Digital Data Predicates & Pornography Cases

Digital Data Predicates & Pornography Cases

To: All Readers of Concern

From: The Desk of Jeffrey W. Wiggs, Esq.

Re: Digital Data in Today’s Courtrooms

Surrounding Child Pornography.

I have now practiced law for 38 years. Most of my time is focused on high profile, Capital and life felonies. An area, not for the weak and deserving of the utmost time; compassion; and understanding of law. When the digital age changed, I found myself in the computer age with a new crime of Possession of Child Pornography, in violation of Fla. Stat. 827.071(5). While crime had existed for years, the internet created a new pathway for its commission. In fact, the crime became amplified beyond measure. A Prosecutor, State Attorney; and the courts can't help but feel a glean of satisfaction when such individuals are prosecuted. A feeling the writer shares at times. I mean, its always good to be tough on crime, and the crime is offensive by nature. Such offensive cases are an easy try to a jury. The problem, however, is that the required steps are frequently missed, or ignored, thus creating clear avenues to an appeal. This is a challenge to deal with in handling such matters.

All evidence, no matter the type, has a predicate to its admissibility into evidence. Child Pornography is no different and the computer age has created its own difficulties. Specific predicates have to be followed. Let me digress. Law enforcement obtains a computer by way of a warrant. That tip generally originates from what is referred to as a cybertip. A warrant is issued, and data is found within digital devices. Naturally the inquiry is:

1.) Who downloaded or uploaded the data?

2.) Was it viewed, (and thus knowingly possessed).

3.) Where was it received and who was controlling the relevant computer.

4.) Did it naturally constitute child pornography or something close thereto?

5.) Who resided at the Internet Protocol address for where the data was received.

6.) How is the data verified as coming from what location?

7.) What circumstantial facts indicate sender/receiver identification?

These are but some of the issues which surround this nasty charge. So once these issues are addressed, how does the data come into evidence?

The Business Record Exception

Normally, the data can come in by way of an exception to the rules of evidence referred to as: “The Business Record Exception,” or Fla. Rule of Evidence, 90.806. What the rule allows is for either party to introduce evidence with proper proof that the record is from a particular business entity. That entity must properly verify the data, and only through a proper custodian of the records. A violation of this rule would be for a third-party corporation to authenticate another corporate record unaffiliated, or for a recent purchaser to verify old records without sufficient evidence of verification of the record keeping system and its accuracy, Channell, Jr. v Deutsche Bank National Trust Co., 173 So. 3d 1017 (2 DCA 2015). That certificate must identify precisely the records. A proper custodian must declare they are familiar with the record keeping system, Cadlerock, L.L.C. v Green, (2015). Likewise, it must be notified with a proper notary jurat. There is extensive law in this area. These cases and statutory provisions collectively establish that a custodian or qualified witness must have sufficient knowledge of the record-keeping system to authenticate business records properly under Florida law. These are two cases of a well-established rule.

Records Created in Anticipation of Litigation

Recently, I found myself in a trial wherein the State had generated before trial a purported “Business Record Certificate.” The State attempting to cut corners; the court declared It was not a business record as a matter of law pursuant to Yisrael v State 986 So. 2d 491 (Fla. 2008); State v Knotts. Today is a common scheme for the State. A warrant is issued; data is found; and only later its source or verification is attempted to be verified. The problem is the corporations are reluctant to verify; data gets destroyed or unaccounted; improper witnesses execute records; and data is not properly verified. Oftentimes, law enforcement combines records to wit: from a local phone or web server as to the i.p. address hoping that the source of the origin is not questioned. The certificate thereupon becomes a statement of data generated in anticipation of litigation and not truly a business record. The attorney cannot mis this step for there is only an ethical hope that your prosecutor is playing above board which is not always the case.

Circumstantial Evidentiary Approaches

It is not always the case that digital predicate is introduced through a Business Record Certificate, (while that is the cleanest approach), data can potentially come into evidence via a circumstantial evidentiary approach. It often is a combined approach. The introductory methods are expressed clearly within the case of Walker v Anderson, 301 So. 3d 299 (4 DCA 2020). To simply declare evidence is found, and the evidence is only within a defendant’s phone is not sufficient. Walker sets forth several approaches as follows:

Confirmatory Facts to Identify

(Method One)

One approach discussed by the court is a scenario wherein there might exist confirmatory facts as to identity. United States v. Siddiqui , 235 F. 3d 1318, 1322 (11th Cir. 2000). The court in Siddiqui found the following “multiple facts” as sufficient stating:

“Other factors can circumstantially authenticate the text. Id. See, e.g., United States v. Siddiqui , 235 F. 3d 1318, 1322 (11th Cir. 2000) (finding that a number of factors supported the authenticity of the email, that the address bore the defendant's address and when the witness replied to the email the "reply function" of the witness's email system automatically put the defendant's address as the sender.”

