Transcription of Admissibility of Electronic Evidence - craigball.com
1 Admissibility of Electronic Evidence PAUL W. GRIMM AND KEVIN F. BR ADY 2018. Potential Authentication Methods Email, Text Messages, and Instant Messages Computer Processes, Animations, Witness with personal knowledge (901(b)(1)) Virtual Reality, and Simulations Expert testimony or comparison with Witness with personal knowledge (901(b)(1)). authenticated examples (901(b)(3)) Expert testimony or comparison with Distinctive characteristics including authenticated examples (901(b)(3)). circumstantial Evidence (901(b)(4)) System or process capable of proving a System or process capable of proving a reliable and dependable result (901(b)(9)).
2 Reliable and dependable result (901(b)(9)) Certified records generated by an Electronic Trade inscriptions (902(7)) process or system (902(13)). Certified copies of business record (902(11)). Digital Photographs Certified records generated by an Electronic process or system (902(13)) Witness with personal knowledge (901(b)(1)). Certified data copied from an Electronic System or process capable of providing device, storage medium, or file (902(14)) reliable and dependable result (901(b)(9)). Official publications (902(5)).
3 Chat Room Postings, Blogs, Wikis, and Certified records generated by an Electronic Other Social Media Conversations process or system (902(13)). Witness with personal knowledge (901(b)(1)) Certified data copied from an Electronic Expert testimony or comparison with device, storage medium, or file (902(14)). authenticated examples (901(b)(3)). Distinctive characteristics including circumstantial Evidence (901(b)(4)). System or process capable of proving a reliable and dependable result (901(b)(9)) Social Media Sites (Facebook, LinkedIn, Twitter, Official publications (902(5)) Instagram, and Snapchat).
4 Newspapers and periodicals (902(6)) Witness with personal knowledge (901(b)(1)). Certified records generated by an Electronic Expert testimony or comparison with process or system (902(13)). authenticated examples (901(b)(3)). Certified data copied from an Electronic Distinctive characteristics including device, storage medium, or file (902(14)). circumstantial Evidence (901(b)(4)). Digitally Stored Data and Internet of Things Public records (901(b)(7)). Witness with personal knowledge (901(b)(1)).
5 System or process capable of proving a reliable and dependable result (901(b)(9)). Expert testimony or comparison with authenticated examples (901(b)(3)). Official publications (902(5)). Distinctive characteristics including Certified records generated by an Electronic circumstantial Evidence (901(b)(4)) process or system (902(13)). System or process capable of proving a Certified data copied from an Electronic reliable and dependable result (901(b)(9)) device, storage medium, or file (902(14)). Certified records generated by an Electronic process or system (902(13)).
6 Certified data copied from an Electronic device, storage medium, or file (902(14)). Maryland Approach to Rules 104 and 901: Texas Approach to Rules 104 and 901: A higher standard for authentication for social A lower standard for authentication of social media Evidence . In this approach, the burden is media Evidence . In this approach, the burden on the admitting party to show that the social is on the admitting party to show Evidence Know Which media Evidence was not falsified or created by sufficient to support a finding by a reasonable Approach Your another user through either: juror that the social media Evidence is what its proponent claims it to be through either.
7 testimony of the creator of the website Jurisdiction page or the post Direct testimony of a witness Search of the internet history or hard drive with personal knowledge Follows of the purported creator's computer Expert testimony or comparison Information obtained directly from with authenticated Evidence social media site Circumstantial Evidence See, Griffin v. State, 19 A. 3d 415, 423 (Md. 2011). See, Tienda v. State, 358 S. W. 3d 633 (Tex. Crim. App. 2012). Is Evidence Relevant? Does it have a tendency to make some fact that is of consequence to Preliminary the litigation more or less probable than it otherwise would be?
8 Rulings on Admissibility YES NO. Before Evidence goes to jury, judge must determine whether FRE 401: FRE 401: proponent has offered satisfactory ADMISSIBLE Go to FRE 402 INADMISSIBLE. foundation (preponderance of the Evidence ) from which jury could reasonably find that Evidence is FRE 402: authentic. (104(a)) (FRE, except for Does Constitution, Statute, or Rule Require Exclusion? privilege, do not apply). When relevance of Evidence YES: INADMISSIBLE NO: ADMISSIBLE. depends on a disputed GO TO FRE 403.
9 Antecedent fact being established ( conditional relevance ), judge determines whether a reasonable FRE 403: Is probative value substantially outweighed by: jury could find that the fact has Danger of unfair Undue delay? been proved, then submits the question to jury to decide. If jury prejudice? Waste of time? Confusion of the issues? Needless presentation finds that the antecedent fact Misleading the jury? of cumulative Evidence ? has been proved, it considers the Evidence . If not, it does not consider it.
10 Example: dispute on authenticity (104(b)). YES: INADMISSIBLE NO: ADMISSIBLE. If Relevant, is it Authentic? FRE 901-902. FRE 901(a) FRE 902 Evidence That is Self-Authenticating*. Is the Evidence sufficient to support a finding that the matter Methods by which information may be authenticated in question is what proponent claims? Determining the degree WITHOUT EXTRINSIC Evidence : of foundation required to authenticate Electronic Evidence (1)-(4) Public records/documents depends on the quality and completeness of the data input, (5) Official Publications the complexity of the computer processing, the routines of the (6) Newspapers, magazines, similar publications computer operation, and the ability to test and verify the results.
