Background: The defendant, a high school volleyball coach, was convicted of disseminating indecent material to minors and endangering the welfare of a minor. The allegations included that he sent numerous text messages containing sexual content to a 15- year old player on his team. The messages had been deleted, but the complainant’s boyfriend at the time had seen them, taken screenshots of them, and forwarded them to the victim’s mother and himself. At trial, the defendant objected to their admission stating they violated the best evidence rule and were not properly authenticated. Supreme Court allowed them in and the complainant identified the six screenshots as some of the messages the defendant sent. The Appellate Division reversed.

Held: Reversing the Appellate Division, the Court of Appeals held that the trial court acted within its discretion to admit the messages. Digital photographs can be authenticated by someone having “requisite knowledge of the facts,” here, the complainant, who was a participant in and witness to the conversations with the defendant. Even if the best evidence rule applied, the court didn’t abuse its discretion in admitting the screenshots.

CAL Observes: Given this seemingly uncontroversial holding, this Observer wondered what had prompted the Appellate Division to reverse. Turns out there is more here than meets the eye. The complainant’s former boyfriend was alone with the complainant’s phone in a locked room, and the Appellate Division found, under those circumstances, that the complainant’s testimony was insufficient to establish the defendant’s identity as the author of the texts. The People offered no evidence that the police ever checked either the defendant's phone or the complainant's iCloud account to determine the identity of the participants in the conversation.

We anticipate that issues around admission of digital and other technological proof will continue to bedevil courts and confuse litigants. Practitioners confronted with any such proof should consider closely whether the evidence could have been subject to alteration and object to the foundation laid on that basis.