136
Argued and submitted March 4, reversed and remanded May 5, 2021
STATE OF OREGON,
Plaintiff-Appellant,
v.
ADRIAN ALEXANDER ACOSTA,
Defendant-Respondent.
Douglas County Circuit Court
18CR44726; A169268
489 P3d 608
The state appeals after the trial courtâs pretrial exclusion of Facebook messages that were purportedly exchanged between defendant and a police detective
setting up a methamphetamine delivery. The trial court ruled that the messages
were inadmissible on two distinct grounds: (1) the state failed to authenticate the
messages, and (2) they were hearsay in light of the stateâs inadequate showing
that defendant was the declarant of those out-of-court statements. On appeal,
the parties present opposing views as to whether identity of the declarant of a
social media post, for purposes of determining whether it is an admission of a
party opponent, is a gatekeeping question for the trial court to resolve or instead
an issue of conditional relevancy to be decided by the jury so long as the proponent of the evidence makes out a prima facie case of authorship; the parties
also disagree, under their competing standards, as to whether the state made a
sufficient showing to establish that defendant was the author of the messages.
Held: The question of identity of the declarant of an out-of-court statement presents a question of conditional relevance that is evaluated under the same standard for identity as a condition precedent to admissibility set forth in OEC 901.
If, over a hearsay objection, the proponent of the evidence presents a prima facie
case that the party opponent is the declarant, the trial court must conditionally
admit the evidence and instruct the jury to consider the evidence only if it determines that the party opponent was, in fact, the declarant. Where the statement
in question is a social media post, and the proponent of that evidence claims
that the message originated from a particular account and was authored by a
particular person, the proponent must present evidence such that a reasonable
person would be satisfied as to authorship. One possible means of satisfying that
standard, accounting for the ease and frequency of manipulation of social media
and other digital messaging, is through the appearance, contents, substance,
internal patterns or other distinctive characteristics of the postings, taken in
conjunction with the surrounding circumstances. Under that standard, the trial
court erred in excluding the Facebook messages. The content of the messages and
the surrounding circumstances in combination were sufficient for a reasonable
person to be satisfied that defendant authored them in response to messages from
the detective.
Reversed and remanded.
Cite as 311 Or App 136 (2021) 137
Ann Marie Simmons, Judge.
Christopher Page, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Nora Coon, Deputy Public Defender, argued the cause
for respondent. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
JAMES, J.
Reversed and remanded.
138 State v. Acosta
JAMES, J.
This case calls upon us to once again consider issues
of authentication of digital evidence, as we recently did in
State v. Sassarini, 300 Or App 106,
452 P3d 457 (2019). The
state challenges the trial courtâs exclusion of Facebook messages that were purportedly exchanged between defendant
and a police detective setting up a methamphetamine delivery. The trial court ruled that the messages were inadmissible on two distinct grounds: (1) the state failed to authenticate the messages, and (2) they were hearsay in light of
the stateâs inadequate showing that defendant was the
declarant of those out-of-court statements, for purposes of
an admission of a party opponent. This case therefore presents an additional question of digital evidence than contained in Sassarini: whether the identity of the declarant of
a social media post, for purposes of an admission of a party
opponent, is a gatekeeping question for the trial court, or is
an issue of conditional relevancy to be decided by the jury.
We conclude it is the latter, and, as we explain, resolving
that issue of identity is accomplished through special jury
instructions and, at times, a special verdict form, or an
interrogatory verdict form. Here, we agree with the state
that it produced sufficient evidence to support a finding that
the Facebook account was defendantâs and that he was the
author of the messages, and we therefore reverse the ruling
excluding them.
I. BACKGROUND
We begin with a summary of the context for the
courtâs evidentiary rulings. Defendant was arrested in
the parking lot of the Southgate Market and charged with
unlawful delivery of methamphetamine, ORS 475.890, and
unlawful possession of methamphetamine, ORS 475.894.
To prove its case, the state planned to offer screen captures
from a detectiveâs cell phone showing that he had arranged
a drug deal at that location with a Facebook profile with
defendantâs name and picture (the âAcosta profileâ).
Defendant moved pretrial to exclude evidence of the
messages, arguing that the state could not establish that
the Acosta profile was in fact his account or that he authored
messages sent from that account. Consequently, defendant
Cite as 311 Or App 136 (2021) 139
argued, the state had two problems. First, it could not
authenticate the messages. See OEC 901 (âThe 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.â). And, second, if the state could not establish that
defendant authored the messages, their content was inadmissible hearsay. See OEC 802 (providing that â[h]earsay is
not admissible except as provided in ORS 40.450 to 40.475
or as otherwise provided by lawâ); OEC 801(4)(b)(A) (A âpartyâs own [out-of-court] statementâ that âis offered against a
partyâ is not hearsay.).
In response, the state argued that it could present
evidence âto show that they are the defendant, defendantâs
account, as opposed to just some, some random person.â To
make that foundational showing, the state called Detective
Wells, the narcotics detective for the Oregon State Police
who arrested defendant. Wells testified that, as part of his
undercover operations, he maintained a fictitious Facebook
profile to communicate with persons involved in drug
offenses. That fictitious profile was Facebook friends with
people from all over the world, most of whom Wells did not
even know. One of those friends was a profile named Adrian
Acosta.
Wells explained that, on June 21, 2018, he observed
a post âon my news feed or Facebook feed from the profile
of Adrian Acosta that said âIâm working. Got rocket fuel.
Anyone looking?â â Based on his training as a narcotics
detective, Wells understood that post to mean that the person was holding and looking to sell drugs, likely a stimulant
like methamphetamine.
Wells testified that, a week later, on June 28, he
used the Facebook Messenger app on his cell phone to initiate conversation with the Acosta profile, followed by a
screenshot of the rocket fuel post and a message that read,
âJust so happens i lookin.â Wells and the Acosta profile then
communicated through Facebook Messenger over the course
of days about price and quantity (e.g., âOkay homie can u
do a zipâ (meaning an ounce), and âYeah I can its gonna
be 520.is that alright homieâ); those messages, which the
140 State v. Acosta
state intended to offer at trial, were introduced as Exhibits
1 through 30 at the pretrial hearing.
In reference to those messages, Wells testified
that there were several opportunities where the âprofile of
Mr. Acosta said that they were able to meet me but I wasnât
able to due to other operations or being on days off or whatever.â Wells explained that he made numerous excuses
for why he could not meet until July 3, and he avoided all
attempts by the Acosta profile to contact him by phone (the
screen captures reflect 33 missed calls from the Acosta profile between June 28 and July 3).
The screen captures for Monday, July 2, show a
message from Wells asking, âYou got it now?? I can come to
u.â The Acosta profile responds, â520 and I am in Winston,â
and later, âCall my number g,â followed by a 10-digit number with a 541 area code. Those messages are then followed
by messages from Wells stating, âI tried callin ur number
and textâŚu get it?â and âSorry g lets just meet up where?â
Later, Wells asks, âHey bro any word,â and the Acosta profile responds, âYeah here at Sonia house in Winston come
through g.â
Wells testified that, based on âthe profile telling me
he was at Sonyaâs in Winston, ⌠we set up surveillance on
Sonyaâs in Winstonââa residence that had had several drug
complaints over the past year. He further testified that, on
July 3, he saw defendant come out of that residence.
