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hcso1510
(@hcso1510)
Active Member

One of the issues law enforcement consistently runs into is the authentication of records. My common practice when requesting records has been to ask for a Certificate of Record or Business Records Affidavit certifying the data is a true and correct copy of records kept during the normal course of business.

When obtaining records whether it is from the Sprint L-Site, Verizon’s secure Iron Port Server or other provider I always make screen shots of whatever I’m looking at and place it into the case file. If there is a question as to what I requested one can always refer to the judicial process and if there is a question as to what I received one could also refer to the screen shots of when the records were received and when I obtained them. I then download the records and place my original in property. “I’m thinking I’m good, but not so fast.”

I currently have a case involving some text content that the DA said he needed to “authenticate.” I obtained some text content from a mobile phone and I obtained the sms log of the sender and sendee’s phone. All the times line up perfect, But he still believes he needs a rep from the Telco to testify that the records requested are a true and correct copy, etc, etc.

The bottom line is “Experts” can be a pinch to the wallet.

I was wondering if anyone out there has been able to overcome bringing in experts and whether or not your Judges are allowing records in with a Certificate of Record. I have a feeling the DA I am working with just needs to fight to get it in, but I’m not sure he is willing to make the argument.

Thanks,

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Posted : 17/03/2012 4:36 am
JLEllis
(@jlellis)
New Member

I'm a little confused. What records does the DA want authenticated? It sounds like you obtained the actual SMS from the handset(s), but I'm not sure where you obtained the "sms log of the sender and sendee’s phone". I think what you are saying is that you obtained the SMS detail records from the cellular providers? Via search warrant maybe?

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Posted : 17/03/2012 8:13 am
trewmte
(@trewmte)
Community Legend

Ed

With authentication is the requirement of clarification. Is the DA asking authentication of sending and receiving party (and they on CDMA, GSM ???) or is he seeking authentication on the "content"? "Content" is the term you used above because that is the term you mention the DA used.

Can you ask the DA to clarify is he wanting identification for the sending/receiving parties for his authentication requirement or is it the actual authenication of content e.g. text, symbols, user data length etc?

You will be asking him this to clarify what he perceives to be authentication beause that criteria is not set out in your comments above.

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Posted : 17/03/2012 11:49 am
hcso1510
(@hcso1510)
Active Member

The DA I'm working with feels wee need an expert (1 from Sprint and 1 from AT&T ) to get up on the stand and say "Yes, those are our records." "Those records are in the format which we currently utilize," etc, etc.
The term I use for the records I'm refering to is the sms log, which I obtained through a Subpoena from both providers.

I did use the term "content", but I should have been clearer. The case involves some content which was downloaded from a mobile device with a Cellebrite, but that's a different issue. Neither of the providers mentioned above retain content so they couldn't authenticate something they don't retain and they wouldn't be qualified to comment on the evidence that came from the mobile device.

Sorry for the "content" confusion.

Regardless of how I would like to see the DA aqrgue the validity of the evidence he has to go along with what he feels the Judges will allow in my Jurisdiction.

If you are utilizing, at least what I feel are "best practices", I don't see the need for the expert. "That being said I'm not sitting in the defense chair."

I can show what I asked for, the screen captures from when I received the records and how I downloaded and saved the records. What more can I do?

My original question was, and it continues to be, is whether or not other members have been able to get records admitted into evidence with a Certificate of Record/Business Records Affidavit rather than calling in an expert.

Thanks!

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Posted : 17/03/2012 5:15 pm
miket065
(@miket065)
Active Member

Can the DA not talk to the defense and get them to stipulate to the records? That would avoid "much ado about nothing". I have never had to have anyone come testify from an ISP or Telco, but there is such variance between jurisdictions and even judges in the same jurisdiction that what happens in one place is almost irrelevant.

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Posted : 17/03/2012 5:50 pm
hcso1510
(@hcso1510)
Active Member

Mike,
I'm going to bring up the subject and see if the defense will stipulate to the records. My experience has been that most defense attorney's are reasonable. If I can show how I obtained the records and the process I took from email, downloading to the property room I believe that should be good enough.

