By Sydney Sullivan
“If the text doesn’t fit you must acquit.“
If this case has taught us anything – its that the Rules of Evidence lag well behind digital technology and forensics creating a need for the current state and federal legislation to be updated concerning the inspection, interpretation and collection of, digital evidence along with digital devices – and proactive digital evidence and forensics
educational programs for local and state government employees need to be instituted and/or significantly updated.
In the Doc Bekkum case, iPhone text messages were used to support the complainant’s narrative. She had no witness of her own to support her allegations. The only known witness was Dr. Bekkum’s daughter who completely disputed the complainant’s testimony in a declaration, but it was after the trial. Being able to decipher real from fabricated screenshot digital text messaging is paramount in this case. From the collection to the Exhibit – the pathway must be squeaky clean.
Even the 2017 Authenticating Digital Evidence by Daniel Capra of Fordham University School of Law is now, only 6 years later, somewhat outdated as technology rapidly advances. The white paper notes:
“The standards and examples provided by Rule 901(a) and (b) are by design flexible enough to adapt to all forms of evidence—including electronic evidence. That does not mean that authenticating digital evidence is automatic. …
Digital evidence can present the challenge of convincing the court that it has not been altered or hacked and that it comes from a certain source.”AUTHENTICATING DIGITAL EVIDENCE, Pg. 3
“The Judicial Conference Advisory Committee on Evidence Rules, surveying this case law, determined that the Bench and Bar would be well-served by published guidelines that would set forth the factors that should be taken into account for authenticating each of the major new forms of digital evidence that are being offered in the courts.” Pg. 4
We are assuming that judges, defense attorneys, police, and prosecutors are well-educated in digital technology and devices or that state legislation has set up guidelines. But legislation and protocols may be outdated by now and not strong enough as technology continually changes.
Even a good defense attorney may not be knowledgeable enough to suspect a fraudulent digital exhibit presented by a prosecutor who also may have no firsthand education in the digital forensics field or any depth into digital devices, digital technology and software programs. The same applies to an astute judge who relies upon the prosecutor or plaintiff’s attorney to be presented with verified digital evidence. To the naked eye some of the fake text message programs seriously make fakes look very real.
You can’t project what you can’t conceive. In other words, a defense attorney can’t object to something he has no knowledge of; and, by the canons of legal, judicial and ethical conduct there is an obligation in most states to disclose tainted evidence. And if no one, not the judge, not the prosecutor or defense attorney had any extensive digital forensics evidence and technology knowledge, the defendant’s 6th Amendment rights were being trampled – and maybe not on purpose.
Where would you start in examining the validity of text message screenshots?
[Disclaimer – The following points are only suggestions for an initial review. Because digital technology is rapidly evolving, if you suspect a text message to be fake you should contact professional forensics examiners for a thorough investigation]
Start with your own phone. Take a screen shot of any string of text messages, do not crop it or enhance the photo – just save it to your photos. This will be your baseline. If you have an iPhone and you are communicating with another iPhone – the message from the other iPhone will be in a gray bubble and your message will appear in a blue bubble. If you are communicating with an Android your message bubble will be green.
Note the time the screenshot was taken is on the upper left header of the pic, in the middle there is a circle with the initials of your contact you are communicating with and first name (or names depending upon the first line you established for your friend on your page of contacts). On the right of the header will be WiFi or LTE and battery life.
At the bottom will be the Camera symbol and other Apps and the message box.
What else does this screenshot tell you or should you look for? Since there is no day, date and time in the center under the header, it would appear the messages didn’t start with the first message showing, so more of the conversation would be above. The day, date and time should appear above the first message in that string for that day. It is unlikely that a screenshot would display any significant blank space especially under the header and start a message below the blank area unless something was deleted or redacted without notation.
Another clue to look for is in the iPhone owner bubble. For example, look for the first word of the text you are sending from the iPhone to be capitalized and the same capitalization after the periods (.) ending the sentences, i.e., capitalization of the first word of a new sentence. iPhones automatically capitalize and make corrections. In most cases, lower case letters used in starting sentences on an iPhone would have to be inputted manually, overriding the auto-correction.
