ELECTRONIC EVIDENCE: ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE AND SOCIAL MEDIA EVIDENCE

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1 ELECTRONIC EVIDENCE: ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE AND SOCIAL MEDIA EVIDENCE Judge Margaret P. Spencer What is electronic evidence? Evidence stored in electronic or digital format. The evidence consists of data originally entered directly into a computer or electronically stored digital images of paper records. The files may be presented to the court in paper form [like s, Facebook posts, or text messages] or electronic form [like computergenerated animations and simulations]. COMPUTER-GENERATED EVIDENCE I. What is computer-generated evidence? A. Evidence (images, models, etc.) created from electronic information, rather than paper documents. The images were never a paper record [unlike digital images from electronically stored paper records]. The images may now be paper or electronic, but were born as electronic or computer images. B. For example - Static images [computer generated tables, charts, graphs, maps, or diagrams, or computer enhanced photographs based on scientific information, such as age progression images] See State of Connecticut v. Alfred Swinton, 268 Conn. 781 (2004) (computer enhanced photo of bite marks in a murder case). C. For example - Animations and simulations static images shown in rapid succession to create motion; may or may not simulate an actual event [accident reconstruction, murder scene re-creation] See Daskow v. Teledyne Continental Motors, 826 F. Supp. 677, (W.D.N.Y. 1993) (computer generated simulation showing plaintiff s theory of where the fire began inside airplane s engine). 1. For example - Computer models multi-dimensional objects/forms/images based on mathematical or scientific formulas and expressions, used by expert witnesses to test hypotheses or statistical probabilities. II. How is computer- generated evidence used? 1

2 A. During settlement negotiations Animations and simulations have been used effectively in the settlement of class action cases. [See Salvatore v. Valujet, Case No. 97-VS J (Ga. 1999). Five wrongful death suits were filed against Valujet in the crash that killed 109 people in the Florida Everglades. The plaintiff created an animation depicting the flight pattern of the plane three minutes before it crashed with the cockpit voice recording device as voice over. The case settled for a sevenfigure amount.] B. During opening statements In U.S. v. Burns, 298 F.3d 523 (6 th Cir. 2002), the prosecutor used a Power Point presentation containing computer animations during opening statements. The judge instructed the jury both before opening statements and before deliberations that presentations made during opening statements were not evidence. C. During the evidentiary phase of the trial Computer generated evidence (computer animations or computer simulations) may be used as demonstrative [illustrative] (see section IV. below), or substantive evidence (see section V. below) during the trial. 1. Demonstrative computer generated evidence usually consists of still images or animation. Computer animations are computerized graphical exhibits used to illustrate a witness testimony. As demonstrative evidence, an animation generally does not present special admissibility problems. It does not draw conclusions, but merely depicts a scene or process. See Joseph, A Simplified Approach to Computer-Generated Evidence and Animations, 156 F.R.D. 327 (1994). 2. Substantive computer generated evidence usually consists of simulations. Computer simulations do more than illustrate testimony. A simulation creates or constructs new evidence from preexisting data. The expert not only recreates the events described in the testimony, but also continues beyond the stated factual basis to provide a theory of what might have happened. The simulation has independent evidentiary value because the expert uses a mathematical or scientific model to recreate or reconstruct an incident or event. The expert enters data into a computer model and runs the program. The result therefore demonstrates scientific or physical principles, in addition to depicting testimony. See Fulcher, The Jury as 2

3 Witness: Forensic Computer Animation Transports Jurors to the Scene of a Crime or Automobile Accident, 22 U. Dayton L. Rev. 55 (1996). A simulation may also be integrated into an animation. D. During closing arguments - In Goins v. Commonwealth, 251 Va. 442 (1996), the Commonwealth used a videotape containing computergenerated graphics during closing argument in a capital murder trial. Defendant asked the trial court to instruct the jury that a presentation made in a high-tech fashion should not be afforded more credibility. The request was denied but the trial court stated the defendant was free to make such an argument to the jury. The Supreme Court of Virginia held the trial court was not required to caution the jury regarding the form or content of the videotape, and the decision to give a cautionary instruction was within the trial court s discretion. The Court held the trial court did not abuse its discretion. In State v. Asaeli, 208 P.3d 1136 (Wash. App. Div ), the prosecution used a computer-generated slide show to illustrate the applicable law to the jury. Defense objected to a slide, arguing it was a misrepresentation of the law. The court overruled the objection stating it was argument, and the jury had already been instructed on the law. III. Computer generated demonstrative [illustrative] evidence - animations A. Demonstrative or illustrative evidence makes other evidence more understandable 1. It is a visual aid clarifying real [object or thing with an actual, direct part of the incident giving rise to the trial] or testimonial evidence. In Muhammad v. Commonwealth, 269 Va. 451, 519, 619 S.E.2d 46, 55 (Va. 2005), the prosecutor used a model of a car trunk and a video demonstrating how a shooting could take place from the trunk. The Court said: The evidence presented... was demonstrative evidence, illustrative in nature of other evidence presented. In Iseral v. Commonwealth, 2003 WL (Ky. 2003), the Commonwealth s forensic expert used demonstrative evidence which consisted of a scale model of the crime scene, a shallow grave-site and a hillside, to show how shotgun pellets found in the soil beneath the victim s skull indicated that the victim was shot while lying in the grave. The court found the evidence was relevant to show how the murder occurred and was admissible absent a showing that the model somehow inflamed the jury. 3

