Introducing Social Network Electronic Evidence at Trial

Laying the foundation for the admission of evidence can be tricky.  Often quite technical.  Even hypertechnical.  Depending on what you are trying to admit, you might need affidavits, chain of custody records, etc.  With the advancement of the internet, something trial lawyers of old did not even think about, there is more evidence out there.  Good evidence.  Sometimes really good evidence. Social media sites can provide a wealth of evidence for criminal trial lawyers on both sides of the aisle.

There are Facebook and MySpace friend lists and wall posts that can establish relationships and demonstrate motive or bias. Twitter feeds.  There is also a “check-in” feature on some sites that can show where someone was at a certain time.  What’s more, if you dig deep enough (usually with the help of a subpoena) a person’s private messages on Facebook or MySpace can be a treasure trove of information.  And let’s face it, many people on Facebook and MySpace have absolutely no filter.  Evidence galore.

One of the main problems with using social network media at trial is that ANYONE can create an account purporting to be anyone else.  Just check out the purported profiles for celebrities and you’ll see for yourself.  I seriously doubt Justin Timberlake has time to manage 20 different Facebook and MySpace profiles.

So, with this significant potential for fraud, how does a trial attorney go about authenticating and admitting this evidence at trial.  You might think that you need an affidavit from the social media company and the IP logs from the computer that created the account.  Indeed, you could get that sophisticated if you like.  But you don’t have too.   At least not in Texas.

The Texas Court of Criminal Appeals recently decided Tienda v. State, a case that dealt with this issue.  At trial, the State tried to introduce pieces of evidence obtained from the appellant's purported MySpace accounts.  However, the state did not have IP logs showing which computer created the accounts or the hard drive of appellant’s computer or any other sophisticated computer evidence.  The State took the simple route.  It presented evidence obtained from MySpace showing which email address created the accounts. Then it presented evidence obtained from the MySpace profiles themselves (posts, music, photos, messages), which linked appellant (circumstantially) to the MySpace profiles.  They used a sponsoring witness that had been on the MySpace profiles and had seen the postings and pictures.  The trial court allowed the evidence over defense objection.

The CCA held that “a combination of facts…[was] sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant.” The CCA noted that under TRE 901(a), the proponent of the evidence need only make a threshold showing that would be sufficient to support a finding that the matter in question is what its proponent claims. “The ultimate question whether an item of evidence is what its proponent claims then becomes a question for the fact-finder – the jury, in a jury trial.” Electronic evidence, the CCA explained, may be authenticated in a number of different ways.  However, "simply showing than an email [or other electronic message] purports to come from a certain person’s email address…or that a text message emanates from a cell phone number assigned to the purported author…without more, has typically been regarded as [insufficient] to support a finding of authenticity."

Ultimately, the CCA held in Tienda that there is no formula for admission of electronic evidence.  Each case should turn on its particular facts and the amount of circumstantial indicia of authenticity that is present.  The CCA cited a Maryland Court of Appeals opinion and seems to adopt the Maryland Court’s rationale regarding three instances that would satisfy the test for authenticity, but notes that the methods are not exclusive.

[T]he Maryland Court of Appeals recognized that such postings may readily be authenticated, explicitly identifying three non-exclusive methods. First, the proponent could present the testimony of a witness with knowledge; or, in other words, “ask the purported creator if she indeed created the profile and also if she added the posting in question.” That may not be possible where, as here, the State offers the evidence to be authenticated and the purported author is the defendant.  Second, the proponent could offer the results of an examination of the internet history or hard drive of the person who is claimed to have created the profile in question to determine whether that person’s personal computer was used to originate the evidence at issue.  Or, third, the proponent could produce information that would link the profile to the alleged person from the appropriate employee of the social networking website corporation.”

While that State failed, in the Tienda case, to use any of the methods articulated by the Maryland Court of Appeals, the CCA nonetheless held, that based on the circumstantial indicia of authenticity, the State created a prima facie case that would justify submitting the ultimate question of authenticity to the jury.

If you are thinking about introducing social network evidence or other electronic evidence, this case is a good one to read. As always, the war is waged at the trial level, because on appeal, the standard is abuse of discretion, which means, of course, that the trial court’s ruling is given great deference.

