Tag Archives: EVIDENCE

SNAPCHAT AS EVIDENCE: THE SMOKING GUN OFTEN OVERLOOKED

snapchat

Greetings to all my cold Minnesota friends (cold hands but warm hearts). I’m writing this post from my winter home in Scottsdale, AZ where it’s currently a balmy 66 degrees. (sorry I couldn’t resist). Since writing my last update two months ago, I had tentatively decided to stop blogging and focus my attention on other endeavors. But something changed my mind.

The blog website recently crossed a historic threshold, 100,000 visits! When I started this online training service 3 years ago I never imagined it would ever reach the 100,000th mark. Use of the Resource Library hyperlinks have actually increased over the past year and new followers continue to subscribe to the blog site weekly. In addition to the search feature for all past training updates, the most popular website feature is the Judicial Resource Library with its numerous hyperlinks to various research and reference sites.  

I decided that as long as there is continued use and interest in the blog site I will continue to post. So for this week’s post I return to my 2nd most favorite legal topic: Evidence. 

Several years ago I wrote one of my most popular training updates and cover article for Bench & Bar magazine titled: “Admissibility of Electronic Evidence”. In that article I stated:

Due to the enormous growth in electronic correspondence, electronic writings (also known as e-evidence) have evolved into a fundamental pillar of communication in today’s society. Electronic communications have revolutionized how the world does business, learns about and shares news, and instantly engages with friends and family. Ninety one percent of today’s online adults use some form of electronic communication regularly in their everyday lives.Not surprisingly, various forms of electronic evidence (i.e., e-evidence) are increasingly being used in both civil and criminal litigation.

During trials, judges are often asked to rule on the admissibility of electronic evidence. How the court rules on questions of admissibility could substantially impact the outcome of a civil lawsuit or determine the difference between conviction or acquittal of a defendant. This unique form of evidence typically falls into one of five distinct categories: 1) Website Data; 2) Social Network Communications and Postings; 3) Email; 4) Text Messages; 5) Computer Stored/Generated Documents.

All of  that is still true, but now there are many more social media platforms to consider. For example, Snapchat in particular has become a fertile source of evidence not to be overlooked.

Snapchat is a photo and video messaging app that’s different from other apps in that all photo and video messages on Snapchat (referred to as “snaps”) last for only a short amount of time and then disappear (but contrary to popular belief not permanently).

In his recent post on Technologist, Casey Sullivan explained that because “much of a Snapchat user’s life is captured and transferred through the app, it has become an important source of evidence.”

For example, in July 2016 a man and a woman in Massachusetts were convicted of sexual assault of a 16-year-old after they recorded the attack on Snapchat. Jurors were shown screenshots from the Snapchat video during the trial.

Snapchat’s speed filter, which lets users show how fast they’re going while taking a photo, was used as evidence in a Georgia case involving a high-speed car crash. Plaintiffs sued both the driver and Snapchat, arguing that the speed filter encourages reckless driving and can cause crashes. Snapchat’s speed filter also may have played a role in a car crash that killed three young women.

And in an extremely macabre instance, a teenager from Jeanette, Pennsylvania posted a Snapchat selfie with a murder victim. That Snapchat photo became key evidence against him in his murder trial. Investigators told the Pittsburgh Tribune Review that the picture, screencapped by a recipient and shown to authorities, led to a search of defendant’s home, where police found the murder weapon in the defendants bedroom, a 9mm handgun. The  16-year-old defendant confessed to the murder.

It’s easy to imagine a myriad of cases in which Snapchat can be used as evidence. As Casey Sullivan put it, “[p]ersonal injury lawyers, divorce attorneys, criminal defense attorneys, and more could all benefit from evidence found through Snapchat.”

And the ephemeral nature of pictures on Snapchat isn’t necessarily a problem. Sullivan explains that some Snapchat evidence is retained when users take screenshots of snaps and “Snapchat itself keeps logs of previous snaps.” But even deleted snaps don’t necessarily disappear; digital forensics experts can still pull them from the phone.

Now that you know to look at Snapchat for evidence, what about getting that evidence admitted at trial? For a refresher on how to get social media evidence admitted, including the key hurdle of authentication, read my October 14, 2013 Bench & Bar article on “Admissibility of Electronic Evidence – Focus on Authenticity” or my 2013 training update on Electronic Evidence (13.11). 

