The Jacques Affidavit
Write a memo to the prosecutor handling the case briefly describing the pieces of Electronically Stored Information (ESI)/ digital evidence referred to in the Problem (“Jacques Affidavit”) that tend to prove Jacques’sguilt. Select what you consider to be the three most important pieces of Digital Evidence/ ESI and explain how this evidence could be admitted at trial (i.e. identify the relevant rule(s) and the witnesses who will have to be called to admit this evidence a trial.
There are generally five basic issues that you will have to deal with in demonstrating the digital evidence you select is admissible:
1 Was it legally obtained? (e.g. search warrant? consent? 2703 (d) order
2. Was the evidence you selected “relevant” under FRE 401?
3. What witness(es) are you going to rely on to admit the evidence? (e.g. CF expert) remember that since this is a criminal case (kidnapping) you will not be able to call the defendant “as a person with knowledge” to authenticate. He has a 5th Amendment right to refuse to testify.
4. How are you going to “authenticate” each piece of digital evidence under FRE 901?
5. Even if you are able to “authenticate” the digital evidence you have selected, is it, nonetheless inadmissible because it is hearsay? You will have to consider the definition of “hearsay” under FRE 801 as well as the “exceptions.” (see e.g. FRE 803) remember to consider the Week 7 Lecture entitled “Admissibility” on the admitting digital evidence.One further note:
It would not be Jacques’s laptop, itself. Although Jacques’s laptop contains digital evidence, the laptop is not “digital evidence/ESI.”
So, for instance, one of the three specific pieces of digital evidence you might choose could be:Was this email legally obtained? (e.g. search warrant? consent? 2703 (d) order Was this email “relevant” under FRE 401? If so, why”
What witness(es) are you going to rely on to admit this email into evidence so that the jury can consider it? (e.g. CF expert) remember that since this is a criminal case (kidnapping) you will not be able to call the defendant “as a person with knowledge” to authenticate. He has a 5th Amendment right to refuse to testify.
How are you going to “authenticate” this email under FRE 901?
Even if you are able to “authenticate” this email, is it, nonetheless inadmissible because it is hearsay?
Once you have answered the questions with respect to that first specific piece of digital evidence, you should go on to select a second specific email or record, and answer the five questions with respect to that piece of digital evidence and then go on to the third specific piece of digital evidence.
A member of the class has asked if you should cite to specific rules in your memo to the prosecutor. The answer is “yes.” (The Rules of Evidence are discussed in detail in the Week 6 Lecture on Admissibility.)
You should assume that the investigators in the Jacques case are familiar with, and will follow, the Federal Rules of Evidence (FRE), the Federal Rules of Criminal Procedure (FR Cr P) and the Electronic Communications Privacy Act (ECPA), including the Stored Communications Act (SCA).
If you rely on any of these rules, you should cite to them. So, for instance, if you say the statement in an email of a person who will be charged with kidnapping is not hearsay because it is an “admission.” You should cite FRE 801 (d)(2) (A).
You should cite the appropriate FRE provision for authenticating digital evidence under FRE 901 (e.g. FRE 901(b) (3) or the appropriate provision for self-authentication under FRE 902 (e.g. 902 (13) or (14).
If you say the investigators obtained logs or other “records” from a third-party provider, you should say they obtained an order under 18 USC 2703 (d). If you are claiming that the “records:” are not hearsay because they were generated by a machine -not a person- you should cite FRE 801 (a).