United States of America v. Zhyltsou, No. 13-803-cr (2d Cir. Oct. 3, 2014)
In United States of America v. Zhyltsou, the court addressed the issue of electronic evidences authentication.
The Court of Appeals vacated the judgment of the district court that admitted evidence from a social media page without sufficient proof of its authenticity. According to the appeal judgment: “the district court erred in permitting the introduction of a Russian social media page that the government told the jury was created by Zhyltsou [Defendant], without satisfying the authentication requirement of Rule 901 of the Federal Rules of Evidence”.
Defendant‐Appellant Aliaksandr Zhyltsou’s was criminally convicted on a single charge of transfer of a false identification document (forged birth certificate).
The government introduced as evidence to prove the forgery a copy of an e‐mail, with the counterfeited birth certificate attached. The e-mail reflected sender and recipient’s addresses but it did not prove any connection between Zhyltsou and the sender e-mail address.
The government presented an expert testimony to prove where the e‐mail originated, but no evidence as to what computer it was sent from, or what IP addresses were linked to it. In an effort to further prove the connection between Defendant and the e-mail account used to send the forged certificate, the government introduced a printout of a web page claimed to be Zhyltsou’s profile on VK.com. VK.com was described as “the Russian equivalent of Facebook.” The online identity was used to connect Defendant to the e-mail address used to send the false document.
Zhyltsou objected, contending that the page had not been properly authenticated and was thus inadmissible under Federal Rule of Evidence 901.2. The district court overruled the defense objection, concluding that the VK page was [Zhyltsou’s] Facebook page and found him guilty.
The Second Circuit Court of Appeals reversed the conviction and ordered a new trial. According to the Court, the government did not authenticate the produced evidence according to Rule 901 of the Federal Rules Evidence, which provides that the proponent of an item of evidence “must produce evidence sufficient to support a finding that the item is what the proponent claims it is”. “This requirement is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.”
Based on these principles, the Court of Appeal concluded that the district court abused its discretion in admitting the print out of a social media profile page, without producing proper authentication: “there was no evidence that Zhyltsou himself had created the page or was responsible for its contents. Had the government sought to introduce, for instance, a flyer found on the street that contained Zhyltsou’s Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from Zhyltsou”. Likewise, “the mere fact that a page with Zhyltsou’s name and photograph happened to exist on the Internet (…) does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” Therefore, the Appeal Court held that “the government did not provide a sufficient basis on which to conclude that the proffered printout was what the government claimed it to be – Zhyltsou’s profile page – and there was thus insufficient evidence to authenticate the VK page and to permit its consideration by the jury”.
Authorities: Federal Rules of Evidence 901.2
The decision of the Second Circuit Court of Appeals is available at http://www.ca2.uscourts…
Decided on October 3, 2014.