CAAF decided United States v. Lubich, No. 12-0555/NA, (opinion) (CAAFlog case page) on May 3, 2013, rejecting the Appellant’s challenge to the trial judge’s decision overruling foundation and authentication objections to two Government exhibits based on computerized data. Judge Erdmann writes for a unanimous court.

ET2 Lubich was convicted, contrary to her pleas, by a special court-martial composed of members with enlisted representation of one specification of attempted larceny, one specification of wrongfully and knowingly transferring, possessing, or using a means of identification of another person, and one specification of impersonating a commissioned officer with the intent to defraud, in violation of Articles 80 and 134. She was sentenced to confinement for 45 days, forfeiture of $1,300 pay per month for two months, reduction to pay grade E-3, and a bad-conduct discharge.

During the trial, records of internet activity from the Appellant’s Navy-Marine Corps Intranet (NMCI) account were introduced through a Naval Criminal Investigative Service (NCIS) cyber forensics examiner. The NCIS examiner testified that he prepared two reports from six CDs of data provided to him by an unidentified NMCI analyst. The trial defense counsel objected to the introduction of the NCIS examiner’s reports on foundation and confrontation grounds The trial military judge denied the defense objections, and admitted the NCIS examiner’s reports, leading to the conviction.

The NMCCA reviewed the case and rejected the Appellant’s assignments of error on confrontation, hearsay, and authentication grounds. CAAF then granted review to determine:

Whether the military judge erred by overruling defense counsel’s foundation and authentication objections and admitting computerized data evidence gathered by an unnamed Navy-Marine Corps Intranet (NMCI) analyst who used an unidentified process with unknown reliability to collect data related to Appellant’s network user activity.

Judge Erdmann begins his discussion with consideration of the meaning of “authentication”:

“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.” M.R.E. 901(a). Evidence may be authenticated through the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). M.R.E. 901(b)(9) permits evidence resulting from a “process or system” to be authenticated via “[e]vidence describing [the] process or system used to produce [the] result and showing that the process or system produces an accurate result.”

Lubich, slip op. at 9. But he continues with an important factual issue:

Here the Government claimed that the data contained on the six CD-ROMs was taken from Lubich’s NMCI Internet accounts. During argument on the motion, the military judge invited the defense counsel to elaborate on the authentication objection. Defense counsel responded, “It’s my understanding that the data that Mr. Schmidt analyzed came from Petty Officer Lubich’s computers at NSAWC. I mean, I don’t think there’s any dispute about that.” This is significant as the defense recognized that the data was from Lubich’s Internet accounts, but nevertheless argued that it was necessary to have direct testimony from NMCI personnel as to the process utilized by NMCI to collect the data.

Slip op. at 9 (emphasis added). Oops. Hard to complain about a lack of authentication after you’ve conceded the authenticity… I’ve often been glared at by opposing counsel (and by a few judges) for being unwilling to concede facts during trial (and, for that matter, for filing lengthy briefs in order to establish a record of the facts that I consider important; but that’s gotten me more than mere glares). This is a good example of why I try to avoid concessions.

Read more »

Opinion here. Judge Erdmann writes for a unanimous court:

Military Rule of Evidence (M.R.E.) 901(a) provides that “[t]he 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.” We granted review in this case to determine whether the military judge abused her discretion when she overruled a defense authentication objection and admitted two Government exhibits which were based on computerized data. We hold that the military judge did not abuse her discretion and affirm the decision of the CCA.”

More to follow.

Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Lubich, No. 12-0555/NA

United States v. Gaskins, No. 13-0016/AR

CAAF will hear oral argument in United States v. Lubich, No. 12-0555/NA, on Tuesday, February 19, 2013. The court granted review of the following issue:

Whether the military judge erred by overruling defense counsel’s foundation and authentication objections and admitting computerized data evidence gathered by an unnamed Navy-Marine Corps Intranet (NMCI) analyst who used an unidentified process with unknown reliability to collect data related to appellant’s network user activity.

