Obtaining and Authenticating Electronic Evidence

22 Pages·2014·1.53 MB·English

Obtaining and Authenticating
Electronic Evidence
Texas Criminal Defense Lawyers Association
12th Annual Forensics Seminar
October 9, 2014
Dallas, Texas
Presented by Michael Mowla
(Mail)
445 E. FM 1382 #3-718
Cedar Hill, TX 75116
(Office)
6500 Greenville Avenue Suite 444
Dallas, TX 75206
Phone: [phone]
Fax: [phone]
[email protected]
About the author

Michael Mowla offices in Dallas, Texas. He is licensed in Texas and New York, and is admitted
in all the federal courts in Texas, the United States Court of Appeals for the Fifth Circuit, and the
Supreme Court of the United States. He can be contacted at 972-795-2401, email
[email protected], and his web address is www.mowlalaw.com.

He is Board Certified in Criminal Appellate Law by the Texas Board of Legal Specialization.
He is rated AV® Preeminent™ by the Martindale-Hubbell Peer Review Ratings, is a Super
Lawyer honoree for 2013 and 2014, and was a Super Lawyers Texas Rising Star for 2010-
2013. He represents clients at trial, on direct appeal, and on postconviction habeas corpus. He
also handles civil appeals, certain civil rights actions under 42 U.S.C. § 1983, and motions
practice in federal civil cases.

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I. Table of Contents
I.  Table of Contents .................................................................................................................. 3 
II. Introduction ........................................................................................................................... 5
III. Importance of “getting it right” when seeking to admit electronic evidence or
challenging the proffer of electronic evidence. ..................................................................... 5 
IV. Definition of “Electronic Evidence” ..................................................................................... 5
V.  Obtaining electronic evidence (usually from an entity located in California) ...................... 6 
VI. Admission of electronic evidence ......................................................................................... 8
1. As to its admissibility, there is no difference between electronic evidence and
other evidence. .................................................................................................................. 8 
2. To be admissible, electronic evidence must be relevant ................................................... 8
i. Tex. Rule Evid. 401 ....................................................................................................... 8
ii. Fed. Rule Evid. 401 ....................................................................................................... 8
iii. Evidence merely tending to affect the probability of the truth or falsity of a
fact in issue is logically irrelevant. ................................................................................ 9 
iv. Tex. Rule Evid. 402: ...................................................................................................... 9
v. Fed. Rule Evid. 402 ....................................................................................................... 9
3. Laying the foundation for the admissibility of electronic evidence .................................. 9
i. Testimony from a person with personal knowledge of the evidence – Tex.
Rule Evid. 901(b)(1) and Fed. Rule Evid. 901(b)(1). ................................................... 9 
ii. Authentication of electronic evidence through circumstantial evidence – Tex.
Rule Evid. 901(b)(4) and Fed. Rule Evid. 901(b)(4). ................................................... 9 
iii. “Best evidence rule” does not apply to electronic evidence ....................................... 11
iv. Self-authentication of electronic evidence through trade inscriptions - Tex.
Rule Evid. 902(7) and Fed. Rule Evid. 902(7). ........................................................... 11 
v. Self-authentication of electronic evidence through a business records affidavit
– Tex. Rule Evid. 803(6), 902(10), and Fed. Rule Evid. 902(11) ............................... 11
vi. Authentication of electronic evidence through the “Reply-Letter Doctrine” .............. 12
vii. Authentication by judicial notice – Tex. Rule Evid. 201(b) and Fed. Rule Evid.
201(b) .......................................................................................................................... 14 
4. The probative value of the electronic evidence must substantially outweigh the
negative attributes of the evidence – Tex. Rule Evid. 403 and Fed. Rule Evid.
403. .................................................................................................................................. 14 
i. Tex. Rule Evid. 403 (2014) ......................................................................................... 14
ii. Fed. Rule Evid. 403 (2014) ......................................................................................... 16
VII. Proving the nonexistence of electronic evidence ................................................................ 16
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1.  Method 1: Under Tex. Rule Evid. 803(7) (business records) & (10) (public
records), and Fed. Rule Evid. 803(7) (business records) & (10) (public records)
when the proffered electronic evidence is submitted under a business records
affidavit under Tex. Rule Evid. 803(6) or Fed. Rule Evid. 803(6) ................................. 16 
2.  Method 2 (preferable) - Subpoena the custodian of records to testify regarding
the nonexistence of a record. ........................................................................................... 17 
VIII. Special issue: Authenticating postings on Facebook and other social media
websites ............................................................................................................................... 17 
1.  To authenticate evidence from Facebook or other social media website, the
proponent must prove (1) that the information was actually posted, and (2) the
person who posted the information is the same person who wrote or created it. ............ 17 
2.  Authenticating postings on Facebook and other social media websites in Federal
Courts - United States v. Hassan, 742 F.3d 104 (4th Cir. 2013). ................................... 17 
3.  Authenticating postings on Facebook and other social media websites in Texas
Courts - Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ................................ 18 

