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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Miller v. Bank of Am., N.A., 201 So.3d 1286 (Fl. Dist. Ct. App. 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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Ballai v. Kiewit Power Constructors, Co., No. 110166, 2015 WL 423795 (Kan. Ct. App. Jan. 23, 2015)
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Commonwealth v. Mulgrave, 33 N.E.3d 440 (Mass. July 13, 2015)
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Donley v Donley, 2015 Ark. App. 496 (Ark. Ct. App. Sept. 23, 2015)
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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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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 Appellee, 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 Appellee?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)

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

Ballai v. Kiewit Power Constructors, Co., No. 110166, 2015 WL 423795 (Kan. Ct. App. Jan. 23, 2015)

Key Insight: Court of Appeals of Kansas found no abuse of discretion by the district court for failing to order sanctions related to the recycling of the laptop computer used by appellant during his employment, as the district court did not issue an order to preserve and there is no statutory or common-law duty to preserve evidence in Kansas; court further found no abuse of discretion by the district court for excluding evidence of recycling the computer; court also found that a chat log was relevant, material, and probative and the appellant was protected from prejudice because the district court only allowed the redacted version of the chat log into evidence.

Nature of Case: Employment

Electronic Data Involved: Laptop; Chat Log

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

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)

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

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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