Federal Evidence Review

A witness who participated in and saved the chat room evidence authenticated them at trial; questions concerning the completeness of the chat evidence went to the weight of the evidence and not admissibility, in United States v. Tank, 200 F.3d 627 (9th Cir. 2000)

In recent posts, cases were highlighted identifying problems in authenticating internet or electronic evidence. See Limits To Relying On Internet Materials and Information In Court ( Part V), ( Part VI), and ( Part VII). A Ninth Circuit case demonstrates the proper authentication of chat room log printouts seized from a computer.

In the Tank case, Orchid Club members participated in a password protected Internet chat room in which they traded child pornography images. After one member, Riva, was arrested on child molestation charges, a search of his computer contained saved chat room conversations with other Orchid Club members, including defendant Tank. As the circuit explained, “A ‘Chat room’ is a public or private Internet site that allows people to send ‘real time’ typed messages to others who are simultaneously connected to that Internet site.” Tank, 200 F.3d at 629 n.2. Defendant “Riva had deleted from his computer nonsexual conversations and extraneous material, such as date and time stamps, to decrease the size of the text files and free space on his hard drive.” Id. at 629. Agents discovered chat communications with defendant Tank, and others. They obtained an arrest and search warrant for defendant Tank and his residence and found more child pornography evidence. Defendant Tank was charged with conspiring to sexually exploit a child for the purpose of producing a sexually explicit visual depiction and to engage in the receipt and distribution of sexually explicit images of children, and with distributing sexually explicit images of a child to another person.

Before trial, defendant “Tank objected that there was no foundation for admission of the chat room log printouts into evidence because: (1) they were not complete, and (2) undetectable ‘material alterations,’ such as changes in either the substance or the names appearing in the chat room logs, could have been made by Riva.” Id. at 630. The trial court admitted the evidence at trial, noting the defense challenge went to the weight of the evidence and not admissibility.

The Ninth Circuit affirmed the trial court ruling authenticating the chat room evidence. The authentication was made by a witness with knowledge, or Riva. As the Ninth Circuit explained:

“The government made a prima facie showing of authenticity because it presented evidence sufficient to allow a reasonable juror to find that the chat room log printouts were authenticated. In testimony at the evidentiary hearing and at trial, Riva explained how he created the logs with his computer and stated that the printouts, which did not contain the deleted material, appeared to be an accurate representation of the chat room conversations among members of the Orchid Club.”

Challenges concerning the accuracy or completeness of the chat room logs went to the weight of the evidence, but not admissibility. Id. (citing United States v. Catabran, 836 F.2d 453, 458 (9th Cir. 1988) (“Any question as to the accuracy of the printouts TTT would have affected only the weight of the printouts, not their admissibility.'”); United States v. Soulard, 730 F.2d 1292, 1298 (9th Cir. 1984) (“[O]nce adequate foundational showings of authenticity and relevancy have been made, the issue of completeness then bears on the Government's burden of proof and is an issue for the jury to resolve.”)). The circuit rejected the defense claim that “the government should be required to attempt recovery of deleted data from computer disks (a technological possibility) to ensure that the files were not materially altered.” Id. at 631 n.5. The government was not responsible for the deletions, which had been made by Riva, and the defense had time to review the evidence to identify material changes. Consequently, “the deletions go to the weight of the evidence, not to its admissibility.” Id. at 631 n.5.

Finally, the trial evidence also connected the chat room logs to defendant Tank through his screen name, “Cessna.” In sum, the circuit found there was no abuse of discretion by the trial court in “admitting the printouts into evidence and allowing the jury to decide what weight to give that evidence.” Id. at 631 (footnote omitted).

The Tank case illustrates a common manner to authenticate Internet and electronic communications, by a witness who was a party or familiar with the discussions. Questions concerning the completeness of the records are issues concerning the weight of the evidence.