4 2. Demonstrative evidence must be an accurate representation of the evidence in the record to which it relates. State v. Stewart, 643 N.W.2d 281 (Minn. 2002) (applying the general standard for demonstrative evidence to computer generated demonstrative evidence). 3. It is a common view among courts that such pedagogical devices are not evidence themselves, but are used merely to aid the jury in its understanding of the evidence that has already been admitted. U.S. v. Janati, 374 F.3d 263, 273 (4th Cir. 2004) (citing Gomez v. Great Lakes Steel Div. Nat l Steel Corp., 803 F.2d 250, 257 (6th Cir. 1986)). 4. Only the attorney s creativity and resources limit the existence of demonstrative or illustrative evidence. B. Admissibility standard the magic words: fairly and accurately depict. An animation may be admissible as demonstrative or illustrative evidence if it is substantially similar to the witness s observations, and is not unduly prejudicial; it must fairly and accurately depict. See United States v. Stone, No , 2012 U.S. Dist. LEXIS 37127, at *8 (E.D. Mich. Mar. 20, 2012); People v. Cauley, 32 P.3d 602 (Colo. App. 2001). 1. Like photographs, the animation is subject to the rules of relevance and prejudice (see IV.E. Probative v. Prejudicial, below), and the standard of whether it fairly and accurately represents or portrays the witness s testimony about the scene or event. Commonwealth v. Serge, 586 Pa. 671, 685, 896 A.2d 1170, (2006). [E.g., Does it fairly represent what the witness observed? It must be substantially similar to the actual event. A witness s testimony that it is somewhat similar to the original scene will be insufficient to justify admissibility. Brown v. Corbin, 244 Va. 528, 423 S.E.2d 176 (Va. 1992)]. 2. A computer generated video animation is admissible as demonstrative evidence when the proponent shows that the animation is relevant, a fair and accurate representation of the evidence to which it relates, and its probative value substantially outweighs the danger of unfair prejudice, confusing the issues, or misleading the jury. Clark v. Cantrell, 339 S.C. 369, 529 S.E.2d 528 (S. C. 2000). 4

5 3. Photographs showing bullet trajectory are admissible because they illustrate the location and nature of the victim s wounds and provide additional support to the medical examiner s conclusions. Juniper v. Commonwealth, 271 Va. 362, 626 S.E.2d 383 (Va. 2006) (photos showing body of child victim with steel rods inserted in legs to demonstrate trajectory). In Commonwealth v. Haith, 452 Mass. 409, 894 N.E.2d 1122 (2008), a photograph showing a bent screwdriver inserted into a puncture wound in victim s skull was admissible. Evidence was overwhelming that defendant stabbed victim s head and neck repeatedly with a screwdriver, and the photograph showed victim s skull as it might have been punctured by a bent screwdriver found at scene of killing. The photograph was relevant to show the killing was committed with deliberate premeditation or with extreme atrocity or cruelty (elements necessary to prove first-degree murder). 4. In People v. Mitchell the defendant, charged with murdering his brother, claimed self-defense. The prosecutor presented an animation created by a forensics expert using physical evidence from the crime scene and the autopsy report. It demonstrated the trajectory of the bullets fired, and where the victim could have been standing when he was shot. The animation showed that the events could not have happened as the defendant claimed. People v. Mitchell, No.SC A (Cal. App. First Dist. Div. 2, Marin County Superior Court 1994). 5. Note: Virginia courts have generally been hostile toward accident reconstruction testimony because such testimony invades the province of the jury. Brown v. Corbin, 244 Va. 528, 531, 423 S.E.2d 176, 179 (Va. 1992). (It is improper for any witness, lay or expert, to express a conclusion regarding a motor vehicle accident.) The witness may testify about the witness s observation of such matters, but may not testify as to any inferences drawn by the witness from these observations. Id. Schooler v. Commonwealth, 14 Va. App. 418 (Va. Ct. App. 1992). See also Kessee v. Donigan, 259 Va. 157 (Va. 2000). 6. Courts usually find computer generated images are demonstrative evidence, and not admissible as substantive evidence. See, e.g., Bullock v. Daimler Trucks N.Am., 5

6 LLC, No. 08-cv-00491, 2011 U.S. Dist. LEXIS 65123, at *11 (D. Colo. May 2, 2011); Janati, 374 F.3d at 273; U.S. v. Sawyer, 85 F.3d 713, 740 (1st Cir. 1996); IV. Computer generated substantive evidence - simulations A. Admissible computer generated substantive evidence The computer simulation - must be relevant, be authenticated, comply with hearsay rules, and be more probative than prejudicial. (See Chart Admissibility of Computer Generated Evidence). B. RELEVANCE The computer generated evidence, admitted as substantive evidence, must be relevant. Evidence, however remote or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant. Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193 (N.D.W. Va. 2000); Va. Electric & Power Co v. Dungee, 258 Va. 235, 260, 520 S.E.2d 164, 179 (Va. 1999) quoted in Velocity Express Mid- Atlantic v. Hugen, 266 Va. 188, 585 S.E.2d 557 (Va. 2003). Generally, the evidence must have a logical tendency, however slight, to prove or disprove a fact at issue in the case. Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 138 F.Supp.2d 357 (E.D.N.Y. 2001); Winston v. Commonwealth, 208 Va. 564, 604 S.E.2d 21 (Va. 2004). Rule 2:401, Va. Rules of Evidence. Specifically, the computer-generated evidence must be helpful to the fact finder s understanding of complex or voluminous evidence. C. AUTHENTICATION 1. Computer generated evidence may be authenticated by testimony from a witness with knowledge that the exhibit is what it purports to be. See e.g., Jackson v. Commonwealth, 13 Va. App. 599, 413 S.E.2d 662 (Va. Ct. App. 1992) (authentication of document). The witness [or witnesses] must testify to the origin and/or execution of the images. 2. Rule 2:901, Va. Rules of Evidence: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the item in question is what the proponent claims. 6

7 3. In federal courts, Fed. R. Evid. 901(b) outlines the procedure for determining authenticity, with examples of authentication or identification conforming to the requirements of the rule. Rule 901(b)(9) specifically provides that a process or system may be authenticated by evidence describing the process or system and showing that it produces an accurate result. For computer generated evidence, the expert witness or simulator must describe the data entered into the computer, explain how the program processes that data, and show how it reaches an accurate result. 4. The computer-generated evidence must contain the purported information or data in question. This authentication foundation may be met by establishing the reliability of the computer program or system used to create the computer-generated evidence. a. The testifying witness must state the computergenerated evidence portrays the subject at issue fairly and accurately. b. The evidence simulation must be substantially similar to the event it is portraying. 5. In Virginia s state courts, the expert testimony may include opinions of the witness established with a reasonable degree of probability, or it may address empirical data from which such probability may be established in the mind of the finder of fact. Rule 2:702, Va. Rules of Evidence. 6. Under Fed. R. Evid. 702 in federal courts, an expert must certify the validity, reliability and accuracy of the information and the process which produced the result. The expert can do this by stating: a. The computer equipment is accepted in the field as competent and was in good working order. b. Qualified operators were used. c. Proper procedures were followed in the gathering of input and output. d. A reliable software program was used. 7

