Admissibility of Digital Data: Use of Electronic Evidence in Federal Criminal Case
Posted on by Michael Lowe.
Digital data, or electronic data, is a common focus in most federal prosecutions today here in Texas. Our previous article discussed some criminal defense concerns regarding how in the discovery process investigators can search and seize this type of potential evidence in breach of the constitutional protections provided by the Fourth Amendment.
Discovery, of course, leads to the next step: the evidence an AUSA offers to be admitted against the accused to prove up the prosecution’s case. This must be done in accordance with the Federal Rules of Evidence (“FRE”), such as FRE 901 and FRE 902(14).
What is involved here? Anything that might make its way from electronic information (stored, received, or transmitted) on any kind of device to being introduced in a criminal proceeding as evidence the accused has committed a crime for which they should be convinced and sentenced under federal law.
Very often, digital data that may be offered as evidence involves things like:
- Emails
- Texts
- Posts or Comments on Facebook, Instagram, X, BlueSky, YouTube, WeChat, TikTok, Snapchat, etc.
- Photos or Videos shared on any platform (including things like Ring cameras)
- Browsing history (Chrome, Edge, Firefox, Opera, Safari, etc.)
- Stored photographs or videos
- GPS data
- Banking transactions
- Shopping transactions
- Miscellaneous data from various apps (like fitness apps; budgeting apps; gaming apps; etc.).
Government and Private Sector Forensic Technology
It is amazing how organized and efficient these efforts to find, accumulate, authenticate, and admit digital data have become, both within the government and as part of the private sector. For instance, the federal government has its own digital forensics research library and various testing and recognition programs designed specifically to help federal criminal investigations, overseen by the National Institute of Standards and Technology of the U.S. Department of Commerce (“NIST”).
These federal efforts include:
- The National Software Reference Library, described as “…a regularly updated archive of known, traceable software applications…. When a law enforcement organization seizes a computer or mobile device as part of a criminal investigation, they can use the RDS to quickly identify the known files on that device. This reduces the effort required to determine which files are important as evidence and which are not.”
- NIST Video Technologies for the “…detection of events in surveillance video, detection of events in internet video, and detection and understanding of images that have been altered from their original state.”
Then there is the business of forensic authentication of digital data by private firms. These are professional authenticators for electronic criminal evidence. It’s big business. Known as the “Forensic Technology” industry, it is forecast to achieve annual revenues of $56.61 Billion in the next three years (by 2028). Read, “Advances in Forensic Technology Radically Transforming the Field of Criminal Investigation,” published by Reports and Data (May 2022).
Leaders in the field include Exterro FTK Solutions and OpenText Forensic (EnCase). For instance, investigators and prosecutors are encouraged to buy the OpenText product because it will enable them to do things like: “(1) identify the most important pieces of evidence, prioritize those pieces, process them an analyze data for evidence of wrong doing; and (2) to locate evidence on an ever-increasing variety of devices and locations within those devices….”
Obviously, federal prosecution is becoming more and more sophisticated and adept at finding and locating electronic information to be used against someone. Defendants may be shocked and angered to learn how their past tweets, posts, comments, likes, or uploads are being used against them, especially things they considered private or things they thought had been deleted long ago.
Two FRE Battlegrounds: Authentication and Admissibility
Unlike some crime dramas on TV, the reality is that federal criminal defense lawyers are able to review all the digital data that has been compiled by federal law enforcement intended to be used against the accused in the case. And, of course, the defense may be able to find other digital information that helps to exonerate the defendant.
In order to get that digital data out of a file and into the court record as official evidence in the case, the lawyers have to comply with both procedural and evidentiary rules. The first step will be to authenticate the evidence.
1. Authenticating Digital Data and Electronic Information
Before a judge will consider whether or not something will be admitted as evidence, there has to be confirmation that it is authentic. It’s the real thing, not a counterfeit or fake. For instance, a real estate deed containing the county clerk’s seal will authenticate that document as proof of title. However, authenticating digital information is very different, and very complicated.
FRE 901 demands that the attorney seeking to admit the digital data has to demonstrate to the court that it is exactly what the attorney argues it to be. The opposing counsel has the right to challenge its authenticity and bar it from the case.
There are various ways to accomplish this. Sometimes, a sworn witness takes the stand and testifies to its veracity. However, the evidentiary rules also recognize that some items can be “self-authenticating.” These are listed in FRE 902.
Copies of digital data are among this list, pursuant to FRE 902(14), entitled Certified Data Copied from an Electronic Device, Storage Medium, or File:
Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).
To prove up things like social media posts on Facebook or X, for instance, each item will need the following as a general rule to establish authenticity as a precursor to admissibility:
- Proving up the account itself. There will need to be proof of ownership, which can be done with things like metadata and digital signatures. Witnesses may provide testimony. They may testify to things like messages from that account contained information that only the witness and the owner know. The repetitive use of the same username or profile may also help to establish account ownership. After this is proven, the contents of the account may be considered (that’s the next step).
