admissibility of social media and electronically …...7/28/14 1 admissibility of social media and...

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Admissibility of Social Media and Electronically Stored

Information

Jessica E. Schwie, Esq. Jardine, Logan & O’Brien, P.L.L.P. [email protected] ● 651-290-6591

www.jlolaw.com

A special thank you to Nick Matchen and Matthew Flynn at Jardine, Logan, & O’Brien, P.L.L.P, for their assistance in preparing the presentation. The law and discussion herein and at the time of the conference is current through the date of the seminar. Caution should be used in any future use of the materials.

Table of Contents

n  Social Media Statistics

n  Lorraine Model

n  Relevance of Electronically Stored Information

n  Authentication of Evidence

n  Hearsay and Electronically Stored Information

n  Best Evidence Rule

n  Pop Quiz

Facebook 1.1 billion users: over 50% active daily; 5 billion messages/week; 3 billion photos/month.

Instagram 130 million active monthly users; 40 million photos published daily; 1 billion likes daily.

Twitter

One billion tweets per week; 456 tweets per second (TPS) were sent when Michael Jackson died.

Youtube

800 million unique monthly visitors; 4 billion hours of video watched per month.

Vine Over 40 million users; 4 times greater chance of viewership than any other video platform.

Stats Lorraine Model

Relevance Authentication Hearsay Best Evidence Pop Quiz

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Lorraine Model

“It is important to remember that there is nothing ‘magical’ about the admission of electronic evidence. The prevalence of electronic evidence has required no substantial changes to the Federal Rules of Evidence. In analyzing the admissibility of such evidence, it is often best to treat it as originating from the most similar, non-electronic source as thoughtful application of traditional evidentiary principles will nearly always lead to the correct result.”

John D. Frieden and Leigh M. Murray, The Admissibility of Electronic Evidence Under the Federal Rules of Evidence, XVII RICH. J.L. & TECH. 5, 2 (2011).



n  Preliminary Ruling on Admissibility

n  Relevance

n  Authenticity

n  Hearsay

n  Best Evidence Rule

n  Undue Prejudice

Lorraine Model



n  Logical Relevance (Minn. R. Evid. 402) n  Electronically Stored Information (ESI) is the same as traditional

evidence: analyze electronic evidence as you would regular evidence. n  Pragmatic Relevance (Minn. R. Evid. 403)

n  Logically relevant evidence can still be excluded if it will mislead the jury, confuse the issues, or be unduly prejudicial.

n  Examples of these circumstances include: n  Evidence containing offensive or derogatory language that may

prompt an emotional response. n  Animations that the jury may mistake for the actual events. n  Voluminous electronic texts, photos, or recordings. n  Circumstances in which the court is concerned as to the reliability or

accuracy of the electronic evidence.

Relevance of ESI



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n  901(b)(1) – Witness testifies that the evidence is what it claims to be.

n  901(b)(3) – Evidence is authenticated by comparing to previously authenticated evidence specimens.

n  901(b)(4) – Distinctive characteristics are identified to authenticate the evidence.

n  901(b)(7) – Public records indicate the authenticity of the evidence.

n  901(b)(9) – Process or system: used to authenticate information stored on a computer.

Authentication of ESI: Extrinsic Evidence



n  Official Publications n  Emails or websites of a public authority can be self-

authenticating. n  Trade Inscriptions

n  Would include logos, signature blocks on an email. n  Certified Domestic Records of a Regularly Conducted Activity

n  Important because most businesses now keep records in an electronic format.

n  Authentication for business records generally waived under Minn. R. Evid. 803(6)

n  Authentication Problems: Chatrooms.

Authentication of ESI: Self-Authenticating Evidence



n  Hearsay does not exist with computer generated records: no declarant is making an assertion.

n  ESI Hearsay Exclusions and Exceptions: n  Admissions of a Party-Opponent n  Recorded Recollection n  Excited Utterance n  Then Existing State of Mind or Condition n  Business Records n  Public Records n  Market Reports and Commercial Publications

Hearsay and ESI



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n  Best Evidence Rule applies to ESI.

n  However, proponents often must use secondary evidence to prove the contents of a document.

