In a case that Neil Rockind, P.C. handled involving an alleged medical marijuana dispensary in Oakland County, lawyers for the accused attempted to admit an internet screen shot created by Oakland County. One judge questioned its authenticity … Recently, a federal court addressed this issue. Its approach to the problem, i.e., how to authenticate an internet screen shot, is repeated here ( United States.v.Bansal, __ F.3d __ (3d Cir. Dec. 14, 2011) (Nos. 06–1370, 06–2535, 06–2536, 06–3043, 07–1525, 07–1526, 07–4618, 09–1827) courtesy of the Federal Evidence Blog
In controlled substances prosecution of defendant’s Internet web sites, screenshots of defendant’s web site were authenticated and admitted for purposes of showing the charged conduct by (1) obtaining the screenshot from an Internet archive (the Wayback Machine) obtaining transmissions covering the period charged, (2) testimony from operator of the Internet archive as to the reliability and operation of the archive, (3) witness’s perception of a similarity of the charged screenshot to known postings from defendant’s website, and (4) opinion testimony by the authenticating witness that the screenshot was authentic under RE 901(b)(1), in United States.v.Bansal, __ F.3d __ (3d Cir. Dec. 14, 2011) (Nos. 06–1370, 06–2535, 06–2536, 06–3043, 07–1525, 07–1526, 07–4618, 09–1827)
When Internet images involved a charged crime are presented as evidence, how can these images be authenticated? One common way is through use of the “screenshot” – a recording of an image displayed on a computer monitor or other visual output device, which records what was visible on the monitor to an observer. The screenshot record is usually a digital image recorded by a receiving computer or other means of intercepting the video display, such as camera or DVR. See, e.g., Specht v. Netscape Communications Corp., 306 F.3d 17, 23 & n.10 (2d Cir. Oct. 1, 2002) (Nos. 01-7870, 01-7872, 01-7860) (“some plaintiffs added that they could not ‘remember’ or be ‘sure’ whether the screen shots of the SmartDownload page attached to their affidavits reflected precisely what they had seen on their computer screens when they downloaded SmartDownload.”); United States v. Keller, 236 Fed.Appx. 274 (9th Cir. May 29, 2007) (No. 05-50681) (Unpublished)(“admitt[ing] an exhibit containing computer screen shots of a document with the title “fuckyou.doc” as relevant nonhearsay for the purpose of establishing fraudulent intent on the part of [defendant] Keller … with respect to [the conspiracy's] business’s purported enrollment fee refund policy.”); United States v. Herndon, 501 F.3d 683, 691-93 (6th Cir. August 31, 2007)(No. 06-5522) (In receiving child pornography case, admitting evidence of “images of child pornography, which were displayed on the screen of [defendant] Herndon’s laptop…. Coupled with [officer] Cooley’s testimony concerning what he observed upon arriving in Herndon’s bedroom …, how the images appeared on Herndon’s computer screen and how they became plainly visible to Cooley who, as he testified, did not take any additional steps to see the pictures”; noting that officer recovered 12 screenshots by “[T[aking] a picture” of the monitor and room.)
The Third Circuit recently examined a case of authenticating a screenshot as evidence of the charged act of illegally distributing controlled substances. The theory for admissibility was the receipt of testimony by a witness with personal knowledge of what defendant displayed under FRE 901(b)(1).
In the case, defendants Bansal and Mullinix were convicted of crimes arising from their operation of an Internet site which supplied drugs from India to persons in the U.S. without requiring a prescription. On appeal of the conviction, the defendants argued that the images displayed as evidence of evidence for the charged acts was not properly authenticated.
The Third Circuit had little difficulty in determining that the screenshots were appropriately authenticated by FRE 901(b)(1) allowing authentication through a witness with personal knowledge. According to the Circuit:
The District Court admitted into evidence screenshots of Bansal’s website, which included information about his online pharmacy operation. Bansal contends that these screenshots were not properly authenticated. We disagree. Rule 901(b)(1) requires that before evidence is admitted, its proponent must produce evidence “sufficient to support a finding that it is what it purports to be.” Testimony of a witness with personal knowledge is sufficient. In this case, the government obtained the screenshot images from a company called the Internet Archive, which runs a website called the Wayback Machine. The Wayback Machine seeks to catalogue all websites on the internet and currently has a database spanning more than a decade. To authenticate that the screen-shot was what it purported to be, the government called a witness to testify about how the Wayback Machine website works and how reliable its contents are. The witness also compared the screenshots with previously authenticated and admitted images from Bansal’s website and concluded, based upon her personal knowledge, that the screenshots were authentic. This was evidence “sufficient to support a finding” that the screenshots were “what they purport[ed] to be,” rendering them admissible under Rule 901(b)(1).
Bansai __ F.3d at __ (citing FRE 602).
As Bansai suggests, there is no single way to authenticate a screenshot. In addition, compared with other cases that have accounted for admission of screenshots, the showing approved by the Third Circuit seems comprehensive. Personal knowledge by a witness is one way to provide evidence “sufficient