EVIDENTIARY FOUNDATIONS & USE OF DIVIDER 5 DIGITAL … 1-2 2011...Lorraine v. Markel American...

THE NATIONAL CENTER FOR JUSTICE AND THE RULE OF LAW

AND THE NATIONAL JUDICIAL COLLEGE

SI: TECHNOLOGY ASSISTED CRIMES AGAINST CHILDREN: EVIDENTIARY & PROCEDURAL MATTERS AT TRIAL

WB/KZ

AUGUST 1-2, 2011 RENO, NV

EVIDENTIARY FOUNDATIONS & USE OF DIGITAL EVIDENCE

DIVIDER 5

Professor Donald R. Mason OBJECTIVES: After this session, you will be able to:

1. Identify the major evidentiary considerations for use of digital evidence; and

2. Discuss how the rules of evidence may apply in cases involving technology facilitated crimes against children.

REQUIRED READING: PAGE 1. Donald R. Mason, Use of Digital Evidence: Evidentiary Considerations

for Trial (Aug. 2011) [NCJRL PowerPoint] ........................................................................1 2. Donald R. Mason, Evidentiary Foundations for Electronically Stored

Information: Resources (Aug. 2011) [NCJRL Document] ................................................21

Use of Digital Evidence – Evidentiary Considerations for TrialTechnology Assisted Crimes Against Children: Evidentiary and Procedural Matters at Trial, August 1‐2, 2011Copyright © 2011 National Center for Justice and the Rule of Law – All Rights Reserved

Use of Digital EvidenceUse of Digital EvidenceEvidentiary Considerations for TrialEvidentiary Considerations for Trial

NCJRL. NCJRL. orgorgCopyright © 2011 National Center for Justice and the Rule of Law – All Rights Reserved

Don MasonDon MasonAssociate Director, NCJRLAssociate Director, NCJRL

Research ProfessorResearch Professor

ObjectivesObjectivesAfter this session, you will be able After this session, you will be able to:to: Identify the major evidentiary Identify the major evidentiary

considerations for use of digitalconsiderations for use of digitalconsiderations for use of digital considerations for use of digital evidenceevidence

Discuss how the rules of evidence may Discuss how the rules of evidence may apply in cases involving technology apply in cases involving technology facilitated crimes against childrenfacilitated crimes against children

Digital Evidence and the Rules of Evidence

In general, the In general, the Rules of Evidence Rules of Evidence apply to electronicapply to electronic

NCJRL. NCJRL. orgorg

apply to electronic apply to electronic evidence in the evidence in the same ways they same ways they apply to more apply to more traditional forms of traditional forms of evidence.evidence.

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Leading Case

Lorraine v. Markel American Insurance Lorraine v. Markel American Insurance CoCo., 241 F.R.D. 534 (D. Md. 2007).., 241 F.R.D. 534 (D. Md. 2007).

This court addressed the five hurdles toThis court addressed the five hurdles to


This court addressed the five hurdles to This court addressed the five hurdles to admitting electronic evidence in admitting electronic evidence in great detail.great detail.

5 Hurdles to Clear


Hurdles

1.1. RelevanceRelevance2.2. AuthenticityAuthenticity33 B E idB E id


3.3. Best EvidenceBest Evidence4.4. HearsayHearsay5.5. More Prejudicial than ProbativeMore Prejudicial than Probative

2


Preliminary Rulings

Rule 104(a) Rule 104(a) –– Questions of admissibility Questions of admissibility generally. This applies to the admission generally. This applies to the admission of expert testimony, whether a privilegeof expert testimony, whether a privilege


of expert testimony, whether a privilege of expert testimony, whether a privilege exists, and whether a statement is exists, and whether a statement is hearsay.hearsay.Not bound by Rules except of privilege.Not bound by Rules except of privilege.

Conditional Relevancy

Rule 104(b). This applies to authenticity.Rule 104(b). This applies to authenticity.Jury not the court makes findings of fact.Jury not the court makes findings of fact.P di f b d i ibl dP di f b d i ibl d


Predicate facts must be admissible under Predicate facts must be admissible under the Rules.the Rules.

Rule 104 Example

In admitting an eIn admitting an e‐‐mail the jury would mail the jury would determine whether or not the edetermine whether or not the e‐‐mail was mail was what it purports to be, but a judge wouldwhat it purports to be, but a judge would


what it purports to be, but a judge would what it purports to be, but a judge would determine whether or not the edetermine whether or not the e‐‐mail was mail was an admission by a party opponent.an admission by a party opponent.