The screen captures for messages dated July 3 show
Wells asking the Acosta profile to bring the drugs to him
at the âSouthgate market.â The Acosta profile agrees and
states, âI will let you know when I am close and I will be in
a lifted truck.â Wells testified that, on the previous day, he
had seen defendant in a âhigher truck, of standard height or
slighter lifted, a gray F250.â
The screen captures reflect that the Acosta profile
and Wells exchanged a series of messages about when the
Acosta profile would leave the Sonya residence. One message from the Acosta profile states, âK ill let you know when
my ride get here k,â and that it would be â15 25 minutes at
the latest would be 45 minutes k.â After another inquiry
Cite as 311 Or App 136 (2021) 141
from the Wells profile, the Acosta profiles states, âIâm on my
way in ten minutes k g.â
Wells testified that he received the âIâm on my way
in ten minutesâ message at 6:36 p.m., and that a gray pickup
arrived at 6:44 p.m. at Sonyaâs residence. The pickup was
a âlowered pickup.â Wells saw defendant come out of the
Sonya residence, put a backpack in the back of the truck,
and get into the right front seat of the truck. The pickup
backed out of the driveway and headed towards Main Street
in Winston. Wells testified that, as the truck was leaving
the Sonya residence, he received a message from the Acosta
profile stating, âLet u know when Iâm there g k.â
Wells and another detective followed the pickup
and, as they neared Kelly Corner at Highway 42 and Roberts
Creek Road, Wells received a message from the Acosta profile stating, âBe at the spot in 10 homie.â Wells testified that
they were about 10 minutes from Southgate at that point,
so 10 minutes âwas pretty consistent with where we were
at.â The final message Wells received from the Acosta profile was at 6:54 p.m., and it said âHere.â Wells testified that,
âat that point, we were within a minute of arriving at the
Southgate Market.â
Wells testified that he and the other detective pulled
in behind the gray truck in the Southgate Market parking
lot and ordered the three occupants out of the vehicle. The
truck had a standard cab and three seats: Defendant was in
the right front seat, Tuell was in the middle seat, and Evans
was in the driverâs seat. Wells testified that he advised
defendant of his rights, told him that he had âset him up,â
recounted some of their conversation, and asked where the
drugs were. Defendant eventually stated, âin essence, that
he had talked about helping [a friend] out with facilitating it
but he, he didnât want to because he had been clean. It, it was
something to that effect.â During the arrest, police seized a
cell phone that was sitting on top of Tuellâs purse, which
Wells testified was âunderneath their legs on the right side
of the truck,â within reach of where defendant was sitting.
Wells testified that defendant had told him that âhe had a
cell phone in the truck,â and that Tuell âacknowledged that
it was [defendantâs] cell phone.â
142 State v. Acosta
During the course of his testimony, particularly
during cross-examination, Wells acknowledged the limits of
his investigation. He ânever physically saw [defendant] text,
texting or messaging off of a phone or anything other kind
of electronic device.â Police never attempted to get information from Facebook about who set up the profile or when it
was set up, and Wells had relied on the appearance of the
Facebook accountâthe name and photographs. And, police
never searched the phone found in the truck.
Wells was the only witness at the pretrial hearing,
and the court then heard arguments on defendantâs motion.
Defendant reiterated his argument that nothing in the
record sufficiently established that the account was actually
defendantâs rather than a fictitious profile, considering the
ease with which fake accountsâlike the detectiveâsâcan be
created. Defendant, focusing on the limitations of the investigation, argued that Wells never saw defendant texting,
never spoke to the Acosta profile on the phone to identify his
voice, never searched the cell phone in the truck, and never
obtained any information from Facebook that tied defendant to the account or the messages. Moreover, he argued,
there were other people in the truck (which was not even
the âlifted truckâ police had associated with defendant), and
that it could have been anyone else involved, such as Tuell,
who sent the messages from the cell phone.
The state responded that, given all of the corroborating circumstances between the messages and the transactions, there was sufficient evidence for a jury to reasonably
conclude that the Acosta profile was not a fictitious account
but actually defendantâs, and that he was the author of the
messages. The state argued that defendant could make his
case to the jury that anyone can create a fake profile, but
that it was a matter for the jury to weigh and not a question
of admissibility.
The trial court expressed its concern with âthe fact
that, apparently, we are all supposed to believe that these
messages came from [defendantâs] phone and yet, we havenât
really established that he was ever in control of the phone
or that he was using it?â After a recess, the court ruled in
defendantâs favor, explaining:
Cite as 311 Or App 136 (2021) 143
â[I]f youâre going to offer statements as if they were made by
the Defendant and they are offered against the Defendant
as incriminating statements, you have to establish that the
Defendant is the declarant. That isnât established in this
case. There is certainly circumstantial evidence of that.
But the Defendant actually has to be the declarant and I
canât make the finding that the defendant is the declarant
in this case.
ââŚ
âHere, what I have is an officer, using a fictitious
Facebook account, contacting somebody and asserting that
it absolutely must be that person on the other side. Do I
think that [defendant] sent those messages? Yeah. I do. Is
it legally established that [defendant] sent those messages?
No. Itâs not legally established.â
The court therefore granted the motion to exclude the evidence, which the state now appeals. See ORS 138.045(1)(d)
(authorizing a stateâs appeal from â[a]n order made prior to
trial suppressing evidenceâ).1
II. ANALYSIS
On appeal, the parties not only present different
views on the merits of the authentication and hearsay issues,
they present competing formulations as to the trial courtâs
role in deciding those questions. The state argues that the
fundamental question underlying the authentication and
hearsay analysis is whether defendant made the statements at issue, which is a preliminary fact that the court
determines under the conditional relevance standardâ
essentially, whether there is evidence from which a jury
could conclude that defendant made the statements. Viewed
through that lens, the state argues that its âproof of the identifying marks on the messages tying them to defendant, the
1
Defendant moved to dismiss the stateâs appeal on the ground that ORS
138.045(1) only authorizes an appeal from the denial of a motion to suppress
evidence based on a constitutional violation. The appellate commissioner rejected
that contention based on existing precedent and also denied defendantâs alternative request to stay the appeal pending resolution of a similar challenge in the
Supreme Court in State v. Jackson (S067622), and the Court of Appeals denied
reconsideration of the order. Defendant has petitioned for Supreme Court review
of those orders, and that petition is currently being held in the Supreme Court for
Jackson.
144 State v. Acosta
content of the messages conveying defendantâs particularized knowledge of private information, and the external circumstances of the transmission of the messages permitted
a rational jury to reasonably infer that defendant authored
the messages.â
Defendant, on the other hand, argues that his
authentication and hearsay arguments involve wholly distinct predicate determinations by the trial court, each under
a different standard. Defendant agrees with the state that
the authentication question involves a conditional relevancy
analysis, but he argues that the hearsay question is committed to the trial court as gatekeeper under the standard
in OEC 104(1), which means that the trial court makes its
own factual determination as to whether the state proved
by a preponderance of the evidence that defendant was the
declarant. On the merits, defendant argues that the state
failed to offer sufficient evidence to authenticate the messages under the conditional relevance standard in OEC
901 or to establish by a preponderance of the evidence that
defendant was the declarant for purposes of the hearsay
analysis under OEC 801.
A. Preliminary Factfinding for Authentication and Hearsay:
The âOverlapâ Problem
We begin with the partiesâ competing contentions
about the nature of a trial courtâs predicate determinations
regarding authentication and hearsay. Because our discussion touches on three interrelated evidentiary rulesâOEC
104 (preliminary questions of fact); OEC 901 (authentication
and identity); and OEC 801 (hearsay)âwe begin with an
overview of those rules.
1. Applicable rules
a. OEC 104
OEC 104 provides the general framework for a trial
courtâs handling of preliminary questions of fact related to
the admissibility of evidence. It provides, in relevant part:
â(1) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined
Cite as 311 Or App 136 (2021) 145
by the court, subject to the provisions of subsection (2) of
this section. In making its determination the court is not
bound by the rules of evidence except those with respect to
privileges.