The size of the text bubble is an important note for first glance. Use your own iPhone screenshot as a basis. If you are unsure about a message bubble size – type the longest line in the message into your own iPhone.
The text size can be adjusted in your iPhone Settings. When testing an iPhone text message in question, go to Settings, Accessibility, Display & Text Size, click on Larger Text and at the bottom drag the slider to reduce the letter size down to the smallest setting (all the way to the left). That should give you the widest bubble possible – but that may have some variations, like the year, model, last update of the iPhone that originated the message as well as your iPhone. *Remember a certified digital forensics investigator is the best way to get reliable information. This is just a novice approach.
Next, go back to your text messages and look for a 2-plus line message from the evidence and type the longest line into your iPhone to see if the line fits on one line within your widest bubble. *This is a point where there are a lot of variables and would be best to have a forensics examiner.
iPhone text message bubble sizes differ from other devices and even most fake messaging programs. Forensics experts can easily identify size, shapes, colors, fonts, spacing and emojis variations and determine real from fake. Did you know that Apple and other cell phone manufacturers will make slight adjustments from year to year to their media data that only professionals will detect? Kinda like how to catch a thief, yeah??
Now, taking just what you’ve learned so far – look at the Exhibit example on the left. How many issues can you find with the naked eye?
- Missing header metadata
- No date at the top under the header, or
- No continuing message from above
- Blank space
- Size of the bubbles
- Capitalization issues
“Screenshots don’t create blank spots – people do.” –SS
Another reasons for demonstrating the Text Sizing is that in order to have credible screenshot evidence, the police should treat the device(s) like a crime scene. It’s not enough to just take a picture of the text messages. It must be taken into account whether the police have the time and ability to forensically examine the device at the station while the victim is filing a complaint, or do they need to confiscate the device(s) for their forensics department to complete the investigation? It is a necessity to thoroughly and professionally capture all the relevant data just as any evidence would be collected in a criminal case, and there are other areas on the cellphone and/or other devices that need to be documented as well.
Text Sizing is just one of them. Here are a couple of other examples of pertinent information that can be found on an iPhone under Settings, General, the following data will give information investigators would want to have confirmed:
- About – Making sure the complainant is the owner of the cellphone, software version, model name and number, serial number, and other important factual information. Clarifying the ownership of the device in question is paramount to any digital device case. For example, what if this phone belongs to someone else, does anyone else have access to or use the device – how does that affect the case/complaint?
- iPhone Storage – Are old conversations deleted? Is there iCloud Storage? And what about the other programs on the iPhone? For example, is there a Fake Messaging app on the cellphone? What if two or more people are involved in a conspiracy to defraud and/or extort the defendant? There would likely be other conversations and contact information ripe for investigation. The original texting cellphone device is evidence and needs to be thoroughly examined – if its lost or destroyed, evidence can’t be digitally verified by the device.
- Apps – What are the other apps on the iPhone? Is there perhaps a fake messaging program?
Think about it this way – would you leave the gun at the scene of the crime with the victim who is filing a criminal complaint, even if it was her gun? Doubtful, huh? The police would probably confiscate the gun and run a battery of forensics tests for evidence – and if the victim were lucky he might get his gun back after trial, providing it was his gun.
There’s a good chance that if you cannot fit the same amount of words on one line in your own widest bubble as are on the exhibit/example (as described above) – then it should be a red flag. Who ya gonna call? Digital Forensics!
“If the text doesn’t fit you must acquit.“
The above samples are just for starters. Forensics examiners will find this and almost everything else from the size and slight curvatures of the font, to the size, color and shape of the bubbles, to the shape of the graphics, date of emoji characters, and more. Remember our Rossbach case in DeadlyClear’s Text Message Screenshots: Real Or Fake??
We asked our forensics team about how digital media laws have evolved since 2003. CEO Dan Regard of iDS Solutions responded,
“There were hardly any fake-text-message apps in 2003 because all the phones were flip phones and Blackberries. We didn’t think of text messages the same until the iPhone in 2007, and subsequent. But the fact is, the iPhone is also the best tool to make fake text messages. No special application is required.”
