It's On My Phone

The admissibility of social media evidence, given at UCR Extension MCLE Madness January 30, 2016

Transcript

1. IT’S ON MY PHONE Social Media Evidence Jackson Lucky, Riverside Superior Court
2. Materials • Table of Authorities (flash drive) • http://bit.ly/mm2016-its-on-my-phone • Slide Deck • https://speakerdeck.com/jluckyiv/its-on-my-phone 2
3. Recommended Reading • In re K.B. • People v. Valdez • People v. Goldsmith • United States v. Lizarraga-Tirado • People v. Hawkins (general analysis on computers) • People v. Beckley (outdated analysis) • Cites are in the Table of Authorities 3
4. ESI Electronically Stored Information
5. Forms of ESI • Printing • Photographing • Email or fax • Every recording • Any form of communication or representation • Letters, words, pictures, sounds, symbols • Recorded in any manner • Evid. Code §250, “Writing” 5
6. RASH 6 Relevance Authentication Secondary Evidence Hearsay
7. The Importance of Relevance • All relevant evidence is admissible • Evid. Code § 351 • Only relevant evidence is admissible • Evid. Code § 350 7
8. Relevance • Having any tendency in reason • To prove or disprove • Any disputed fact that is of consequence • Evidence Code §210 8
9. Relevance Analysis • What is the evidence? • Be specific • What is it offered to prove? • Be creative • How does it do so? • Describe the relationship 9
10. Relevance and Authentication • A writing must be authentic to be relevant • It must be made or signed by its purported maker • People v. Goldsmith • A writing must be authenticated before the writing or secondary evidence of its content is admitted. • Evidence Code §1401 • Authentication means the item is what it claims to be. • Evidence Code §1400, People v. Valdez 10
11. Threshold Requirements 11 What is the nature of the item of electronic evidence (ESI)? Does the ESI fairly and accurately depict its contents? Is there sufficient proof that the ESI was created or uploaded by the purported author?
12. Sources of Authentication • Judicial Notice, EC 452 • Statutory presumptions, EC 1552 & 1553 • Percipient witness, EC 1413 • Admission of authenticity, EC 1414 • Reply, EC 1420 • Content, EC 1421 • Expert testimony 12
13. Judicial Notice • Facts and propositions of such common knowledge • Cannot reasonably be the subject of dispute • Evidence Code § 452(g) • Facts and propositions • Not reasonably subject to dispute and • Can be immediately and accurately determined • By sources of reasonably indisputable accuracy • Evidence Code § 452(e) 13
14. Judicial Notice of Websites • Plaintiff requests the court to take judicial notice • Newspaper website • Defendant’s company website • Defendant objects • Ragland v. U.S. Bank National Assn. 14
15. Statutory Presumptions • Computer printouts of images are presumed accurate • Evid. Code 1552 • Prints from digital media are presumed accurate • Evid. Code 1553 • People v. Goldsmith • Presumption can be overcome • People v. Rekte 15
16. Percipient Witness • Witness to document’s execution may authenticate • Evid. Code 1413 • The testimony of a person • Who was present at the time • That it accurately depicts what it purports to show • People v. Beckley 16
17. Admission of Authenticity • Admission by party as to authenticity • Acted on as authentic • Evid. Code 1414 • Consider relationship with civil discovery • Requests for admissions • Depositions • Interrogatories 17
18. Authentication by Reply • Response to message sent to purported author • Evid. Code 1420 • Text messages • Instant messages • Emails 18
19. Authentication by Content • Matters likely to be known only by purported author • Evid. Code 1421 • Some writings can authenticate themselves by content • People v. Fonville 19
20. Expert authentication • Experts can establish • Based upon their examination • Or examination of metadata 20
21. Photographs 1948 • Photographs found in apartment, depicting the apartment. • Expert testifies • pictures are not characteristic of composite photographs • are either genuine or a contact print of the photograph • People v. Doggett 21
22. Photographs 2010 • Photo of party flashing gang signs downloaded from MySpace • Witness testifies to downloading photo • Recognizes party • No expert testimony • Inadmissible • People v. Beckley • This is probably an outdated view 22
23. When Is an Expert Needed? • Sufficiently beyond common experience • Opinion would assist the trier of fact • Evidence Code § 801(a) 23
24. Who Is an Expert? • Special knowledge, skill, experience, training, education • On the subject matter to which his/her testimony relates • Evidence Code §720 24