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II. Introduction
The purpose of this presentation is to provide the reader with a general overview of how
to obtain and authenticate electronic evidence. Obtaining electronic evidence is obviously a
prerequisite to authenticating it. Once you obtain the evidence, there is no single way to
authenticate it. As the Court of Criminal Appeals noted in Tienda, “[A]lthough rapidly
developing electronic communications technology often presents new and protean issues with
respect to the 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, 639 (Tex. Crim. App. 2012). Further, “[A]ny serious consideration of the
requirement to authenticate electronic evidence needs to acknowledge that, given the wide
diversity of such evidence, there is no single approach to authentication that will work in all
instances. Rather, as with the authentication of any kind of proffered evidence, the best or most
appropriate method for authenticating electronic evidence will often depend upon the nature of
the evidence and the circumstances of the particular case.” Id. (internal citations omitted).
III. Importance of “getting it right” when seeking to admit electronic evidence or
challenging the proffer of electronic evidence.
It is very important to “get it right” when seeking to admit electronic evidence or challenging the
proffer of electronic evidence because a trial court’s ruling on the admissibility of evidence is
reviewed under an abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003). If the ruling is within the zone of reasonable disagreement, an appellate court
will not disturb it. Id. When a trial court further decides not to exclude the evidence, finding that
the probative value of the evidence is not outweighed by the danger of unfair prejudice, this
decision will also be given deference. Id. Thus, the court of appeals cannot (and will not) simply
substitute its own decision for that of the trial court. Id.
IV. Definition of “Electronic Evidence”
“[A]ny information created or stored in digital form whenever a computer is used to
accomplish a task.” Christine Sgarlata Chung & David J. Byer, The Electronic Paper Trail:
Evidentiary Obstacles to Discovery and Admission of Electronic Evidence, 4 B.U. J. Sci. &
Tech. L. 5, 8 (1997).
Nearly all “electronic evidence” involve computers in some way. “Computers” are
everywhere and used for everything: for instance, “cell phones” are not really “cell phones”
any longer. “Cell phones differ in both a quantitative and a qualitative sense from other objects
that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand;
many of these devices are in fact minicomputers that also happen to have the capacity to be used
as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars,
tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California,
134 S. Ct. 2473, 2489 (2014) (Roberts, J.).
Law enforcement records intercepted communications (wiretaps) on “Magneto Optical”
(“MO”) discs, which are “computer” storage devices that utilize both an optical laser and
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magnetic field to record data on a special removable optical disk. See, e.g., United States v.
McLee, 436 F.3d 751, 756 (7th Cir. 2006).

V. Obtaining electronic evidence (usually from an entity located in California)
Research each company and learn how to obtain the electronic evidence. In many cases,
simply faxing a subpoena will not suffice.

Example: obtaining documents from Google. This includes data from Google, Google Search,
Gmail, Talk, YouTube, Blogger, AdWords, AdSense, Checkout, Orkut, Picasa, Sites, Google
Groups, Google Docs, Google Maps, Google Earth, Video, and Android.

California’s governing statute is Cal. Code Civ. Proc. 2029.300 (2014), and it bears little
resemblance to our Tex. Code Crim. Proc. Art. 24.28 (2014). If you fail to follow the procedure,
Google (and perhaps any other California entities) will simply ignore your request.

Cal. Code Civ. Proc. § 2029.300 (2014): Issuance of subpoena by clerk of court

(a) To request issuance of a subpoena under this section, a party shall submit the original or a
true and correct copy of a foreign subpoena to the clerk of the superior court in the county in
which discovery is sought to be conducted in this state. A request for the issuance of a subpoena
under this section does not constitute making an appearance in the courts of this state.

