Admissibility of Evidence - Authentication of Instant Message
An instant message must be authenticated. In People v. Pierre,[1] the Appellate Division held that the court properly received, as an admission, an Internet instant message in which defendant told the victim's cousin that he did not want the victim's baby. Although the witness did not save or print the message, and there was no Internet service provider evidence or other technical evidence in this regard, the instant message was properly authenticated, through circumstantial evidence, as emanating from defendant. [2] The accomplice witness, who was defendant's close friend, testified to defendant’s screen name. The cousin testified that she sent an instant message to that same screen name, and received a reply, the content of which made no sense unless it was sent by the defendant. Furthermore, there was no evidence that anyone had a motive, or opportunity, to impersonate defendant by using his screen name.
In People v Clevenstein,[3] the Defendant, who was in his late 50s, befriended a family and used that relationship as a means to acquire access to the family's two teenage daughters (born in 1990 and 1992), whom he allegedly subjected to various sex-related activity from January 2006 to August 2007. His conduct was discovered when his wife accidentally found, on their computer in defendant's MySpace account, saved instant message communications between defendant and the younger victim revealing sexually explicit discussions and indicating that the two had engaged in sexual intercourse. On appeal from his criminal conviction, the defendant contended that the computer disk containing the electronic communications that occurred between him and the victims via instant message were improperly admitted into evidence. Defendant objected to this evidence at trial upon the ground that it had not been properly authenticated. The Appellate Division held that "[A]uthenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it," and "[t]he foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted." [4] Both victims testified that they had engaged in instant messaging about sexual activities with defendant through the social networking site MySpace. An investigator from the computer crime unit of the State Police related that he had retrieved such conversations from the hard drive of the computer used by the victims. A legal compliance officer for MySpace explained that the messages on the computer disk had been exchanged by users of accounts created by defendant and the victims, and defendant's wife recalled the sexually explicit conversations she viewed in defendant's MySpace account while on their computer. Such testimony provided ample authentication for admission of this evidence.[5] Although, as defendant suggested at trial, it was possible that someone else accessed his MySpace account and sent messages under his user name, the Appellate Division held that County Court properly concluded that, under the facts of this case, the likelihood of such a scenario presented a factual issue for the jury.
In People v Agudelo,[6] the court held that the victim’s testimony was sufficient to authenticate the content of a set of cell phone instant messages exchanged between her and defendant. The detective testified that he viewed the messages on the victim’s phone and thereafter read the printout of the messages, which the victim had cut and pasted into a single document. This printout was introduced in evidence after the victim testified that it accurately represented the exchange of messages she received on her cell phone. She testified that she knew the messages were from defendant because his name appeared on her phone when she received the instant messages. The Appellate Division observed that one of the numerous ways to authenticate a recorded conversation is through the testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered. The credibility of the authenticating witness and any motive she may have had to alter the evidence go to the weight to be accorded this evidence, rather than its admissibility. It rejected the argument that authentication requires testimony from the Internet service provider about the source of the messages since the issue here was the accuracy of a copy-and-paste compilation of an electronic exchange. Other jurisdictions that have directly dealt with the issue of the admissibility of a transcript, or a copy-and-paste document of a text message conversation, have determined that authenticity can be shown through the testimony of a participant in the conversation that the document is a fair and accurate representation of the conversation. The testimony of a “witness with knowledge that a matter is what it is claimed to be is sufficient” to satisfy the standard for authentication Here, there was no dispute that the victim, who received these messages on phone and who compiled them into a single document, had first-hand knowledge of their contents and was an appropriate witness to authenticate the compilation. Moreover, the victim’s testimony was corroborated by a detective who had seen the messages on the victim’s phone.
|
[1] 41 A.D.3d 289, 838 N.Y.S.2d 546 (1 Dept, 2007)
[2] Citing United States v Siddiqui, 235 F3d 1318, 1322-1323 [11th Cir 2000], cert denied 533 US 940 [2001]; cf. People v Lynes, 49 NY2d 286, 291-293 [1980]; People v Hamilton, 3 AD3d 405 [2004], mod on other grounds 4 NY3d 654 [2005].
[3] 68 A.D.3d 1448, 891 N.Y.S.2d 511 (3d Dept, 2009).
[4] Citing People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 399 N.E.2d 1177 (1979); see Prince, Richardson on Evidence, (Farrell), 11th Edition, § 4-203.
[5] citing People v. Lynes, 49 N.Y.2d 286, 291-293, 425 N.Y.S.2d 295, 401 N.E.2d 405 (1980); People v. Pierre, 41 A.D.3d 289, 291, 838 N.Y.S.2d 546 (2007); see generally Zitter, Annotation, Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 ALR 6th 253 (2008).
