A Nebraska District Court recently held that 'cutting and pasting' in a Word document fragments of Internet chatting do not constitute admissible evidence under the Federal Rules of Evidence (FRE). A law enforcement agent pretending to be a minor girl communicated with defendant via chat rooms. At the end of each chatting session, the agent ‘cut and pasted" fragment of the conversations and merged them into a Word document. This document was later submitted as evidence against defendant, who was indicted for knowingly attempt to persuade, induce, and entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b).
This is a remarkable case regarding the evidentiary value under the FRE of informal transcripts of Internet chatting (United States v. Jackson (D. Nebraska 2007)). After being indicted for violation of 18 U.S.C. § 2422(b), defendant, through a motion in limine, sought an order prohibiting the government from introducing the ‘cut and paste' document with the alleged online conversation between the defendant and the law enforcement agent posing as a 14-year old girl.
This Word document was the only available evidence of those online conversations between the defendant and the law enforcement agent. There were not original transcripts of the online conversations, either because the computers were missing or the instant messages had not been archived on the respective computers. It is important to note that the alleged conversations took place on the summer of 2001 and the defendant was only indicted on September 2004. Besides this Word document, the government used the testimony of the law enforcement agent who created it. He testified that after each instant message conversation, he highlighted the complete conversation, copied, and pasted it in an ongoing and chronologically-saved log. During his examination, the agent admitted it was possible to "leave out words if they were not properly highlighted and dragged."
A computer forensic expert, who was also a law enforcement agent specialized on child pornography cases, testified as to better methods to maintain instance messages conversations. He said a bit-stream image of the hard drive was the best way to see the evidence as it actually appeared during the online conversations. Other possible methods to save online chats are, he said, (i) a screen capture where the file is saved on the computer's hard drive; (ii) the ypager found in yahoo; or (iii) third-party software programs available in the market.
After hearing the government, the defendant, and expert witness testimonies, the court held that the ‘cut and paste' document is not admissible evidence. First, the court reasoned, the Word document is not authentic according to the FRE and the government must show the document is authentic (United States v. Black, 767 F.2d 1334, 1342 (8th Cir. 1985); Fed. R. Evid. 901(a)). "Changes, additions, and deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law." On this authentication issue, the court questioned why the law enforcement agency handling this investigation did not use more reliable methods to save defendant's online chats with the undercover agent.
Second, the ‘cut and paste' document is not admissible as secondary evidence under FRE 1004. FRE 1004 allows secondary evidence such as copies or duplicates, when the original is destroyed. The court held that the ‘cut and paste' document does not properly reflect the accurate conversations between the defendant and the law enforcement agent since the document had been altered, modified, and contained multiple errors.
Third, the court did not allow the ‘cut and paste' document to be used to ‘refresh the law enforcement agent memory at trial' under the FRE. The court said if this document were used this way, defendant would be forced to explain why that document is not reliable, and then, in cross examination the defendant would have to question the law enforcement agent about how the Word document was obtained. Presenting the ‘cut and paste' document in this fashion would allow the jury to hear this evidence, albeit indirectly.