3


First Hurdle - Relevance

Rule 401 Rule 401 –– tends to make some fact of tends to make some fact of consequence more or less probable.consequence more or less probable.Admissibility distinguished from weightAdmissibility distinguished from weight


Admissibility distinguished from weight Admissibility distinguished from weight or sufficiency.or sufficiency.

Second Hurdle - Authentication

Is evidence what it is purported to be?Is evidence what it is purported to be?A party need only submit “evidence A party need only submit “evidence

sufficient to support a finding” thatsufficient to support a finding” that


sufficient to support a finding that sufficient to support a finding that the evidence is what the party the evidence is what the party claims it to be.claims it to be.

Circumstantial evidence can be used to Circumstantial evidence can be used to authenticate evidence.authenticate evidence.

Ways to Prove Authentication•• Testimony of a Testimony of a

witness with witness with knowledgeknowledge


•• Comparison by Comparison by expert or trier expert or trier of factof fact

•• Distinctive Distinctive characteristicscharacteristics

4


Authenticity of a Computer Printout

Bookkeeper testifies she Bookkeeper testifies she inputted sales, inventory, inputted sales, inventory, payroll and tax info payroll and tax info regularly; the printoutregularly; the printout


regularly; the printout regularly; the printout accurately reflected that accurately reflected that information; and the information; and the company regularly printed company regularly printed such reports. such reports. United States United States v. Catabranv. Catabran, 836 F.2d 453 , 836 F.2d 453 (9th Cir. 1988).(9th Cir. 1988).

Authenticity of a Mirrored Hard Drive

Police Officer testifies as to his method in Police Officer testifies as to his method in mirroring the drive, software used to mirroring the drive, software used to


examine the contents, and that the examine the contents, and that the information extracted accurately information extracted accurately represented information on the original represented information on the original drive. drive. Bone v. StateBone v. State, 771 N.E.2d 710 (Ind. , 771 N.E.2d 710 (Ind. Ct. App. 2002).Ct. App. 2002).

Authenticity of Chat LogDefendant argued gov’t could not prove he made the Defendant argued gov’t could not prove he made the

statements contained in the log.statements contained in the log.Chatter gave defendant’s first initial, last name, and Chatter gave defendant’s first initial, last name, and

street address. Police found the name, street street address. Police found the name, street address eaddress e‐‐mail address and telephonemail address and telephone


address, eaddress, e mail address, and telephone mail address, and telephone number the undercover officer gave chatter on number the undercover officer gave chatter on a pad near defendant’s computer.a pad near defendant’s computer.

Court found log admissible.Court found log admissible.United States v. SimpsonUnited States v. Simpson, 452 F.3d 1241, 1249, 452 F.3d 1241, 1249‐‐50 50

(10th Cir. 1998); (10th Cir. 1998); see also United States v. Tanksee also United States v. Tank, , 200 F.3d 629 (9th Cir. 2000).200 F.3d 629 (9th Cir. 2000).

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Not AuthenticChat log pasted into a Word Chat log pasted into a Word document could not be document could not be authenticated. Defense expert authenticated. Defense expert testified the process did not testified the process did not properly reproduce the chat properly reproduce the chat


p p y pp p y pand that there were several and that there were several errors in the copies made. All errors in the copies made. All copies of the full transcript copies of the full transcript were lost or destroyed.were lost or destroyed.United States v. JacksonUnited States v. Jackson, 488 F. , 488 F. Supp. 2d 866 (D. Neb. 2007).Supp. 2d 866 (D. Neb. 2007).

Authenticity of Text MessageText messager identified himself as Sean and Text messager identified himself as Sean and

stated that he was driving a Ford Contour. stated that he was driving a Ford Contour. This coupled with testimony about how text This coupled with testimony about how text messages are sent was enough tomessages are sent was enough to


messages are sent was enough to messages are sent was enough to authenticate texts as being from murder authenticate texts as being from murder victim, Sean, who was in a Contour on the victim, Sean, who was in a Contour on the night of his night of his disappearance.disappearance.

State v. TaylorState v. Taylor, 632 S.E.2d 218 (N.C. Ct. App. , 632 S.E.2d 218 (N.C. Ct. App. 2006)2006)

Authentication of Social Media Information


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Authentication of Social Media Information

•• MySpace account used defendant’s name MySpace account used defendant’s name and hometown. Account had pictures of and hometown. Account had pictures of defendant.defendant.


