We decided to post this in light of a recent case which showed the complexities of image authentication and in general how to work properly according to requirements of US courts.
Without getting too political, folks in the US are used to getting citable case law from the coasts while the heartland and the South skate by relatively unnoticed. Brady v Maryland, Melendez-Diaz v Massachusetts, Beckley v California illustrate this point. A recent case from Louisiana changed that trend. Last month, the Louisiana appellate court, 4th Circuit, issued a written opinion in a criminal case disallowing key piece of social media evidence due to a lack of authenticity. (State of Louisiana v. Demontre Smith, La. Court of Appeals, April 20, 2016)
From the ruling: “Authentication of evidence is required in order for evidence to be admissible at trial. La. C.E. art. 901 states that “authentication” is a “condition precedent to admissibility” that is “satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” La. C.E. art. 901(B) provides an illustrative, though not exhaustive, list of examples of authentication or identification that conforms with the requirements of the article. Generally, the standard applied by state and federal courts alike, with respect to the authentication of a document is whether there is sufficient evidence from which a reasonable juror could find the proposed evidence is what the proponent claims it to be. State v. Lee, 01-2082, p. 9 (La. App. 4 Cir. 8/21/02), 826 So. 2d 616, 624 (“[I]t is a fundamental law of evidence that an article or substance which is introduced as demonstrative evidence, or to which a witness is asked to testify, must be sufficiently identified as the one involved in the occurrence in question.” (quoting State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045)); U.S. v. 6 Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007); Sublet v. State, 113 A.3d 695 (Md. 2015).”
“In 2011, the Maryland Supreme Court addressed the admissibility of a screenshot of a MySpace page and the authentication of screenshots of messages allegedly sent over social media. Griffin v. State, 19 A.3d 415, 423-24 (Md. 2011). The Griffin court found that merely identifying the date of birth and a face in a photograph on a social media website that purports to reflect the creator and author of the post is insufficient. The Griffin court held that because electronically-stored information is easily susceptible to abuse and manipulation it required “greater scrutiny of ‘the foundational requirements’ than letters or other paper records, to bolster reliability.” Id. at 423.”
The ruling then details a few more cases where authentication of various types of communication with the social media space has either gone right or wrong.
It’s important to note here that Louisiana’s Code of Evidence mostly mirrors the Federal Rules of Evidence. Louisiana C.E. 901 deals with the authentication of evidence. In this case, screen captures of social media posts were used to corroborate the victim’s statements. So you can see almost immediately how authenticating these screen captures would be important.
Again, from the ruling, “In fact, at the contradictory hearing on Mr. Smith‘s motion to exclude, the State presented no evidence at all to authenticate the purported social media posts it seeks to introduce. Instead, it alleges that it intends to authenticate the social media posts at trial. As the proponent of the evidence, the initial burden rests with the State. State v. Charles, 617 So.2d 895, 896 (La.1993). Thus, because Mr. Smith‘s motion to exclude sufficiently alleged an absence of evidence to support the authenticity of the social media posts, it was incumbent on the State to present at the contradictory hearing such evidence that a reasonable juror may conclude that the evidence is what it purports to be.”
In the ruling, the court ordered, “… we remand the matter to the trial court for an evidentiary hearing – outside the presence of the jury – in order for the State to present evidence pursuant to La. C.E. art. 901 to demonstrate the authenticity of the social media posts and for the trial court to rule on their admissibility at trial.”
OK. Great. How can that be done? Our customers already know where I’m going with this. Amped Authenticate (Axon Detect) is the perfect tool for this inquiry. (Our Axon Detect users have asked about this scenario so often that we’ve created this use case document around this scenario.)
Let’s assume first that the police agency in question used no e-discovery type tools to catalog the social media posts and pictures, hashing the files, noting their locations, tracking the IP addresses of the senders, attempting to identify both the senders and their locations, etc. Let’s assume that all we have are the screen captures of the posts. Can these be trusted? As with all inquiries of this type, it depends. It depends on the question.
Since the police agency likely has no paper trail as regards the social media, and all we have are the screen captures and officer statements, we can test various scenarios with Authenticate (Detect).
Has the investigator performed any cut/paste/delete activities on the digital image? Has the image been cropped/rotated/resized? Do the image’s properties match that of a test screen capture from his/her workstation (ballistics)? With over 20 filters that test a wide variety of scenarios, Authenticate (Detect) is the perfect tool for this job.
But not only is it the perfect tool for this job, it’s also the perfect tool for any Prosecutor’s office. With it, you can perform a whole suite of tests on every image offered as evidence in a trial (batch processing). Why risk a situation like the one described above, especially when the solution is simple and cost effective? With an easy to understand interfaced backed by a toolbox full of scientifically valid tests, Authenticate (Detect) is second to none when it comes to authenticating digital images.
