Tag:Admissibility

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Miller v. Bank of Am., N.A., 201 So.3d 1286 (Fl. Dist. Ct. App. 2016)
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United States v. Lewisby, 843 F.3d 653 (7th Cir. 2016)
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Stewart v. State of Iowa (Iowa, 2016)
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State of Louisiana v. Demontre Smith (Louisiana, 2016)
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Butler v. State of Texas, —S.W.3d—, 2015 WL 1816933 (Tex. Crim. App. Apr. 22, 2015)
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United States v. Shah, No. 5:13-CR-328-FL, 2015 WL 3605077 (E.D.N.C. June 5, 2015)
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United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)
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Donley v Donley, 2015 Ark. App. 496 (Ark. Ct. App. Sept. 23, 2015)
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Commonwealth v. Mulgrave, 33 N.E.3d 440 (Mass. July 13, 2015)
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Boyd v. Mississippi, No. 2014?KA?00404?SCT, 2015 WL 1955570 (Miss. Apr. 30, 2015)

Miller v. Bank of Am., N.A., 201 So.3d 1286 (Fl. Dist. Ct. App. 2016)

Key Insight: On appeal from a final judgment of foreclosure, the Appellate Court found the Trial Court erred in admitting a screen shot of a computer-generated document purporting to reflect the sale of the mortgage note to Defendant, over Appellant?s hearsay objection. The original note was lost, so Appellee?s witness, who testified regarding the sale of the note, ?relied entirely upon a screen shot of a computer-generated document referred to as a Loan Transfer History (LNTH)? to establish Defendant?s right to foreclose. The witness testified she did not know who entered the information displayed in the screen shot, or if it was entirely computer generated. The Court held ?Ms. Allen?s affirmative answers to business record foundation questions do no overcome her demonstrated lack of knowledge about the creation, accuracy or trustworthiness of the LNTH document.?

Nature of Case: Foreclosure

Electronic Data Involved: Screen Shot

United States v. Lewisby, 843 F.3d 653 (7th Cir. 2016)

Key Insight: Circuit Court found no abuse of discretion in admission of text messages where statements were not hearsay and where evidence established phones belonged to defendant sufficient to support a finding that the messages were sent and received by Defendant; Facebook messages also were not hearsay and were authenticated by Defendant?s admission that the posts were his and evidence of his ownership, including use of his nickname, date of birth, etc.

Nature of Case: Criminal

Electronic Data Involved: Text messages, Facebook (social network / social media)

Butler v. State of Texas, —S.W.3d—, 2015 WL 1816933 (Tex. Crim. App. Apr. 22, 2015)

Key Insight: Highest criminal court in Texas reversed the judgment of the court of appeals that had overturned defendant?s conviction upon concluding that the trial court ?had acted within its discretion? in concluding that the state met its threshold burden of authentication sufficient to admit defendant?s text messages to the victim where authentication can be satisfied by direct or circumstantial evidence and where the victim testified that she knew the messages were from defendant because: he had called from that number in the past, ?the context of the text messages convinced her that the messages were from him,? and ?he actually called her from that same phone number during the course of that very text message exchange?

Nature of Case: Criminal: Kidnapping, assault and related crimes

Electronic Data Involved: Text messages from Defendant to the victim

United States v. Shah, No. 5:13-CR-328-FL, 2015 WL 3605077 (E.D.N.C. June 5, 2015)

Key Insight: Court declined to find that contents of email and chats from gmail account could be authenticated as Google?s business records pursuant to ER 902(11) where the contents of the emails were automatically copied to and maintained upon Google?s servers finding that the ?knowledge? requirement was not satisfied and reasoning: ?Neither SHAHNN28@GMAIL.COM, nor any other originating source whose statements appear in the records produced by Google were under a ?business duty? to convey accurate information in their correspondence. Because the proffered ?finished product? is not the collective effort of ?business insiders,? who share a duty to ensure the accuracy of their statements, the court cannot allow those statements to be authenticated on the theory that they are Google?s self-proving business records under Federal Rules of Evidence 803(6) and 902(11).?

Nature of Case: Intentional damage to a protected computer

Electronic Data Involved: Gmail emails and chats

United States v. Lizarraga-Tirado, —F.3d—, 2015 WL 3772772 (9th Cir. June 18, 2015)

Key Insight: Court found that Google Earth satellite image was not hearsay because it makes no assertion and also found that ?[a] tack placed by the Google Earth program and automatically labeled with GPS coordinates isn?t? hearsay? because the ?relevant assertion isn?t made by a person? its made by the Google Earth program? and therefore, there is no statement as defined by the hearsay rule (where the rule applies ?only to out-of-court statements? and where ?it defines a statement as ?a person?s oral assertion, written assertion, or nonverbal conduct?); however, ?[i]f the tack is place d manually and then labeled . . . its classic hearsay?

Nature of Case: Illegal re-entry into the U.S.A.

Electronic Data Involved: Google Earth image and tack

Donley v Donley, 2015 Ark. App. 496 (Ark. Ct. App. Sept. 23, 2015)

Key Insight: Circuit court did not abuse its discretion in admitting screen shots from Defendant?s ex-boyfriend?s Facebook account where the appellate court determined that Defendant?s admission that she was ?Meka Rochelle? – the at-issue commenter shown in the screen shots – and admissions that she authored one of the comments and that she was the person depicted in the photos ?sufficiently tie[d] her to the comments and the photos? and that Defendant?s claim that she did not recall making the comments went to weight , not admissibility

Electronic Data Involved: Social Media (Facebook)

Commonwealth v. Mulgrave, 33 N.E.3d 440 (Mass. July 13, 2015)

Key Insight: Where murder victim sent text message to son stating that defendant was threatening to kill her and that she was scared and 6 minutes later called 911 to report that defendant was stabbing her, court did not err in allowing text message to son into evidence under the ?spontaneous utterance? exception to the hearsay rule

Nature of Case: Murder

Electronic Data Involved: Text message

Boyd v. Mississippi, No. 2014?KA?00404?SCT, 2015 WL 1955570 (Miss. Apr. 30, 2015)

Key Insight: Court said that it was clear that the defendant?s name on a Facebook profile did not suffice to show that he authored the Facebook messages, but what did authenticate them were the ?peculiar circumstances? of the case, including a Facebook message that contained the same three digits of a phone number that was used to text victim and arrange a meeting at which the defendant was arrested. Court also found that the fact that the defendant went alone to an agreed location twice after the sender of text messages agreed to do so, with a phone in his possession that had the same number as had been used to communicate with the victim, was sufficient to authenticate that the defendant was the author of the text messages.

Nature of Case: Criminal

Electronic Data Involved: Social media (Facebook), Text Messages

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