Best Evidence Rule and ESI



Pop Quiz: Social Media - Is It Admissible?

n  Rolando Lozano and his brother, Damien, were suspects in 17 car break-ins in Rosenberg Texas.

n  On November 17, the Rosenberg Police Department posted unidentified pictures of the suspects to its Facebook page, seeking information from the public.

Facebook Post

Facebook Twitter YouTube Vine Instagram Text Message Email

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n  On November 18, Rolando Lozano commented on the Rosenberg Police Department’s picture “catch me if u can.”

n  The same day, Lozano was apprehended by police.

n  Is Lozano’s Facebook Post admissible evidence?

Facebook Post


n  On November 18, Rolando Lozano commented on the Rosenberg Police Department’s picture “catch me if u can.”

n  The same day, Lozano was apprehended by police.

n  Is Lozano’s Facebook Post admissible evidence?

Facebook Post


n  On November 17, Kaila Mendoza drove her car on the wrong side of a Florida Expressway, resulting in a head-on collision with another car.

n  Both passengers in the other car died due to injuries sustained in the accident.

Tweet on Twitter


n  Just hours before the accident, a public Twitter account with Mendoza’s picture and name tweeted “2 drunk 2 care.”

n  The wording of the post is consistent with other tweets on the account (ex. “2 high 2 care”).

n  Is Mendoza’s tweet admissible as evidence?

Tweet on Twitter


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n  On November 28, 2012, a Nebraska bank was robbed by a young female. Hours later, a video was posted on YouTube by Hannah Sabata titled “Chick Bank Robber” in which she bragged about the crime.

YouTube Video


http://youtu.be/q25rFjZSbqU

n  Sabata was identified by police independent of the video. n  In the video, Sabata is wearing the same clothes as she

was in the robbery itself.

n  The video now has over 1,400,000 views, and was picked up and aired on major news outlets nationwide.

n  Is this YouTube video admissible as evidence?

YouTube Video


n  On August 11, 17-year-old Walter Easley posted a Vine of himself kicking a cat to his public Vine account.

Vine Video


http://youtu.be/lF6PTzra5os

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n  The video was reported as animal cruelty to the Orangeburg County (SC) Sherriff’s Office, who confronted Easton at his school.

n  Easton admitted to being the individual in the video.

n  Is this Vine video admissible as evidence against Easton?

Vine Video


n  On Nov 1st, Philadelphia police began investigating an Instagram account called “rats215” that stated its intent is to “expose rats.”

n  The account exposed the identity and photos of witnesses to crimes in Philadelphia.

Instagram Post


n  The account had more than 7000 followers, some of whom left threats on the exposed witnesses’ pictures and information.

n  The account was operated anonymously. n  Police found confidential court documents that identified

crime witnesses on the Twitter account of 17-year-old Nasheen Anderson.

n  The same documents were later uploaded to the “rats215” Instagram account, prompting officers to investigate Anderson’s relationship to “rats215,” which is as of yet unknown.

n  Are the Instagram posts of “rats215” admissible evidence?

Instagram Post


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n  On June 19, 2012, Kevin Mengel was murdered in his home by his wife, Morgan, and her lover, Stephen Shappell.

n  Morgan and Stephen first attempted to kill Kevin by poisoning his Snapple drink, but when this was unsuccessful, Stephen beat Kevin to death with a shovel.

n  Morgan and Stephen exchanged text messages before, during, and after the crime discussing when and how to kill Kevin and dispose of his body.

n  The lovers thought that if they deleted their text messages, they would be inaccessible to police.

Text Message


Text Message


Email


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Any Questions?

Contact Information Jessica E. Schwie, Esq. Jardine, Logan & O’Brien, P.L.L.P. [email protected] 651-290-6591 www.jlolaw.com

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