â(2) When the relevancy of evidence depends upon the
fulfillment of a condition of fact, the court shall admit it
upon, or subject to, the introduction of evidence sufficient
to support a finding of the fulfillment of the condition.â
The Legislative Commentary to Rule 104 explains
that subsection (1) âhas general application, but must be
read as subject toâ subsection (2) of the rule. Legislative
Commentary to OEC 104, reprinted in Laird C. Kirkpatrick,
Oregon Evidence § 104.02 (7th ed 2020).2 In other words,
preliminary questions of fact are decided by the trial court
under OEC 104(1) unless the question falls within OEC
104(2), in which case the trial court simply assesses whether
the evidence is sufficient for a jury to make the necessary
finding. As this case demonstrates, the line between the two
types of preliminary facts, and their categorization under
subsection (1) versus (2), is not always self-evident.3
b. Authentication and identity
OEC 901 addresses a subset of the âconditional relevanceâ questions described by OEC 104(2): questions of
authentication and identification. OEC 901(1) provides that
â[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.â
OEC 901(2) provides âexamples of authentication or
identification conforming with the requirements of subsection (1).â Those examples, which are by way of illustration
2
The legislative commentary to the Oregon Evidence Code is considered
part of the Codeâs legislative history. State v. Phillips, 367 Or 594, 607 n 9,
482
P3d 52 (2021).
3
The view of âconditional relevancyâ underlying OEC 104 is not without its
critics. See, e.g., Ronald J. Allen, The Myth of Conditional Relevancy, 25 Loy LA
L Rev 871, 877 (1992) (â[I]f determining the relevance of evidence always requires
relying on some intermediate premise, no distinction can be drawn between relevancy and conditional relevancy. The truth of this proof is confirmed by demonstrating that the Advisory Committeeâs example of a relevancy problem cannot be
distinguished from its examples of conditional relevancy.â).
146 State v. Acosta
and not limitation, include â[n]onexpert opinion as to the
genuineness of handwriting, based upon familiarity not
acquired for purposes of the litigationâ; the âidentification of
a voice, whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon
hearing the voice at any time under circumstances connecting it with the alleged speakerâ; and â[t]elephone conversationsâ under certain conditions.4
The commentary to OEC 901 explains that the
rule reflects the view that â[a]uthentication and identification represent a special aspect of relevancy.â Legislative
Commentary to OEC 901, reprinted in Kirkpatrick, Oregon
Evidence § 901.02 (citing Jerome Michael and Mortimer J.
Adler, Real Proof, 5 Vand L Rev 344, 362 (1952); McCormick
on Evidence, §§ 212 and 218 (2d ed 1972); and Edmund
M. Morgan, Basic Problems of Evidence 378 (1962)). For
instance, â[a] telephone conversation may be irrelevant as
having an unrelated topic, or because the speaker is not identified. The latter aspect is the one here involved.â Legislative
Commentary to OEC 901, reprinted in Kirkpatrick, Oregon
Evidence § 901.02. The commentary states that, under OEC
901, â[t]his requirement of showing authenticity or identity
falls in the category of relevancy dependent upon fulfillment
of a condition of fact and is governed by the procedure set
forth in subsection (2) of section 5 (Rule 104) of this Act.â Id.
(emphasis added).
For that reason, as we recently held in Sassarini,
300 Or App at 126, OEC 901 does not require the proponent of evidence to persuade the trial court as to each of the
requirements for authentication; rather, as a matter of conditional relevancy, âit requires the proponent of evidence to
establish a prima facie case of authenticityââevidence sufficient to support a finding that the matter in question is what
its proponent claims.â â
Id. (quoting OEC 901(1); emphasis
in Sassarini). So long as the proponent of the evidence has
made that prima facie showing, âthe matter of authenticity
is one for the ultimate factfinder at trial, not a preliminary
ruling by the court.â
Id. at 127.
4
The full text of the rule is set out later, in our discussion of the stateâs arguments on the merits. 311 Or at 162-64.
Cite as 311 Or App 136 (2021) 147
c. Hearsay
OEC 802 supplies the general rule against the
admission of hearsay, and OEC 801 describes what is and is
not hearsay. OEC 801(3) defines âhearsayâ as âa statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
matter asserted.â OEC 801(4) then sets forth a list of what is
not hearsay:
âA statement is not hearsay if:
â(a) The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement,
and the statement:
â(A) Is inconsistent with the testimony of the witness and was given under oath subject to the penalty of
perjury at a trial, hearing or other proceeding, or in a
deposition;
â(B) Is consistent with the testimony of the witness
and is offered to rebut an inconsistent statement or an
express or implied charge against the witness of recent
fabrication or improper influence or motive;
â(C) Is one of identification of a person made after
perceiving the person; or
â(D) Purports to interpret an otherwise admissible
statement made by another person from one language
into another.
â(b) The statement is offered against a party and is:
â(A) That partyâs own statement, in either an individual or a representative capacity;
â(B) A statement of which the party has manifested
the partyâs adoption or belief in its truth;
â(C) A statement by a person authorized by the
party to make a statement concerning the subject;
â(D) A statement by the partyâs agent or servant
concerning a matter within the scope of the agency or
employment, made during the existence of the relationship; or
â(E) A statement by a coconspirator of a party
during the course and in furtherance of the conspiracy.
148 State v. Acosta
â(c) The statement is made in a deposition taken in the
same proceeding pursuant to ORCP 39 I.â
Unlike OEC 901, OEC 801 does not explicitly
address whether factual preconditions underlying hearsay determinations are the type of predicate fact decided
under OEC 104(1) or matters of conditional relevance under
OEC 104(2). It therefore falls to the courts to sort out that
question.
In State v. Carlson, 311 Or 201,
808 P2d 1002 (1991),
the Supreme Court sorted out that question for one of the
issues underlying the hearsay definition in OEC 801(4)âthe
exemption for a âstatement of which the party has manifested the partyâs adoption or belief in its truthâ under
subparagraph (b)(B). The court noted that few courts had
addressed the question, and that â[c]ourts, scholars and
commentators who have spoken on the issue disagree on the
answer.â
Id. at 210. The court then proceeded to examine the
text of OEC 104(1) and the commentary to that rule, as well
as the basic division in OEC 104 between âcompetenceâ and
ârelevance,â to determine how to categorize âthe question of
intent to adopt, agree or approve.â
Id. at 212. The court also
considered whether the policies underlying the hearsay rule
would be frustrated if the question of âintent to adopt, agree
or approveâ were treated as one of conditional relevancy
rather than one of admissibility for the trial court.
Id. at
212-13.
Ultimately, the court held that âwhether the party
intended to adopt, agree with or approve of the contents of
the statement of another, a precondition to the admissibility of evidence offered under OEC 801(4)(b)(B), is a preliminary question of fact for the trial judge under OEC 104(1),â
not a question of conditional relevance. Id. at 211. The court
also reached the same conclusion with regard to the excited
utterance exception, albeit without extended discussion.
Id. at 216 (âAs is true of statements of a party opponent,
the admissibility of a hearsay statement under the excited
utterance exception is to be resolved by the trial judge.â).