8 e. The equipment functioned properly. f. The exhibit being used identified the output shown to the jury. 7. In federal courts, the underlying data must be proven accurate and the program creating the result must also be capable of being received into evidence. Therefore, the Daubert test applies (in federal courts and in some states, but not in Virginia state courts) because the fact finder is being asked to accept the science used to create the image. a. The evidence is the result of computer science and must qualify as legitimate scientific evidence under Fed. R. Evid. 702 and the Daubert standard. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). b. Factors to be considered under Daubert whether the evidence can be tested, whether the theory or technique has been subjected to peer review and publication, whether the technique has a known or potential rate of error, whether there has been a particular degree of acceptance within the relevant scientific community. c. Some states that follow Daubert do not apply it to computer simulations or recreations, holding that such simulations or recreations are based upon technical rather than upon scientific evidence. See State v. Clark, 101 Ohio App. 3d 389, 655 N.E.2d 795 (8 th Dist. Cuyahoga County 1995), appeal not allowed, 72 Ohio St. 3d 1548, 650 N.E.2d 1367 (1995). 8. As to the reliability issue in computer generated simulations, see Hudson v. City of Chicago, 378 Ill. App. 3d 373, 317 Ill. Dec. 262, 881 N.E.2d 430 (1st Dist. 2007), appeal denied, 227 Ill. 2d 580, 321 Ill. Dec. 250, 888 N.E.2d 1183 (2008). In Hudson, a computer simulation of collision that occurred between motorist's vehicle and police car by motorist's expert was sufficiently based on data from the record, and thus was admissible. In People v. Shinohara, 375 Ill.App.3d 85, 872 N.E.2d 498 (Ill.App. 1 Dist. 2007), an officer's spreadsheet corresponding to child 8

9 pornography images found on defendant's computer was admissible because the contents of spreadsheet were subject to verification and officer was available at trial and subject to cross-examination by defense counsel. 9. As to the reliability issue in computer models, note: Treat computer-generated models or simulations like other scientific tests, and condition admissibility on a sufficient showing that: (1) the computer is functioning properly; (2) the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and (3) the program is generally accepted by the appropriate community of scientists. Commercial Union Ins. Co. v. Boston Edison Co., 412 Mass. 545, 591 N.E.2d 165 (Mass. 1992); Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power & Conservation Planning Council, 786 F.2d 1359, 1370 (9th Cir.1986), cert. denied, 479 U.S (1987) (allowing use of computer simulations of value of energy conservation methods based on principles derived from American Society of Heating, Refrigerating and Air Conditioning Engineers Handbook of Fundamentals to determine energy conservation value). 10. See also Dance v. Commonwealth, 32 Va. App. 466 (Va. Ct. App. 2000). In Dance, the Court held computer generated results of a Sprint star 57 telephone call tracking system were reliable. The Sprint manager, who designed and explained the system, testified about the accuracy of the system s results. See also Tatum v. Commonwealth, 17 Va. App. 585, 440 S.E.2d 133 (Va. Ct. App. 1994) (witness testified he had received other calls from same caller and caller ID device had displayed correct number on those occasions). D. HEARSAY When used as substantive evidence, computer generated evidence may present a hearsay problem. To be admitted, the evidence must (1) not be hearsay or (2) be admissible under an exception to the hearsay rule. 1. It is not hearsay. a. Hearsay evidence is a statement or assertive conduct by a PERSON. Evidence that is not a statement from a human witness or declarant is not hearsay. Rule 2:801, Va. Rules of Evidence. 9

10 b. Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. Stevenson v. Commonwealth, 218 Va. 462, 237 S.E.2d 779 (Va. 1977), quoting McCormick on Evidence 246 (2d ed. 1972). Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. U.S. v. Brewer, Slip Copy, 2009 WL (C.A.6 (Ky.) 2009) (citing Fed.R.Evid. 801(c)). c. If there is no out-of-court asserter because the [evidence] is based on computer generated information and not simply the repetition of prior recorded human input or observation the evidence is not hearsay. Tatum v. Commonwealth, 17 Va. App. 585, 588, 440 S.E.2d 133, 135 (Va. Ct. App. 1994) (caller ID display was based on computer generated information; witness testimony about telephone number viewed on caller ID device was not hearsay). Only a person may be a declarant and make a statement. Accordingly, nothing said by a machine... is hearsay. United States v. Washington, 498 F.3d 225 (4 th Cir. 2007)(citing United States v. Hamilton, 413 F.3d 1138, (10 th Cir. 2005)(concluding that the computergenerated header information accompanying pornographic images retrieved from the Internet was not a hearsay statement because there was no person acting as a declarant); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003) (concluding that an automatically generated time stamp on a fax was not a hearsay statement because it was not uttered by a person). d. Note: Moreover, Rule 2:801 limits hearsay to statements made by a person, thus obviating any claim that machines make statements for purposes of the hearsay rule. Charles E. Friend & Kent Sinclair, The Law of Evidence in Virginia 15-8, at 944 (7 th Ed. 2012), quoted in Godoy v. 10

11 Commonwealth, 62 Va. App. 113, 121 fn2, 742 S.E.2d 407, 411 (2013) (cell phone records); Bynum v. Commonwealth, 57 Va. App. 487, 491, 704 S.E. 2d 131,133 (2011) (where there is no out-of-court asserter there can be no hearsay). e. U.S. v. Crockett, 586 F.Supp.2d 877 (E.D. Mich. 2008) (printouts of police department crime laboratory mass spectrometer and gas chromatograph testing results were not hearsay, where instrument printouts were not persons or declarants and printouts were not out-of-court statements ). In Bowe v. State, 785 So.2d 531 (Fla.App.4 Dist. 2001), the caller I.D. readout and numbers appearing on digital display of defendant's pager were not hearsay, because they were not statements generated by a person. f. See also State v. Dukes, 38 Kan.App.2d 958, 174 P.3d 914, 916 (2008) (agreeing with courts in fourteen other jurisdictions that an affidavit verifying the maintenance and calibration of a breath test machine is nontestimonial), and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (sworn affidavits reporting results of forensic laboratory analysis are testimonial per 6 th Amendment confrontation clause and Crawford v. Washington); Commonwealth v. Garofalo, 386 Pa.Super. 363, 563 A.2d 109 (1989) (blood alcohol test results admissible). g. In Penny v. Commonwealth, 6 Va. App. 494, S.E.2d 314, 317 (Va. Ct. App. 1988), the Court held evidence obtained from a telephone call trap device is not hearsay because the call trap s reliability does not depend on an out-of-court declarant s veracity or perceptive abilities, and no cross-examination could occur which would enhance the truth-finding process. In State v. Hibbs, 123 NJ Super 152, 301 A2d 789 (1972), aff d 123 NJ Super 124, 301 A2d 775, the court held computerized telephone tracing equipment sufficiently accurate and reliable to produce records which would be admissible in evidence. 11