- Preservation of the digital data. The court also has to be shown that the digital data has been properly and safely accessed and stored. All the metadata must be carefully preserved as it was found. It cannot be changed in any way, or it will fail the authentication process under federal evidentiary law.
Various platforms (think Google, for instance) may support this with their confirmation from their records on things like the time and date specific posts or comments were made. Additionally, these platforms may provide evidence of their own storage protections (think two-factor authentication) that helps confirm the digital data in question has been properly preserved.
- Learning curve for the court. Given today’s rapid advancements in digital undertakings, it is also prudent to include with the authenticity presentation a user-friendly overview of these details and what they mean. Judges may be grateful for concise summaries or descriptions of things like “metadata” or “blockchain.”
For more, read “Authentication of Evidence,” written by Wayne G. Perry and published by the American Bar Association GP Solo Magazine on June 4, 2024.
2. Admissibility of Digital Data as Evidence
This is a complex and evolving area of federal law. FRE 403 may establish the first hurdle here. The digital data must be shown to be relevant with probative value that is not substantially outweighed by various unjust dangers to the defendant:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
There is also the notice requirement of FRE 404(b) when the digital data is being offered by the government to prove up the defendant’s character or character trait. A great deal of social media digital information in a criminal case may be this type of evidence. In a criminal case,
(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.
A consideration for federal criminal defense lawyers is to compare the time of the alleged crime and the digital data sought to be admitted. Some courts may recognize that searches taking place before the illegal act(s) are admissible under an exception found in FRE 404(b), akin to reading someone’s diary entry dated before the event. Perhaps it shows a state of mind exception, allowing admissibility. Contrarily, digital data confirmed to exist only after the crime occurred may be argued to be inadmissible.
Of note, both circumstantial evidence as well as witness testimony may be able to admit authenticated digital data timed concurrently with the crime itself (think smartphone captures of the event).
And, of course, there is FRE 802, which bars hearsay from being admitted as evidence unless one of the many exceptions applies in the particular situation.
Defense Considerations Regarding Digital Data Evidence in Criminal Prosecutions
It is imperative in any federal criminal defense matter that the lawyers representing the accused are knowledgeable about current technologies, especially since things can change so fast regarding digital data as well as social media platforms, etc. This must jive with researching the current status of the federal statutes and court case precedent regarding authentication and admissibility of various types of electronic information. All too often, lawyers will find that technology is evolving much faster than existing federal laws and precedent and both arguments and authorities will be needed to bridge the gap.
There are all sorts of concerns today for experienced federal criminal defense lawyers in the ways that law enforcement is intrigued and entranced by digital information. Among them are:
Self-Incrimination
AUSAs may be combing through all sorts of posts, comments, texts, bookmarks, and the like to try and piece together digital data that will be argued to be self-incriminatory evidence against the accused. Perhaps posts, or even likes or reposts or shares can be argued as evidence of gang-affiliation or prior knowledge of the victim’s location. Is this data relevant? Is it prejudicial? Is it hearsay? Has it been authenticated?
Right of Privacy
What about privacy rights? It is amazing how many people share very personal information about their lives with all the world on social media. However, there are constitutional protections for an individual’s privacy. Case law is evolving here regarding digital data. Arguments may be made privacy rights fade when information is shared on a social media platform, but there may be a reasonable expectation of privacy in a transmitted image or text. Just because the accused’s posts are set to “private” or “friends only” may not be enough to deem them constitutionally protected under a right to privacy.
Alibi Evidence
Sometimes, digital data is beneficial to the defense. Electronic information found on smartphones, Ring cameras, car GPS systems, etc., may support the accused’s assertions of innocence. Alibis can be proven here, sometimes merely by digital location information supporting the argument that the defendant was at another place or location at the time of the alleged criminal act. Exonerating timelines can be built with digital evidence.
Character Evidence
Over time, someone’s personality and character are usually revealed if they are consistent in their use of digital devices. The photos stored on a phone; the likes and shares on social media; the accounts they follow; the webpages they bookmarked; and the platforms they use: they are all pertinent.
How will the jury perceive this digital history? In some instances, this may help the defendant; in other situations, it can hurt. Probative value must be weighed against the potential for unfair prejudice.
Motive Evidence
Digital data, especially that found in social media, may be used by the AUSA as part of their proof of the element of motive in their case. They can use this, assuming it is properly authenticated and admissible, to show things like the accused’s malice aforethought in a murder case.
Defense Considerations Regarding Defendant’s Digital Communications
Anyone who even suspects they have come into the periphery of a federal criminal investigation is wise to seek the support of an experienced federal criminal defense lawyer to help protect their legal rights. Of particular concern to the attorney, insofar as digital evidence being accumulated are the following matters during the course and scope of the investigation and possible prosecution:
- Digital communications on smartphones, tablets, or anything transmitted over the internet, should not include anything about the case or the investigation. This should be stuff discussed with the lawyer. And that should be done face to face, not over the web.
