State v. Wilkerson and the Authentication of Electronic Evidence

I recently heard a police detective say that the internet was the worst thing that ever happened to law enforcement.  He explained that before advent of the internet, criminals had to leave their homes to hook up with other criminals. That movement could easily be tracked by the police. These days conspiracies can be hatched and connections made without anyone leaving the comfort of his den and, correspondingly, without being observed by the police. The detective had a point. But if modern technology and its trail of connections present problems for law enforcement, they create a field of dreams for litigators. Family law attorneys seeking to prove infidelity can mine the timelines of Facebook.  Criminal defense attorneys can cross-examine witnesses about their wall posts and tweets. And prosecutors arguably benefit the most from the treasure-trove of electronic proof, which the State often uncovers in the form of incriminating instant messages, emails, and texts. It is somewhat surprising given the prevalence of electronic evidence that there are so few North Carolina appellate opinions addressing its admissibility. Several years ago, the court of appeals in State v. Taylor, 178 N.C. App. 395, 413-14 (2006), upheld the admission of text messages sent to and from the victim’s phone as properly authenticated. See N.C. Gen. Stat. § 8C-1, Rule 901(a) (“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”). In Taylor, witnesses from [...]