Since Carlson, Oregon courts have taken similar
approaches to other preliminary determinations related to
hearsay. In State v. Cornell, 314 Or 673, 677,
842 P2d 394
Cite as
311 Or App 136 (2021) 149
(1992), the court explained that OEC 801(4)(b)(E) requires the
party seeking to introduce a statement by a co-conspirator
to establish three foundational requirementsâ(1) that
there was a conspiracy in which both the accused and the
declarant were members; (2) that the declarant made his
or her statement âduring the courseâ of the conspiracy; and
(3) that the statement was made âin furtherance of the conspiracy.â The court held that â[w]hether the foundational
requirements are met is a preliminary question of fact to be
determined by the trial court under OEC 104(1), and each
requirement is to be established by a preponderance of the
evidence.â
Id. (citing Carlson,
311 Or at 209; footnote omitted). See also State v. Iseli,
366 Or 151, 162,
458 P3d 653
(2020) (âOEC 804(1) requires a trial court to evaluate facts
proffered under the specified criteria to determine whether
they are satisfied. Thus, the rule appears to contemplate a
standard that either is satisfied or is not; it does not suggest a
range of legally permissible choices.â); State v. Cunningham,
337 Or 528, 538,
99 P3d 271 (2004) (âThe trial court finds
the facts that underlie the application of OEC 803(2), and
those findings will not be disturbed if evidence in the record
supports them.â).
To date, however, Oregon courts have not engaged
expressly in a Carlson-type analysis to determine whether
the identity of the declarant under OEC 801(4)(b)(A) presents a preliminary question that is decided by the trial court
under OEC 104(1) or is a question of conditional relevancy
evaluated under OEC 104(2). See State v. Navaie, 274 Or App
739, 748-49,
362 P3d 710 (2015), rev den,
360 Or 236 (2016)
(explaining that â[t]here is no Oregon case on this precise
questionâ and assuming, without deciding, that OEC 104(1)
applied based on how the issue had been litigated in the
trial court and on appeal).
The answer to that question is significant in this
case, because the issues of authentication and hearsay
depend on a similar underlying question: Who authored
the statement that is being offered into evidence? If the
question of identity under OEC 801(4)(b)(A) is treated the
same way that courts have treated other predicate hearsay
determinationsâthat is, as a preliminary fact for the trial
court to decideâthe matter presents a complicated problem,
150 State v. Acosta
because the same predicate factual question is governed by
different factfinders reviewing different evidence. For purposes of OEC 801, it is committed to the trial court, which is
not bound by the rules of evidence except those with respect
to privileges; but for purposes of OEC 901, it is committed
to the jury upon or subject to the introduction of evidence
sufficient to support a finding on the issue. See Kenneth W.
Graham, Jr., 21 A Federal Practice & Procedure (Wright &
Miller) § 5053.5 (2d ed Apr 2020 Update) (describing circumstances in which the court and jury will be presented
with the same predicate factual determination, including
under FRE 104(a) and (b), the federal counterparts to OEC
104(1) and (2)); id. § 5055 (â[W]hat should the court do when
inadmissible evidence could be used for a 104(a) issue that
overlaps with a 104(b) issue; e.g., where the question of who
wrote a letter must be answered both in authenticating the
letter and determining whether or not it is a straight admission for purposes of the hearsay rule[?]â).
Alternatively, if the question of identity under OEC
801(4)(b)(A) is treated as one of conditional relevance, matters
are more straightforwardâat least, initially: The trial court
applies the same standard, and looks at the same evidence,
to evaluate identity under OEC 901 and OEC 801(4)(b)(A),
which is whether the proponent has made out a prima facie
case on that particular issue. But if the proponent satisfies
that standard, the hearsay ruling becomes conditional, such
that the jury will need to be instructed on what to do if it
finds that the party opponent was not the declarant.
2. Preliminary determination under OEC 801(4)(b)(A)
The critical question, then, is whether the identity
of the declarant under OEC 801(4)(b)(A) involves the type of
determination that is a factual determination for the trial
court under OEC 104(1) or a question of conditional relevance under the standard articulated in OEC 901 and OEC
104(2). Although we have never analyzed that question at
length, see Navaie, 274 Or App at 748, we are not writing on
a clean slate either.
In State v. Park, 140 Or App 507, 511,
916 P2d
334, rev den,
323 Or 690 (1996), we addressed arguments
Cite as
311 Or App 136 (2021) 151
materially indistinguishable from the ones made in this
case. The defendant objected to the admission of a letter on hearsay grounds, arguing that the state failed to
demonstrate a sufficient foundation for admissibility under
OEC 801(4)(b)(A) as a statement of a party opponent. We
concluded that the question of authorship was one of conditional relevance in light of the commentary to OEC 104(2),
which supplies this example: âIf a letter purporting to be
from Y is relied upon to establish an admission by Y, it has
no probative value unless Y wrote or authorized it.â Park,
140 Or App at 512 (quoting Legislative Commentary to OEC
104; emphasis omitted). We stated, âWhether the letter was
written by defendant is not a preliminary question of fact
under OEC 104(1), contrary to the stateâs suggestion,â followed by this footnote:
âBoth parties rely on State v. Carlson, 311 Or 201, 210,
808 P2d 1002 (1991), in their dispute over whether OEC
104(1) or 104(2) controls our standard of review. Carlson
is inapposite; it involves admissions adopted by a party
under OEC 801(4)([b])(B), and whether the party intends to
adopt, agree or approve a statement of another. In contrast,
the issue in this case presents a question of conditional
relevancy.â
Id. at 511 n 2.
Needless to say, the parties in this case have divergent views on the significance of Park. The state cites it as
controlling authority; defendant ignores it, asserting that
âthis question is straightforward. Both Carlson and Cornell
interpreted OEC 104(1) as governing hearsay determinations and applied that standard to two other subsections of
OEC 801(4)(b),â so âthis court should treat the question of
identity of a declarant for purposes of OEC 801(4)(b)(A) as a
preliminary question of fact for the trial court to determine.â
We acknowledge that Park did not provide a lengthy
analysis of the intersection between hearsay and authentication questions, and its statement that Carlson was âinappositeâ appears in a footnote.5 That said, the court in Park
was presented with the precise question before usâwhether,
5
See Wright & Miller at § 5055 n 163 (citing Park as an example of a case
that dealt with the overlap problem âby ignoring itâ).
152 State v. Acosta
for purposes of a hearsay objection under OEC 801(4)(b)(A),
the identity of the declarant is a question of conditional relevance under the Oregon Evidence Code or a preliminary
question of fact for the trial courtâand it reached a decision
on that point after considering the text and commentary of
the Oregon Evidence Code and determining that the holding in Carlson, which did not involve the question of identity,
was distinguishable. We therefore will adhere to that considered holding unless it is plainly wrong. See State v. Civil,
283 Or App 395, 405-07,
388 P3d 1185 (2017) (providing the
standard for overruling our own precedent).
Defendant does not expressly ask us to overrule
Park (in fact, he does not even discuss it), but, considering
his reliance on Carlson and our suggestion in Navaie, 274 Or
App at 749, that the issue may yet be an open one, we take
it upon ourselves to consider whether we were plainly wrong
in Park.
In determining the applicable OEC 104 standard in
Carlson, the court looked to the text, context, and history of
the Evidence Code and whether they indicated how the drafters intended to characterize the particular issue. See id. at
210-11. The text of OEC 104(1) provides that â[p]reliminary
questions concerning ⌠the admissibility of evidence shall
be determined by the court, subject to the provisions of subsection (2) of this section.â And the Legislative Commentary
to OEC 104 gives examples of preliminary questions that
are decided by the court under OEC 104(1)âwhether a witness whose former testimony is offered under OEC 804(3)(a)
is unavailable, as that term is defined in OEC 804(1) and (2),
and whether a hearsay statement offered under OEC 804
(3)(c) is against the declarantâs interest. Id. As Carlson
pointed out, the reference to âadmissibility of testimonyâ
and the examples in the commentary both suggest that the
admissibility of hearsay, and factual questions preliminary
to the admission of hearsay, are to be decided by the court.
But with the particular question of identity of
the declarant, there are textual, contextual, and legislative commentary clues that point in a different direction.
