Tuesday, October 28, 2014

Facebook pages have to be authenticated for use at trial

Do law students appreciate how importance Evidence class is? Everything a litigator does requires consideration of the rules of evidence. A great case can fall apart if it depends on hearsay. And a great document may be useless if it is not authenticated. That's what this case is about.

The case is United States v. Vayner, decided on October 3. This case alleged that defendant was a master forger and that he concocted records inside the United States for someone in Ukraine to "prove" that he has a daughter; with that fake birth certificate, you can avoid military service. At trial, the prosecution introduced a copy of defendant's Russian Facebook page that corroborated the testimony from other prosecution witnesses that plaintiff was a forgery expert. But the special agent who explained the Facebook page to the jury testified that he had never logged onto the site except to view defendant's page, and he did not know if any identity verification was required to create such a page. The jury found defendant guilty of forgery after the prosecutor cited the Facebook page.

The Federal Rules of Evidence outline the rules for proving that a document is authentic. This case summarizes those rules and provides some examples how to prove that a document is the real McCoy. Under Rule 901, the proponent of the evidence "must produce evidence sufficient to support a finding that the item is what the proponent claims it is." As the Second Circuit (Livingston, Wesley and Lohier) says "proof of authentication may be direct or circumstantial. The simplest (and likely most common) form of authentication is through 'the testimony of a witness with knowledge that a matter is what it is claimed to be." While the contents or distinctive characteristics of a document can sometimes by themselves authenticate a document, that only happens when the document deals with obscure subject matter "so that the contents of the writing were not a matter of common knowledge."

The Facebook page was not admissible because the special agent did not sufficiently authenticate it. While the page had defendant's name and photograph and offers details about his life, "there was no evidence that [defendant] himself had created the page or was responsible for its contents. Had the government introduced, for example, a flyer found on the street that contained [defendant's] Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant]. Otherwise, how could the information in the flyer be attributed to him? ... The mere fact that a page with [defendant's] name and photograph happened to exist on the Internet at the time of [the special agent's] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf."

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