{"id":1136,"date":"2013-06-08T23:03:54","date_gmt":"2013-06-09T03:03:54","guid":{"rendered":"http:\/\/blog.richardhornsby.com\/?p=1136"},"modified":"2013-06-08T23:03:54","modified_gmt":"2013-06-09T03:03:54","slug":"authenticating-trayvon-martins-digital-records","status":"publish","type":"post","link":"https:\/\/www.hornsby.com\/blog\/authenticating-trayvon-martins-digital-records\/","title":{"rendered":"Authenticating Trayvon Martin’s Digital Records"},"content":{"rendered":"

Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.\u00a0– Florida Statute 90.901<\/a><\/p><\/blockquote>\n

A major issue in the George Zimmerman case is whether Trayvon Martin’s cellular phone and social media records (collectively digital records) will be admissible in court.<\/p>\n

And as a threshold matter, Judge Nelson has indicated skepticism\u00a0that these records can even be authenticated – i.e. that it can be proven they are what they purport to be.<\/p>\n

Likely, this skepticism is based on the belief that Trayvon Martin would be the only person who could authenticate them. However, this belief is mistaken.<\/p>\n

Authenticating Digital Evidence<\/h2>\n

In Florida,\u00a0“[e]vidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication (i.e. certified records).”\u00a0Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012)<\/a>.<\/p>\n

Text Messages<\/h3>\n

In Symonette<\/a>, the detective obtained a search warrant and took pictures of text messages on the defendant’s phone and the person who had sent the messages to the defendant testified to having done so.<\/p>\n

As a result, even though the defendant (the owner of the phone) did not personally authenticate them, the circumstances of how the pictures were obtained (through a law enforcement officer’s search of the phone) combined with the sender of the messages testimony was sufficient extrinsic evidence to support their admissibility.<\/p>\n

In George Zimmerman’s case, given that Trayvon Martin’s phone was lawfully obtained by law enforcement and properly searched, any “authentication” objection should fail so long as the defense is able to secure testimony from the second party to the text messages on Trayvon Martin’s phone (i.e. W8).<\/p>\n

But what if W8 feigns ignorance or lack of memory of the texts?<\/p>\n

Second Party’s Lack of Memory<\/h4>\n

In State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010)<\/a>, the defendant was charged with a series of domestic violence related charges against his ex-wife. The State sought to introduce a series of text messages and images found on the defendant’s phone that were between the ex-wife and her then boyfriend (don’t ask, I don’t know why she used his phone).<\/p>\n

The ex-wife testified that she only recognized two images and one text. As a result, the trial court only found those three items authenticated and admissible and excluded the remainder.<\/p>\n

The appellate court reversed and states “the images and text messages were found on the defendant’s cellular telephone, seized pursuant to a search of the defendant’s home through a warrant shortly after the alleged incident. This fact, testified by the State’s forensics expert, is sufficient to authenticate these exhibits.”\u00a0Id.<\/a> citing U.S. v. Caldwell,\u00a0776 F.2d 989, 1001-02 (11th Cir.1985)<\/a>\u00a0(holding that authentication of evidence merely requires a finding that the evidence is what it purports to be).<\/p>\n

As a result, it appears that so long as a proper predicate is laid that the phone found on Trayvon Martin was secured by law enforcement and first searched by law enforcement, the contents of it would be authenticated without the need for calling the second party to any of Trayvon Martin’s conversations.<\/p>\n

Multimedia Records<\/h3>\n

Multimedia records (i.e. videos and pictures) are actually some of the easiest records to authenticate.<\/p>\n

When it comes to visual evidence, such as pictures or videos of a person, the defense (or state) would only need one person to testify that the person in the video or picture is the person in question. See\u00a0Bryant v. State, 810 So. 2d 532 (Fla. 1st DCA 2002)<\/a> (Any witness can testify that a photograph is a fair and accurate representation of the individual, and the photographer’s testimony is not necessary to authenticate the photograph.)<\/p>\n

Notably, under Florida’s evidentiary code, the definition of photographs includes “still photographs, X-ray films, videotapes, and motion pictures.” Florida Statute 90.951<\/a><\/p>\n

Social Media Records<\/h3>\n

Trayvon Martin’s social media records would seem to pose a slightly different problem, because as far as I can tell, they were obtained directly from Twitter (or other social media accounts).<\/p>\n

Assuming the records did not exist on his phone, authentication of the records would be a multi-step process.<\/p>\n

    \n
  1. First, the defense would have to identify Trayvon Martin’s actual social media accounts (likely through his known email address, cell phone number, or ip address from last known access point.)<\/li>\n
  2. Second, the defense would\u00a0have to subpoena Trayvon Martin’s social media records.<\/li>\n
  3. Third, once received, the defense would have to either list a Business Records custodian or file a Notice of Intent to Rely on a Business Records Certification under Florida Statute 92.605<\/a>.<\/li>\n<\/ol>\n

    Notably, so long as the above procedure is properly followed, Florida Statute 92.605 specifically holds that\u00a0records produced under this rule are self authenticating and non-hearsay.<\/p>\n

    Thus, the primary argument I see the defense running into is proving that the social media accounts in question were actually Trayvon Martin’s. This could be accomplished \u00a0through the process outlined in\u00a0\u00a0Symonette v. State, 100 So. 3d 180 (Fla. 4th DCA 2012)<\/a>, where W8 could testify that the social media account in question was the one Trayvon Martin used.<\/p>\n

    Or, as suggested in State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010)<\/a>, it could be done through some type of extrinsic proof. Such extrinsic proof would likely be accounts connected to his cellular phone or any other electronic devices of his that were examined by law enforcement.\u00a0See also Harden v. State, 87 So. 3d 1243 (Fla. 4th DCA 2012)<\/a> (Victim’s MySpace records admissible through business records certification.)<\/p>\n

    However, I would note that to date the defense has not filed a Notice of Intent to Rely on Business Records Certification, nor as far as I can tell, listed a custodian of records from a social media company.<\/p>\n

    Thus, I don’t foresee any social media evidence being introduced into his trial.<\/p>\n

    Authenticatable, but are they Admissible<\/h2>\n

    Ultimately, while Judge Nelson expressed skepticism\u00a0about the admissibility of Trayvon Martin’s digital records because of authenticity concerns, I suspect she was really expressing questions about how the defense will get around hearsay objections.<\/p>\n

    Hearsay testimony occurs when someone testifies to a statement that was made outside-of-court and the statement is offered to prove the truth of what was said.\u00a0Florida Statute 90.801(1)(c)<\/a>. Importantly, hearsay testimony is inadmissible. Florida Statute 90.802<\/a>.<\/p>\n

    However, the Florida Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So. 2d 906, 914-15 (Fla. 2000)<\/a>. When a statement is not offered for the truth of its contents, but to prove a material issue in a case, it is not hearsay.\u00a0Id.<\/a><\/p>\n

    In this case, the the digital evidence between W8 and Trayvon Martin may be admissible for a variety of reasons other than to prove the actual contents of the messages.<\/p>\n