The most significant is the existence of OEC 901, which
was the focus in Park. That rule and its context explicitly
Cite as 311 Or App 136 (2021) 153
refer to questions of âidentityâ as a âcondition precedent to
admissibilityââwithout restriction or clarification as to
which rules of admissibility. OEC 901 (âThe 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.â). By its plain text, the standard in OEC 901 appears
to apply to the question of identity to the extent that it is
a condition precedent to the admission of testimony under
OEC 801(4)(b)(A).
As the commentary to OEC 901 explains, that rule
is an elaboration on the application of OEC 104(1). It is not
entirely clear whether the drafters of those rules perceived
a difference between a purely factual question of identityâ
who was the declarant?âand any substantive hearsay
determinations that might arise beyond that factual question. For instance, the commentary states, âA telephone conversation may be irrelevant as having an unrelated topic,
or because the speaker is not identified. The latter aspect is
the one here involved.â The commentary goes on to state that
â[c]ompliance with requirements of authentication or identification by no means assures admission of an item into evidence, as other bars such as hearsay may remain.â Legislative
Commentary to OEC 901, reprinted in Kirkpatrick, Oregon
Evidence § 901.02 (emphasis added).
Another section of the commentary to OEC 901,
which addresses authentication of what had been known
as âancient documents,â explicitly references the potential
overlap between authentication and hearsay questions:
âDespite the utility of paragraph (h) of subsection (2)
of this section, it is merely a rule of authentication, and
its satisfaction does not necessarily guarantee the admission of the writing authenticated. Thus, a writing may be
properly authenticated under any of the methods suggested
and yet be inadmissible as hearsay or secondary evidence.
A partial overlap exists between the requirements of this
section and a doctrine that recitals in certain types of
ancient instruments may be received as evidence of the
facts recited. The latter doctrine, however, constitutes an
exception to the rule against hearsay and is quite distinct
154 State v. Acosta
from the principles of this section concerning authentication.
McCormick, Evidence, section 223 at p 550 (2d ed 1972).â
Legislative Commentary to OEC 901, reprinted in Kirkpatrick,
Oregon Evidence § 901.02 (emphasis added).
It is possible that the drafters were drawing a distinction between the âconditional relevanceâ question of identity or authorship and other preliminary hearsay matters.
The Legislative Commentary to OEC 104 is equally vague
on that point. One of the examples of conditional relevance
under that rule, which we quoted in Park, speaks directly
to how the drafters understood the question of authorship:
âIf a letter purporting to be from Y is relied upon to establish an admission by Y, it has no probative value unless Y
wrote or authorized it.â Legislative Commentary to OEC 104,
reprinted in Kirkpatrick, Oregon Evidence § 104.02 (emphasis added).
The commentary to OEC 104 explains the justification for treating that type of question as one for the jury:
âIf preliminary questions of conditional relevancy were
determined solely by the judge, as provided in subsection
(1), the functioning of the jury as a trier of fact would be
greatly restricted and in some cases virtually destroyed.
These are appropriate questions for juries. The accepted
treatment, provided in the rule, is the treatment generally
given to questions of fact. The judge makes a preliminary
determination whether the foundation evidence is sufficient
to support a finding of fulfillment of the condition. If so, the
item is admitted. If, after all the evidence on the issue is in,
the jury could not reasonably conclude that fulfillment of
the condition is established, the judge withdraws the matter from the juryâs consideration.â
Legislative Commentary to OEC 104, reprinted in Kirkpatrick,
Oregon Evidence § 104.02 (emphasis added). Courts
and commentators have noted that judges are no better
suited than juries to determine a straightforward factual
question like, âWho made the statement?â See Konop v.
Rosen, 425 NJ Super 391, 419-20, 41 A3d 773, 790-91 (App
Div 2012) (â[W]hen the proffered evidence is âthe [opposing] partyâs own statement,â ⌠there is no pre-condition
to admissibility requiring a legal conclusion drawn by
Cite as 311 Or App 136 (2021) 155
application of our Rules of Evidence to adduced facts. âŚ
The issue is purely a factual oneâwhether the partyopponent made the statement.â); 1 McCormick on Evidence
§ 53 (7th ed 2016) (âConditional relevancy questions ⌠are
well within the jurorsâ competency; they involve the kind of
questions which jurors are accustomed to decide. Did A say
such-and-such? Did B sign the letter offered in evidence? The
juryâs role and power on the merits would be greatly curtailed if judges made the final decisions on these questions.â
(Emphasis added.)).
OEC 801(4)(b)(A), in turn, arguably treats the question of identity of the declarant as one of conditional relevance. There is little in the rule itself that suggests that, for
purposes of a hearsay determination, the factual question
of identity is different in quality from the âidentityâ question presented under OEC 901. If anything, the Legislative
Commentary to OEC 801 indicates that the question of
admissibility of a partyâs own statement under OEC 801
(4)(b)(A) is entirely subsumed by the existence of the conditional fact: âAdmissions are excluded from the category of
hearsay on the theory that their admissibility is the result
of the adversary system rather than satisfaction of the conditions of the hearsay rule. ⌠No guarantee of trustworthiness is required. The technical demands of the opinion
rule and the rule requiring personal knowledge are suspended. ⌠A partyâs own statement is the classic example of an admission.â Legislative Commentary to OEC 801,
reprinted in Kirkpatrick, Oregon Evidence § 801.03. So long
as the identity of the declarant is established (in OEC 901âs
terms, the out-of-court statement is one by the party opponent, as it is claimed to be), then it is not hearsay under OEC
801(4)(b)(A).6
Given the express treatment of identity in OEC 901,
and the draftersâ awareness of the intersection between OEC
901 and OEC 801, we are not persuaded that our holding in
Park was plainly wrong. It is possible that the drafters of
the Oregon Evidence Code intended the singular predicate
6
The only issue in this case is the preliminary factual determination as to
identity, and we express no opinion on how to characterize questions related to
representative capacity under OEC 801(4)(b)(A).
156 State v. Acosta
fact of identity of the declarant to be subject to two competing standards depending on whether the objection to admissibility was rooted in OEC 901 or OEC 801. But, looking at
the text of Oregonâs Evidence Code as a whole, it is equally
plausible that the drafters viewed the predicate fact of the
identity of an out-of-court declarant to be one of conditional
relevance assessed under the framework of OEC 901 and
OEC 104(2), in contrast to other predicate hearsay determinations. That interpretation gives effect to OEC 901, which
expressly treats the question of âidentificationâ as âa condition precedent to admissibility,â and OEC 104(2), which
carves out conditional relevance questions like the identity
of the author of a document as matters ultimately suited for
the jury, and OEC 801(4)(b)(A), which functionally treats the
identity of the declarant as a factual condition precedent to
admissibility.
Nor are we persuaded that the second inquiry in
Carlsonâwhether the policies underlying the hearsay rule
would be adequately served by treating the identity of the
declarant as a question of conditional relevanceâcompels
a different conclusion. In Carlson, the court explained why
leaving the âquestion of intent to adopt, agree or approveâ
to the jury as one of conditional relevance would undermine
the hearsay rule:
âThe purpose of the hearsay rule is to guard against the
risks of misperception, misrecollection, misstatement, and
insincerity, which are associated with statements of persons made out of court. âŚ
âThere are several difficulties with leaving the question of intent to adopt, agree or approve to the jury as a
question of conditional relevancy under OEC 104(2). If the
OEC 104(2) conditional relevancy standard is employed,
the legal policy underlying the hearsay rule would be
furthered incompletely, if at all. The jury passing on the
admission by conduct will have to hear not only evidence
about the conduct and the surrounding circumstances, but
also the out-of-court statement, as necessary predicates
for understanding what the party allegedly adopted. For
example, in the present case, the wifeâs accusatory statement, to which defendantâs nonverbal conduct is a response,
would have to be admitted to give meaning to defendantâs
conduct, and the accusation is relevant to prove the truth
Cite as 311 Or App 136 (2021) 157
of the accusation even though it may not be admissible
for that purpose. A juror could (a) overlook the question of
intent to adopt, agree or approve, and consider the truth of
the matter asserted in the out-of-court statement, (b) use
the out-of-court statement before considering and resolving the preliminary question of intent to adopt, agree or
approve, or (c) consider the hearsay statement regardless
of what conclusion is reached on the preliminary question
of adoption or belief. If the evidence is inadmissible, i.e.,
the jury does not find the preliminary fact (intent to adopt,
agree or approve) to exist, preventing jury contamination
may prove impossible. Additionally, a general verdict would
not indicate the juryâs resolution of whether intent to adopt
existed. A record for appellate review would require a special set of preliminary jury findings.