25. Basis for Opinion • It must be “of a type that reasonably may be relied upon” by similar experts • Evidence Code § 801(b) 25
26. Photographs 2011 • Site is password protected • Subject in photo is identifiable • “Pervasive consistency of content” • Numerous personal photographs • Communications to and from the subject • Other details tending to show identity and ownership • Lack of motive on the part of others to adulterate content • Timing of the posting • People v. Valdez 26
27. Qualified User Testimony • Detective used “voice print system” • Retrieved time-and-date-stamped 911 calls • Familiar with process • But not familiar system maintenance or accuracy • Held: • Computers that automatically record data are presumed accurate • Accuracy issues affect weight, not admissibility. • People v. Dawkins 27
28. Common Authentication Pitfalls • Altered writings can still be authentic, EC 1402 • Methods of authentication are unlimited, EC 1410 • Subscribing witness not necessary, EC 1411 • Misusing judicial notice, EC 452 28
29. Altered Writings • Altered writings can be authenticated • Alteration must be explained • Evid. Code 1402 • Surveillance stills omitting defendant’s heads admissible • Presumed accurate under EC 1553 • People v. Chism 29
30. Authentication Bottom Line • Not to establish validity or negate falsity categorically • But to make a showing on which • Reasonably could conclude the writing is authentic • People v. Valdez 30
31. Secondary Evidence • There is no best evidence rule • Content of a writing may be proved by • Original (EC 1520, EC 255) • Secondary evidence (EC 1521(a)) • (Rarely) oral testimony (EC 1521(b), EC 1523) 31
32. Original • The writing itself • Photographic negative or print • Any accurate printout of computer data 32
33. Secondary Evidence • Not defined by statute • Proof of document’s content that is not oral • Duplicates • Handwritten transcriptions 33
34. Secondary Evidence Exceptions • Genuine dispute about content— EC 1521(a)(1) • Admission would be unfair— EC 1521(a)(2) • Not authenticated—EC 1521(c) • If no opportunity to see original— EC 1522 • Unless a duplicate under EC 260 • Not closely related to controlling issues • Public entity has copy • Public records • Motion to exclude cannot be in front of jury 34
35. Oral Testimony of Writing Content • Generally inadmissible—EC 1523(a) • Unless original is legitimately lost or destroyed • Proponent does not have original and • Cannot be reasonably procured, or • Not closely related to controlling issues • Documents are voluminous and oral testimony is summary of a whole 35
36. Hearsay 36
37. Hearsay • Evidence of a statement • Made other than by a witness while testifying • OTMA § Offered for the Truth of the Matter Asserted • Evidence Code § 1200 et seq. 37
38. Timing of the Statement • Out of court • Doesn’t matter if it’s the testifying witness 38
39. Hearsay Primer Is it a statement? Is it OTMA? Is there an exception? 39
40. Nature of the Speaker • Only a person can make a statement • Dogs can’t • Machines can’t • People v. Hawkins • Think • Caller ID • Text timestamps • Email headers 40
41. Not OTMA • Requests • People v. Jurado (2006) 8 Cal.4th 72, 117-118. • Pleas for help • People v. Mayfield (1997) 14 Cal.4th 668, 741. • Authorization • People v. Reyes (1976) 62 Cal.App.3d 53, 67. • Commands • People v. Bolden (1996) 44 Cal.App.4th 707, fn. 5. 41
42. Hearsay Exceptions 42
43. Business Record Exception • Regular course of business • Act, condition, or event • Made at or near the time • By employee with business duty • Qualified witness testifies to ID & mode of preparation • Sources, method, and time of prep show trustworthiness • Evidence Code §1271 43
44. Multiple Hearsay • Example: 911 calls • Record of the 911 call’s time and date • Content of the call • “The chief foundation … is the requirement that they must be based upon the first-hand observation of someone whose job (or duty) it is to know the facts recorded.” • Alvarez v. Jacmar 44
45. Social Media Isn’t Business Record • Posts are not by employees • No business duty to record accurately • Nothing ensures trustworthiness • Business records may cover time and date of posting 45
46. Transcripts Required • When sound or video is proffered • Transcript to court • Transcript and duplicate recording to opposing party • No certification of transcript necessary • Judge can grant five-day grace period • Rule of Court 2.1040(b) 46
47. Final Analysis Relevant? Authentic? Secondary Evidence? Hearsay? Hearsay exception? Evidence Code §352 47
48. STANDARD OF REVIEW Abuse of discretion People v. Bryant, Smith, and Wheeler 48
49. THE END Thank you for your time and attention 50