Try to stay warm.

Alan F. Pendleton (Former District Court Judge)                                                                             New Email: afpendleton@gmail.com

Source: CEBblog, SnapChat as Evidence, Julie Brook, October 12, 2016, State Bar of California.

WHAT EVERY JUDGE & ATTORNEY NEEDS TO KNOW ABOUT HANDLING EVIDENCE DURING TRIAL – 10 BASIC RULES

BUT FIRST A NOTE ABOUT THE “JUDICIAL RESOURCE LIBRARY”: If you are getting this blog post via email please note that clicking on the above title (should be blue in the email) will take you to the blog website containing all past training updates and the “Judicial Resource Library”. The Judicial Resource Library is designed to be a simple one-click research site for judges and attorneys with hyperlinks to numerous legal research and reference sites, including but not limited to:

  1. State and Federal Legal Search Engines;
  2. Minnesota State Statutes;
  3. Rules of Criminal, Civil, Family & Juvenile Procedure;
  4. Rules of Evidence;
  5. General Rules of Practice (including all 10 titles);
  6. Minnesota Sentencing Guidelines;
  7. Attorney and Judicial Rules of Ethics;
  8. Payable List for Misdemeanor Offenses;
  9. The full text of the Minnesota and US Constitution;
  10. And, of course, all past Judicial Training Updates;
  11. Click on “Judicial Resource Library” to see if this site can help you. 

FOR ATTORNEYS: If it’s your first trial or it’s been a while since you’ve tried a case, here’s a handy list of 10 steps to take when introducing your evidence at trial.

FOR JUDGES: The procedure for introducing evidence during trial is one of many topics that the presiding judge should discuss with both attorneys during the pretrial management conference. 

STEP 1: Mark your exhibit for identification. The first step in offering an exhibit into evidence is to have it marked for purposes of identification. Once an exhibit is marked, it becomes part of the clerk’s record and can be designated as part of the record on appeal. When you should mark your exhibits varies from court to court? Traditionally the court clerk marked an exhibit when a witness was first to be asked about it. You’ve seen this on old TV shows: while the witness is on the stand, the attorney asks the clerk to mark the item “for purposes of identification,” and then everyone waits while the clerk places an identifying mark on the exhibit and logs it in the clerk’s record. This slow and dull process has led many judges to now require that exhibits be premarked, i.e., marked before trial begins or when court is not in session and before counsel begins questioning the witness. This issue should be addressed during the pretrial conference.

STEP 2: Show your exhibit to opposing counsel. Show the exhibit to opposing counsel when you ask that it be marked for identification. If the exhibit was premarked, show it to opposing counsel before you show it to the witness. This issue should be addressed during the pretrial conference.

STEP 3: Show your exhibit to the judge. If an exhibit was copied, hand the clerk both the original exhibit to be marked and a copy of the exhibit for the judge’s personal use. The process for providing a copy of the exhibit to the judge may differ depending on whether your trial is civil, criminal or family, etc. Many judges have personal preferences and different expectations when it comes to this issue.  You need to know what those are. 

STEP 4: Develop a factual basis for admitting your exhibit into evidence. In order to avoid the proverbial “Objection – lack of foundation”, use methods developed during pretrial preparation to establish the required factual basis supporting admission of the exhibit, e.g. ask the witness questions you’ve prepared for this purpose, ask the court to take judicial notice, rely on prior stipulations or perhaps requests for admissions if they provide the factual basis. Any anticipated admissibility problems should be discussed during the pretrial conference.

STEP 5: Offer your exhibit into evidence. Offer the exhibit into evidence immediately after laying the foundation for introducing it into evidence. It is not unusual for an attorney, after laying proper foundation, to forget to actually offer the exhibit into evidence. “Objection, counsel is asking questions about an item that is NOT in evidence.” It is usually a problem easily fixed but you may look inexperienced in the process. Any anticipated admissibility problems should be discussed during the pretrial conference.

STEP 6: Anticipate and prepare for objections to admitting your evidence. Use an “evidence memo” or other pretrial preparation to show the court that the opposing party’s objection or claim of privilege is without merit. Anticipating objections or other admissibility problems and addressing them during the pretrial conference is critical to effective trial management.