12 h. If the computer-generated evidence is not hearsay, a showing that the computer or device is reliable may be necessary. This reliability showing may be met with testimony that the computer is known to have functioned properly in the past. See Tatum, and cases cited above in IV.C.3-9. of this outline. 2. It is hearsay: If the computer-generated evidence is the result of input of information by a human asserter for later retrieval, testimony about the information is subject to the hearsay rule. An exception must apply for the information to be admissible. a. Business records exception [Rule 2:803(6), Va. Rules of Evidence] See Lee v. Commonwealth, 28 Va. App. 571, 576, 507 S.E.2d 629, 632 (Va. Ct. App. 1998). (computer records admissible even though witness did not make the computer entries and was not the custodian of company records, because the witness had knowledge of how records were compiled and maintained, and had access to the records as an integral part of his responsibilities). See U.S. v. Ary, 518 F.3d 775 (10 th Cir. 2008) (museum s computer inventory records were within the business records exception to the hearsay rule). The admissibility of computer records under the business records exception is well established. See McDowell v. Commonwealth, 48 Va. App. 104, 628 S.E.2d 542 (Va. Ct. App. 2006), aff d 273 Va. 431, 641 S.E.2d 507 (Va. 2007) (Court upheld the trial court s admission of a report generated by a hand-held computer device which listed merchandise missing from the store aisle where the defendant had been observed removing items from the shelves, under the business records exception to the hearsay rule), and cases cited therein; State v. Marmie, 2005 WL (Ohio App. 5 Dist. 2005) (computer-generated activity log relating to creation of hotel key cards was a business record admissible under hearsay exception). b. Official or public records exception [Rule 2:803(8), Va. Rules of Evidence] See Frye v. Commonwealth, 231 Va. 370, 345 S.E.2d 267 (Va. 1986) (DMV license and registration computer 12

13 record, and NCIC computer record, admissible as official records exception); U.S. v. Gonzalez- Perales, 313 Fed.Appx. 677 (5 th Cir. 2008) (finding customs computerized information admissible under a public records hearsay exception). But see Tickel v. Commonwealth, 11 Va. App. 558, 400 S.E.2d 534 (Va. Ct. App. 1991) (DMV record of transfer date, odometer reading and sales price were not admissible, because this information contrary to information in Frye was not known to the official record keeper, but obtained by the record keeper from a third person); see Almond v. State, 1 So.3d 1274 (Fla.App. 1 Dist. 2009) (Evidence of defendant's sex offender registration forms and applications for a driver's license were inadmissible hearsay in failure to register as a sexual offender case; none of these documents were self-authenticating business records, a records custodian was not present to testify as to their authenticity, and they did not fall under the public records exception to the hearsay rule.). c. Present sense impression exception [Rule 2: 803(1), Va. Rules of Evidence] testimony describing events the out of court declarant was then witnessing; a statement accompanying and characterizing an act. See Clark v. Commonwealth, 14 Va. App. 1068, 1070, 421 S.E.2d 28 (Va. Ct. App. 1992) ( Three factors must exist in order for the exception to apply. They are: (1) the declaration must have been contemporaneous with the act; (2) it must explain the act; and (3) it must be spontaneous ); People v. Hendrickson, 459 Mich. 229, 586 N.W.2d 906 (1998) ( The admission of hearsay evidence as a present sense impression requires satisfaction of three conditions: (1) the statement must provide an explanation or description of the perceived event, (2) the declarant must personally perceive the event, and (3) the explanation or description must be substantially contemporaneous with the event. ). E. PROBATIVE V. PREJUDICIAL 1. Evidence that is factually relevant may be excluded from the [fact-finder s] consideration if the probative value of 13

14 that evidence is substantially outweighed by the danger of unfair prejudice. Gamache v. Allen, 268 Va. 222, 227, 601 S.E.2d 598, 601 (2004); Daset Min. Corp. v. Industrial Fuels Corp., 326 Pa. Super. 14, 473 A.2d 584 (Pa.Super. 1984). 2. Rule 2:403, Va. Rules of Evidence Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, likelihood of confusing or misleading the trier of fact, or is needlessly cumulative. 3. Computer animated recreation of events at issue in trial is not unduly prejudicial if it is sufficiently close to the actual events and is not confused by the jury for the real life events themselves. Hinkle v. City of Clarksburg, 81 F.3d 416 (4 th Cir. 1996). 4. In Racz v. R.T. Merryman Trucking, Inc., the court excluded the computer generated evidence, finding it would be an inordinately difficult task for the plaintiff to counter, by cross-examination or otherwise, the impression that a computerized depiction of the accident is necessarily more accurate than an oral description of how the accident occurred. No. Civ.A , 1994 WL (E.D. Pa. Apr. 4, 1994). 5. Video animation adds a new and powerful evidentiary tool to the trial scene... not only is the danger that the jury may confuse art with reality particularly great, but the impressions generated by the evidence may prove particularly difficult to limit... Because of its dramatic power, trial judges should carefully and meticulously examine proposed animation evidence for proper foundation, relevancy and the potential for undue prejudice. Robinson v. Missouri Pacific R. Co., 16 F.3d 1083, 38 Fed. R. Evid. Serv. (LCP) 1253 (10 th Cir. 1994), cited in Lee, Using Computer-Generated Evidence at Trial, 523 PLI/Lit 159, PLI Order No. H (June 1995). 6. If the audio or visual presentation is calculated to assist the jury, the court should not discourage the use of it.... Jurors, exposed as they are to television, the movies, and picture magazines, are fairly sophisticated. With proper instruction, the danger of their overvaluing such proof is slight." Daskow, 826 F. Supp. at 686. The judge gave the 14

