• Cases on Admissibility





    Case Name: R. v. Pommer
    Case Citation: 2008 BCSC 423
    Decision Date: April 2008  
    Court: British Columbia Supreme Court
    Link(s) to Case:

    Abstract: Mr. Pommer and his wife separated in 2004 but continued to live together in the same house albeit different bedrooms. A couple months after their separation, the daughter found a camcorder in the bedroom she shared with her mother. Mr. Pommer’s wife immediately kicked Mr. Pommer out of the house. Upon leaving and the finalization of their divorce, Mr. Pommer “abandoned” a home computer at his ex-wife’s home. Fearful that inappropriate images of her and her daughter may have been dispersed online, Mr. Pommer’s ex-wife contacted the police, but stated she did not want to open a criminal investigation. Cst. Johnson conducted a warrantless search of the home computer and discovered several images that constituted child pornography. These images led Cst. Johnson to open a criminal investigation against Mr. Pommer. In 2005, Cst. Johnson received a search warrant to perform a forensic examination of the computer which was granted; upon its execution, additional illegal images were uncovered. This search led Cst. Johnson to gather more evidence against Mr. Pommer and, after two unsuccessful attempts, obtain a search warrant for his condominium and his office. At issue in this case is if the police breached Mr. Pommer’s section 8 Charter rights that protect him against illegal searches. Did Mr. Pommer have reasonable expectation of privacy in the home computer and its contents? In this voir dire, the Supreme Court argued he relinquished his expectation of privacy because in his process of moving out of the house, he returned twice but left the home computer and knew that the locks on the doors were going to be changed. In effect, he had given up access and control of that computer and lost his reasonable expectation of privacy. Furthermore, the defense counsel argued that how the search warrants were obtained and their contents was misleading in parts and the evidence obtained as a result of the warrantless search should not be admitted in court. After an extensive and meticulous review of Cst. Johnson’s actions, the Court held that he acted in good faith of and that the breach of Mr. Pommer’s s. 8 Charter rights amounted to a “technical violation” and the evidence could be admitted at trial.

    Keywords: admissibility, Canadian Charter of Rights and Freedoms, electronically stored information (ESI), forensic analysis, privacy, search and seizure, voir dire

    Case Name: R. v. Nikolovski
    Case Citation: [1996] 3 S.C.R. 1197
    Decision Date: December 1996  
    Court: Supreme Court of Canada
    Link(s) to Case:

    Abstract: The defendant was accused of robbing a convenience store. While the store’s video camera caught and recorded the robbery, the store clerk could not positively identify accused. The trial judge, sitting alone, admitted the tape as evidence and convicted the accused based on what the tape depicted. The Court of Appeal overturned this decision, arguing that the conviction should not have been based solely on the videotape. The Supreme Court upheld the trial judge’s decision saying that the inability of the clerk to identify the accused was “not of great significance.” In a dissenting opinion, Justices Sponika and Major argued that the trial judge’s decision did not consider several other factors in conjuncture with the videotape, all of which did not support the initial judgment; they stated that the conviction “rests on a shaky foundation and is unsafe and unsatisfactory.”

    Keywords: admissibility, identification, videotape, witness testimony


    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:

    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: 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

    Page last updated: July 10, 2010


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