Lawyers and computers mix surprisingly badly (try running a law blog if you don’t believe me). During the special court-martial trial of ET2 Lubich for impersonating her supervisor (a commissioned officer) and submitting fraudulent documents while applying for a $10,000 loan in his name, records of internet activity from her Navy-Marine Corps Intranet (NMCI) account were introduced through a Naval Criminal Investigative Service (NCIS) cyber forensics examiner. The NCIS examiner testified that he prepared two reports from six CDs of data provided to him by an unidentified NMCI analyst. No evidence was introduced to describe how the NMCI analyst gathered the data, to confirm its accuracy, or even to explain how it could logically be tied to the Appellant.

The trial defense counsel objected to the introduction of the NCIS examiner’s reports on foundation and confrontation grounds (though apparently did not make a specific hearsay objection. Additionally, I don’t see any evidence in the briefs or the CCA’s opinion that the NCIS examiner’s testified as an expert witness in an associated field.). The trial military judge denied the defense objections, and admitted the NCIS examiner’s reports as Prosecution Exhibits 19 and 23, ruling:

I believe that argument goes more to the weight of the evidence, and you certainly can explore that in cross-examination. The objection is overruled. I find that both Prosecution Exhibits 19 and 23 for identification have been sufficiently authenticated and that the Confrontation Clause is not implicated because we are dealing with an automated process, no conclusions in these documents themselves and, again, it’s an automated process with very little discretion involved on the part of the person that was obtaining the data.

United States v. Lubich, No. 201100378, slip op. at 3 (N-M.Ct.Crim.App. April 19, 2012) (unpublished) (per curiam). The two reports were admitted, the Trial Counsel made extensive reference to their contents during argument, and ET2 Lubich was convicted by a panel of members with enlisted representation of one specification of violation of Article 80 and two specifications of violation of Article 134, and sentenced to confinement for 45 days, forfeiture of $1,300 pay per month for two months, reduction to pay grade E-3, and a bad-conduct discharge.

The NMCCA reviewed the case and considered the admissibility of the NCIS examiner’s reports on confrontation, hearsay, and authentication grounds. Addressing hearsay and confrontation, the CCA found that because the reports were generated by machines, and because machines are not declarants, the reports are neither hearsay nor testimonial. Lubich, No. 201100378, slip op. at 4 (citing United States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) (“machines are not declarants”)). Addressing authentication, the CCA found that, “A review of PE 19 and PE 23 unequivocally establishes that those two exhibits are exactly what the trial counsel claimed them to be: an exhaustive, detailed history of the appellant’s online activities from her NMCI account.” Id. slip op. at 5. The CCA affirmed the findings and sentence, and CAAF granted review to consider the foundation/authentication objection (and presumably denied a request to review the confrontation/hearsay issue).

Because CAAF didn’t grant review of the confrontation/hearsay issue, I won’t discuss it further in this post. But I’ve long thought that the courts have the whole “machine-generated” bit wrong. Machines don’t generate anything without human instruction (the software) and direction (the input). At least, not yet they don’t.

Read more »

CAAF today granted review of this issue:

WHETHER THE MILITARY JUDGE ERRED BY OVERRULING DEFENSE COUNSEL’S FOUNDATION AND AUTHENTICATION OBJECTIONS AND ADMITTING COMPUTERIZED DATA EVIDENCE GATHERED BY AN UNNAMED NAVY-MARINE CORPS INTRANET (NMCI) ANALYST WHO USED AN UNIDENTIFIED PROCESS WITH UNKNOWN RELIABILITY TO COLLECT DATA RELATED TO APPELLANT’S NETWORK USER ACTIVITY.

United States v. Lubich, __ M.J. __, No. 12-0555/NA.  NMCCA’s unpublished opinion is available here. United States v. Lubich, No. NMCCA 201100378 (N-M. Ct. Crim. App. Apr. 19, 2012) (per curiam).

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.
. . .
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.