••This was sufficient evidence to authenticate This was sufficient evidence to authenticate that the account belonged to the that the account belonged to the defendant.defendant.

Tienda v. StateTienda v. State, 2010 WL 5129722 (Tex. Ct. App. Dec. , 2010 WL 5129722 (Tex. Ct. App. Dec. 17, 2010)17, 2010)

On the other hand …Printout of MySpace profile pages not sufficiently authenticated where‐ State attempted authentication through lead investigator’s testimony

‐ Contained photo of purported creator and Petitioner in embrace

‐ Contained user’s birth date, referenced her location, and identified her boyfriend by Petitioner’s nickname

Griffin v. State, 19 A.3d 415 (Ct. App. MD 2011)

GriffinMajority ‐‐ “[P]otential for abuse and manipulation” of social networking sites by others, in particular, requires more‐ Describes other possible methods‐ Describes other possible methods

Dissent – Cites federal decisions finding authentication proper “if a reasonable juror could find in favor”‐ Asserts majority’s concerns go to weight rather than admissibility of the printouts

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Need Testimony to Authenticate Evidence?

Two exceptions:Two exceptions:1.1. SelfSelf‐‐authenticating evidence; andauthenticating evidence; and


gg2.2. Evidence turned over as part of Evidence turned over as part of

discoverydiscovery

Self Authentication

Rule 902Rule 902•• Public DocumentsPublic DocumentsT d I i iT d I i i


•• Trade InscriptionsTrade Inscriptions•• Certified Records of Regularly Certified Records of Regularly

Conducted Business ActivityConducted Business Activity

Is E-Mail Self Authenticating?

Rule of Evid. 902(7) makes self Rule of Evid. 902(7) makes self authenticating documents with authenticating documents with


“inscriptions, signs, tags, or labels “inscriptions, signs, tags, or labels purporting to have been affixed in the purporting to have been affixed in the course of business and indicating course of business and indicating ownership, control, or origin.”ownership, control, or origin.”

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E-Mail SignatureThomas K. ClancyDirector & Research ProfessorNational Center for Justice and the Rule of LawUniversity of Mississippi


School of LawP.O. Box 1848University, MS 38677662-915-6918www.NCJRL.orgauthor: The Fourth Amendment: Its History and Interpretation (Carolina Press 2008) www.cap-press.com/books/1795

Is This Different?


Authentication & Best Practices

Best practices are not necessary to Best practices are not necessary to authenticate evidence. However, authenticate evidence. However, best practices strengthen arguments best practices strengthen arguments


p g gp g gthat an item is what it purports to that an item is what it purports to be.be.

Best practices also increase the weight Best practices also increase the weight that should be given to the evidence that should be given to the evidence presented.presented.

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Chain of Custody

“Challenge to the chain of custody goes to the “Challenge to the chain of custody goes to the weight rather than the admissibility of the weight rather than the admissibility of the evidence.” evidence.” U.S. v. LopezU.S. v. Lopez, 758 F.2d 1517 , 758 F.2d 1517 ( h )( h )


(11th Cir. 1985).(11th Cir. 1985).A missing link in the chain of custody for a hard A missing link in the chain of custody for a hard

drive went to the weight given the evidence drive went to the weight given the evidence by the jury not to the hard drive’s by the jury not to the hard drive’s admissibility. admissibility. U.S. v. GavegnanoU.S. v. Gavegnano, 305 Fed. , 305 Fed. Appx. 954 (4th Cir. 2009).Appx. 954 (4th Cir. 2009).

Hash Values•• Hash values are created using algorithms Hash values are created using algorithms

which create 32 which create 32 character (or longer) character (or longer) strings for pieces of digital information.strings for pieces of digital information.

•• Like DNA Hash Values are unique to eachLike DNA Hash Values are unique to each


•• Like DNA, Hash Values are unique to each Like DNA, Hash Values are unique to each piece of information and can not be piece of information and can not be changed.changed.

•• The chances of two different inputs The chances of two different inputs generating the same hash value are 1 in generating the same hash value are 1 in 340 Undecillion.340 Undecillion.

How are Hash Values Useful for Authentication?A hash value taken from the source of A hash value taken from the source of acquisition that matches the copy or acquisition that matches the copy or


mirrored piece of information verifies mirrored piece of information verifies that the information is exactly the same.that the information is exactly the same.