Property Owners Testimony Alone May Satisfy Loss Element of Criminal Mischief Offense

An overdue apology to our readers out there.  As the tempo of my day job increases, my posting of Texas criminal law news and cases decreases.  Although I doubt there is anyone waiting by their computer for me to post about breaking Texas cases, I apologize for my apathy nonetheless.  However, today is not the day that I resume substantive and continuous posting. 

Here's a blurb (a cut and paste, actually) about a recent CCA opinion regarding the evidence required to prove penuciary loss element of a criminal mischief offense.

Holz v. State: 

A person commits the offense of criminal mischief when she intentionally or knowingly damages or destroys tangible property without the effective consent of the owner.  The amount of pecuniary loss suffered by the owner determines the degree of the offense.  If the property is damaged (as opposed to destroyed) the amount of pecuniary loss is determined by “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.”

The question presented was whether, in order to prove the pecuniary loss element of a criminal mischief offense, a non-expert property owner's testimony about the cost of repairing or restoring his damaged property can be sufficient without further evidence?

Reversing the judgment of the 6th District Court of Appeals and clairfying the it prior holding in Elomary v. State, 796 S.W.2d 191 (Tex. Cr. App. 1990), the CCA held that expert testimony is not required to prove the pecuniary loss element and that a non-expert property owner's testimony may be sufficient, even standing alone.

Just Answer the Question, But You Can Lie if You Want

The 11th District Court of Appeals (Eastland) released an opinion yesterday regarding whether the results of polygraph examinations can be used as evidence to revoke community supervision.

Here are some highlights:

This case presents an interesting paradox: courts routinely require sex offenders on community supervision to take and pass polygraph exams - even though their mere existence, let alone results, is inadmissible. But Texas law is clear that the existence and results of a polygraph examination are inadmissible for all purposes.

Unless and until, the Court of Criminal Appeals lifts its ban on polygraph test results, trial courts lack the discretion to revoke an individual's community supervision for failing an exam.

We do not hold that polygraph exams cannot be imposed as a condition of community supervision or used as part of a sex-offender treatment program.  Even though the test results are inadmissible, polygraph exams allow treatment providers to monitor compliance, and they can serve as a catalyst for further investigation.  Nor do we hold that failure to take a test is inadmissible or that trial courts lack the discretion to revoke community supervision for failing or refusing to take a court-ordered polygraph.

So, to summarize the summary, Courts may impose polygraph exams as a condition of community supervision and the inidividual must submit to the exam, but they can completely fail the exam by totally lying throughout and their community supervision cannot be revoked.  That's an interesting loophole.

See the full opinion in Leonard v. State HERE.

To Catch (and Release) a Predator: Defending the Internet Sex Sting Case

Defending the Internet Sex Sting Case - Jan/Feb 2010 issue of GP Solo.

Recently ran across an interesting article in the GP Solo magazine from the ABA.  In it, Anthony J. Colleluori, presents several helpful pointers on how to "Defend[] the Internet Sex Sting Case."  The article is available on the ABA website HERE.  The tips he provides are worth a read when you have the time.

Confrontation Clause and Lab Reports???

Well I was hoping that the Supreme Court might take the opportunity in Briscoe v. Virginia to clarify its opinion from last term in Melendez-Diaz v. Massachusetts, but it passed.  Instead of articulating what exactly the confrontation clause requires of the State when offering lab reports into evidence, the Court merely stated, in a per curiam opinion,

"We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009)."

Hopefully, the Court will seize its next opporutunity to answer the question when it hears, City of Ontario v. Quon this term, but from the looks of it, I doubt it will.  So in the wake of Crawford and Melendez-Diaz, and now Briscoe, we still don't know...

• What parts of a lab report are "testimonial" triggering Crawford and the Sixth Amendment?
• If a lab report is testimonial, who from the lab must testify in order to satisfy the CC?
• Would the Supreme Court require all lab technicians who took part in operating the machinery which led to the creation of the report testify?  
• Does it satisfy the CC if a supervisor of the lab testifies alone?