15 jury a cautionary instruction during the evidentiary phase of the trial, stating, The animation was "not meant to be a recreation of the accident," but "simply computer pictures to help you understand Mr. Sommer's opinion." The judge gave a similar instruction to the jury before deliberations, stating the computer generated evidence was "not meant to be an exact re-creation of what happened back there on November 26, " Id. F. BEST EVIDENCE [OR ORIGINAL WRITING] RULE. The best evidence rule has been held inapplicable to this type of evidence. See Rule 2: , Va. Rules of Evidence; Brown v. Commonwealth, 54 Va. App. 107, 676 S.E.2d 326 (Va. App. 2009). 1. The best evidence rule requires the production of the original writing when proving the contents of the writing unless the original is shown to be unavailable. The term writings includes electronic recording[s]. Rule 2:1001(1) Va. Rules of Evidence. 2. A copy may be admissible to the same extent as the original [note exception]. Rule 2:1005. A copy or duplicate is a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. 3. The best evidence rule [or original writing rule] applies only to writings. A computer simulation, like a videotape, is not a writing. See Brown v. Commonwealth, 54 Va. App. 107, 676 S.E.2d 326 (Va. Ct. App. 2009) (admission of store surveillance video is not subject to the best evidence rule, because it is not a writing). [See also Williams v. Lide, 628 So. 2d 531, 537 (Ala. 1993)( the best evidence as to the computer records of registered voters would be a computer-generated, voter registration list. ) G. Standard of Review: Abuse of discretion 1. See United States v. Alejandro, 354 F. App x 124, 128 (5 th Cir. 2009) (applying an abuse of discretion standard of review for the trial court s admission of a computer generated map of an elementary school); Hardison v. Balboa Ins. Co., 4 F. App x 663, 669 (10 th Cir. 2001)(applying an abuse of discretion standard for the trial 15

16 court s admission of computer generated cancellation notices); Minton v. State, 966 P.2d 954, 959 (Wyo. 1998)(affirming the trial court s admission of an animated reconstruction of an accident under the abuse of discretion standard). 2. The Ninth Circuit also sanctioned the use of computergenerated exhibits as substantive evidence under an abuse of discretion standard. U.S. v. Poschwata, 829 F.2d 1477, 1481 (9 th Cir. 1987) ( although the better practice may have been for the court to allow the charts to be used as testimonial aids only, the district court did not abuse its discretion The figures in the government chart already were admitted into evidence and the defendant did not challenge the figures The charts arguably contributed to the clarity of the presentation to the jury and were a reasonable method of presenting evidence ). In Commonwealth v. Hardy, 918 A.2d 766 (Pa. Super. 2007), a computer-generated videotape of shaken baby syndrome was admissible in a homicide prosecution to help the medical expert explain his testimony, as substantive evidence. V. What is social media evidence? SOCIAL MEDIA EVIDENCE A. Social media evidence is a subset of electronic evidence. What is electronic evidence? Evidence stored in electronic or digital format. B. Social media evidence includes: documents, images, videos, and other content from websites, such as, Facebook, Twitter, LinkedIn, MySpace, Instagram, and YouTube. C. Social networking sites allow users to create profiles about themselves where they can share photographs, videos, and other personal information. Social networking sites are free of cost to the user and allow members to link their profiles with other users. These sites generally require users to create a username and password to establish and manage their profiles. The user s friends or connections do not need a username or password to access the user s profile page. These sites also allow users to send messages to each other and to chat instantly, as long as they are connected. 16

17 D. Though most social networking sites operate similarly, there are some distinct differences. For example, Facebook s terms of use require a member to use her real name to establish an account. However, MySpace actually encourages users to use pseudonymns and/or symbols when setting up their profiles. See Ira P. Robbins, Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social Networking Evidence, 13 MINN. J.L. SCI. & TECH. 1,7 (2012); Heather L. Griffith, Abstract, Understanding and Authenticating Evidence from Social Networking Sites, 7 WASH. J.L. TECH. & ARTS 209 (2012). E. The primary evidentiary issue in admitting social media evidence relates to authentication. Since someone may hack into a person s social media profile, merely printing a page from a social media profile is not sufficient to connect the evidence on that page to the profile owner. The proponent of the evidence must ensure that the evidence can be connected to its author, who may or may not be the owner of the profile page. The use of profile pages distinguishes social media evidence from other types of electronic evidence, though the analysis for determining the admissibility of social media evidence is very similar to the analysis utilized for other forms of electronic evidence. F. Courts and legal commentators have reached a virtual consensus that, although rapidly developing electronic communications technology often presents new and protean issues with respect to admissibility of electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are at least generally adequate to the task. Tienda v. State, 358 S.W.3d 633, (Tex. Crim. App. 2012). VI. ADMISSIBLE? Similar to admissibility of simulations: a. To admit social media evidence, it must be i. Relevant (Rule 2: ), ii. Authenticated (Rule 2: ), iii. Not hearsay or an exception to the hearsay rules (Rule 2: ) iv. Original or a duplicate under the original writing rule, or admissible secondary evidence to prove content (Rule 2: ), and 17

18 v. The probative value must not be substantially outweighed by prejudicial impact (Rule 2:403). b. Preliminary Questions i. The Judge must make a preliminary determination that the evidence is admissible. Rule 2:104, Va. Rules of Evidence II. RELEVANCE (Rules 2: ) 1. E.g., if an is offered into evidence, the determination of whether it is authentic would be for the jury to decide under Rule 104(b), and the facts that they consider in making this determination must be admissible into evidence. In contrast, if the ruling on whether the e- mail is an admission by a party opponent or a business record turns on contested facts, the admissibility of those facts will be determined by the judge under 104(a), and the Federal Rules of Evidence, except for privilege, are inapplicable. Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 540 (D. Md. 2007). a. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 2: 401. i. This is the standard for admitting both electronic and nonelectronic evidence. ii. Rule 2: 402 (General Admissibility of Relevant Evidence) Relevant evidence is admissible, except as otherwise provided by the Constitutions of the United States and Virginia, by state statute, by court rules, or other evidentiary principles. Rule 2:402, Va. Rules of Evidence. Evidence which is not relevant is not admissible. b. Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Lorraine, 241 F.R.D. at (citation omitted). III. AUTHENTICITY (Rules 2: ) a. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Rule 2:901, Va. Rules of Evidence. b. Courts and legal commentators have reached a virtual consensus that, although rapidly developing electronic communications technology often presents new and protean issues with respect to admissibility of 18