STEP 7: Make an offer of proof. An offer of proof must be made to challenge on appeal a trial court’s exclusion of evidence. Minn. R. Evid. 103(a)(2). The only exception to this rule is if the substance of the excluded evidence is apparent from the context within which the question was asked. An offer of proof is a disclosure, made outside the hearing of the jury, of the substance, purpose, and relevance of evidence the offering party seeks to introduce. The legal reasons to make an offer of proof are threefold:

  • To persuade the judge before a ruling is made to admit the evidence;
  • To persuade the judge after a ruling is made to reconsider the ruling; and
  • To create a record for appeal that the judge was specifically aware of the nature of the evidence being excluded.

I encourage you to read Training Update 15-02 titled: Evidentiary Rulings – Preserving the Record – 5 Rules every Judge (and Attorney) Must Know. 

STEP 8: Obtain a definitive ruling on admissibility. It is not enough to object to evidence or to make an offer of proof. The court MUST make a definitive ruling and the parties have an absolute right to insist on a ruling. It is the responsibility of the party objecting to the evidence to make sure the judge actually rules on the objection. The party making an objection should also be sure that the court reporter is present when the ruling is made or, if not present, that the matter is placed on the record at a later point when the reporter is present. See Training Update 15-02. Failing to make a definitive ruling is usually a sign of judicial inexperience. 

STEP 9: Disclose to the jury the substance of the admitted exhibit. Tell the jurors (thru testimony) about the exhibit admitted in evidence to make them aware of the exhibit’s meaning and importance. I have seen many occasions where following the receipt of an exhibit into evidence there was little or no follow up testimony regarding the exhibit leaving the jurors noticeably dissatisfied.

STEP 10: Verify the recorded admission of exhibits into evidence. Make certain that all proffered exhibits have been formally and unconditionally received into evidence and the clerk’s record reflects their receipt. Verify this by reviewing your exhibit log to ascertain whether the court has admitted all exhibits, comparing your exhibit log with the court clerk’s formal record. You can then re-offer any exhibit for which there is any question (and obtain a definitive ruling).

Note: Always double check to make sure that only properly admitted exhibits are taken back to the jury room for deliberations. I once ordered a mistrial following a verdict of guilty because a copy of the defendants criminal history printout somehow got mixed in with exhibits that went back to the jury room.

TOPIC FOR NEXT WEEKS TRAINING UPDATE – I will answer the following question:

QUESTION: In a jury trial how can you tell if your presiding judge is either inexperienced, incompetent or simply lazy? 

Keep fighting for what you know is right.

Alan F. Pendleton (Former District Court Judge)

alan.pendleton@mnlegalupdates.com

Evidentiary Rulings – Preserving the Record: 5 Rules Every Judge (and attorney) Must Know (15-02)

Lack_EvidenceUpdate Focus:  You are upset at your judge’s evidentiary ruling(s). You are convinced the courts legal analysis is seriously flawed and you believe you could win on appeal. Preserving the court record is one of the fundamental duties of all judges and attorneys. However, winning an appeal by arguing evidentiary error is exceedingly hard to do. This Update will focus on the 5 most important rules that attorneys and judges must follow in order to preserve an evidentiary ruling for appeal.

CLICK ON THE LINK BELOW TO READ MORE:

PendletonUpdate15-02

 

 

Admissibility of Defendants Prior Bad Acts Including Relationship Evidence (12-06)

QUESTION: To be Admissible, Evidence of Prior Bad Acts of Defendant, including Defendant’s Relationship with the Victim, Must Fit within 1 of 4 Exceptions to the General Rule Prohibiting Evidence of Bad Character.

CLICK ON LINK BELOW TO READ MORE

Pendleton12.06-Admissibility_of_Defendants_Prior_Bad_Acts

Spriegl Evidence – 5 Step Process (12-04)

QUESTION: STATE FILES A MOTION-IN-LIMINE SEEKING ADMISSION OF SPREIGL EVIDENCE. WHAT 5 STEP PROCESS MUST THE COURT FOLLOW IN REACHING A DECISION?

CLICK ON LINK BELOW TO READ MORE

Pendleton12.04-Spriegl_Evidence-5_Step_Process_Amended