Electronic evidence in the form of emails, text messages, Facebook posts, etc., present both opportunities and challenges for domestic violence litigation. Some of the best evidence of stalking and threats can be found in these sources. The mechanics of having them admitted into evidence can be tricky and require advance planning.
- Text messages.
- When possible, attorneys introducing text messages should have the cell phone with text messages available in court, but should present the evidence through either a printout of the messages or screenshots of them.1 You should rely on your client, not the abusive party, to lay the necessary foundation to authenticate them and to establish both the sender and the recipient of the communication. In general, you should ask your witness to identify the number and the name associated with that number, on the phone. The witness should testify how they know the number is associated with the other party (e.g., the parties had a history of text exchanges on those same numbers and the victim had previously received texts from the person on that number). In some cases, you may want to draw upon something in the substance of the exchange that is specific to the abusive party, such as a reference to something only he would know about, or the use of a nickname or other reference regularly used by the defendant (i.e., referring to a shared child by a nickname only the parties use).
- Note that in addition to authenticating the substance/sender of the text messages as described above, you may also need to authenticate the photograph or printout of the text messages in the same manner as you would authenticate a photograph through testimony that the printout/photo fairly and accurately depicts the text messages as they appeared on the phone and has not been altered in any way.
- Social Media Posts and Other Electronic Evidence.
- Other forms of electronic evidence such as online videos, social media posts, or even surveillance videos must also be authenticated by a person familiar with the content and the people or places depicted. Louisiana courts have not drawn strict bright line rules for authentication of this type of evidence but have generally allowed the evidence where there is sufficient indication that the evidence is what you say it is.2
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Evolving Technology
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As “spoofing” and deepfakes of electronic have become more common, it is increasingly important that attorneys are well prepared to both authenticate and challenge the authenticity of electronic evidence. Practitioners should routinely update their knowledge on these issues as they evolve and utilize up to date resources that provide guidance.3
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- 1Archaga v. Johnson, 19-85, p. 13 (La. App. 5 Cir. 10/16/19), 280 So. 3d 331, 341 (holding that texts and emails were properly authenticated when the sender’s name was on the printout and when witness testified to receiving the texts on her phone, screenshotting them, and printing them herself); see also State v. Haydin, 17-234, p. 12 (La. App. 5 Cir. 12/20/17), 235 So. 3d 1293, 1301 (holding that a text message was properly authenticated when the witness testified to receiving it on their cell phone, saved the sender’s contact information in their phone, had previously communicated with the sender via phone, and was present when a picture of the text was taken).
- 2State v. Smith, 2015-1359, pp. 9–10 (La. App. 4 Cir. 4/20/16), 192 So. 3d 836, 842 (applying the “reasonable juror” standard to authentication of social media posts, in which a party must provide enough evidence to support a finding that proffered evidence is what they say it is”); see also State v. Gray, 2016-1195, pp. 25, 30 (La. App. 4 Cir. 6/28/17), 2017 WL 3426021, at *13, *16 (holding that YouTube videos were sufficiently authenticated when witness testimony identified all three YouTube videos, identified the person in the videos, and identified the locations within the videos); State v. Groves, 2020-0450, p. 31-32 (La. App. 4 Cir. 6/10/21), 323 So. 3d 957, 977 (holding that Instagram videos and screenshots were authenticated/admissible when witness testimony identified the videos, screenshots, persons in the videos, when the videos were made, and how they were obtained); State v. Rice, 2017-0446, p. 3 (La. 6/29/17), 222 So. 3d 32, 33-34 (holding that authentication was sufficiently shown for surveillance video evidence when a witness testified that they personally maintained the surveillance system, personally knew the video, and explained how the video was created). But see State ex rel. J.H., 2022-0324, p. 13 (La. App. 4 Cir. 8/9/22), 2022 WL 3210100, at *6–7 (holding that video evidence was not properly authenticated when there was no testimony about the video’s accuracy and when chain of custody was not established).
- 3See generally Riana Pfefferkorn, ”Deepfakes” in the Courtroom, 29 B.U. Pub. Int. L.J. 245 (2020) (explains what deepfakes are, offers thoughts and guidance on how to challenge suspected deepfakes and defend against deepfake allegations, all from a POV that believes current rules of evidence will be sufficiently equipped to handle growing issue).