March 10, 2015 Practice Points

Inadmissible Social-Media Evidence Vacates Conviction

The Second Circuit vacated a conviction due to insufficient authentication of social-media evidence.

By David Dobin

The Second Circuit recently vacated a defendant’s conviction because the trial court improperly allowed evidence that the prosecution purported to be the defendant’s social-media page. In United States v. Vayner, the defendant, Aliaksandr Zhyltsou, was charged with “the unlawful transfer of a false identification document, in violation of 18 U.S.C. § 1028(a)(2) and (b)(1)(A)(ii)” for sending an email transmitting a forged birth certificate to a third party, who also testified “pursuant to a cooperation agreement and who had earlier pled guilty to conspiracy to commit wire fraud, aggravated identity theft, and impersonating a diplomat.” 769 F.3d 125 (2d Cir. 2014).

The sole evidence linking the defendant to the email at issue was the testimony of the cooperating witness. However, the prosecutor also introduced through a special agent from the State Department's Diplomatic Security Service a document purporting to be a printout from the “the Russian equivalent of Facebook.” The printout contained the defendant’s photograph and certain “contact information” containing information such as the defendant’s Skype username and previous employment history, which corroborated the cooperating witness’s testimony. The judge overruled the defendant’s objection that the web page printout “had not been properly authenticated and was thus inadmissible under Federal Rule of Evidence 901.”

On appeal, the Second Circuit vacated the conviction, holding that the trial court abused its discretion by allowing the unauthenticated web printout to be admitted, and that the erroneous admission of evidence did not constitute harmless error. The court concluded that there was insufficient evidence that the printout belonged to and was authored by the defendant, as claimed by the prosecution, reasoning as follows:

Rule 901 requires “evidence sufficient to support a finding that the item is what the proponent claims it is.” It is uncontroverted that information about Zhyltsou appeared on the VK page: his name, photograph, and some details about his life consistent with Timku’s testimony about him. But 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. Otherwise, how could the statements in the flyer be attributed to him? . . . And contrary to the government's argument, the mere fact that a page with Zhyltsou’s name and photograph happened to exist on the Internet at the time of Special Agent Cline's testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.

It is true that the contents or “distinctive characteristics” of a document can sometimes alone provide circumstantial evidence sufficient for authentication. Fed. R. Evid. 901(b)(4). For example, a writing may be authenticated by evidence “that the contents of the writing were not a matter of common knowledge.” Maldonado–Rivera, 922 F.2d at 957 (brackets and internal quotation marks omitted). Here, however, all the information contained on the VK page allegedly tying the page to Zhyltsou was also known by Timku and likely others, some of whom may have had reasons to create a profile page falsely attributed to the defendant. Other than the page itself, moreover, no evidence in the record suggested that Zhyltsou even had a VK profile page, much less that the page in question was that page. Nor was there any evidence that identity verification is necessary to create such a page with VK, which might also have helped render more than speculative the conclusion that the page in question belonged to Zhyltsou.

Id. at 132–33. The court further explained that:

[g]iven the purpose for which the web page in this case was introduced, however—to corroborate Timku’s testimony that it was Zhyltsou who used the moniker ‘azmadeuz’ for the Gmail address from which the forged birth certificate was sent—Rule 901 required that there be some basis beyond Timku’s own testimony on which a reasonable juror could conclude that the page in question was not just any Internet page, but in fact Zhyltsou’s profile.

Id. at 133.

This case serves as a useful reminder of the need to authenticate evidence printed from the Internet.

Keywords: litigation, young lawyers, social media, electronic evidence, authentication, Federal Rule of Evidence 901, e-discovery

— David Dobin, Cohen and Wolf, P.C., Bridgeport, CT


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