eDiscovery Daily Blog
eDiscovery Case Law: Cut and Paste Makes the Cut as Evidence
In United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), the defendant in a criminal case appealed his conviction and raised the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.
Detective George Clifton, a member of the Miami–Dade Police Department's Sexual Crimes Bureau, posing as a male living with his girlfriend and his girlfriend's 14–year–old daughter, conducted instant message (IM) online chats with Keith Lanzon that led to Lanzon being arrested and charged with violating 18 U.S.C. § 2422(b), which provides that:
Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.
Detective Clifton saved these conversations by copying the IM communications and pasting them into a Microsoft Word document, saving the Word document to a “floppy” disc, for printing in transcripts. While Detective Clifton did not save any of the IM conversations in their original format, he did compare the actual IM "chat screens" to the Word document he had created to verify that the Word document exactly matched the IM conversations.
At trial, the prosecution introduced the Word document with the cut-and-pasted IMs, and Lanzon was convicted. Lanzon appealed to the US Eleventh Circuit Court of Appeals, claiming, inter alia, that the document was improperly admitted, and that the admission of the document violated the Due Process Clause and the Best Evidence Rule. Lanzon also argued the transcripts violated the rule of completeness in FRE 106 claiming that Detective Clifton failed to include the entire chat transcript, including only the edited portion that supported his case. FInally, Lanzon claimed that the prosecution failed to properly authenticate the Word document.
The Eleventh Circuit found that Lanzon failed to prove bad faith by the government in failing to preserve the original IMs. The court also rejected Lanzon's rule of completeness argument, finding that “There is no indication that additional parts of the conversation exist.”
As for the failure to authenticate claim, the Eleventh Circuit also rejected that claim, finding that “Evidence may be authenticated through the testimony of a witness with knowledge. FRE 901(b)(1). The proponent need only present enough evidence "to make out a prima facie case that the proffered evidence is what it purports to be.”
A copy of the opinion can be found here.
So, what do you think? Have you dealt with a case involving evidence cut and pasted into a document? Please share any comments you might have or if you’d like to know more about a particular topic.
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