Cases on Authentication
Canada
Case Name: R. v. MacPherson
Case Citation: 2005 BCSC 381
Decision Date: May 2005
Court: British Columbia Supreme Court
Link(s) to Case: http://www.canlii.org/en/bc/bcsc/doc/2005/2005bcsc381/2005bcsc381.html
Abstract: In March 2003, the defendants, Michael MacPherson and Robert Onset were both arrested and charged with drug trafficking and weapon offenses. The Court found problems with the continuity of evidence, specifically, an analyst’s certificate identifying the substance purchased from the defendants. The problem arose when the exhibits officer of the case died in October 2005 and could not testify; the Crown presented no other means for establishing the chain of custody. The Court stated that while this break does not make the evidence automatically inadmissible (that is for the trier of fact to determine), it does reduce its weight. Furthermore, the Court cited R. v. Larsen (2001 aff’d on other grounds in 2003) which that “continuity of possession of the substance from the accused to the law enforcement officer to the analyst is crucial. However, Canadian case law makes it clear that proof of continuity is not a legal requirement and that gaps in continuity are not fatal to the Crown’s case unless they raise a reasonable doubt about the exhibit’s integrity.” The Court found Onset not guilty of both charges but MacPherson was found guilty of drug trafficking.
Keywords: chain of custody, proof of continuity, evidence, admissibility
Case Name: R. v. Lam
Case Citation: 2008 BCPC 248
Decision Date: August 2008
Court: British Columbia Provincial Court
Link(s) to Case: http://www.canlii.org/en/qc/qccs/doc/2008/2008qccs915/2008qccs915.html
Abstract: At issue in this case is Section 490 of the Criminal Code that deals with seized property, specifically subsections (1) and (2). This is an application by the plaintiff argued that materials seized by the police should be transferred to the Registrar of the Provincial Court of British Columbia and that the two subsections in question granted the Provincial Court to make such an order. The Crown contested that the police were the ones best suited to retrain the materials, thereby avoiding, among other issues, chain of custody concerns. Upon examining the whole of s. 490, the Court could not find an expressed authority to order the Crown to transfer evidence to the Registrar.
Keywords: Criminal Code, chain of custody, trusted custodian, preservation of evidence
Case Name: R. v. Gregoire
Case Citation: 2005 ABQB 57
Decision Date: January 2005
Court: Alberta Court of Queen's Bench
Link(s) to Case: http://www.canlii.org/en/ab/abqb/doc/2005/2005abqb57/2005abqb57.html
Abstract: This voire dire sought to determine if confessions made by the defendants were free and voluntary. The defendants were arrested and booked at the police station on drug-related charges and they each would confess to their actions. The Crown argued that the confessions were voluntarily, but the Court questioned a 60-minute period following the booking of the defendants that could not be accounted for by the police officers. This gap made it difficult for the Crown to overcome a reasonable doubt that the confessions were free and voluntary.
Keywords: admissibility, chain of custody, confessions, voluntariness
Case Name: Microsoft Corp. v. 9038-3746 Quebec Inc.
Case Citation: 2006 FC 1509
Decision Date: December 2006
Amended: January 16, 2007
Court: Federal Court (Montréal, Quebec)
Link(s) to Case: http://www.cacn.ca/PDF/Case%20Law/Decision%20Microsoft%20v%209038-3746%20Quebec%20Inc.PDF
Abstract: This case involves CDs and materials that the defendants possessed and which both parties agreed were counterfeit. The defendants, a Quebec business and Carmelo Cerrelli, argued they had a right to distribute the materials because they were genuine. In 1999, the RCMP executed a search warrant at the defendant’s business and seized various materials. For trial, the chain of custody of these materials was initially challenged because they were delivered by a representative of the KPMG. In order to establish the authenticity of the evidence, the plaintiff was prepared to call each person from the KPMG who handled the materials. The materials were admitted by affidavit. The court found that the defendants knowingly traded counterfeit items and issued statutory and punitive damages in the amounts of $500,000 and $200,000, respectively.
Keywords: copyright, CDs, intellectual property, evidence, computer software, chain of custody
Case Name: R. v. Penny
Case Citation: 2002 NFCA 15
Decision Date: March 2002
Court: Supreme Court of Newfoundland and Labrador Court of Appeal
Link(s) to Case: http://www.canlii.org/en/nl/nlca/doc/2002/2002nfca15/2002nfca15.html
Abstract: At issue is whether a videotape was admissible evidence given the credibility of the witnesses who proffered the evidence and the fact that the camera was frequently turned on and off by the operator during the taping process. The Provincial Court refused to admit the tape as evidence citing the lack of credible witnesses to attest its authenticity. The Supreme Court reversed the lower court’s decision saying the “accuracy, continuity, and integrity of those making the videotapes go to the weight to be given to such evidence and not to whether the evidence is to be admitted.” Upon appeal, the Court of Appeal cited the lack of credible witnesses and questioning the accuracy of the events represented in the videotape and ruled the videotape was not admissible as evidence.
