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It Must Be True: It’s on the Internet!–Federal Court Reverses Criminal Case Because Russian Social Media Page Not Properly Authenticated

Kish Law LLC

People who have the misfortune of finding this blog know that I like to write about the intersection of the modern tech-filled world with older rules that govern criminal cases, rules like the Fourth Amendment and the like. The United States Court of Appeals for the Second Circuit recently reversed a federal criminal case out of New York when the prosecutor convinced the trial judge to let her use a page off what is supposedly the Russian version of Facebook. The prosecutor and the judge essentially said that because the page had the Defendant’s picture and some other information related to him he must have been the one to create it. The appellate court took a different view, and reversed the conviction, the ruling can be found here.

Aleksandr Zhyltsou is from the Ukraine, and supposedly is a professional forger. Another Ukrainian con man named Timku was caught in a series of frauds, pretending to be a diplomat and the like. Timku tried to help himself by agreeing to testify against Zhyltsou concerning a bogus birth certificate that Timku used to avoid military service back in the Ukraine (a not unreasonable effort, considering recent events). According to Timku, he saw the Defendant put the birth certificate together on a laptop when they were at a cafe, and noted that the document was sent to him via an email address that the Defendant had previously used. The prosecutor shored up parts of Timku’s story with witnesses showing that birth certificates can be used to avoid military service, and that this particular email with the birth certificate did indeed come through this particular email address, However, there was no proof that the human being on trial, Zhyltsou, was the person who created and sent the document, other than Timku’s testimony.

The prosecutor then got an FBI agent to go on a site called “VK”, which he claimed was the Russian equivalent of Facebook. The agent found a page that had the Defendant’s picture on it, and importantly, had the same email address as the one through which the bogus birth certificate had been sent.

Rule 901 of the Federal Rules of Evidence require that a document must be “authenticated” before it can be used in a trial. The prosecutor said this VK page was authentic because it had the Defendant’s picture and the email address. This VK page was highlighted during the prosecutor’s closing argument and likely led to the jury concluding the Timku was telling the truth.

The Court of Appeals reversed. “It is uncontroverted that information about Zhyltsou appeared on the VK page: his name, photograph, and some details about his life consistent with Timku’s testimony about him. But there was no evidence that Zhyltsou himself had created the page or was responsible for its contents. Had the government sought to introduce, for instance, a flyer found on the street that contained Zhyltsou’s Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from Zhyltsou. Otherwise, how could the in the flyer be attributed to him?”

The federal court of appeals noted that at least some courts are now moving toward the position that a higher level of authentication might be needed when one side or the other claims that a page off the Internet is “authentic.” This is a good read for people interested in the whole area of how modern technology and the explosion of electronic information makes the older Rules of Evidence difficult to apply.

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