Authenticate Electronic Evidence

Authenticating electronic discovery is difficult at times. Darren Chaker found to authenticate MySpace as use as evidence in Orange County to be simplified in People v. Valdez (2011) 201 Cal.App.4th 1429, 1437 [135 Cal.Rptr.3d 628, 635].

In Valdez, the requirement of a password to post and delete content on MySpace pages, as well as the consistency of the content on the pages, provides the necessary authentication for introduction of the MySpace pages for corroboration and foundation purposes. As a result of his involvement in two shooting incidents, appellant was charged with and convicted of numerous substantive offenses and gang enhancements. On appeal, he contended that the introduction of MySpace pages by an Orange County District Attorney investigator, as corroboration of a witness' statement that he recognized appellant, and as foundation for the gang expert's testimony, was error as the evidence had not been authenticated.
 

The appellate court rejected the contention, finding that the prosecution met its initial burden of authentication to support its claim that the MySpace site belonged to appellant and that the entries were not falsified. Evidence that a password was required for posting and deleting content to the site suggested that appellant controlled the posted material, such that the trier of fact could reasonably conclude the proffered MySpace writing was authentic. The site contained a photograph of appellant forming a gang sign, greetings addressing him by name, and his stated interests in gangs. The evidence also did not violate the rule against hearsay as it was not offered for the truth, and the jury was so instructed. Lastly, it was not more prejudicial than probative because the fact that the evidence reflected negatively on appellant was not grounds for exclusion.

© 2011 Darren Chaker. All Rights Reserved.

GPS Requires Warrant by Darren Chaker

Being a privacy advocate, Darren Chaker tended to lean against use of GPS devices absent a warrant to enforce the Fourth Amendment. The Supreme Court found in U.S. v. Jones (2012) 132 S.Ct. 945, determined by attaching a GPS device to a person's vehicle to track their movements constitutes a search within the meaning of the Fourth Amendment. Authorities obtained a search warrant to install a GPS device on defendant’s car as part of a drug trafficking investigation. They did not install the device until after the warrant expired. The device was used to track defendant's movements for almost a month. When charges were filed against defendant he moved to suppress the GPS evidence as the product of an illegal search. His motion was denied in part. The D.C. Circuit reversed the conviction based on the admission of this evidence.

The U.S.S.C. found the government's use of a GPS monitoring device is a search within the meaning of the Fourth Amendment and therefore must be reasonable. The majority decision was not based on the reasonable expectation of privacy test for challenges to law enforcement surveillance which is generally employed. (Katz v. U.S. (1967) 389 U.S. 347.) The majority based its decision on common law trespass principals, holding that attaching a GPS device to a vehicle (an "effect") for purposes of data collection constitutes a search because the government physically occupied private property for the purpose of information gathering. The majority stated the reasonable expectation of privacy test "has been added to, not substituted for, the common-law trespassory test." It affirmed the district court's reversal. The concurring opinion was critical of the trespass theory, stating the majority should have used the reasonable-expectation-of-privacy test. [Ed. note: Did the high court address the government's argument regarding a warrant or probable cause standard? See differing opinions in Scotusblog articles: http://www.scotusblog.com/2012/01/jones-confounds-the-press/#more-137791 and http://www.scotusblog.com/?p=137614 ]  

© 2011 Darren Chaker. All Rights Reserved.