19 electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are a least generally adequate to the task. Tienda v. State, 358 S.W.3d 633, (Tex. Crim. App. 2012). i. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user has led many courts to conclude that a printout of an image from such a site requires a greater degree of authentication then just a distinctive profile page. Griffin v. State, 19 A.3d 415, 424 (Md. 2011). ii. Often the proponent must show that the writing came from that person s account. This evidence could take the form of distinctive characteristics within the specific posting itself; testimony from a witness with knowledge of the posting; process testimony, such as forensic computer evidence; or a combination of these methods. Griffin, 19 A.3d at 424. c. Federal Rule of Evidence 901(b) provides examples of how evidence may be authenticated. Social media evidence is commonly authenticated by: i. Rule 901(b)(1) (testimony of a witness with knowledge), 901(b)(3) (comparison by an expert witness or trier of fact), 901(b)(4) (distinctive characteristics), 901(b)(7) (evidence about public records), 910(b)(9) (evidence about a process or system). ii. Specifically: 1. Rule 901(b)(1): Testimony by a witness that a matter is what it is claimed to be. a. Courts considering the admissibility of electronic evidence frequently have acknowledged that it may be authenticated by a witness with personal knowledge. Lorraine, 241 F.R.D. at 545. To authenticate printouts from a website, the party proffering the evidence must produce some statement or affidavit from someone with knowledge [of the website]... for example [a] webmaster or someone else with personal knowledge would be sufficient. Id. (quoting United States v. Safavian, 435 F.Supp.2d 36, 40 n.2 (D.D.C. 2006). 2. Federal Rule 901(b)(4): Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Evidence may possess characteristics that are so distinctive that, when considered in light of the circumstances, they may support a finding that the item in question is what its proponent claims it is. FED. R. EVID. 901(b)(4) advisory committee s notes. 19

20 a. This is one of the [rules] most frequently used to authenticate or other electronic records, such as text messages and the contents of a website. Lorraine, 241 F.R.D. at 546. d. In determining whether social media evidence has been properly authenticated, the Court should determine whether a connection has been made between the social media content the proponent wants to introduce and the author of said content. i. In Commonwealth v. Williams, the Massachusetts Supreme Judicial Court affirmed the trial court s decision to refuse to admit printouts of MySpace messages. The prosecution sought to admit the messages to show that the defendant s brother had encouraged a witness not to testify at the trial. The Court found there was insufficient evidence to authenticate the message where the prosecutor laid an inadequate foundation. Specifically, the prosecutor failed to offer any evidence regarding who had access to the MySpace page and whether another author could have actually created the message. The Court stated, while the foundational testimony established that the messages were sent by someone with access to [the defendant s brother s] MySpace Web page, it did not identify the person who actually sent the communication. Nor was there expert testimony that no one other than [the defendant s brother] could communicate from the Web page. 456 Mass. 857, , 926 N.E.2d 1162, (2010). ii. In Griffin v. Maryland, the Court of Appeals reversed the decision of the Court of Special Appeals where a proper foundation had not been laid to authenticate MySpace printouts. 419 Md. 343, 348, 19 A.3d 415, 418 (2011). The state sought to introduce a printout from MySpace that said, FREE BOOZY!!!! JUST REMEMBER SNITCHES GET SNITCHES!! U KNOW WHO YOU ARE!! Id. The State sought to introduce this evidence to show that the defendant s girlfriend had threatened the State s key witness prior to trial. Id. The State sought to authenticate the pages through the testimony of the lead investigator. Id. The investigator testified he knew the MySpace page was the defendant s girlfriend s because there was a photograph of her on the front page, a picture of her with the defendant, and her birth date was indicated on the form. Id. However, the Court found the State failed to establish a connection between the profile and the posting and [defendant s girlfriend]. Id. Given the prospect that someone other than the defendant s girlfriend could have created the site and posted the comment, the Court found the picture of defendant s girlfriend along with her location and date of birth did not constitute distinctive characteristics to authenticate the printout. Id. at

21 e. The Griffin court suggested three ways to authenticate content from a social networking site: i. ask the purported creator if she indeed created the profile and also if she added the posting in question, consistent with Federal Rule 901(b)(1); ii. search the computer of the person who allegedly created the profile and posting and examine the computer s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question ; iii. obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced by the person who initiated it. 1 Id. at f. In Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), the Texas Court of Criminal Appeals found the trial court did not abuse its discretion in admitting evidence from MySpace pages the State believed were created by the defendant. The defendant was charged and convicted of a gang-related murder. The State sought to introduce information from various MySpace pages believed to be the defendant s pages. The trial court allowed the State to enter: names, account information, photographs posted on the profiles, comments, instant messages linked to the accounts and two music links posted to the profile pages. A detective testified about the use of social networking as a way for gangs to stay in touch and promote their gang affiliation. The defense objected to the evidence, claiming the contents of the MySpace pages did not have sufficiently distinctive information for the jury to determine that the pages were maintained by the defendant. The Court found the internal content of the MySpace postings - - photographs, comments, and music - - was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that they were created and maintained by the defendant. Id. at 642. The Court found the following to be ample circumstantial evidence supporting a finding that the MySpace pages belonged to defendant: (1) the numerous photographs, of the [defendant] with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earrings; (2) the reference to [the victim s] death and the music from his funeral; (3) the references to the [defendant s] Tango Blast gang; and (4) the messages referring to (a) a shooting at Rumors with Nu-Nu, (b) Hector is a snitch, and (c) the user having been on a monitor for a year (coupled with the photograph of the [defendant] lounging in a chair displaying an ankle monitor) sent from MySpace pages of ron Mr. T or MR. SMILEY FACE whose is ronnietiendajr@... 1 See People v. Clevenstine, 68 A.D.3d 1448, 891 N.Y.S.2d 511 (N.Y. App. Div. 2009). 21

