U.S. v. Lubich, 72 M.J. 170

Military Justice Personnel: Military Judge: Discretion

1. a military judge did not abuse her discretion when she overruled a defense authentication objection and admitted two prosecution exhibits that were based on computerized data; both a prosecution exhibit that listed the web sites accessed by appellant’s Navy Internet account and the dates and number of times the web sites were accessed and a prosecution exhibit that compiled the user names and passwords for the web sites accessed from appellant’s Navy Internet account were sufficiently authenticated to be admissible, where (1) defense counsel conceded that the data was from appellant’s Navy Internet account, (2) an NCIS cyber forensic examiner testified that he produced the exhibits by conducting a forensic examination utilizing automated forensic tool programs of data downloaded from appellant’s Navy Internet account by a Navy-Marine Corps Intranet (NMCI) department, and (3) he described the automated process that the NMCI department utilized to gather the data from appellant’s Navy Internet account; the government made a prima facie showing of authenticity by presenting evidence sufficient to allow a reasonable juror to find that data analyzed by the cyber forensic examiner was data from appellant’s Navy Internet account, where the examiner’s testimony established that NMCI transferred the data stored on the computers utilizing an automated process rather than analyzing or manipulating the data, and the government also met several of the illustrative criteria of MRE 901 authentication: (1) testimony of witness with knowledge (satisfied through examiner’s familiarity with the NMCI procedures), (2) distinctive characteristics and the like (satisfied as the computer data contained numerous references to appellant’s Navy Internet account), and (3) process or system (satisfied by examiner’s discussion regarding the NMCI process); once the exhibits were admitted, it was then up to the members to determine the true authenticity and probative value of the evidence based on the testimony of the NCIS cyber forensic examiner

Core Criminal Law Subjects: Evidence: Generally

1. at trial, the government bears the burden of establishing an adequate foundation for admission of evidence against an accused; the government may meet its burden of proof with direct or circumstantial evidence

Core Criminal Law Subjects: Evidence: Authentication

1. MRE 901(a) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
2. evidence may be authenticated through the testimony of a witness with knowledge that a matter is what it is claimed to be; MRE 901(b)(9) permits evidence resulting from a process or system to be authenticated via evidence describing the process or system used to produce the result and showing that the process or system produces an accurate result
3. authentication simply requires establishing that the evidence is what the proponent claims it to be
4. authentication under MRE 901 and admissibility as a hearsay exception are distinct inquiries; authenticity is a condition precedent to admissibility and requires only a prima facie showing that is sufficient to support a finding that the matter in question is what its proponent claims
5. MRE 901 is the same as Fed. R. Evid. 901 and embraces the well-established view that authentication is a component of relevancy; it requires a preliminary determination by the judge that sufficient evidence of authenticity exists to present the authenticity question to the members for their ultimate factual determination
6. generally speaking, the proponent of a proffered item of evidence needs only to make a prima facie showing that the item is what the proponent claims it to be; once the proponent has made the requisite showing, the trial court should admit the item, assuming it meets the other prerequisites to admissibility, such as relevance and compliance with the rule against hearsay, in spite of any issues the opponent has raised about flaws in the authentication; such flaws go to the weight of the evidence instead of its admissibility; the trial court’s admission of the exhibit means only that the factfinder may consider the item of evidence during its deliberations; the factfinder remains free to disregard the item if the trial evidence overcomes the preliminary showing of authenticity
7. in general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues; if a computer processes data rather than merely storing it, authentication issues may arise
8. a military judge did not abuse her discretion when she overruled a defense authentication objection and admitted two prosecution exhibits that were based on computerized data; both a prosecution exhibit that listed the web sites accessed by appellant’s Navy Internet account and the dates and number of times the web sites were accessed and a prosecution exhibit that compiled the user names and passwords for the web sites accessed from appellant’s Navy Internet account were sufficiently authenticated to be admissible, where (1) defense counsel conceded that the data was from appellant’s Navy Internet account, (2) an NCIS cyber forensic examiner testified that he produced the exhibits by conducting a forensic examination utilizing automated forensic tool programs of data downloaded from appellant’s Navy Internet account by a Navy-Marine Corps Intranet (NMCI) department, and (3) he described the automated process that the NMCI department utilized to gather the data from appellant’s Navy Internet account; the government made a prima facie showing of authenticity by presenting evidence sufficient to allow a reasonable juror to find that data analyzed by the cyber forensic examiner was data from appellant’s Navy Internet account, where the examiner’s testimony established that NMCI transferred the data stored on the computers utilizing an automated process rather than analyzing or manipulating the data, and the government also met several of the illustrative criteria of MRE 901 authentication: (1) testimony of witness with knowledge (satisfied through examiner’s familiarity with the NMCI procedures), (2) distinctive characteristics and the like (satisfied as the computer data contained numerous references to appellant’s Navy Internet account), and (3) process or system (satisfied by examiner’s discussion regarding the NMCI process); once the exhibits were admitted, it was then up to the members to determine the true authenticity and probative value of the evidence based on the testimony of the NCIS cyber forensic examiner

Core Criminal Law Subjects: Evidence: Hearsay › Generally

1. authentication under MRE 901 and admissibility as a hearsay exception are distinct inquiries

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Generally

1. at trial, the government bears the burden of establishing an adequate foundation for admission of evidence against an accused; the government may meet its burden of proof with direct or circumstantial evidence

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Generally

1. the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. on appeal, an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range