One of my all-time favorite emails was received from a prosecutor who was handling a drug trafficking case. The email included a picture, plucked from what purported to be the defendant’s Facebook page, showing the defendant sitting on a pile of cash (later determined to be $1.6 million!), holding an AK-47. Jeff has written (here) about authenticating photographs from social media sites. But what of the other evidence that is mined from social media—how is that authenticated? A recent Second Circuit case adheres to the line that the relevant standard isn’t particularly high but finds that the prosecution didn’t meet it in this case. The case is United States v. Zhyltsou, decided in October. The defendant was tried federally on a charge of transfer of a false identification document. The government’s key witness was Vladyslav Timku, a Ukrainian citizen residing in the U.S. who testified pursuant to a cooperation agreement. Timku testified that he was friends with the defendant and knew about the defendant’s work as a forger because he had previously paid him to create false documents in connection with a tax scheme involving a corporation called Martex International. Timku testified that he asked the defendant to create a forged birth certificate showing that Timku was the father of an invented infant daughter. Timku wanted the document to avoid compulsory military service in Ukraine, which allows service deferment for parents of young children. According to Timku, the defendant agreed and sent the forged document to Timku by email from the [...]
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