Florida 4th DCA Rules Facebook Live Video Properly Authenticated and Admissible in Criminal Case – 2017 Federal Rules Make it Easier to Present Self-Authenticating ESI

On May 2, 2018, the Fourth District Court of Appeals (Fourth DCA) published its opinion in Lamb v. State of Florida, No. 4D17-545, Case No. 502016CF004626A. The Fourth DCA upheld the trial court’s ruling that the Facebook Live video presented in this Palm Beach County criminal case was properly authenticated and admissible to the jury. (The link to the Fourth DCA’s opinion can be found below.)

There are many juicy bits to this opinion which relate to electronic discovery (#ediscovery) and the use of social media in litigation. The fairly new 2017 Federal Rules of Evidence on self-authenticating evidence provide guidance on this authentication issue and could have been persuasive authority (even though not binding) for the trial court to consider.

Upon the Defense’s first objection, the court initially agreed that there was an authentication problem in the manner in which the prosecutor attempted to authenticate the Facebook Live video.

 

The Fourth DCA’s opinion arose out of criminal charges of grand theft of a vehicle and grand theft of other personal items. Defendant Lamb was accused of participating in the theft of two vehicles. During the trial, the prosecution presented a Facebook Live video of the alleged grand theft. The first victim identified his vehicle in the video, which was driven by Lamb. The victim also identified his watch in the video, which was worn by the defendant.

The defense objected to the authentication of the Facebook Live video as presented, which the court initially sustained. The prosecutor then presented the police department’s digital forensic examiner, who testified to his credentials, experience, and how he identified the Facebook Live video related to the case.

Citing case law in similar criminal cases, the court found that the legal basis for authentication of online evidence is required but the authentication for the purpose of admissibility has a low threshold. Based on the testimony from the digital forensic examiner, the Fourth DCA ruled that the state met the relatively low threshold required to authenticate the Facebook Live video.

In civil litigation, the court has a similar, but easier, standard. The Federal Rules of Evidence, which are persuasive in Florida with regards to electronic discovery and digital evidence, enacted new Rules in December 2017 regarding self-authenticating digital evidence. FRE 902 (13) and (14) all provide parameters in which practitioners can easily present electronically stored information (ESI) as self-authenticating. Kevin Brady teamed up with U.S. District Court Judge Paul Grimm, the leading judicial expert in the field to create the Grimm/Brady Evidence Admissibility Chart. Download and view the detailed chart here, courtesy of Ralph Losey’s recent article on the topic. The Rules state:

Rule 902. Evidence That Is Self-Authenticating

(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).

Under the FRE Rules 902(13) and (14), the Facebook videos would easily be self-authenticating based on a written certification and without the need for live testimony. Self-authentication of the Facebook Live video requires a written certification presented by a qualified witness of what the Facebook Live video was, based on the information available, and how Facebook Live works. Upon such a showing, the court would be allowed to rule that the evidence is self-authenticating. The “Committee Notes on Rules—2017 Amendment” on the new 2017 Rules also clarify why and how the new Rules work to streamline the presentation of ESI as self-authenticating, leaving only the need for the courts to determine the ESI’s admissibility (on issues such as relevancy/prejudice).

As reflected in the Committee Notes, it is the hope of the court that parties and their counsel will utilize this effective tool to efficiently and cost-effectively present ESI in cases. The use of Rules 902(13) and (14) eliminates the need for costly experts and unnecessary time used to present testimony in order to authenticate ESI.