The 11th Circuit Court of Appeals upheld a trial court decision to admit into evidence chat room messages based upon testimony of a minor that the message print outs were accurate and were subsequently given to the sheriff’s investigator. United States v. Lebowitz, Case No. 10-13349 (11th Cir. Ap. 5, 2012)(available here).
A jury convicted Defendant Lebowitz of producing child pornography in violation of 18 U.S.C. § 2251(a) and (e), and of attempting to entice a child to engage in unlawful sexual activity. During an online exchange of information, Lebowitz provided the minor K.S. with his contact information, and the two engaged in online chats and exchanged emails. K.S. told Lebowitz he was 15 years old. K.S.’ parents discovered the online messaging and the sheriffs department became involved. Sheriff Investigator Suber testified that K.S. printed the chats and delivered them to her. In his trial testimony, K.S. confirmed Investigator Suber’s account.
Lebowitz argued that the district court abused its discretion by admitting into evidence printouts of internet chat conversations between K.S. and Lebowitz. The appellate court rejected this argument and affirmed the trial court’s decision.
Lebowitz argued that the trial court violated the authentication requirement in Federal Rule of Evidence 901. “To authenticate a document, Rule 901 only requires a proponent to present ‘sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be.’ United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010) (quotation omitted). After meeting the prima facie burden, the evidence may be admitted, and the ultimate question of authenticity is then decided by the jury. Id. ‘A district court has discretion to determine authenticity, and that determination should not be disturbed on appeal absent a showing that there is no competent evidence in the record to support it.’ United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). ‘Evidence may be authenticated through the testimony of a witness with knowledge.’ Lanzon, 639 F.3d at 1301 (citing Fed. R. Evid. 901(b)(1).” U.S. v. Lebowitz, Slip Opn. p. 10.
As a practice pointer, anyone who witnesses the capture of documents from computer systems, like chat rooms and websites, can authenticate the resulting printout. The burden then shifts to the opponent to contest the document.