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Hash Values


Third Hurdle - HearsayIs it a statement?Is it a statement?Was it made out of court Was it made out of court

by a declarant?by a declarant?Is it offered to prove theIs it offered to prove the


Is it offered to prove the Is it offered to prove the truth of the matter truth of the matter asserted?asserted?

Is it covered by an Is it covered by an exception?exception?

Is It Hearsay?•• Chat transcript in an enticement trial not Chat transcript in an enticement trial not hearsay, but instead the act of enticement itself.hearsay, but instead the act of enticement itself.State v. GlassState v. Glass, 190 P.3d 896 (Idaho Ct. App. , 190 P.3d 896 (Idaho Ct. App. 2008).2008).


))

•• Child pornography in a child pornography trial Child pornography in a child pornography trial is not hearsay. Images are not statements. is not hearsay. Images are not statements. They are contraband just like a bag of cocaine.They are contraband just like a bag of cocaine.U.S. v. CameronU.S. v. Cameron, 2011 WL 197365 (D. Me. Jan. , 2011 WL 197365 (D. Me. Jan. 18, 2011).18, 2011).

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Business Record Exception(1) Data entered in (1) Data entered in

the normal the normal course of course of businessbusiness


(2) Data entered at or (2) Data entered at or near time of the near time of the occurrenceoccurrence

(3) Source indications (3) Source indications of reliabilityof reliability

Overlaps with Authenticity

Some courts have compressed the Some courts have compressed the authentication and business record authentication and business record exception analysis. Generally if aexception analysis. Generally if a


exception analysis. Generally if a exception analysis. Generally if a document qualifies as a business record document qualifies as a business record it meets the authenticity requirements.it meets the authenticity requirements.

Business Record Exception Application

•• Bills of Lading. Bills of Lading. SeaSea‐‐Land Service, Inc. v. Lozen Land Service, Inc. v. Lozen Intern., LLCIntern., LLC, 285 F.3d 808 (9th Cir. 2002)., 285 F.3d 808 (9th Cir. 2002).


•• Fed Ex Delivery Record. Fed Ex Delivery Record. Dyno Const. Co. v. Dyno Const. Co. v. McWane, Inc.McWane, Inc., 198 F.3d 567 (6th Cir. , 198 F.3d 567 (6th Cir. 1999).1999).

•• Insurance Payment Register. Insurance Payment Register. U.S. v. SandersU.S. v. Sanders, , 749 F.2d 195 (10th Cir. 1984).749 F.2d 195 (10th Cir. 1984).

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Common Computer Records Objection

The vulnerability The vulnerability of computer of computer


records to records to manipulation manipulation makes them makes them inherently inherently untrustworthy.untrustworthy.

Are Computer Records Less Reliable?

•• ComputerComputer‐‐generated records are not less generated records are not less reliable than other business records. reliable than other business records. U S v Young Bros IncU S v Young Bros Inc 728 F 2d 682728 F 2d 682


U.S. v. Young Bros., Inc.U.S. v. Young Bros., Inc., 728 F.2d 682 , 728 F.2d 682 (5th Cir. 1984).(5th Cir. 1984).

•• To the extent they are less reliable, that fact To the extent they are less reliable, that fact goes to weight and not admissibility. goes to weight and not admissibility. U.S. v. GlasserU.S. v. Glasser, 773 F.2d 1553 (11th Cir. , 773 F.2d 1553 (11th Cir. 1985).1985).

Establishing BR Exception for E-mail

Monthly inventory printout is a systematic and regularly Monthly inventory printout is a systematic and regularly kept record.kept record.

EE‐‐mail is an ongoing electronic message and retrieval mail is an ongoing electronic message and retrieval


system.system.Monotype Corp. PLC v. Int’l Typeface Corp.Monotype Corp. PLC v. Int’l Typeface Corp., 43 F.3d 443 , 43 F.3d 443

(9th Cir. 1994).(9th Cir. 1994).If eIf e‐‐mail is a regularly kept record, do you have to show mail is a regularly kept record, do you have to show

that the content is also regularly kept?that the content is also regularly kept?New York v. Microsoft Corp.New York v. Microsoft Corp., 2002 WL 649951 (D.D.C. , 2002 WL 649951 (D.D.C.

April 12, 2002)April 12, 2002)

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Fourth Hurdle – Best Evidence Rule

•• Rule 1002 requires an original in order to prove Rule 1002 requires an original in order to prove content of a writing, recording, or photo.content of a writing, recording, or photo.