Keywords: admissibility, witness credibility, authenticity, probative value, electronic information
Case Name: R. v. Doughty
Case Citation: 2009 ABPC 8
Decision Date: January 2009
Court: Alberta Provincial Court
Link(s) to Case: http://www.canlii.org/en/ab/abpc/doc/2009/2009abpc8/2009abpc8.html
Abstract: The accused was charged on eight counts of theft and one count of assault with intent to resist arrest. At the trial, the Crown offered a CD allegedly containing images of the thefts. The images were downloaded and copied from the store’s surveillance cameras by the store’s loss prevention officer. The Crown called the store’s acting district manager of loss prevention to authenticate the CD but she lacked sufficient knowledge of the CD’s making to eliminate the possibility of distortion, or of the surveillance system in the store to establish that it was operating properly. The judge held that the district manager failed to authenticate the CD and ruled it inadmissible.
Keywords: electronically stored information (ESI), expert witness, authentication, admissibility
Case Name: Browning Harvey v. NLAPPE Local 7003 and Persons Unknown
Case Citation: 2007 NLTD 10
Decision Date: January 2007
Court: Newfoundland and Labrador - Supreme Court of Newfoundland and Labrador, Trial Division
Link(s) to Case: http://www.canlii.org/en/nl/nlsctd/doc/2007/2007nltd10/2007nltd10.html
Abstract: At issue in this case was the admissibility of two videotapes allegedly depicting behviour of a picket line formed by the NLAPPE against the employer, Browning Harvey. It was testified that the videotapes were created using a digital zoom camcorder as the events unfolding. Following the videotaping, the recorder labeled and sealed the videotapes and turned them over to Browning Harvey’s “evidence handler.” It was revealed that there was disparity between what was on one of the tapes and what was observed by the recorder, due to the editing of the tapes. The defence objected to the admissibility of the videotapes citing the lack of continuity of possession and for the discrepancies resulting from copying, manipulation, and editing. The judge excluded the videotapes arguing that the employer failed to prove that the videotapes had not been tampered with.
Keywords: admissibility, electronically stored information (ESI), chain of evidence, authenticity, reliability
Case Name: R. v. MacNeil
Case Citation: 2008 QCCS 915
Decision Date: February 2008
Court: Quebec Superior Court
Link(s) to Case: http://www.canlii.org/en/qc/qccs/doc/2008/2008qccs915/2008qccs915.html
Abstract: The accused was charged with murder in the first degree. The victim had been shot to death in the early morning hours in front of a large shopping complex in Montreal. The shopping centre was equipped with a digital surveillance system and two of the cameras recorded the events leading up to and including the shooting. As evidence of the culprit’s identity, the crown sought to introduce copies of the recordings made by the cameras, and image prints and video clips also made from the recordings. The defence objected to the admissibility of the evidence arguing their original format had been altered and they were no longer accurate or reliable. During the copying process, the police lost the watermarkings from the tapes, but the judge ruled that the loss of this authenticating information was merely peripheral and did not alter or change the video images themselves. Most importantly, four witnesses authenticated the videotapes from having seen the shooting in person or from images of it. The judge admitted the evidence, leaving the question of weight for the jury to determine at the end of the trial.
Keywords: admissibility, electronically stored information (ESI), authenticity, reliability
USA
Case Name: State of Connecticut v. Alfred Swinton
Case Citation: 847 A.2d 921 (Conn. 2004)
Decision Date: May 2004
Court: Supreme Court of Connecticut
Link(s) to Case: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR268/268cr60.pdf
Abstract: The defendant was convicted of first degree murder but appealed on the grounds that some of the evidence introduced against him should not have been admitted. At issue was the reliability of photographic images, on which the defendant based his appeal. The images included an Adobe Photoshop superimposition of the defendant’s teeth over the bite mark and a set of computer-enhanced photographs. To test the merits of the defendant’s claim, the court used a six-point test for the authentication of computer-generated or enhanced evidence: 1) the computer equipment is accepted in the field as standard and competent and was in good working order; 2) qualified computer operators were employed; 3) proper procedures were followed in connection with the input and output of information; 4) a reliable software program was utilized; 5) the equipment was programmed and operated correctly; and 6) the exhibit is properly identified as the output in question. Based on its analysis, the Court ruled that the computer-enhanced photographs had been admitted on an adequate foundation (they were admitted by an experienced forensic-expert with knowledge of the creation procedure), but that the overlay images should not have been admitted because they were introduced by an forensic odontologist who did not create them nor was familiar with their creation process.