(b) In addition to submitting a foreign subpoena under subdivision (a), a party seeking discovery
shall do both of the following:

(1) Submit an application requesting that the superior court issue a subpoena with the
same terms as the foreign subpoena. The application shall be on a form prescribed by the
Judicial Council pursuant to Section 2029.390. No civil case cover sheet is required.

(2) Pay the fee specified in Section 70626 of the Government Code.

(c) When a party submits a foreign subpoena to the clerk of the superior court in accordance with
subdivision (a), and satisfies the requirements of subdivision (b), the clerk shall promptly issue a
subpoena for service upon the person to which the foreign subpoena is directed.

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(d) A subpoena issued under this section shall satisfy all of the following conditions:

(1) It shall incorporate the terms used in the foreign subpoena.

(2) It shall contain or be accompanied by the names, addresses, and telephone numbers of
all counsel of record in the proceeding to which the subpoena relates and of any party not
represented by counsel.

(3) It shall bear the caption and case number of the out-of-state case to which it relates.

(4) It shall state the name of the court that issues it.

(5) It shall be on a form prescribed by the Judicial Council pursuant to Section 2029.390.

Step 1: Without straying from the rules here, create a Texas subpoena duces tecum for the
requested information.

Step 2: Complete Form SUBP-030, Application for a Discovery Subpoena for an Action
Pending Outside California (See Appendix A and www.courts.ca.gov/documents/subp030.pdf).

Step 3: Attach your Texas subpoena duces tecum to Form SUBP-030.

Step 4: Complete Form SUBP-035, Subpoena for Production of Business Records in Action
Pending Outside California (Appendix B, www.courts.ca.gov/documents/subp035.pdf).

Step 5: Prepare and enclose the check for the fee. Under Cal. Gov. Code § 70626(b)(5) (2014),
the fee for Form SUBP-030 is $30.00.

No payment = the Superior Court will return your application.

Step 6: File the documents in the Santa Clara Superior Court.

Address to which to send the documents for filing:

Santa Clara Superior Court
Subpoenas
191 N. First Street
San Jose, CA 95113
Phone: [phone]

Step 7: Once you receive the documents from the Santa Clara Superior Court, send it to Google
Legal Compliance. Or you can request that the clerk of the court send it directly to Google Legal
Compliance.

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Google Legal Compliance
1600 Amphitheatre Parkway
Mountain View, CA 94043

Fax Numbers: 650-649-2939 & 650-249-3429
Phone Numbers: 650-253-3425 and 650-253-4673
Email Address: [email protected]

VI. Admission of electronic evidence
1. As to its admissibility, there is no difference between electronic evidence and other
evidence.
Like any other evidence, electronic evidence is admissible if: (1) it is relevant, (2) a
proper foundation is laid for its admissibility, and (3) its probative value substantially outweighs
the negative attributes of the evidence. Tex. Rule Evid. 401-403 (2014); Fed. Rule Evid. 401-
403 (2014).
2. To be admissible, electronic evidence must be relevant
i. Tex. Rule Evid. 401
“Relevant evidence” is “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.” Tex. Rule Evid. 401 (2014).

“[A]ny item of evidence that alters the probability of a consequential fact is relevant
because to alter the probabilities of a fact there must be a subjective relationship between the
proffered evidence and the ultimate fact. In other words, for an item of evidence to alter the
probabilities of the existence of the consequential fact and thus be relevant it must logically
increase one’s knowledge and enhance the likelihood of ascertaining the truth about the
fact.” Brown v. State, 757 S.W.2d 739, 740 (Tex. Crim. App. 1988).

To be relevant, evidence must be material and probative. Miller v. State, 36 S.W.3d 503,
507 (Tex. Crim. App. 2001). Evidence is material if it is “shown to be addressed to the proof of
a material proposition, i.e., any fact that is of consequence to the determination of the action.” Id.
at 507. Evidence is probative if it tends to make the existence of the fact more or less probable
than it would be without the evidence. Id. So, evidence is relevant if it has been shown to be
material to a fact in issue and if it makes that fact more probable than it would be without
the evidence. Id.

ii. Fed. Rule Evid. 401
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action.
Fed. Rule Evid. 401 (2014).