- Loved ones (friends, family) should be asked not to talk or write about the criminal case, either. Especially over the internet.
- Be alert that law enforcement is free to go online and set up fake accounts on social media platforms, and they do this quite often. They are good at it. New friend requests or followers may be looking for things to use against the accused via digital data.
- While it may be tempting, an accused who tries to trash or delete any digital data (think old posts or photos of an ex-girlfriend, etc.) may be facing an allegation of tampering with evidence in the future.
What About Fakes? Morphed Child Pornography vs Virtual Child Porn
One concern in the admission of digital data is it not being tampered with or altered. That is one of the reasons for the authentication standards of the FRE, as discussed above.
Deepfakes are any images, videos, or audios that are considered to be “synthetic media.” Using artificial intelligence (“AI”), the digital data communicates something that is not real. It is not the real person. It is not a real event. See, “25 of the best deepfake examples that terrified and amused the internet,” written by Joe Foley and published by Creative Bloq on October 24. 2024.
The term itself arose out of a series of Reddit videos where AI was used to place the faces of celebrities onto existing porn videos. For details, read “Deepfake” written by Laura Payne and published by Britannica on December 22, 2024.
For a criminal defense lawyer, the revelation that digital data is a deepfake may not be enough to prevent its admission and use by the AUSA in a criminal trial. Consider “morphed child pornography” and “virtual child pornography” under the law.
Morphed Child Pornography and Virtual Child Pornography
The Fifth Circuit has held that morphed child pornography is not protected by the First Amendment. United States v. Mecham, 950 F.3d 257, 260 (5th Cir. 2020), agreeing “with the majority view that morphed child pornography does not enjoy first amendment protection” (citations omitted) (emphasis added):
Real child pornography is not protected speech under the First Amendment. … But virtual child pornography—sexually explicit images “created by using adults who look like minors or by using computer imaging”—is protected speech…. This appeal asks whether the First Amendment protects pornography that falls between those two categories. The defendant superimposed the faces of actual children on pornographic photos of adults to make it appear that the minors were engaged in sexual activity.
Unlike virtual pornography, this “morphed” child pornography uses an image of a real child. Like virtual pornography, however, no child actually engaged in sexually explicit conduct. Circuits disagree about whether morphed child pornography is protected speech. We agree with the majority view that morphed child pornography does not enjoy First Amendment protection, so we affirm the conviction. But the fact that the pornography was created without involving a child in a sex act does mean that a sentencing enhancement for images that display sadistic or masochistic conduct does not apply, so we remand for resentencing.
For more on child pornography charges, read: (1) Online Child Pornography Arrests: Video Conferencing and Online File Sharing Services Targeted by Federal Investigators; and (2) Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.
Digital Data and Electronic Information Evidence in Federal Criminal Cases
Digital data, especially electronic information found on phones, dashcams and doorbell cameras, and in social media, is becoming more and more important in federal criminal matters regardless of the particular charge (drug trafficking; sex crimes; fraud; etc.) involved.
Prosecutors are finding it easier to locate this digital data and jumping the hurdles of authenticity and admissibility. There is expanding federal and private section forensic support available to them that may not exist for the defense team (think NIST).
Defense lawyers must be alert to the changing laws regarding digital data. This is challenging in its own right. The defense has the simultaneous task of understanding the evolving technologies here, and how electronic information can be changed, modified, or manipulated with ease by those with a lowering level of expertise.
Authentication of electronic data may be a huge courtroom battleground in some federal criminal cases. Once authenticated, that same digital information may still be in violation of federal admissibility rules and case law. Reliability and relevancy are huge concerns here. See: Why You May Need a Federal Criminal Defense Lawyer in Texas.
Anyone facing federal criminal charges is wise to understand the implications of digital data in their case and the power that metadata can have on their future. It is not overreaching to consider that anything placed on the internet has independence and permanence, and may exist forever. Exercising caution in texts, social media, videos, cameras, etc., is wise in today’s futuristic world. Big Brother might be watching.
For more, read:
- Encryption and Law Enforcement Investigations: Police Access to Encrypted Data;
- Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview;
- How Prosecutors Try to Maximize Punishment: Aggravating Factors in Federal Sentencing;
- How Things Progress: Tips to Investigation to Arrest and Prosecution in an IRS Criminal Investigation;
- The Federal Criminal Justice System: After Arrest, From Arraignment to Sentencing; and
- Federal Sentencing Guidelines On Federal Child Pornography Cases.
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For more information, check out our web resources, read Michael Lowe’s Case Results, and read “The Early Part of a Texas Criminal Case in State or Federal Court.”
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