STATE v. ROBERT ELECK, SC 18876

Judicial District of Stamford-Norwalk

Criminal; Evidence; Whether Facebook Messages Purportedly Sent by Witness Were Inadmissible for Lack of Sufficient Authentication.  The trial court convicted the defendant of assault in the first degree in connection with a stabbing that occurred at a house party.  At trial, a witness for the state, Simone Judway, testified that the defendant told her at the party that "if anyone messes with me tonight, I am going to stab them."  During cross-examination, defense counsel sought to impeach Judway's credibility by asking her whether she had spoken to the defendant since the incident.  Judway responded that she had not, and defense counsel then showed her a printout purporting to show an exchange of electronic messages between the defendant's Facebook account and another Facebook account with the user name "Simone Danielle."  Judway testified that the user name was her own, but she denied sending the messages and stated that someone "hacked" into her Facebook account.  Defense counsel then offered the Facebook printout into evidence and, in an attempt to authenticate the printout, the defendant testified that he printed the messages directly from his computer and that he recognized Judway’s user name because she had added him as a Facebook "friend" shortly before he received the messages.  He also testified that Judway’s Facebook profile contained photographs and other entries identifying her as the holder of the account and that after the previous day’s testimony, Judway removed him from her list of Facebook "friends."  Defense counsel argued that based on the defendant's testimony and Judway's identification of her user name, there was sufficient foundation to admit the printout into evidence.  The trial court disagreed and declined to admit the printout.  On appeal, the defendant argued that the trial court abused its discretion in excluding the printout.  In affirming the trial court's judgment, the Appellate Court (130 Conn. App. 632), reasoned that the defendant only proved that the Facebook messages came from Judway's account and not that she was the author of the messages.  It stated that although Judway's suggestion that she could not have sent the messages because her account was "hacked" was dubious given that the messages were sent prior to the alleged hacking, Judway's testimony highlighted the lack of security with Facebook and raised an issue as to whether a third party could have sent the messages via her account.  It also rejected the defendant's claim that the content of the messages identified Judway as the author, stating that the content did not provide distinct information that only Judway would have possessed.  Finally, it rejected the defendant's argument that the messages could be authenticated under the "reply letter" doctrine.  That doctrine provides that "letter B is authenticated merely by reference to its content and circumstances suggesting it was in reply to earlier letter A and sent by [the] addressee of letter A . . . ."  The Appellate Court held that the mere fact that a message was sent and a reply was received did not automatically authenticate the reply and that there was no circumstantial evidence to verify the identity of the person with whom the defendant was messaging.  In this appeal, the Supreme Court will decide whether the Appellate Court properly concluded that the trial court did not abuse its discretion in ruling that the Facebook messages were inadmissible.