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iii.Evidence merely tending to affect the probability of the truth or falsity of a fact in
issue is logically irrelevant.
Simpson v. State, 181 S.W.3d 743, 749 (Tex. App. Tyler 2005, pet. ref.)
The evidence need not by itself prove or disprove a particular fact. Id. It is sufficient if
the evidence provides a small nudge toward proving or disproving some fact of consequence. Id.
iv. Tex. Rule Evid. 402:
All relevant evidence is admissible, except as otherwise provided by Constitution, by
statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence that
is not relevant is inadmissible. Tex. Rule Evid. 402 (2014).
v. Fed. Rule Evid. 402
Relevant evidence is admissible unless any of the following provides otherwise: the
United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme
Court. Irrelevant evidence is not admissible. Fed. Rule Evid. 402 (2014)
3. Laying the foundation for the admissibility of electronic evidence
i. Testimony from a person with personal knowledge of the evidence – Tex. Rule Evid.
901(b)(1) and Fed. Rule Evid. 901(b)(1).
A person testifies that the electronic evidence is what it is claimed to be. Tex. Rule Evid.
901(b)(1) (2014) and Fed. Rule Evid. 901(b)(1) (2014). A person can testify that she received an
email or text message from the defendant or another person, and a copy of the email or text
becomes admissible provided the contents of the email or text message do not otherwise contain
inadmissible hearsay or violate the Confrontation Clause. In such a case, the portions of the
email or text message that do not violate a hearsay rule or the Confrontation Clause may be
admitted into evidence.
ii. Authentication of electronic evidence through circumstantial evidence – Tex. Rule
Evid. 901(b)(4) and Fed. Rule Evid. 901(b)(4).
A document may be authenticated by “appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.” Tex. Rule Evid. 901(b)(4)
(2014) and Fed. Rule Evid. 901(b)(4) (2014).
United States v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000):
Facts:
 Defendant worked at the University of South Alabama.
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 Defendant was accused of falsifying a nomination for a National Science Foundation
award carrying a $500,000 research grant.
 At issue was the admissibility of an email sent to two witnesses.
 The emails bore Defendant’s email address as “[email protected].”
 One of the witnesses testified that when he replied to the email apparently sent by
Defendant, the “reply-function” on the witness’s email system automatically dialed
Defendant’s email address as the sender. See also Reply-Letter Doctrine below.
 The context of the email sent to the witnesses shows that the author of the email was
someone who would have known the very details of Defendant’s conduct with respect to
the Award and the NSF’s subsequent investigation.
 In addition, in one email sent to one of the witnesses, the author makes apologies for
cutting short his visit to the Swiss Federal Institute for Environmental Science and
Technology. In his deposition, the witness testified that in 1994, Defendant had gone to
Switzerland to begin a collaboration with the Institute for several months, but had left
after only three weeks to take a teaching job.
 Also, the email sent to the witnesses referred to the author as “Mo.” Both witnesses
recognized this as Defendant’s nickname.
 Finally, both witnesses testified that they spoke by phone with Defendant soon after the
receipt of the email, and that Defendant made the same requests that had been made in
the email.
 Defendant also challenged the emails based upon hearsay, but did not object during trial
to the admission of the emails on this ground.

Holding:
 The district court did not abuse its discretion in ruling that the documents were
adequately authenticated.
 The government may authenticate a document solely through the use of circumstantial
evidence, including the document’s own distinctive characteristics and the circumstances
surrounding its discovery. See United States v. Smith, 918 F.2d 1501, 1510 (11th Cir.
1990), cert. denied , 502 U.S. 849 (1991).
 Even if Defendant preserved hearsay objections to the introduction of the email, the
district court would have been within its discretion in denying the objections because the
email contained party admissions under to Fed. Rule Evid. 801(d)(2)(A) (1994).

Massimo v. State, 144 S.W.3d 210 (Tex. App. Fort Worth 2004): In citing United States v.
Siddiqui, the Second Court of Appeals listed the following characteristic evidence under Tex.
Rule Evid. 901(b)(4) to authenticate an email:

(1) consistency with the e-mail address on another e-mail sent by the defendant;

(2) the author’s awareness through the e-mail of the details of defendant’s conduct;

(3) the email’s inclusion of similar requests that the defendant had made by phone during
the time period; and

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