While we await the Supreme Court’s possibly game-changing confrontation clause opinion in Williams v. Illinois, enterprising trial defense counsel are continuing to push the limits of CAAF’s confrontation jurisprudence. In the Navy case of United States v. Lubich, the NMCCA considered the trial judge’s denial of a defense objection to computer-generated printouts of a forensic examination of the appellant’s computer.

The appellant was charged with impersonating her supervisor, a commissioned officer, and submitting fraudulent documents while applying for a $10,000 loan in his name. At trial, the Government sought to introduce documents that detailed her internet history, showing websites she visited and passwords she used to access accounts. Mr. Schmidt, a cyber forensics examiner from the Naval Criminal Investigative Service (NCIS), testified that he conducted a forensic examination of the appellant’s user data from her Navy-Marine Corps Intranet (NMCI) account. He described a process in which the case agent submitted a request to the NMCI Information Assurance Department, which then remotely collected all data associated with the appellant’s navy.mil user account by an automated process that searched NMCI servers for information on the account and then retrieved her user account data from servers and from all workstations that she had logged onto. . . . Mr. Schmidt generated two reports, using computer forensic tools.
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Trial defense counsel objected to the introduction of [the reports], arguing that Mr. Schmitt could not properly authenticate the two exhibits as he had not collected the underlying data from the appellant’s navy.mil account, and that the data contained testimonial hearsay.

United States v. Lubich, No. 201100378, slip op. at 2-3 (N-M Ct. Crim. App., April 19, 2012). The NMCCA rejected the appellant’s arguments in a short opinion that begins with the plain statement that “[m]achine-generated data and printouts are not statements and thus not hearsay – machines are not declarants – and such data is therefore not ‘testimonial.’” Lubich, slip op. at 4 (citing United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011)). Because the admitted reports are raw data, the CCA found that they do not implicate the confrontation clause. Similarly, the CCA found that they “contain no statement, were not made by a declarant, and are therefore not hearsay.” Lubich, slip op. at 4.

The opinion gives slightly more attention to the authentication argument, but rejects it on the basis that, “taking into account this record as a whole, the testimony of Mr. Schmidt was sufficient to authenticate [the reports].” Lubich, slip op. at 5.

The Blazier/Sweeney line of cases embrace the fundamental principle that “machines are not declarants,” and that admission of raw, machine-generated data is not objectionable on confrontation or hearsay grounds. That principle is commonly litigated in some form during drug cases, but cases like Lubich show that it has far broader application, and that its elimination would have far-reaching consequences to the presentation of evidence in criminal cases.

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