Keywords: authentication, admissibility, reliability, expert testimony, computer-generated evidence, digital photographs
Case Name: Griffin v. State
Case Citation: 2010 Md. App. LEXIS 87
Decision Date: May 2010
Court: Court of Special Appeals of Maryland
Link(s) to Case:
Abstract: In 2008, the plaintiff was convicted of, among other charges, second degree murder. In this motion, he appealed the jury’s decision, in part, on the grounds that the Circuit Court should not have admitted into evidence a page printed from MySpace because the State did not properly authenticate it. The anonymous page contained a picture of the plaintiff’s girlfriend and a threatening statement relevant to the testimony of a witness for the State. At issue is whether the State established the necessary foundation for determining the author of the statement. The Circuit Court admitted the page based on circumstantial evidence, namely the girlfriend’s picture, her date birth, references to her children, and the mentioning of the plaintiff’s nickname “Boozy.” Upon review, the Court of Special Appeals noted the dearth of precedent regarding the authentication of social media networking sites and provides an in-depth review of them, their content, and the legal challenges they pose. In drawing on Dickens v. State of Maryland (2007), where content and context established the necessary foundation for admitting electronic communications, the Court of Special Appeals upheld the lower court’s decision to admit the printed MySpace page based on circumstantial evidence.
Keywords: authentication, evidence, admissibility, electronically stored information (ESI), social networking sites
Case Name: Frye v. United States
Case Citation: 293 F. 1013 (D.C. Cir. 1923)
Decision Date: December 1923
Court: Court of Appeals of District of Columbia
Link(s) to Case:
Abstract: Though overruled by the Daubert standard, this case continues to be referenced by the courts addressing expert testimony of scientists. This case specifically involved the result of a systolic blood pressure description test. The Court ruled that expert testimony when the scientific evidence, principle, or discovery has “gained general acceptance in the particular field in which it belongs.”
Keywords: authentication, evidence, expert testimony
Case Name: Dickens v. State of Maryland
Case Citation: 175 Md. App. 231, 2007 Md. App. LEXIS 90
Decision Date: May 2007
Court: Court of Special Appeals of Maryland
Link(s) to Case:
Abstract: In 2005, a jury found the plaintiff guilty of charges including first-degree murder and the court sentenced him to life in prison. The plaintiff appealed this ruling, in part, on the grounds that the Circuit Court erred in admitted four text messages as evidence. He argued that the State did not properly authenticate the messages because they had not been directly linked to Mr. Dickens. The Court of Special Appeals rejected this contention. The State connected the messages to the plaintiff by direct and circumstantial evidence. The plaintiff’s phone number appeared in one text message (the direct evidence) and the specific references made in the other three messages could have only been made “by an exceedingly small number of persons[….]” The Court ruled that the contents and contexts of each message would provide sufficient evidence for a jury to infer that they came from Mr. Dickens’ phone, and thus the State laid the necessary foundation in proving all the messages came from the same person.
Keywords: authentication, evidence, admissibility, electronically stored information (ESI), text messages
Case Name: Daubert v. Merrell Dow Pharmaceuticals, Inc.
Case Citation: 509 U.S. 579 (1993)
Decision Date: June 1993
Court: United States Supreme Court
Link(s) to Case:
Abstract: Overruling the Frye standard, this case established a four-factor test for establishing a reliable foundation and the relevance of expert testimony of scientists; these factors include: (1) whether the evidence has been subjected to peer review, (2) whether the expert’s theories and methods can be tested, (3) the error rates in studies and test results, and (4) the degree of acceptance of the expert’s theories and methods.
Keywords: authentication, evidence, expert testimony, relevance
Case Name: Lorraine v. Markel Insurance Company
Case Citation: 241 F.R.D. 534 (D. Md. 2007)
Decision Date: May 2007
Court: District Court of Maryland
Link(s) to Case: http://www.mdd.uscourts.gov/Opinions/Opinions/Lorraine%20v.%20Markel%20-%20ESIADMISSIBILITY%20OPINION.pdf
Abstract: This decision responds to an action that did not happen. The case involved a dispute over the ambiguous wording of an arbitration agreement. At issue was whether the arbitrator was authorized to declare an amount for damages in his/her ruling that lightening caused damage to a boat owned by the plaintiffs. In the parties’ attempt to settle, Judge Grimm could not make a ruling because both sides failed to present any authenticated evidence. Instead, the court ordered the parties to resubmit their motions “with proper evidentiary support.” Judge Grimm used the opportunity to provide one of the most comprehensive and detailed examinations of the admissibility and authentication of electronically stored information as it applies to all the pertinent rules of U.S. Federal Rules of Evidence, as well as a several rules from the U.S. Federal Rules of Civil Procedure.
Keywords: authentication, evidence, admissibility, electronically stored information (ESI), Federal Rules of Evidence (U.S.), Federal Rules of Civil Procedure (U.S.)
Page last updated: July 10, 2010
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