R l 1001 d fi i i l t i l d d blR l 1001 d fi i i l t i l d d bl


•• Rule 1001 defines original to include readable Rule 1001 defines original to include readable displays which includes printouts.displays which includes printouts.

•• Rule 1003 states accurate duplicates are Rule 1003 states accurate duplicates are originals for admissibility purposes.originals for admissibility purposes.

•• Rule 1006 allows for summaries of voluminous Rule 1006 allows for summaries of voluminous materials.materials.

Best Evidence Rule -Cases

•• A duplicate of a hard drive is A duplicate of a hard drive is admissible. admissible.

St t M iSt t M i N 4CA0036N 4CA0036


State v. MorrisState v. Morris, No. 4CA0036, , No. 4CA0036, 2005 WL 356801, at *2 (Ohio. 2005 WL 356801, at *2 (Ohio. Ct. App. Feb. 16, Ct. App. Feb. 16, 2005);2005);Broderick v. StateBroderick v. State, 35 S.W.3d 67 , 35 S.W.3d 67 (Tex. Ct. App. 2000).(Tex. Ct. App. 2000).

GPS InformationU.S. v. Bennett, 363 F.3d 947 (9th Cir. 2004)Police found a GPS unit while searching a boat Police found a GPS unit while searching a boat

suspected of importing drugs into the suspected of importing drugs into the United States.United States.


An officer looked through the GPS history An officer looked through the GPS history showing the boat had just come from showing the boat had just come from Mexican waters.Mexican waters.

The unit was not confiscated, but the officer The unit was not confiscated, but the officer testified at trial as to the information he got testified at trial as to the information he got from the unit.from the unit.

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U.S. v. Bennett•• Was the information Was the information

obtained from the Unit obtained from the Unit “a writing or “a writing or recording?”recording?”


•• Did the testimony regard Did the testimony regard the “content” of a the “content” of a “writing or recording?”“writing or recording?”

•• Should it have been Should it have been excluded?excluded?

U.S. v. Bennett•• 9th Circuit ruled the 9th Circuit ruled the officer’s testimony officer’s testimony regarded a “writing or regarded a “writing or recording” and concerned recording” and concerned the “content” of the GPSthe “content” of the GPS


the content of the GPS.the content of the GPS.•• Analogizing to testimony Analogizing to testimony regarding the content of a regarding the content of a security camera the court security camera the court found the evidence should found the evidence should have been excluded. have been excluded.

U.S. v. Bennett•• Would a printout from the GPS be sufficient under the Would a printout from the GPS be sufficient under the

best evidence rule?best evidence rule?•• In other contexts some courts have found that format In other contexts some courts have found that format

matters because information may be lost in simply matters because information may be lost in simply printing out the graphical informationprinting out the graphical information


printing out the graphical information.printing out the graphical information.•• In In Armstrong v. Executive Office of the President, Office of Armstrong v. Executive Office of the President, Office of

Admin.Admin., 1 F.3d 1274 (D.D.C. 1993), a district court , 1 F.3d 1274 (D.D.C. 1993), a district court ruled that printouts of eruled that printouts of e‐‐mails that did not include mails that did not include directories, distribution lists, acknowledgements, directories, distribution lists, acknowledgements, and potentially other information were not and potentially other information were not complete records.complete records.

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Fifth Hurdle – Filter RuleRule 403 allows for the exclusion of Rule 403 allows for the exclusion of evidence “if its probative value is evidence “if its probative value is substantially outweighed by the danger substantially outweighed by the danger


of unfair prejudice, of unfair prejudice, confusion of the confusion of the issues, or misleading the jury, or by issues, or misleading the jury, or by considerations of undue delay, waste of considerations of undue delay, waste of time, or needless presentation of time, or needless presentation of cumulative evidence.”cumulative evidence.”

United States v. Caldwell, 586 F.3d 338 (5th Cir. 2009)

•• Defendant was charged with possession of child Defendant was charged with possession of child pornography he downloaded via Limewire.pornography he downloaded via Limewire.

•• The gov’t introduced three CP clips, adult porn The gov’t introduced three CP clips, adult porn


videos, and part of adult bestiality film that videos, and part of adult bestiality film that was downloading via P2P at time search was downloading via P2P at time search warrant was served and defendant was warrant was served and defendant was alone in his home.alone in his home.