[6] 96 A.D.3d 611, 947 N.Y.S.2d 96, 2012 N.Y. Slip Op. 05072 (2d Dept.,2012)
An instant message must be authenticated. In People v. Pierre,[1] the Appellate Division held that the court properly received, as an admission, an Internet instant message in which defendant told the victim's cousin that he did not want the victim's baby. Although the witness did not save or print the message, and there was no Internet service provider evidence or other technical evidence in this regard, the instant message was properly authenticated, through circumstantial evidence, as emanating from defendant. [2] The accomplice witness, who was defendant's close friend, testified to defendant’s screen name. The cousin testified that she sent an instant message to that same screen name, and received a reply, the content of which made no sense unless it was sent by the defendant. Furthermore, there was no evidence that anyone had a motive, or opportunity, to impersonate defendant by using his screen name.
In People v Clevenstein,[3] the Defendant, who was in his late 50s, befriended a family and used that relationship as a means to acquire access to the family's two teenage daughters (born in 1990 and 1992), whom he allegedly subjected to various sex-related activity from January 2006 to August 2007. His conduct was discovered when his wife accidentally found, on their computer in defendant's MySpace account, saved instant message communications between defendant and the younger victim revealing sexually explicit discussions and indicating that the two had engaged in sexual intercourse. On appeal from his criminal conviction, the defendant contended that the computer disk containing the electronic communications that occurred between him and the victims via instant message were improperly admitted into evidence. Defendant objected to this evidence at trial upon the ground that it had not been properly authenticated. The Appellate Division held that "[A]uthenticity is established by proof that the offered evidence is genuine and that there has been no tampering with it," and "[t]he foundation necessary to establish these elements may differ according to the nature of the evidence sought to be admitted." [4] Both victims testified that they had engaged in instant messaging about sexual activities with defendant through the social networking site MySpace. An investigator from the computer crime unit of the State Police related that he had retrieved such conversations from the hard drive of the computer used by the victims. A legal compliance officer for MySpace explained that the messages on the computer disk had been exchanged by users of accounts created by defendant and the victims, and defendant's wife recalled the sexually explicit conversations she viewed in defendant's MySpace account while on their computer. Such testimony provided ample authentication for admission of this evidence.[5] Although, as defendant suggested at trial, it was possible that someone else accessed his MySpace account and sent messages under his user name, the Appellate Division held that County Court properly concluded that, under the facts of this case, the likelihood of such a scenario presented a factual issue for the jury.
In People v Agudelo,[6] the court held that the victim’s testimony was sufficient to authenticate the content of a set of cell phone instant messages exchanged between her and defendant. The detective testified that he viewed the messages on the victim’s phone and thereafter read the printout of the messages, which the victim had cut and pasted into a single document. This printout was introduced in evidence after the victim testified that it accurately represented the exchange of messages she received on her cell phone. She testified that she knew the messages were from defendant because his name appeared on her phone when she received the instant messages. The Appellate Division observed that one of the numerous ways to authenticate a recorded conversation is through the testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered. The credibility of the authenticating witness and any motive she may have had to alter the evidence go to the weight to be accorded this evidence, rather than its admissibility. It rejected the argument that authentication requires testimony from the Internet service provider about the source of the messages since the issue here was the accuracy of a copy-and-paste compilation of an electronic exchange. Other jurisdictions that have directly dealt with the issue of the admissibility of a transcript, or a copy-and-paste document of a text message conversation, have determined that authenticity can be shown through the testimony of a participant in the conversation that the document is a fair and accurate representation of the conversation. The testimony of a “witness with knowledge that a matter is what it is claimed to be is sufficient” to satisfy the standard for authentication Here, there was no dispute that the victim, who received these messages on phone and who compiled them into a single document, had first-hand knowledge of their contents and was an appropriate witness to authenticate the compilation. Moreover, the victim’s testimony was corroborated by a detective who had seen the messages on the victim’s phone.
|
[1] 41 A.D.3d 289, 838 N.Y.S.2d 546 (1 Dept, 2007)
[2] Citing United States v Siddiqui, 235 F3d 1318, 1322-1323 [11th Cir 2000], cert denied 533 US 940 [2001]; cf. People v Lynes, 49 NY2d 286, 291-293 [1980]; People v Hamilton, 3 AD3d 405 [2004], mod on other grounds 4 NY3d 654 [2005].
[3] 68 A.D.3d 1448, 891 N.Y.S.2d 511 (3d Dept, 2009).
[4] Citing People v. McGee, 49 N.Y.2d 48, 59, 424 N.Y.S.2d 157, 399 N.E.2d 1177 (1979); see Prince, Richardson on Evidence, (Farrell), 11th Edition, § 4-203.
[5] citing People v. Lynes, 49 N.Y.2d 286, 291-293, 425 N.Y.S.2d 295, 401 N.E.2d 405 (1980); People v. Pierre, 41 A.D.3d 289, 291, 838 N.Y.S.2d 546 (2007); see generally Zitter, Annotation, Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 ALR 6th 253 (2008).
[6] 96 A.D.3d 611, 947 N.Y.S.2d 96, 2012 N.Y. Slip Op. 05072 (2d Dept.,2012)
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:divorce@ix.netcom.com. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
|