While certain state legislatures may be getting closer to understanding digital assets and digital accounts in trusts and estates, using digital assets and digital accounts as evidence in the federal court system remains a murkier proposition.

In United States vs. Vayner, 2014 WL 4942227 (Oct. 3, 2014 2d Cir. ), a jury had convicted the defendant on a single count of unlawful transfer of a false identification document. Crucial to the prosecution was a screenshot of the defendant’s social media page, which was used to show a relationship between the defendant and the prosecution’s key witness. The trial court admitted into evidence the screenshot, despite defendant’s objections that the screenshot was insufficiently authenticated―that is, there was insufficient evidence offered to prove that the defendant himself created the social media account, entered the text that appeared on the profile and added images and other media. On appeal, the Second Circuit agreed with the defendant’s objection and vacated the conviction and remanded the case for retrial.

Writing for the U.S. Court of Appeals for the Second Circuit, Judge Debra Ann Livingston noted that Rule 901 of the Federal Rules of Evidence (Authentication or Identifying Evidence) is a broad standard: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Although Rule 901 did not “definitely establish” the nature or amount of proof needed for authentication and, Livingston noted that under Second Circuit law “[t]he bar for authentication of evidence is not particularly high.”

Normally, the party offering a website or digital account into evidence can rely on uncontroverted direct testimony from the creator of the website or digital account in question. Since the defendant was the purported creator of the digital account, that testimony was not available. The prosecution relied on circumstantial evidence―the photo, work history and certain contact information were matched to the defendant.

The Second Circuit was unmoved: “The mere fact that a page with [the defendant’s] name and photograph happened to exist on the Internet at the time of [the investigator’s] testimony does not permit a reasonable conclusion that this page was created by the defendant or on his behalf.” The Second Circuit analogized the digital account to a printed handbill. If the prosecution had introduced “a flyer found on the street that contained [defendant’s] Skype address and was purportedly written or authorized by him,” the Second Circuit reasoned, “the district court surely would have required some evidence that the flyer did, in fact, emanate from [defendant].”

Therein lies the lesson of Vayner―while a screenshot of a website may prove that the content once existed, the screenshot alone will not prove who actually put the material on the page.

Jay Greathouse (jay.greathouse@nortonrosefulbright.com / +1 210 270 7155) is a lawyer in Norton Rose Fulbright’s San Antonio Corporate, M&A and securities practice.