âIn short, we believe that judicial intervention is
required to prevent improper use of evidence. The preliminary question of intent to adopt, agree or approve, therefore, should be left to the trial judge under OEC 104(1).â
311 Or at 213 (citations omitted).
Here, by contrast, where the only predicate question is the fact of identity of the declarant for purposes of
OEC 801(4)(b)(A), those risks are less pronounced. Although
we can envision situations where a juror might overlook the
question of who made the statement or consider the statement without first considering and resolving that question,
those possibilities are remote where the purported declarant is the party opponent. Jurors presumably will evaluate
the source or author of a statement as part of their evaluation of its content, particularly when a statement is being
attributed directly to a party.
Many other courts have approached the question
of identity of the declarant in the same way as Park, but
we acknowledge that there is a split of authority on this
issue. Compare Jones v. National American University, 608
F3d 1039, 1045 (8th Cir 2010) (rejecting a hearsay challenge
under the federal counterpart to OEC 801(4)(b)(A) on the
ground that the testimony âwas sufficient evidence for a
jury to find that the exhibit was [the party opponentâs] statementâ), and U.S. v. Tann,
425 F Supp 2d 26, 38 (DDC 2006),
affâd,
532 F3d 868 (DC Cir), cert den,
555 US 1088 (2008)
158 State v. Acosta
(concluding that âthe Government has met its burden under
Federal Rule of Evidence 104(b) to establish that a reasonable juror could conclude that the e-mails in question were
statements by Defendant, and therefore exempt from a hearsay analysis pursuant to Federal Rule of Evidence 801(d)
(2)â), with U.S. v. Garza,
435 F3d 73, 77 (1st Cir), cert den,
547 US 1158 (2006) (âQuestions of admissibility are decided
by the court, Fed R Evid 104(a), using the preponderance
of the evidence standard. ⌠So long as there is a preponderance of evidence indicating that it was Garzaâs voice on
the tapes, the transcripts could be treated as containing his
admission.â), and U.S. v. Lang,
364 F3d 1210, 1222 (10th Cir
2004), cert granted, judgment vacâd,
543 US 1108,
125 S Ct
986,
160 L Ed 2d 1034 (2005), and opinion reinstated in part,
405 F3d 1060 (10th Cir 2005) (citing authority that the court
decides questions under FRE 801(d)(2) and concluding that
â[w]e find no law, and Mr. Lang presents none, stating that
we apply any different standard to statements under Fed R
Evid 801(d)(2)(A)â).
Those cases treating identity as a question for the
court typically have not grappled with the federal equivalent to OEC 901âFRE 901âor provided much in the way
of explanation. E.g., Lang, 364 F3d at 1222. But even commentators appear to disagree on the general treatment of
the question as one of conditional relevance. Compare 8
Handbook of Federal Evidence § 901:5 n 6 (9th ed Nov 2020
Update) (âDespite the clear statement in Rule 901(a) itself
that Rule 901(b)(5), along with all other Rule 901 illustrations, is a matter of conditional relevancy governed by Rule
104(b), Rule 104(a) has been incorrectly held applicable when
it comes to a determination as to whether the defendantâs
was the voice heard on the tape recordings.â) with Wright &
Miller at § 5053.3 (â[D]espite an occasional deviation, it is
generally agreed that the judge determines the facts necessary to show that a statement is a straight, adoptive, authorized, or vicarious admission under Rule 801(d)(2)(A) to (D).â
(Footnotes omitted.)).
However, for the reasons stated above, we adhere
to our holding in Park and conclude that the question of
identity of the declarant of an out-of-court statement presents one of conditional relevance that is evaluated under
Cite as 311 Or App 136 (2021) 159
the same standard for identity as a condition precedent to
admissibility set forth in OEC 901. If, over a hearsay objection, the proponent of the evidence presents a prima facie
case that the party opponent is the declarant, the trial court
must conditionally admit the evidence and instruct the jury
to consider the evidence only if it determines that the party
opponent was, in fact, the declarant.
B. Application in Trial
On issues of authentication, after the trial court
determines that the proponent of the evidence has met its
prima facie burdenâi.e., that there is sufficient evidence
that a trier of fact could conclude that the item is what the
proponent claims it to beâthe evidence goes to the jury. If
the jury ultimately concludes that the item isnât what the proponent claims it to be, it becomes an issue of weight. Identity
for hearsay purposes is different. After submission of the
statement to the jury, if the jury ultimately concludes that
the statement was not by a party opponent, the statement
should not be in the evidentiary record for consideration at
all. Accordingly, the court will need to provide the jury a
limiting instruction if the evidence is conditionally admitted. A proposed instruction could resemble the following:
âMembers of the jury, you have heard testimony or seen
documents purporting to be statements by defendant; specifically [DESCRIBE HEARSAY STATEMENTS]. Before
you may consider such statements as evidence, you must
first determine, by a preponderance of the evidence, that
defendant, in fact, made the statement. If you are unable to
determine [UNANIMOUSLY IN CRIMINAL CASES OR
BY THREE-FOURTHS OF THE JURY IN CIVIL CASES],
by a preponderance of the evidence, that defendant made
the statement, that statement is not part of the evidence of
this case, and you may not consider it in your deliberations.â
That instruction is similar to the instructions given
in other jurisdictions treating identity, for purposes of hearsay, as an issue of conditional relevance. See, e.g., Com. v.
Oppenheim, 86 Mass App Ct 359, 365-66, 16 NE3d 502, 508
(2014) (approving of the trial courtâs instruction that the
jury â âcould consider an [instant messaging] conversation if
âconvince[d]â that the defendant âwas the author of those portions of the conversation ⌠attributed to him âŚ. If the
160 State v. Acosta
evidence does not persuade you that [the defendant] was the
author of those statements, you must disregard the instant
message conversation in your deliberations.â â); Konop, 425
NJ Super at 422, 41 A3d at 792 (âIf the case proceeds to
trial, the judge must provide a limiting instruction that the
disputed notation may only be considered if the jury finds
by a preponderance of the evidence that defendant made
the statement.â); Kevin F. OâMalley, Jay E. Grenig, and
Hon William C. Lee, 3 Federal Jury Practice & Instructions
§ 104:41 (6th ed Feb 2021 Update) (âPlaintiff _______ has
presented some evidence that the [describe] report is genuine. Defendant _______ has submitted rebuttal evidence
challenging the authenticity of the report. Plaintiff _______
has the burden of proving the reportâs authenticity by a preponderance of the evidence. If you find plaintiff _______ has
met that burden, you may consider the report during your
deliberations. But, if you find plaintiff _______ has not met
that burden, you must completely disregard the report.â);
Judicial Council Of California Civil Jury Instruction 212
(2021 Edition) (âA party may offer into evidence any oral or
written statement made by an opposing party outside the
courtroom. When you evaluate evidence of such a statement,
you must consider these questions: 1. Do you believe that
the party actually made the statement? If you do not believe
that the party made the statement, you may not consider
the statement at all. 2. If you believe that the statement was
made, do you believe it was reported accurately? You should
view testimony about an oral statement made by a party
outside the courtroom with caution.â).
