Monday, November 16, 2009

Authenticating MySpace Evidence

In an earlier post, I explained that one of the things the prosecution (or any litigant) must do to be able to introduce evidence is to “authenticate” the item to be introduced, i.e., to show that it is what it purports to be. In that post, I talked about how someone goes about authenticating emails they want to introduce as evidence.

This post is about authenticating MySpace postings. More precisely, it’s about how courts handled the issue of authenticating MySpace postings in two cases, one civil, the other criminal.

We’ll start with the civil case: Dockery v. Dockery, 2009 WL 3486662 (Tennessee Court of Appeals 2009). In October, 2008, after what seems to have a been a long and pretty contentious relationship. Melissa Dockery obtained an order of protection barring her ex-husband, Kevin Dockery, from contacting her. Dockery v. Dockery, supra.

Since the order was entered ex parte, the court set a hearing on the matter for November 20; the purpose of the hearing was to let Kevin be heard on the issues. Dockery v. Dockery, supra. At the hearing, the judge who entered the order determined that because Kevin was “at jeopardy for incarceration” for allegedly violating the order, he needed a lawyer; so the judge appointed a lawyer for Kevin and rescheduled the hearing for December 18, 2008. Dockery v. Dockery, supra.

At the December 18 hearing, the judge found that Kevin violated the order of protection “on 17 different occasions” and therefore was guilty of 17 counts of criminal contempt; he was sentenced to serve 10 days in jail for each count. Dockery v. Dockery, supra. Kevin had apparently contacted Melissa 17 times; she introduced evidence that he’d called her “numerous times” using a “restricted number” and that all four of her car tires had been slashed.) Dockery v. Dockery, supra.

On January 12, 2009, Melissa filed a motion seeking to have Kevin held “jailed for further violations of the” protection order. Dockery v. Dockery, supra. She claimed that “after being released from mail for the previous criminal contempt charges, [he] continued to violate the order of protection by contacting her and making threats to harm her and their children.” Dockery v. Dockery, supra. Kevin was arrested and court referred the matter to a Special Master, who found Kevin guilty of 7 more counts of criminal contempt and ordered him to serve more time in jail. Dockery v. Dockery, supra. The court adopted the Special Master’s findings and the sentence he imposed. Dockery v. Dockery, supra.

Kevin appealed, arguing that the Special Master erred “by permitting the introduction of certain evidence” at his trial for contempt. Dockery v. Dockery, supra. One of the items of evidence Kevin challenged was printouts of “communications” he had with “Ms. Lowe” via MySpace:

Ms. Lowe was called as a witness at trial . . . [and] testified to the two times Husband contacted her on MySpace and asked her to contact Wife and have Wife call him. Ms. Lowe printed these communications with Husband and they were admitted as evidence at trial. Ms. Lowe testified that the copies accurately depicted the communications she had with Husband. Husband objected to the admission of the printouts on the basis that they had not been properly authenticated.

Dockery v. Dockery, supra. The Special Master conducting the trial asked Kevin’s attorney what the Tennessee Rules of Evidence required for authentication. The attorney responded by quoting Rule 901(a), which provides as follows:

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

Tennessee Rules of Evidence Rule 901(a). At trial, the Special Master asked Ms. Lowe

where the documents came from. Ms. Lowe stated that she printed them directly from her computer. Ms. Lowe added that the printouts showed exactly what Husband said, as well as what she said, and identified which party . . . was making a particular statement. The Special Master concluded that Ms. Lowe was able to `authenticate these documents as having been printed from her computer. So I will allow them to be admitted. . . . ‘

Dockery v. Dockery, supra. On appeal, Kevin argued that the printouts “could be authenticated only by a representative of MySpace.” Dockery v. Dockery, supra. More precisely, he argued that the printout was admitted through the testimony of Ms. Lowe

despite the fact that the printout was never authenticated by representatives of MySpace as being an accurate depiction of posts on their website by the aforementioned parties. This admission of evidence . . . is especially problematic in light of the fact that MySpace communications are especially prone to tampering and/or fabrication. As such, it is clear that the printout admitted into evidence had not been properly authenticated. . . .

Brief of the Appellant, Dockery v. Dockery, 2009 WL 2428573 (2009).

The prosecution responded by pointing out that under Tennessee Rule 901(b)(1), writings (including electronic communications) “can be authenticated by testimony of a witness with knowledge”. Brief of the Appellee, Dockery v. Dockery, 2009 WL 3230457 (2009). The prosecution claimed the printout was properly authenticated by Ms. Lowe because she testified that they were “what [they were] claimed to be”, which is all Rule 901 requires. Brief of the Appellee, Dockery v. Dockery, 2009 WL 3230457 (2009).

The Tennessee Court of Appeals agreed with the prosecution. It held that the evidence “was properly authenticated by Ms. Lowe, and that a representative of MySpace was not a prerequisite to its admission.” Dockery v. Dockery, supra. I think that’s correct.