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Posted : 18/03/2012 6:04 am
JLEllis
(@jlellis)
New Member

You're in Tennessee, so what applies here in Cali. may be different (or maybe not). In Cali, call detail records (or SMS detail records) are admissible as business records as long as the records are accompanied by an affidavit from the Custodian of Records that meets the Evidence Code requirement for admissibility of business records. I've never had an issue with this.

Your own "best practices" do not supersede the evidence code requirement relating to the admissibility of business records. No affidavit, or an affidavit that does not contain the required information = inadmissible evidence.

It could be that the DA isn't so much concerned about the admissibility of the records, but rather whether or not you are qualified to interpret the records?

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Posted : 18/03/2012 6:15 am
hcso1510
(@hcso1510)
Active Member

What I previously described as my "best practices" were not an attempt to supersede anything! As I mentioned in my initial post my common practice and what I suggest to others is to request a Certificate of Record or Business Records Affidavit.

Seeing how this is the electronic age and most providers seem to like transferring the requested data via the internet there has to be a process of getting the data to your computer and into the property room.

If all that was required was a Certificate of Record it would seem to me that there is always the possibility that the records could be tampered with?

We have this thing in Tennessee called "Chain of Custody." My "best practices" are only my attempt to show the prosecution and the defense that I have taken the necessary steps (IMO) to maintain the integrity of the records. "A timeline of when I received them and how they got to a disk and into property."

If the DA has questions as to whether or not I'm qualified to interpret the records he only needs to ask. I think I have a fairly good shot at passing the litmus test.

If you go with just the COR that's great, but how do you document receiving the records and getting them into the property room?

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Posted : 18/03/2012 7:12 am
JLEllis
(@jlellis)
New Member

<snip> If all that was required was a Certificate of Record it would seem to me that there is always the possibility that the records could be tampered with?

That's true, unless the records are delivered directly to the Court, they will always be subject to a defense challenge that they have been tampered with or altered, it's unavoidable. Electronic records are no different than any other form of evidence we collect. You can take as many screen shots as you want, hash away and save to logical evidence files; but in the end, the defense can make whatever accusation they want.

We have this thing in Tennessee called "Chain of Custody.

Come on now, don't get snippy! We're just having a conversation here.

If the DA has questions as to whether or not I'm qualified to interpret the records he only needs to ask. I think I have a fairly good shot at passing the litmus test.

Ask him/her. Is he new(er)? Have you worked with this DA before? Does he actually know your qualifications.

" My "best practices" are only my attempt to show the prosecution and the defense that I have taken the necessary steps (IMO) to maintain the integrity of the records. "A timeline of when I received them and how they got to a disk and into property."
<snip>
If you go with just the COR that's great, but how do you document receiving the records and getting them into the property room?

I think the things you've done are a great way of documenting how you received the records, what you did with them, etc. But, screen shots, hashing, etc, etc, will not make evidence admissible that is otherwise inadmissible because it lacks a COR. Your original question was, "I was wondering if anyone out there has been able to overcome bringing in experts and whether or not your Judges are allowing records in with a Certificate of Record." My answer is, "Yes" and "Yes" …. all the time.

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Posted : 18/03/2012 9:22 am
LarryDaniel
(@larrydaniel)
Active Member

Disclaimer, I am not an attorney and this is not legal advice.

First of all, records from a cell provider would normally get in under the Business Rules Exception to hearsay.

Review this for Rule 803 of the Federal Rules of Evidence;

Rule 803 - Business Rules Exception to the Hearsay

On authentication, you can review Rule 901 of the Federal Rules of Evidence;

Authenticating Evidence

What your prosecutor is concerned about is actually a legal argument and not an issue of experts.

Most states have their own version of the Federal rules codified in their state statutes, but the Federal rules are always handy to review.

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Posted : 22/11/2012 9:38 pm
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