22 Id. at 645. The Court distinguished the facts of this case from Griffin, stating, there are far more indicia of authenticity in this case than that of Griffin. Id. at 647. g. In People v. Clevenstine, 891 N.Y.S.2d 511, 514 (N.Y. App. Div. 2009), the prosecutor admitted a computer disk containing instant MySpace messages between the defendant and his rape victims. The Court held the possibility that someone else other than the defendant sent the messages was a factual issue for the jury. The Court noted the victims testified that they had engaged in instant messaging about sexual activities with defendant through the social networking site MySpace, an investigator from the computer crime unit of the State Police related that he had retrieved such conversations from the hard drive of the computer used by the victims, a legal compliance officer for MySpace explained that the messages on the computer disk had been exchanged by users of accounts created by defendant and the victims, and defendant s wife recalled the sexually explicit conversations she viewed in defendant s MySpace account while on their computer. h. Authentication of Other Types of Electronic Evidence i. often figures prominently in cases where state of mind, motive and intent must be proved. Lorraine v. Markel American Insurance Co., 241 F.R.D. 534, 554 (D. Md. 2007). is usually authenticated by reference to its appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances under Federal Rule of Evidence 901(b)(4) or similar state rules. See generally Bloom v. Commonwealth, 34 Va. App. 364, 370, 542 S.E.2d 18, 20-21, aff d, 262 Va. 814, 534 S.E.2d 84 (2001). i. Federal Rules most likely to apply: 901(b)(1) (testimony of a witness with knowledge), 901(b)(3) (comparison by expert witness or trier of fact), 901(b)(4) (distinctive characteristics), 902(7) (trade inscriptions), and 902(11) (certified domestic records of a regularly conducted activity). ii. In United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000), an appellate court affirmed the trial court s admission of defendant s s. The trial court found that s sent to other parties bore the defendant s address. This address was the same as an sent to the defendant from another party, and when another party replied to the apparently sent by the defendant, the reply-function on his system automatically identified the defendant s address as the sender. Furthermore, the context of the s sent to the other parties shows that the author would have known certain details attributable to the defendant. Finally, the e- 22

23 mails sent to the parties referred to the author by a nickname, which the parties recognized as the defendant s nickname. The defendant contacted the parties soon after receipt of the s and made the same request that had been in the s. iii. If the s are the personal correspondence of a witness, authenticity may be established by the witness who testifies that she sent or received the s. Fenje v. Feld, 301 F. Supp.2d 781, 809 (N.D. Ill. 2003); Read v. Teton Springs Golf & Casting Club, LLC, 2010 U.S. Dist. LEXIS (D. Idaho, Dec. 14, 2010). This testimony is testimony by a witness with knowledge. Ussery v. State, 2008 Tex. App. LEXIA 741 (Tex. App. Jan. 30, 2008). a. Bowers v. Rector & Visitors of the Univ. of Va., 2007 U.S. Dist. LEXIS (W.D. Va. Oct. 9, 2007): Where a plaintiff submitted unauthenticated s and website printouts and attempted to remedy the failure with a personal affidavit, the Court regarded her attempts as an abject failure and granted sanctions. j. Text messages and chat room content Text messages are essentially s someone sends by cell phone to the recipient s cell phone number, rather than an address: concern that it cannot be assumed that the content found in chat rooms [or text messages] was posted with the knowledge or authority of the website host Lorraine, 241 F.R.D. at 556 (citation omitted). i. May be authenticated circumstantially and usually in the same manner as s. Id. For example, s have an address and text messages have the sender s cell phone number, which may be traced back to a name and by actions of the sender consistent with the information in the message. See Commonwealth v. Koch, 2011 Pa. Super. LEXIS 2716 (Pa. Super. Sept. 16, 2011). ii. Federal Rules most likely to apply: 901(b)(1) (testimony of a witness with knowledge), 901(b)(4) (distinctive characteristics). iii. In United States v. Tank, 200 F.3d 627 (9th Cir. 2000), an appellate court affirmed a trial court s admission of chat room logs. A party, who was a member of the same chat room as the defendant, explained how he created the [chat room] logs with his computer and stated that the printouts, which did not contain the deleted material, appeared to be an accurate representation of the chat room conversations among members of the chat room. Id. at 630 (citation omitted). The government also established a connection between [the defendant] and the chat room log printouts, and the defendant 23

24 admitted that he used the screen name Cessna when he participated in one of the conversations recorded in the chat room log printouts. Id. Additionally, several co-conspirators testified that [the defendant] used the chat room screen name Cessna that appeared throughout the printouts. Id. They further testified that when they arranged a meeting with the person who used the screen name Cessna, it was [the defendant] who showed up. Id. at iv. In United States v. Hunter, 266 F. App x 619, 621 (9th Cir. 2008), an appellate court affirmed a trial court s admission of text messages. The trial court found the government properly authenticated the text messages by using the testimonies of the senior manager of the pagers service provider, the FBI agent who compiled the records, and [the defendant s] coconspirators. v. See Adamah v. Tayson (In re E.D.T.), 2010 U.S. Dist. LEXIS 54171, *9-10 (E.D.N.Y. May 27, 2010) If there is evidence to allow the conclusion that the text message exchange was with the identified person, testimony from a party to the exchange is sufficient authentication. k. Computer stored records or data: although easiest to authenticate, there is a growing recognition that more care is required to authenticate these electronic records than traditional hard copy records. Lorraine, 241 F.R.D. at 557 (citations omitted). i. However, more courts have tended towards the lenient rather than the demanding approach, but they also have recognize[d] the special characteristics of electronically stored records. Id. at 558. ii. Federal Rules most likely to apply: 901(b)(1), (901(b)(3), 901(b)(4), and 901(b)(9). iii. Showing personal knowledge of the record system, if not the record itself, or explaining how images were retrieved from a computer is sometimes enough. iv. United States v. Baker, 538 F.3d 324 (5th Cir. 2008): The Court reversed and vacated the charges where: (i) prosecutors failed to authenticate a report in an internet child pornography distribution case, (ii) the only witness called to identify the report and the images it named was an officer who did not have personal knowledge of how the report was made or how information was handled, and failed to claim the report was self-authenticating, and (iii) the report was the only evidence introduced. v. United States v. Salcido, 506 F.3d 729 (9th Cir. 2007): The Court ruled that the Government sufficiently authenticated pornographic images and video where it presented detailed 24