Those factors included a text statement with confirming facts. In Siddiqui, therein a young boy had been the victim of a sexual battery poolside. The defendant had previously apologized. The text contained a further apology and referenced the event poolside. It contained the defendant’s nickname within the text. Likewise, the reply contained his auto name and address printed therein. Such confirming facts were multiple in nature. One mere fact, however, did not establish reliability and identity.

The same decision, Walker further references the case of Pavlovich v. State , 6 N.E. 3d 969, 978-79 (Ind. Ct. App. 2014) as a multi fact case confirming the digital sender. This case appears to have involved an escort service. Communications were linked by use of a number 2662. The court admitted the data based on multiple confirming facts as follows:

a.) A witness who confirmed that the 2662 number was used to arrange a meeting with the defendant.

b.) That that the witness recognized the defendant's voice on the outgoing voicemail; and that the messages from the 2662 number indicated familiarity with the witness’ escort business, the prior meeting between the witness and defendant and their prior discussion.

c.) The prior meeting between the witness and defendant and their prior discussion.

d.) There was familiarity between the number, the business, and the voice.

In considering the introduction of digital data, the District Court gave caution citing Commonwealth v. Koch , 39 A. 3d 996, 1005 (Pa. Super. Ct. 2011). The court declared such evidence would not be appropriate without evidence of who sent the text messages, who received the messages, and without significant contextual clues. Walker, relied on this authority as part of its conclusion.

Time of Communication and Knowledge Limited But to Few.

(Method Two)

A second approach discussed by the court was a scenario wherein facts may only be known by one party and the timing of the data uniquely points to the defendant as the only logical suspect. State v. Love , 691 So. 2d 620, 621 (Fla. 5th DCA 1997). Here the co-defendant offered a letter to the State against the defendant Lynn. The trial court had excluded the letter due to questions of who had penned the writing. On appeal, the District Court declared there was sufficient evidence the defendant had sent the letter for use. While this may appear to have eased the burden, it had not. The District Court noted the presence of multiple factors, [“emphasis added”], which implicated the defendant, and authenticated the letter at issue. Such factors included:

“(a) A reference to a January 3 conversation that the defendant had with Monticeux;

(b) a discussion of the charges against the defendant and Monticeux;

(c) a claim that "Coop," the third defendant, had copped out;

(d) a warning not to speak with law enforcement;

(e) a description of the statements made by Monticeux implicating the defendant;

(f) a proposed plan for Monticeux to withdraw his original statement given to the police and for him and his girlfriend to falsely state that they did not know the defendant;

(g) a request that Monticeux tell his attorney, "You don't know me as Vic Love--make something up;"

(h) an accusation that "Coop," the third co-defendant, is a liar;

(i) a request that Monticeux cooperate, saying, "Just put yourself in my shoes;"

(j) a request to "make a bad situation better," stating, "I need for you to write me back to confirm my letter to protect all people involved. As you well know, I'm the realest of the real and I'll never betray you. All I want is a fair chance;"

(k) a description of the evidence against the co-defendants; and

(l ) a reference to Monticeux's 17-year-old girlfriend, "Juvi." Love at 622.

It was not the mere presence of one or even two circumstances, [“emphasis added”], but the vast multitude of circumstances that uniquely pointed to the defendant and only the defendant. The court further noting the time was uniquely when both were incarcerated together as an additional factor.

Confirming Facts and Limited Participants

(Method Three)

As part of the vast array of circumstances that uniquely pointed to the defendant. The court further relied upon ITT Real Estate Equities v Chandler Agency, Inc.

617 So. 2d 750 (4 DCA 1993). What was significant was that “all” of the limited participants that could have been accounted for as participants had been so accounted for, thus only pointing to the defendant. The court citing the following case stating:

“ITT Real Estate Equities v. Chandler Ins. Agency, Inc ., 617 So. 2d 750, 751 (Fla. 4th DCA 1993) ). In Love , the letter "contained specific details concerning the crime, the relationship between the co-defendants, incriminating evidence, and a proposed plan to fabricate testimony. This information was likely known only by the three co-defendants." Id. The court cited other details in the letter and concluded that the trial court erred by excluding the letter because there was prima facie evidence that the defendant or someone acting as his scribe wrote the letter.”

