United States v. Vayner

United States Court of Appeals for the Second Circuit · Evidence

EvidenceAuthenticationRule 901Internet evidenceHarmless errorFederal Rule of Evidence 901authenticationsocial media

Facts

At trial, the government's principal witness, Timku, testified that Zhyltsou forged a birth certificate and emailed it to him from azmadeuz@gmail.com. Near the end of the government's case, it introduced a printed VK profile page that purported to be for "Alexander Zhiltsov," showed Zhyltsou's photograph, listed work history consistent with Timku's testimony, and gave the Skype contact name "Azmadeuz." Special Agent Cline testified only that he viewed the page on the Internet and had only cursory familiarity with VK; he did not know who created the page or whether VK required identity verification. The government used the page to argue that Zhyltsou used the online identity "Azmadeuz" and therefore likely owned the Gmail address from which the forged document was sent.

Issue

Whether the district court abused its discretion by admitting the VK profile-page printout without sufficient authentication under Federal Rule of Evidence 901. If so, whether the error was harmless.

Rule

Under Rule 901, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Although the authentication bar is not high and proof may be direct or circumstantial, there must be enough evidence for a reasonable juror to find authenticity; a web page is not sufficiently authenticated simply because it exists on the Internet and contains identifying information about a person.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a fraud trial in Chicago, the prosecution offers a printout of a social-network profile bearing Omar Nasser’s name, photograph, and employer. An investigator testifies only that he located the page online the week before trial and printed it; he does not know who created the account, whether the platform verifies users, or whether Omar ever accessed it.

The prosecution offers the page to prove that Omar used the screen name listed on the profile and therefore authored incriminating emails sent under the same name. Is the printout sufficiently authenticated under Rule 901?

Explanation. Rule 901 requires evidence sufficient for a reasonable juror to find that the item is what the proponent claims it is. When the proponent’s theory depends on attributing the page to Omar, mere proof that a page on the Internet contains his name, photo, and biographical details is not enough. The majority rejected authentication based solely on online existence plus identifying content, while also making clear that Internet evidence is not categorically inadmissible and need not always require expert testimony. (Derived from United States v. Vayner (n.d.).)