These are the burning questions with which we are left.  In fact, these are questions that many of the justices asked of the counsel in both Melendez-Diaz and Briscoe.  I guess we will have to wait while the justices figure out the answers for themselves.  Much like Crawford, the law provides more questions than answers.


Thanks to the Austin Criminal Defense Lawyer Blog for alerting me to the release of the Briscoe opinion.

Waco Court of Appeals Gets One Wrong!

If you will indulge me, this post is a bit of a rant.

In a recent case, In the Matter of J.W., a Juvenile, the 10^th Court of Appeals (Waco) appears to have made a critical blunder in its reasoning and application of Texas Rule of Evidence 803(5) – the hearsay exception for past recollection recorded.

I missed this case when the opinion was handed down on Dec 30, 2009, but was alerted to it here.  I usually only monitor the criminal decisions and this one (being reported on the civil side) slipped through the cracks.

The case involved the written and signed statement of a witness to a law enforcement officer.  The witness implicates the defendant in her statement, providing an eye-witness account of the crime.  As she signed the statement the officer asked if the statement was true and the witnesses responded affirmatively.

However, between the time that the witness gave the statement and the date of trial, the witness was in a bad car accident which caused amnesia. As a result, she could not recall the events contained in the statement and could not even recall making a statement at all.  She could, however, identify her signature at the conclusion of the statement.

At trial the government sought to read into evidence the written statement of the eye-witness to the officer under Texas Rule of Evidence 803(5) as past recollection recorded.  TRE 803(5) provides:

A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document’s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.   

The trial court allowed the statement to be read into evidence over defense objection and the juvenile defendant was convicted.  On appeal, the 10^th Court of Appeals properly identified the four predicate elements for the use of a recorded recollection:
     

1. the witness must have firsthand knowledge of the event,
2. the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it,
3. the witness must lack a present recollection of the event, and
4. the witness must vouch for the accuracy of the written memorandum.

 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1996).  From the nature of the written statement and the testimony of the officer who took the statement, the first 3 prongs were clearly satisfied. However, the 4^th prong is the substance of the question presented to the appellate court.  In order to satisfy the 4^th prong, the State relied on the officer's testimony that the eye-witness declarant told him the statement was true when she wrote it.  While realizing that “ideally this evidence (voucher of the accuracy of the statement) would come from the declarant,” the Court held that “under the circumstances of this case (where the declarant cannot remember anything due to amnesia), we cannot say the trial court abused its discretion.” My question to the Court, the counsel involved, and anyone who reads this case is: 

WHAT ABOUT THE 6^TH AMENDMENT?  Does this juvenile defendant not have the right to confront the witness against her?  This eye-witness statement implicating the defendant is surely “testimonial” under Crawford.  And as a testimonial statement, the defendant has a right to cross-examine the declarant.  This declarant, while physically present at trial, was “unavailable” in a legal sense because she could not provide testimony about the facts and circumstances surrounding her statement.  More importantly, her statement could not be subjected to the “crucible of cross-examination.” 

To illustrate the critical error in this case – assume for a moment that the declarant was actually the one who committed the offense and in an effort to shift the blame, she gave a completely false statement implicating the defendant.  Normally that is something that will come to light during cross-examination (if not sooner).  However, in this case, the declarant does not remember anything about the incident, much less whether she gave an accurate account of the incident.   

In reaching its erroneous conclusion, the Waco Court of Appeals relied heavily on Johnson v. State, a case which was decided before the Supreme Court decision in Crawford v. Washington changed the landscape for confrontation clause analysis.  Before Crawford, courts used the Ohio v. Roberts (indicia of reliability) framework when considering the admissibility of hearsay statements.  I believe that a fair reading of Johnson alone dictates that this case be overturned, but had the Court considered both Crawford and Johnson in its analysis, it would have surely reached a different conclusion. 

I sincerely hope that the Supreme Court of Texas takes a look at this case.  Maybe it is ultimately a “waiver” issue because it doesn’t appear that the 6^th amendment argument was made during trial.  I hope not, because in my opinion the Waco Court of Appeals got it wrong and this case should be overturned.