•• Defendant was not charged in connection with Defendant was not charged in connection with the bestiality or other adult porn films.the bestiality or other adult porn films.

Probative ValueThe films were The films were used to show the used to show the defendant knew defendant knew


how to use how to use Limewire to Limewire to download download movies.movies.

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Unfair Prejudice

•• Jury might punish defendant for his Jury might punish defendant for his involvement with bestiality instead involvement with bestiality instead of for the crime charged.of for the crime charged.


of for the crime charged.of for the crime charged.

Other Possibilities

•• What if the videos had been What if the videos had been downloaded at a time when the downloaded at a time when the gov’t was unsure who was ingov’t was unsure who was in thethe


gov t was unsure who was in gov t was unsure who was in the the home?home?

Court’s Ruling

•• The video downloading at the time of the The video downloading at the time of the search was properly admitted.search was properly admitted.

•• The video previously downloaded might have The video previously downloaded might have


p y gp y gbeen improper, but any error was been improper, but any error was harmless because there was no harmless because there was no contemporaneous objection and other contemporaneous objection and other similar videos had already been similar videos had already been admitted.admitted.

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United States v. Grimes, 244 F.3d 375 (5th Cir. 2001)

•• Defendant was charged with possession of child Defendant was charged with possession of child pornography.pornography.

•• The images in question featured nude sexually The images in question featured nude sexually l i i b h i b il i i b h i b i


lascivious behavior by minors.lascivious behavior by minors.•• The gov’t sought to introduce sexual narratives The gov’t sought to introduce sexual narratives

involving minors found on the same involving minors found on the same computer.computer.

•• The narratives featured sexual violence and The narratives featured sexual violence and “moderate torture.”“moderate torture.”

Probative Value

•• Narratives proved the defendant’s Narratives proved the defendant’s intent to possess sexually explicit intent to possess sexually explicit material involving children andmaterial involving children and


material involving children and material involving children and made it less likely possession made it less likely possession was was accidental.accidental.

Unfair Prejudice•• The violent nature of the narrative which The violent nature of the narrative which

featured “young girls in chains, a young girl featured “young girls in chains, a young girl in handcuffs, and references to blood” in handcuffs, and references to blood” might cause the jury to act with emotion might cause the jury to act with emotion instead of reasoninstead of reason


instead of reason.instead of reason.

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Court’s Ruling

•• The narratives were admitted in error The narratives were admitted in error and the defendant was entitled to a and the defendant was entitled to a new trial.new trial.


new trial.new trial.•• The court did state the narratives had The court did state the narratives had

probative value and redacted to probative value and redacted to exclude violence might be exclude violence might be admissible.admissible.

Contact InformationContact Information

Don Mason662-915-6898


[email protected]

Copyright © 2011 National Center for Justice and the Rule of Law – All Rights Reserved

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Evidentiary Foundations for Electronically Stored Information

RESOURCES

Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. May 4, 2007)

LORRAINE V. MARKEL: ELECTRONIC EVIDENCE 101 (A LexisNexis Discovery Services white paper) http://www.lexisnexis.com/discovery

THE SEDONA CONFERENCE® COMMENTARY ON ESI EVIDENCE & ADMISSIBILITY http://www.thesedonaconference.org/dltForm?did=ESI_Commentary_0308.pdf

George L. Paul, FOUNDATIONS OF DIGITAL EVIDENCE (American Bar Association 2008)

DIGITAL EVIDENCE IN THE COURTROOM: A GUIDE FOR LAW ENFORCEMENT AND PROSECUTORS Special Report by National Institute of Justice (NCJ 211314, January 2007) http://www.ncjrs.gov/pdffiles1/nij/211314.pdf

Edward J. Imwinkelreid, EVIDENTIARY FOUNDATIONS (LexisNexis 6th ed. 2005)

Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION

Beatrice O'Donnell and Thomas A. Lincoln, “Authenticating E-Mail Discovery as Evidence” (The Legal Intelligencer, August 13, 2007)

H. Christopher Boehning and Daniel J. Toal, “Keep 'Smoking Gun' E-Mails from Backfiring” (New York Law Journal, October 25, 2007)

Orin S. Kerr, “Computer Records and the Federal Rules of Evidence,” United States Attorneys’ USA Bulletin (March 2001, Vol. 49, No. 2) http://www.usdoj.gov/criminal/cybercrime/usamarch2001_4.htm

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