25 evidence as to the chain of custody, explaining how the images were retrieved from the computer... Id. (citation omitted). IV. HEARSAY (Rules 2: ) a. To be admitted as substantive evidence, social media evidence must not violate the hearsay rules. b. Definitions: i. Hearsay: is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. ii. Declarant: is a person who makes a statement. Rule 2:801(b). iii. Statement: is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. Rule 2:801(a). c. Are electronic writings statements or offered for the truth or against party opponent? i. Where the writings are non-assertive, or not made by a person, courts have held that they do not constitute hearsay, as they are not statements. Lorraine, 241 F.R.D. at 564 (citations omitted). See United States v. Burt, 495 F.3d 733, (7 th Cir. 2007) (not hearsay: offered against party who participated in chat room discussion and non-party s statements in discussion were not offered for truth, but to provide context for the party s statements). d. Exceptions to the hearsay rules: i. Rules 2:803(1)-(2): Present Sense Impression and Excited Utterance 1. May be particularly relevant given [t]he prevalence of electronic communication devices, and the fact that many are portable and small, mean[ing] that people always seem to have their laptops, PDA s, and cell phones with them, and available for use to send s or text messages. Lorraine, 241 F.R.D. at 560. ii. Rule 2:803(3): Then Existing Mental, Emotional, or Physical Condition. 1. [U]seful when trying to admit , a medium of communication that seems particularly prone to candid, perhaps too-candid, statements of the declarant s state of mind, feelings, emotions, and motives. Id. at 570. iii. Rule 2:803(6): Business Records 1. This exception is frequently used, because many employees use the computers where they work for personal as well as business use. Id. at 571. However, some care must be taken to analyze whether the business record exception is applicable, especially to . Id. 25

26 2. Divergent approaches: some courts will require the proponent of electronic business records or evidence to make an enhanced showing in addition to meeting each element of the business records exception because of concern that the information generated for use in litigation may have been altered, changed or manipulated after its initial input, or that the programs and procedures used to create and maintain the records are not reliable or accurate. Id. at 574. Other courts will be content to view electronic business records in the same light as traditional hard copy records, and require only a rudimentary foundation. Id. 3. Note: U.S. v. Jackson, 208 F.3d 633 (7 th Cir. 2000) (material in website was not a business record of the internet service provider). e. In United States v. Gamory, 635 F.3d 480, 493 U.S. App. (11th Cir. 2011), the Court found that a You Tube video constituted inadmissible hearsay. The prosecution sought to introduce a Youtube video to show a connection between the defendant and drug dealing and money laundering. The video showed a person rapping about selling drugs and referencing defendant s music production company. The prosecution argued that the video was not offered for the truth of the matter asserted. However, the appellate court found that the prosecutor s statements made during trial contradicted this position. Where the video was offered for the truth of the matter asserted in the rap lyrics and no hearsay exception applied, the court found that the lower court committed plain error. Id. at f. s may be admissible under the business records or present sense impression exceptions. See Rambus, Inc. Infineon Techs, 348 F. Supp.2d 698, 707 (E.D.Va. 2004) ( is far less of a systematic business activity than a monthly inventory printout. ) s and text messages may also be admissible as admissions by a party opponent, or to demonstrate a party s then existing state of mind.united States v. Safavian, 435 F. Supp.2d 36, (D.D.C. 2006) ( s); Bloom v. Commonwealth, 34 Va. App. 364 (instant messages over internet were party admissions); see also Godoy v. Commonwealth, 62 Va. App. 113, 742 S.E.2d 407 (2013) (T-Mobile call records were automatically selfgenerating, and were not statements by a person; therefore they were not hearsay). V. ORIGINAL WRITING [ BEST EVIDENCE ] RULE (Rules 2: ) a. An original writing is required to prove the content of the writing, except as otherwise provided by statute or rule. b. Writings consist of letters, words, or numbers, or their equivalent, set down in any form, including magnetic impulse, mechanical or electronic recording Rule 2:1001(1). 26

27 c. An "original" of a writing is the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original." Rule 2:1001(2). Therefore, the computer printout of data (i.e., s), if it accurately reflects the data, is an original. d. A "copy" is a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original. See FED. R. EVID. 1001(3). e. In Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. 2002), an appellate court affirmed a trial court s admission of instant message conversations. A state police detective saved the conversations with [the defendant] after they were concluded... the printout document accurately reflected the content of those conversations, and therefore, could be found to be the best evidence of the conversation between the state police detective and the defendant. Id. at VI. BALANCING PROBATIVE VALUE AGAINST THE DANGER OF UNFAIR PREJUDICE (Rule 403) a. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, likelihood of confusing or misleading the trier of fact, or is needlessly cumulative. Rule 2:403. b. Applies especially to: i. Evidence contain[ing] offensive or highly derogatory language that may provoke an emotional response, ii. [A]dmissibility of summaries of voluminous electronic writings, recordings, or photographs, and iii. Concern as to the reliability or accuracy of the information that is contained within the electronic evidence. Lorraine, 241 F.R.D. at 584 (citations omitted). c. In United States v. Gamory, 635 F. 3d 480, 493 (11th Cir. 2011), the appellate court found the lower court erred in allowing a video obtained from Youtube to be played during trial where the probative value of the video was substantially outweighed by the risk of unfair prejudice. The government sought to enter the video to draw a connection between the defendant and drug dealing and money laundering. The court found the substance of the video presented a substantial danger of unfair prejudice because [the lyrics] contained violence, profanity, sex, promiscuity, and misogyny and could be reasonably understood as promoting a violent and unlawful lifestyle. Id. Further, the Court stated, [w]e cannot ignore the fact that [the defendant] was not in the video. Neither was there any evidence that [the defendant] authored the lyrics or that the views and values reflected in the video were, in fact, adopted or shared by [the defendant]. Though the court found that the lower court erred in admitting the video, the court found the error was harmless where the record 27

28 included testimony about the defendant s drug trafficking which was corroborated through surveillance and seizures of substantial amounts of cash. Id. at

29 29