Hugh Finkelstein Chief Deputy Prosecuting Attorney 20 th Judicial District of Arkansas

 901(b)(5) Voice Identification  Identification of a voice, whether heard first hand or through mechanical transmission or recording, by opinion based upon hearing the voice at any time…  901(b)(2) Nonexpert opinion  Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of litigation.

 Social media use in the US has increased by 356% since 2006  52% of Americans have at least 1 profile on social media  More than 1 billion people actively use Facebook each month  Twitter has over 140 million active users posting over 340 million tweets per day

 Facebook users share 684,478 pieces of content  Tumblr blog owners publish 27,778 new posts  YouTube users upload 48 hours of new video  Foursquare users perform 2,083 check-ins  Flickr users add 3,125 new photos  Instagram users share 3,600 new photos  THAT’S EACH MINUTE… NOT EVEN COUNTING PINTEREST OR SNAPCHAT!!

 4 th Amendment protects only against State action, not private citizens  4 th Amendment protects against only unreasonable searches and seizures  Person must have a reasonable expectation of privacy for 4 th Amendment protection  Subjective expectation of privacy  Expectation is one that society recognizes as reasonable

 Search warrant  Subpoena  Court order  Cooperating “friend”  Formal discovery  Deceptive friending  Witness- Arkansas Rules of Professional Conduct, Rule 4.1: Truthfulness in statements to others  Opposing party- Arkansas Rules of Professional Conduct, Rule 4.2: Communication with person represented by counsel

 RTR Read The Rules

 Rule 901. Requirement of authentication or identification  (a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. How can we prove it is what we say it is?

 901(b)(1)  Testimony of a witness with knowledge that a matter is what it is claimed to be.

 901(b)(4)  Appearance, contents, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

 Citation: 423 S.W.3d 569, 2012 Ark 368  Defendant appealed authentication of texts  Authentication is a condition precedent to admissibility  Condition precedent is satisfied by evidence sufficient to support claim it is what proponent claims- Rule 901(a)  Can use testimony of witness with knowledge- Rule 901(b)(1)  Can use appearance, contents, substance, or other distinctive characteristics- Rule 901(b)(4)

 Challenges to admissibility of evidence are left to the sound discretion of the trial judge.  Appellate Court will not reverse trial judge unless there has been an abuse of discretion.  Abuse of discretion is a high threshold that requires more than an error.  Abuse of discretion requires trial court to act improvidently, thoughtlessly, or without due consideration.  Appellate Court will also not reverse absent a showing of prejudice.

 Text was sent from a telephone number assigned to the defendant.  Text referred to someone by their nickname.  Nickname was corroborated by another witness.  Context of text was corroborated by other evidence.  Timing of text was consistent with other evidence.  Recipient of text testified that he had an ongoing text conversation with defendant on that phone number.

“This is this!”

 Private websites are not self-authenticating  Webmaster- person who created the website  Competent witness- person who typed in the URL of website and can say document is accurate  If opponent can raise a genuine issue of trustworthiness, Court will look at totality of the circumstances

 Lack of security is a concern  Who is the real author?  Participant in conversation under Rule 901(b)(1)  Computer search of purported author  Obtain information directly from the social network for link between creator and poster  Ask the opposing party for authentication

 Characteristics to consider:  Sequential consistency with another text sent by author  Awareness of details of the alleged author’s conduct  Inclusion of similar conversation by same author made by phone, or other media during same time period  Reference made by author using alleged author’s nickname

 Witness who received  No recipient: Rule 901(b)(4) can authenticate by appearance, content, substance, internal patterns, other distinctive characteristics  Circumstantial indicia:  Customary format  Consistent format with other s  Contains recipient’s name or nickname  Contains electronic signature  Subsequent discussion with sender about contents of

 Texts sent from victim to her husband  Texts sent from defendant to his wife  sent from defendant to victim  Facebook post by defendant  Phone message from victim to her husband

 Rule Requirement of the original  To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules... Rule 1001(3) Original  If data is stored on a computer or similar device, ANY printout or other output readable by sight, shown to reflect the data accurately, is the “original.”

 Rule 1003  A duplicate is admissible to the same extent as an original unless  (1) a genuine question is raised as to the authenticity or continuing effectiveness of the original or  (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original

 Rule 801(c)  “Hearsay” is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.  Critical Question: Is the statement being offered for the truth of the matter asserted, or is it being offered for some other relevant purpose, such as knowledge, notice, declarant’s state of mind, effect on the listener?  Must the content of the statement be believed in order for it to be relevant?

 Rule 801(d)  (1) Prior statement by a witness at trial or hearing subject to cross-examination  Inconsistent with testimony  Consistent with testimony offered to rebut charge of recent fabrication  Identification of a person made after perceiving him  (2) Admission by party opponent  His own statement  Manifested adoption or belief in its truth  Made by authorized agent  Made by co-conspirator in course and furtherance

 Rule 401  “Relevant evidence” means evidence having ANY tendency to make the existence of ANY fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.  REMEMBER: Relevant evidence does not have to convince the judge in the truth of the evidence; that is a decision that goes to the weight of the evidence.

 Rule 402  All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.  Judges have broad discretion in making these determinations, and are rarely reversed on appeal, and only for abuse of discretion.  Even if the judge is wrong, you must still show that it was not a harmless error.

 Rule 403  Although relevant, evidence may be excluded if its probative value is SUBSTANTIALLY outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.  If it’s not prejudicial to the other side, it’s not relevant.  Abuse of discretion and harmless error… again.

 Rule 502: Lawyer-client  Rule 503: Physician/Psychotherapist-patient  Rule 504: Husband-wife  Rule 505: Religious privilege  Rule 506: Political vote  Rule 507: Trade secrets  Rule 508: Secrets of State  Rule 509: Identity of informer  Rule 510: Waiver of privilege by voluntary disclosure