Cut and Paste

United States v. Jackson, 488 F. Supp. 2d 866 (D. Neb. 2007)

An undercover agent had recorded chat sessions with the defendant by “cutting and pasting” the log of each conversation into a word processing document. After his investigation ended, the agent’s computer was wiped clean, leaving the “cut and paste” document as the only record of the chat conversations.

Despite the agent’s testimony at trial that he had been careful to avoid errors in cutting and pasting, the court excluded the “cut and paste” document based on defense expert testimony that suggested errors in the agent’s transcript. The court’s analysis relied, in part, on the defense expert’s testimony that there were several more reliable methods that the agent could have used to accurately capture the chat logs, including creating a forensic image of the agent’s computer’s hard drive, using software to save the chats, or using a basic “print screen” function.

Still, the ruling in Jackson is at odds with the prevailing standard for authenticity, particularly given the agent’s testimony that no errors were made and the defense’s inability to demonstrate any actual, as opposed to hypothetical, errors. Under the prevailing standard, courts should admit even “cut and paste” documents in many contexts.

United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007)

Transcript of instant message conversations that were cut and pasted into word processing documents were sufficiently authenticated by testimony of a participant in the conversation.

Note: These cases can be found in DOJ’s “Searching & Seizing & Obtaining Electronic Evidence Manual.”