The Prosecution’s Duty to Disclose Exculpatory Evidence
Criminal trials are serious business, and a defendant’s rights are enshrined in law. You have a right to due process. The prosecution is required to play fairly. Playing fairly means if the prosecution has evidence that you didn’t commit the offense charged or
has evidence that would reasonably be expected to help your defense, the prosecution must disclose that evidence to your criminal defense lawyer.
The Brady Rule
The Brady rule refers to a Supreme Court case that dates back to 1963, and is a due process case under the 14th Amendment to the US Constitution. The Supreme Court ruled that when a prosecutor intentionally withholds exculpatory and material evidence from a defendant, that act violates the defendant’s due process rights. The withholding of the information is a “deliberate deception of court and jury.”
Prosecutors must disclose exculpatory evidence post-conviction under new rule
It appears – at least in Maryland, Prosecutors can’t just dump a box of evidence on the defense attorney to sort through and find the exculpatory evidence. Their duty is to disclose and investigate any new evidence – at any time and correct the conviction.
“If the conviction occurred in their county, the prosecutor must disclose the evidence to the defense unless a court authorizes a delay. The prosecutor must also “undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit,” states the rule, which is modeled on an American Bar Association standard.”
“The duty of a prosecutor to disclose Brady material is an ongoing obligation,” Montgomery County State’s Attorney John McCarthy said. “I always thought it was our duty, anyway.”
Baltimore County State’s Attorney Scott D. Shellenberger said that he, too, “always considered it to be a continuing obligation that goes on forever.”
The new rule simply makes the obligation “crystal clear,” he added.
Unless known or admitted otherwise, we must give any prosecutor and judge reasonable leeway – that they just didn’t know enough about digital evidence to question the evidence of digital messages – and therefore, they need to give the defendant and his attorney the same deference. And as stated in the very beginning, Rules of Evidence, Rule 901. Authenticating or Identifying Evidence need to be updated and tightened protocols at the state and federal levels.
Creating Fake Messaging is Easy
A complete storyline fabrication can be made in one long stream of fake texting, and with some cut and paste techniques can look like several different messages. While lack of specific knowledge of how to spot digital fraud is an excuse, the municipality needs to become proactive with digital evidence training programs before it has to overcome a Title 42 §1983 lawsuit by someone who has been significantly damaged by fabricated evidence.
In many cases the courts and juries rely upon the testimony of the plaintiff or victim to verify their claims and digital evidence. When the witness testifies to the validity of a text message exhibit in court and swears that, “These are text messages from my cell phone“ and then in elaborate detail describes how she captured the screenshots and saved them into the cellphone photos, it appears believable. But that isn’t always the case and unless you are trained in precisely what to look for or how to detect fabrication, the judge, members of the jury, and the attorneys would remain clueless, and in some cases convict an innocent person for a crime they did not commit.
Don’t think for a minute just because you’ve lost or destroyed your cellphone and all you have left are these screenshots you allegedly took – that the truth can’t be found. It’s there – its all there, and enough evidence for complete exposure.
The Cover-up is the Worst.
Hypothetically, let’s say you and/or a friend created the fake or manipulated text messages and used them in filing your complaint to support your narrative and, for example, the prosecutor unknowingly used them because he believed you. The prosecutor used your screenshots and made exhibits that he filed with the court and you testified under oath that these screenshots were taken from your [iPhone] cellphone. Are you in trouble? Have you committed perjury? Did you have help? Are you both in trouble? Ask the local prosecutor.
The penalty for perjury varies throughout the states, but in Hawaii:
HRS §710-1060 Perjury, is a criminal crime and Class C felony that may carry up to 5 years under indeterminate sentences and fines could be up to $10,000.00 dollars (for each offense).
If the screenshot text messages reveal fabrication, what else is fabricated?
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***All details and facts within are accurate to the best of our knowledge. We do not intend to be inflammatory to any party involved. As this is an ongoing legal matter, We will not provide the names or other personal details of those involved unless it is part of the court or public record.***
We are litigation paralegals. We are not attorneys. Nothing in this post should be construed as legal advice. If you are need legal advice, please contact an attorney.