In the case of Symonette v State, 100 So. 3d at 183. The texts were recovered from the defendant. Likewise, the drafter stated he had typed them as he was sitting next to the defendant. The texts were properly authenticated where the defendant still held the texts in his cell phone; were secured by lawful warrant; and the drafter identified them as his sent to the defendant. The court here should note; the drafter was known; the documents were in possession of the defendant; and their purpose understood clearly. This case does not fall within the same ambit for this form of predicate. No computer was located; the documents were never identified in the custody of John Knott, and the intended sender and recipient remain entirely unknown.

Authentication by Observations of Traits

(Method Four)

The District Court further reviewed the situation by an analysis of cases wherein authentication was verified by “particular traits”. The court stating:

"[E]vidence may be authenticated by examination of its appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." Id . (citing Coday v. State , 946 So. 2d 988, 1000 (Fla. 2006)

The court declared in such an analysis that the court must ask, what is so unique about the writing? Is it the signature? The content is only known by another. Are there events that uniquely tie it to one individual, and if so, what are the cumulative reliable factors that may only suggest the suspect?

In analyzing this approach, the District Court cited, Gosciminski v. State , 132 So. 3d 678 (Fla. 2013). The District Court relying on such case stated:

” . . .the Supreme court addressed a question of authentication of a receipt. In that case, the trial court found a Walgreens receipt admissible based on “distinctive characteristics.” The court concluded there existed a multitude of unique characteristics. The Supreme Court stating:

1.) "[E]vidence may be authenticated by examination of its appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances." Id . (citing Coday v. State , 946 So. 2d 988, 1000 (Fla. 2006) ).”

The District Court referenced establishing authenticity by manner of distinctive characteristics. Gosciminski v. State , 132 So. 3d 678 (Fla. 2013). In Gosciminski however there was an endless array of circumstances linking the defendant to the murder. Such factors included in part the following factors:

a.) The victim was his boss-woman who he had been with hours prior to her death.

b.) The defendant had helped her move the day prior to murder.

c.) He held her ring and other jewelry and had who displayed them to others.

d.) There existed numerous cell tower pings following his travel. Cell tower receipts or pings used for time travel tracking.

e.) The defendant was in possession of a Walgreens receipt. The court found it’s logo, paper, and characteristics branded and identifiably unique and conformed to his ping records and travel time testimony.

f.) These additional factors supported the entry of the Walgreens receipt.

In Walker, the court noted a clear distinction of facts and absent factors. There the court noted that no sufficient facts existed to link up the evidence wherein the court stated:

“ In this case, there was no direct evidence that the messages were sent by appellant. No one saw or heard the appellant send the messages. The messages appear to be from different phone numbers, and none of the origination numbers match the phone number of appellant, according to her phone bill placed into evidence. The trial court did not analyze the content of the messages but simply found no other explanation as to who sent them. This is insufficient, particularly after our review of the messages themselves.”

. . .

Outside of a few references in the messages to the name of appellant's boyfriend, the nephew of the appellee, and a reference to "aunty" there are no clues as to who sent the messages or what they are about.” Walker at 303.

Conclusion

I have supplied the reader or counsel with several legal principles surrounding the introduction and verification of digital data. It deals with Business Record Certification; proper verification; proper witnesses; multi source approaches; and many circumstantial data approaches. A few of my cases are currently on appeal to the higher courts, and we await their judgment on how they interpret the legal authority I have supplied above. As an attorney, it is imperative to develop these arguments. Due to the offensive nature of pornography cases, your only hope may be that of an appeal.

Should you be seeking counsel or desire a consultation with an existing counsel, feel free to reach out to my office. I can be retained to review and advise or handle your case matter. The above authority is for reference material and discussion of the topic. All laws and authority must be updated daily and related to region and any conflicting authority in your state.

Sincerely,

/s/Jeffrey W. Wiggs, Esq.

307 N. Barrow Ave.

Tavares, Fl. 32778

#0766186

Ph: (352)253-0100

jwiggslaw@yahoo.com

Copyright: Jeffrey Wiggs. ©