Topics: Appellate Review



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UNITED STATES v. SIMPSON, 152 F.3d 1241 (10th Cir. 1998)
[Defendant appealed his conviction for receiving child pornography on the ground that a computer printout of the alleged Internet chat room exchange between defendant and an FBI agent should not have been admitted on the ground it was not authenticated by a showing it was in defendant's handwriting or voice.]
At trial, the government's evidence was almost entirely circumstantial. Agent Rehman testified that he had a “conversation” under the assumed name of “FlaHawk” in a chat room called “Kidsexpics” with an individual identified as “Stavron” who said that his name was “B. Simpson” and who gave a street address and e-mail address. Other witnesses testified that both the street and e-mail addresses belonged to the Defendant, Bill Simpson.
The two also made a deal that the individual would send Rehman a check for $30 and a floppy disk containing numerous pornographic images of children under age 13 and in return, Rehman would send a video tape containing sexual interactions between a twelve year-old girl and a sixteen year-old boy. A printout of this conversation was admitted as evidence.
Detective Johnson testified that he had verified that a Bill Simpson lived at the street address given to Agent Rehman and prepared an affidavit for a search warrant of that address. Officers executed the warrant and seized many things, including a computer, disks, and several papers located near the computer. The papers contained the name “FlaHawk” and the name, street address, and e-mail address that Agent Rehman had given the individual in the chat room.



Simpson next argues that the trial court erred in admitting a computer printout of the alleged chat room discussion between Simpson and Detective Rehman, because the government could not identify that the statements attributed to Simpson were in his handwriting, his writing style, or his voice pursuant to Fed.R.Evid. 901(b)(2)--(5).
The specific examples of authentication referred to by Simpson are merely illustrative, however, and are not intended as an exclusive enumeration of allowable methods of authentication. See Fed.R.Evid. 901(b). Rather, all that is ultimately required is “evidence sufficient to support a finding that the matter in question is what its proponent claims.”
The evidence introduced at trial clearly satisfies this standard. In the printout of the chat room discussion, the individual using the identity “Stavron” gave Detective Rehman his name as B. Simpson and his correct street address. The discussion and subsequent e-mail exchanges indicated an e-mail address which belonged to Simpson. And the pages found near the computer in Simpson's home and introduced as evidence as Plaintiff's Exhibit 6 contain a notation of the name, street address, e-mail address, and telephone number that Detective Rehman gave to the individual in the chat room. Based on this evidence, the exhibit was properly authenticated and admitted as evidence.

AUTHENTICATION PROBLEMS


14 font1B Bob is arrested for robbing the Ace Bar and Grill. When Bob's apartment is searched following his arrest, a handwritten, unsigned note is found in a waste basket. The note reads, “Wait for me here. I am off to steal the car.” Discuss alternative ways, depending upon available evidence, to authenticate the note as having been written by Bob.
2 If you were the Deputy Corporation Counsel bringing a case against Cut Rate Liquor Store and Dan Jones for selling liquor to an intoxicated person (Watkins), how would you introduce into evidence the diagram of the scene which is part of Officer Bier's report from the Hawaii Liquor Commission v. Jones case? Who would be your witness? What questions would you ask?
3 xxx
4 How would you introduce the bottle and bag seized by Officer Bier from Walter Watkins? What questions would you ask?
5 Drug trial. Before trial the substance the defendant possessed was analyzed and determined to be cocaine. Before trial, someone breaks into the evidence room and steals the cocaine for this case (and a lot of other drugs). Defendant's lawyer brings a motion to dismiss the prosecution for lack of evidence. What result?
6B After the robbery, a woman calls the Ace Bar and Grill. She asks to speak to Harry. When Harry answers the phone, the woman says in a terribly nervous voice, “Don't ask who this is. Oh my God, if you want your money back go after Bob and Ray.” The police believe that the caller was Sally, who lives with Bob and Ray.

Can the information from the telephone call be admitted through Harry as a witness? What is the necessary foundation? What questions would you ask?




7A Billy Boy's lawyer has an enlarged color photograph of Billy lying on the pavement right after the accident. The photograph was taken by a newspaper photographer who was passing by the accident scene. However, the photographer has moved to another state and is not available to testify. Can Billy Boy's lawyer introduce the photograph through the testimony of Billy's mother, Barbara Green? Why or why not?
8A Can Billy's lawyer introduce a photograph of the intersection of First and Main, taken six months after the accident? Is the photograph admissible if it includes a new traffic sign that was not there at the time of the accident? What witness is needed to introduce this photo?
9A Can Billy's lawyer introduce an x-ray of Billy's broken bones taken soon after the accident? How would the foundation for the x-ray be different from that for a photograph?
10 In a prosecution for driving without a driver's license, how would the prosecutor prove that the defendant driver did not have a valid license on the day of the offense?
11 How would you authenticate:
A) John Barkai's evidence notes from when he took an evidence course at the University of Michigan in 1971?
B) A copy of the Hawaii Rules of Evidence currently in effect.
C) A copy of a Honolulu newspaper from the day of a crime, quoting a police officer saying “The defendant committed the crime.” (LG 61)
D) A partially eaten Hershey's Chocolate Bar that had metal pieces in it that the plaintiff claimed she bit causing her injuries.



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