Finally, reflecting Carlsonâs concern that a general
verdict might not indicate the juryâs resolution of the preliminary question, and a record for appellate review would
require a special set of preliminary jury findings, counsel
may need to request an interrogatory verdict form (for criminal cases), or a special verdict or interrogatory form for
civil cases in order for an appellate court to know whether
the jury did, or did not, âadmitâ the statement into the evidentiary record for purposes of assessing any prejudice in
the event that the trial court erred in conditionally admitting the evidence. See State v. Payne, 298 Or App 411, 427,
447 P3d 515 (2019) (âIn criminal cases, the special verdict
Cite as
311 Or App 136 (2021) 161
is statutorily prohibited. However, ⌠the general verdict
with interrogatories ⌠is not prohibited by ORS 136.485.â).
Those procedures would sufficiently minimize the
chances that the jury would skip over a dispute about the
identity of the speaker when considering the statements,
or that error in conditionally admitting the evidence would
be unreviewable. See, e.g., Konop, 425 NJ Super at 422, 41
A3d at 792 (âThe parties are free to address with the judge
whether a preliminary interrogatory should be submitted
to the jury since the notation provides the only support for
Solnyâs opinion that defendant deviated from accepted medical standards.â).
C. Admissibility of the Facebook Messages
With that understanding of the trial courtâs role,
the authentication and hearsay questions raised on appeal
essentially turn on the same inquiry under OEC 901: Did
the state present a prima facie case that the Facebook messages were messages sent by defendant, as the state claimed
them to be?
That question is another variation on the theme
we addressed in Sassarini: When can we trust digital evidence? Social media accounts like Facebook, Twitter, and
Instagram pose unique authentication concerns. They can
be created by anyone, with profile information that can be
entirely fictitious; photos and other content on the account
may or may not correspond to the account holder; they can
be maintained or used by anyone with the account credentials, whether or not that person is the creator or account
holderâincluding by persons who are not authorized
users.
As with all questions of authentication under OEC
901, the showing required to authenticate evidence of postings from social media accounts is contextual. By its nature,
a message from a Facebook account with a particular profile can be âauthenticâ in different senses, depending on
what its proponent is claiming it to be. If a party is offering evidence that a Facebook message originated from an
account profileâwith no additional claim of evidentiary
value as to authorship, account ownership, or the content of
162 State v. Acosta
the postâthe proponent must authenticate only that much:
that it is a message that originated from that account. See
Sassarini, 300 Or App at 126 (â[A]s we understand OEC 901,
particularly in light of the official commentary to that rule,
the requirements for authentication in Oregon will depend
on the particular circumstances and the nature of the evidence that is offered.â); see generally Authentication of Social
Media Records and Communications, 40 ALR 7th Art 1 (2019)
(â[W]here the evidentiary value of a writing does not depend
on a showing of the truth of its contents, or that a particular person wrote it, its authentication need not relate to
such matters, but needs only to extend to whatever facts are
necessary to permit a finding that the document is what its
proponent claims it to be.â).
But where a proponent claims moreâthat the
message originated from a particular account and was
authored by a particular personâmore is required. See U.S.
v. Vasquez-Soto, 939 F3d 365, 373 n 5 (1st Cir 2019) (â[I]f a
proponent of social media evidence seeks to introduce the
evidence to show that âthe [social media] page or a post is
that of a particular person, authenticity standards are not
automatically satisfied by the fact that the post or the page
is in that personâs name ⌠because someone can create a
⌠social media page in someone elseâs name.â â (Quoting
Hon Paul W. Grimm et al, Authenticating Digital Evidence,
69 Baylor L Rev 1, 31-32 (2017).)). That is the circumstance
in this case, in which the state asserts that the Facebook
messages were not only from the Acosta profile, but were
sent by defendant.
In Sassarini, we explained that OEC 901 codified
a âmore flexible approach to authenticationâ in which the
examples provided in the rule âare not exclusive allowable
methods but are meant to guide and suggest, leaving room
for growth and development in this area of the law.â 300 Or
App at 127 (quoting Legislative Commentary to OEC 901,
reprinted in Kirkpatrick, Oregon Evidence § 901.02). The
examples in subsection (2) of the rule provide:
â(a) Testimony by a witness with knowledge that a
matter is what it is claimed to be.
Cite as 311 Or App 136 (2021) 163
â(b) Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes
of the litigation.
â(c) Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
â(d) Appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with circumstances.
â(e) Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any
time under circumstances connecting it with the alleged
speaker.
â(f) Telephone conversations, by evidence that a call
was made to the number assigned at the time by the telephone company to a particular person or business, if:
â(A) In the case of a person, circumstances, including self-identification, show the person answering to be
the one called; or
â(B) In the case of a business, the call was made
to a place of business and the conversation related to
business reasonably transacted over the telephone.
â(g) Evidence that a writing authorized by law to be
recorded or filed and in fact recorded or filed in a public
office, or a purported public record, report, statement, or
data compilation, in any form, is from the public office
where items of this nature are kept.
â(h) Evidence that a document or data compilation, in
any form:
â(A) Is in such condition as to create no suspicion
concerning its authenticity;
â(B) Was in a place where it, if authentic, would
likely be; and
â(C) Has been in existence 20 years or more at the
time it is offered.
â(i) Evidence describing a process or system used to
produce a result and showing that the process or system
produces an accurate result.
164 State v. Acosta
â(j) Any method of authentication or identification
otherwise provided by law or by other rules prescribed by
the Supreme Court.â
None of those examples specifically address social
media posts or digital evidence of this nature,7 but some
of them are helpful in determining the âcertain minimum
assurancesâ necessary to establish that a post originated
from a particular author.
One of the examples is â[t]estimony by a witness
with knowledge that a matter is what it is claimed to be.â
To authenticate a social media message as being from a
particular author, the proponent of that evidence could offer
testimony by someone with personal knowledge that a message was sent from a particular accountâeither the sender
or someone who watched the sender post the message. But
that is not the evidence that the state offered in this case;
it has no witnesses with knowledge that the Acosta profile
was created by defendant, let alone that the messages were
authored and sent by defendant.
It is also possible to authenticate social media evidence through expert testimony about the systems that
created an account and the persons with which they are
associated. See OEC 901(2)(c) (authentication by comparison by âexpert witnesses with specimens which have been
authenticatedâ); OEC 901(2)(i) (authentication by evidence
âdescribing a process or system used to produce a result
and showing that the process or system produces an accurate resultâ). The state did not offer any forensic evidence
in this case; the evidence that was introduced came from
the detectiveâs phone, not the senderâs device, and there was
no expert testimony about the origin of the messages, what
it takes to create a Facebook profile, or the security protocols of Facebook. Cf. Grimm et al, 69 Baylor L Rev at 32
(âMost courts have found that it is enough for the proponent
to show that the pages and accounts can be tracked through
7
As we noted in Sassarini, 300 Or App at 128 n 2, the Federal Rules of
Evidence were changed in 2017 to address â â[d]ata copied from an electronic
device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person.â â FRE 902(14). The Oregon
Evidence Code has not been similarly amended to address digital identification.
Cite as
311 Or App 136 (2021) 165
internet protocol addresses associated with the person who
purportedly made the post.â).
Another possible means of authentication of social
media evidence, and the one on which the state relies, is
â[a]ppearance, contents, substance, internal patterns or
other distinctive characteristics, taken in conjunction
with circumstances.â OEC 901(2)(d). For that example, the
Legislative Commentary provides additional guidance,
adopted from Weinstein Evidence: Commentary on Rules
of Evidence for the United States Courts and Magistrates.
