State v. Ross, supra. As far as I can tell, an expert examined the hard drive and said it had, in fact, been erased, so “only the paper print-out of the conversation” between Ross and the officer posing as sarah2hot420 existed. State v. Ross, supra.

Ross pled no contest to the importuning count, the other count was dismissed and the court sentenced him to “five years of community control.” State v. Ross, supra. He then appealed the trial court’s denying his motion to produce the police department’s hard drive, arguing that it “violated his due process rights” by preventing him “presenting a defense and challenging the chat room conversations.” State v. Ross, supra.

The Court of Appeals began its analysis by explaining that the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case from being convicted when

the state fails to preserve materially exculpatory evidence or destroys in bad faith potentially useful evidence.’ State v. Bolden, [Ohio Court of Appeals]. However, the United States Supreme Court has held the State's failure to preserve evidence does not automatically mean that such failure amounts to a constitutional defect that would require a dismissal of charges. See California v. Trombetta (1984), 467 U.S. 479. In fact, when the State fails to preserve `evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant,’ due process is only violated if the State acted in bad faith. Arizona v. Youngblood (1988), 488 U.S. 51.

State v. Ross, supra. The Court of Appeals then held that Ross had not stated a valid due process claim:

Not only has Ross failed to explain what, if any, exculpatory evidence would be revealed by examining the police department's hard drive, there is no evidence remaining on the . . . hard drive which would be relevant to Ross' case. Moreover, not only has Ross failed to show bad faith on the part of the State, but he chose not to allege bad faith as part of his motion to produce. Therefore, we find that the trial court did not err when it denied Ross' motion to produce the police department's hard drive. . . .

State v Ross, supra.

Ross also claimed that the trial court erred when it found that the transcript of the chats between him and sarah2hot420 could be authenticated by Officer Kohli’s testimony. Here’s what the Court of Appeals said on that issue:

While we agree with the statements of law made by the trial court, those conclusions as to authentication, and implicitly to the admissibility of the transcript, were premature. Here, Ross filed a motion to produce evidence. . . . While the motion to produce was based on Ross' expert not being able to `authenticate’ the transcript, this was not a motion specifically challenging the authentication of the transcript. There was never any hearing on the matter of the transcript's authentication and there was never any foundation laid for the trial court's conclusions that the transcript could be authenticated. The trial court merely speculated as to methods other than the existence of the hard drive that could be used later to authenticate the transcript.

Because the issue of the transcript's authentication was never formally presented to the trial court nor appropriately ruled upon by the trial court, the issue cannot be properly considered by this Court.

State v. Ross, supra. So Ross lost his appeal.

There are two things I don’t quite understand about this case. One is whether the police department had only one hard drive; the opinion makes it sound that way but that must not be true. It must just have been A police department hard drive that was the focus of all this. The other thing I don’t understand is how the hard drive could have been erased without a copying having been made earlier, to preserve evidence. But maybe I’m missing something here.