Court-Martial Trial Practice Blog
“[W]e recognize that electronic communications are susceptible to fabrication and manipulation.”
Campbell v. State, 382 S.W.3d 545, 550 (Tex. App. 2012). Campbell and a number of other state and federal cases were support for my objection to text messages in a case this week. I had a 120 which as usual had text messages as evidence by the prosecution – and I objected to authenticity. Without going in to all of the facts, here are a few I thought relevant.
The CW had dropped her phone in the bath tub and it was no longer available for forensic examination. In my last seven 120 cases this is the second bathtub-drop, along with two drop-and-breaks and one turn it in. I’m beginning to get suspicious of what CW’s are being told once the photo of the text is cherry-picked and turned in.
- As usual CID never took a forensic copy of the cellphone.
- There were some discrepancies with other information.
The nature of my approach was initiated from a number of worth-the-read pieces.
“Because social media is often stored on remote servers, is accessed through unique interfaces, can be dynamic and collaborative in nature, and is uniquely susceptible to alteration and fabrication, evidentiary standards developed for other types of electronically stored information [ESI] may not be adequate.”
H. Christopher Boehning & Daniel J. Toal, Authenticating Social Media Evidence, N.Y.L.J., Oct. 2, 2012, at para. 4.
See also, Colin Miller & Charles White, The Social Medium: Why the Authentication Bar Should be Raised For Social Media Evidence. 87 TEMPLE L. REV. (ONLINE) 1 (2014).
Laird C. Kirkpatrick, § 9:9 Authenticating email, social media, web pages, text messages, instant messaging, electronic signatures. GW Law School Public Law and Legal Theory Paper No. 2014-60.
In addition to the case law and the facts, I also introduced into evidence four (of about nine) applications that can be downloaded to a cellphone or tablet and from which you can fake or alter a text message are stream of texts. In another case I had also presented evidence of similar apps to create fake emails from you. Here is just one – iphonefaketext
The need for authentication arises in this context because an electronic communication, such as a Facebook message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged in to their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship. See, e.g., Commonwealth v. Williams, 456 Mass. 857, 869, 926 N.E.2d 1162 (2010).
State v. Eleck, 23 A.3d 818 (Conn. App. Ct. 2011).