(M. Bender 1976):
â(i) Subject Matter. A document or telephone conversation may be shown to have emanated from a particular
person or business by the fact that it would be unlikely
for anyone other than the purported author or declarant
to be familiar with the subject matter of the document or
conversation.
â(ii) Physical Attributes. The appearance, physical
characteristics, and identifying marks of a writing may
sufficiently identify the source of the document.
â(iii) Internal Patterns. Writings may be authenticated
by evidence that the internal word or thought patterns are
particularly characteristic of the purported writer.
â(iv) External Circumstances. Circumstances preceding, surrounding and following the transmission of a writing may sufficiently authenticate the writing.
â(v) Reply-Letter Technique. A letter or telegram may
be authenticated by testimony or other proof that the writing was sent in reply to a duly authenticated writing.â
Commentary to OEC 901, reprinted in Kirkpatrick, Oregon
Evidence § 901.02 (citations omitted).
The example and commentary predate our digital
world, but, at their core, reflect the view that the substance
and circumstances of messages and conversations can be so
highly correlative of identity that they meet the minimum
assurance of trustworthiness required of evidence that will
be relied upon in a court of law. That is true of digital evidence as well, and the examples and commentary can be
adapted to the social media context, so long as we account
166 State v. Acosta
for the ease (and frequency) of manipulation of social media
and other digital messaging. See, e.g., Griffin v. State, 419
Md 343, 358, 19 A3d 415, 424 (2011) (â[W]e recognize that
other courts, called upon to consider authentication of electronically stored information on social networking sites,
have suggested greater scrutiny because of the heightened
possibility for manipulation by other than the true user or
poster.â).
In a digital world, the mere âappearanceâ of a document, or that it comes from a particular account, is not alone
a strong indicator of authorship, for the reasons discussed
above. In the absence of personal knowledge of the source of
a document to explain its appearance, or expert testimony
about the document, the appearance of a document proves
only that much: what it appears to be.
However, the other factors listedâcontent, subject
matter, internal patterns, or other distinctive characteristicsâ
still retain their import in determining the author of a social
media posting as they would with a nondigital communication. The fact that it is âunlikely for anyone other than
the purported author or declarant to be familiar with the
subject matter of the document or conversationâ can indicate the source of a social media message, just as it could
with other types of messages. Likewise, the âcircumstances
preceding, surrounding and following the transmission of
a writing may sufficiently authenticate the writingâ where
that circumstantial proof is sufficiently corroborative of
authorshipâincluding whether the messages at issue were
sent in reply to a duly authenticated message.
The burden on the proponent at this stage is not
to conclusively establish authorship; rather, as we emphasized in Sassarini, the question is whether the proponent
established a prima facie case such that âa reasonable
person would be satisfiedâ that defendant was the author
of the messages. 300 Or App at 126. That is a question of
legal sufficiency, which we review for errors of law. State v.
H. D. E.,
304 Or App 375, 383,
467 P3d 771, rev den,
367 Or
220 (2020).
Viewing the record through that lens, we conclude that the trial court erred in excluding the Facebook
Cite as 311 Or App 136 (2021) 167
messages, because the content of the messages and the
circumstances in combination were sufficient for a reasonable person to be satisfied that defendant authored them in
response to messages from the detective.
First, the appearance of the Facebook messages,
although not dispositive, was entirely consistent with
the Facebook profile being defendantâs account and the
messages originating from that account: The messages
appeared to come from an account that bore defendantâs
name and included pictures that matched defendantâs physical appearance.
In addition, the content of the messages, when considered under the circumstances in which they were received
by the detective, included substance that was uniquely associated with defendantâor, at least, with the small group of
persons at the Sonya residence and then in the truck. During
the exchange, the detective asks, âHey bro any word,â and
received a response from the Acosta profile on July 2 stating, âYeah here at Sonia house in Winston come through g.â
The detective testified that, based on that information, he
set up surveillance on the following day and saw defendant
come out of that residenceâa fact that circumstantially
links defendant to the messages from the account, whether
or not they were sent by him specifically. The detective also
testified that he received a message saying, âIâm on my way
in ten minutesâ at just about the time that the Acosta profile indicated that the senderâs ride would be arriving. And
he then saw defendant come out of the Sonya residence,
put a backpack in the back of the truck, and get into the
right front passenger seat of the gray truckâagain, circumstances that corroborate that defendant was simultaneously
behaving in ways that were consistent with being the sender
of the messagesâor, at the very least, among a very small
group of people who were using the Acosta profile to communicate with the detective.
Once the truck left, with defendant in it, the messages later exchanged between the detective and the Acosta
profile communicated knowledge that again was uniquely
associated with the occupants of the gray truck, including
168 State v. Acosta
its approximate distance from Southgate Market and,
finally, its arrival at the market.
Based on those corroborating circumstances, a reasonable person would have little trouble concluding that the
messages were sent by someone who was first at the Sonya
residence and later an occupant of the truck.
Defendant does not seriously contend otherwise.
What he argues, instead, and what the trial court appears
to have concluded, is that there is insufficient evidence that
it was defendant, not one of the other occupants, who had
control of the phone in the truck and sent the messages. The
trial court reasoned, âwe are all supposed to believe that
these messages came from [defendantâs] phone and yet, we
havenât really established that he was ever in control of the
phone or that he was using it[.]â8
The state did not conclusively establish that defendant, and not one of the other occupants of the vehicle, was
the person who sent the messages, and did not conclusively
establish that he used the phone that was found within
his reach in the gray truck. But the state, for purposes of
authentication, was not required to do so. A reasonable person would be satisfied that, given all the circumstances,
it was defendant and not one of the other occupants who
was sending messages from the Acosta profile: A Facebook
account matching defendantâs name and profile picture;
messages that were consistent with defendantâs presence
and movements at the Sonya residence; and messages that
were consistent with his location while riding in the truck.
Even if it were possible that someone else sent the messages
from the profile matching defendantâs name and picture, the
evidence was sufficient for a reasonable person to be satisfied that it was, in fact, defendant who sent them.9 Accord
8
Defendant argues, consistently with his view that identity is a preliminary
question of fact for the trial court, that we should defer to the trial courtâs findings. Even apart from rejecting that view of the trial courtâs factfinding role, we
are not persuaded that the trial court made a factual finding regarding identity. The court appears to have been persuaded by the evidence (âDo I think that
[defendant] sent those messages? Yeah. I do.â) but concluded that the standard
was higher as a matter of law (âIs it legally established that [defendant] sent
those messages? No. Itâs not legally established.â).
9
The discrepancy between a âliftedâ and âloweredâ truck does not change the
calculus for purposes of authentication.
Cite as 311 Or App 136 (2021) 169
State v. Smith, 179 Conn App 734, 765-66, 181 A3d 118, 136,
cert den,
328 Conn 927 (2018) (rejecting the view that âthe
state bore the insurmountable burden of ruling out any possibility that the message was not sent by the defendantâ); see
also U.S. v. Browne,
834 F3d 403, 411-15 (3d Cir 2016), cert
den,
137 S Ct 695 (2017) (Facebook chats were sufficiently
authenticated where witnesses testified that they communicated with the creator of the page through Facebook, they
could identify the creator, and biographical data on Facebook
matched the defendant).
Because the state presented sufficient evidence
from which a reasonable trier of fact could conclude that
defendant sent the Facebook messages, the trial court erred
in excluding them under OEC 901. For the same reason, the
court erred in excluding them on hearsay grounds. Because
there was sufficient evidence to show that defendant was
the declarant, the Facebook messages were admissible, subject to the juryâs finding on that issue.
Reversed and remanded.