There’s another recent case – a criminal case that also involves divorce -- in which the defendant claimed MySpace postings weren’t properly authenticated. The case is State v. Trusty, 2009 WL 3381574 (Wisconsin Court of Appeals 2009). Here is how the issue arose in this case:

[Jeremy] Trusty was involved in a Trempealeau County divorce proceeding assigned to Judge Gerald Laabs. Over Trusty's objection, Judge Laabs scheduled a hearing at the Jackson County Courthouse. Before the date of the hearing, Judge Laabs became aware of an internet posting in which Trusty described a story Trusty had read about the murder of a judge by a disgruntled divorce litigant. In the posting, Trusty expressed negative feelings toward the judicial system and appeared to approve of the killer's actions. Concerned by the posting, Judge Laabs arranged to have bailiffs at the scheduled hearing, and alerted courthouse employees.

On the day of the hearing, Trusty was waiting in the hallway for his case to begin when a court employee overheard him say to another individual that `We could just go in and shoot everybody.’ The State charged Trusty with threat to a judge. . . and disorderly conduct. . . .

State v. Trusty, supra. Trusty went to trial; the jury acquitted him on the threat to a judge charge but convicted him of disorderly conduct. State v. Trusty, supra.

Trusty appealed, arguing, in part, that “printed copies of [his] internet posting, his MySpace page” were improperly admitted at trial. State v. Trusty, supra. The printouts of the postings were introduced as Exhibits 1 and 2. On appeal, Trusty argued that the

circuit court should have excluded these exhibits at trial because his MySpace page was tampered with and not authentic. He asserts that an authentic MySpace page, as exemplified by other MySpace pages he offered, shows a user's sign-up date. Exhibits 1 and 2 do not show such a sign-up date.

State v. Trusty, supra. Trusty, then, was proceeding on the same theory the defense used in the Dockery case, i.e., that special care must be taken in authenticating printouts of MySpace postings because they are subject to alteration and/or fabrication. It might have been an interesting argument; it was, unfortunately, a disappointing anticlimax.

The primary problem seems to have been that Trusty represented himself on the appeal. State v. Trusty, supra. I’m not saying it’s impossible for a non-lawyer to do a good job in handling an appeal, but it’s likely to be very difficult, as this case demonstrates.

Some of the arguments Trusty made weren’t grounded in the law, and as part of his appeal Trusty ask the court to award him attorney’s fees “related to this litigation” (I assume for the attorney who defended him at trial) “along with a sum of money to compensate him for the attendant humiliation, stress, and inconvenience” of the case and the appeal. State v. Trusty, supra. That might seem reasonable to a non-lawyer, but you don’t ask for attorney’s fees and damages in a criminal case, let alone a criminal appeal; civil cases are about damages, criminal cases are about punishment.

That brings us back to the authentication issue: As the appealing party, Trusty was responsible for providing the Court of Appeals with a complete transcript showing what occurred at trial, “including whether the circuit court made any particular rulings or fact findings when the exhibits were admitted.” State v. Trusty, supra. He didn’t do that, which meant the record was incomplete and the Court of Appeals could not determine whether the lower court erred in admitting the exhibit. State v. Trusty, supra. The Court of Appeals found that “[g]iven an incomplete record,” it had to “assume that the missing material” supported the lower court’s decision to admit the exhibits”. State v. Trusty, supra. It therefore rejected Trusty’s argument on this issue. State v. Trusty, supra.


Anonymous said...

State v. Bell, 2009 Ohio 2335 (Oh. Ct. of App. 12th Dist. May 18, 2009) is another Myspace admission case, here in Ohio.

Susan Brenner said...

Actually, I did a post on that issue, as addressed in an earlier decision in the same case:

Anonymous said...

Me again. Thanks! An issue that we're confronting now is admission of Myspace "status" posts. These are like Twitter "tweets" in that they are not sent from one party to another. Thus, 901(A) authentication would be different than the Bell scenario, in which the recipient party authenticated.

Professor Don said...

I'm sitting here looking at this from the Nerd side of the street.

1. Could an expert fake a MySpace page? Sure but it would be detectable.

2. Could a non-expert detect it. Nope, you would have to look at a lot of metadata and, eventually look at the MySpace HDD/System logs to get 100% confidence

I think there's going to be a lot more said about validation of electronic evidence. With the standards as weak as they are now, any semi-competent computer type could open up a cottage industry generating evidence.

Of course, the ultimate challenge for forensics is proving who was at the keyboard when the "evidence" was created.

That's pretty hard to do.

Susan Brenner said...

Always good to hear from the nerd side of the street.

And I agree: Given the current state of affairs in terms of authenticating digital evidence, I'm sure evidence fabrication and/or alteration is at least possible and may occur. And if it isn't already occurring, I suspect it will.

One problem is a lack of experts who have the time and resources they need to conduct in-depth assessments of at least certain kinds of digital evidence. Another problem is that many (most?) judges have no expertise in this area and so find it difficult to critically assess the authentication claims being made on both sides.

I think a solution to the second problem is to give judges their own, independent experts who can advise them as to the issues that need to be resolved and how those issues can best be resolved. I don't mean to suggest that these experts themselves analyze the evidence; as I see it, their role is to help the court critically assess the arguments being made and the evidence being offered in support of those arguments so they can make better rulings and decide when they need more information before ruling.

Both problems may be exacerbated to some extent by a theory I've heard: that we're in a stage in which we tend to trust digital evidence more than we maybe should.