Kent
County Superior Court
For
Plaintiff: Matthew L. LaMountain, Esq. Josh Owen, Esq.
For
Defendant: John E. MacDonald, Esq.
DECISION
RUBINE, J.
The
Defendant has been charged with one count of possession of
child pornography. A motion was filed by the State for an
in limine determination of whether the State's
introduction of the "CyberTipLine Report"
(CyberTip) received by the R.I. State Police from a national
reporting agency, the National Center for Missing and
Exploited Children (NCMEC) is proper. The CyberTip contains
information supplied to NCMEC by the internet service
provider or ISP, in this case Microsoft, which identified the
subject image as an example of "child pornography"
by matching a file found in Defendant's Microsoft Cloud
storage to an image contained in the NCMEC database. The
CyberTip identifies Defendant's Microsoft Cloud account
as the source of the image and links the Defendant's home
IP address, e-mail address, and also the date and time
associated with the upload of the image to the Defendant
himself. In its introduction, the report explains that the
contents of the CyberTip were submitted electronically by the
"reporting person, " here Microsoft Skydrive of
Redmond, Washington. From the data supplied by Microsoft,
NCMEC was able to confirm the image as pornographic; identify
the name and address of the owner of the account in which the
uploaded image was stored; the date and time of the upload;
and related identifying information. This information was
reported by NCMEC to the R.I. State Police by way of the
CyberTip. The R.I. State Police, believing the information
was reliable and accurate, pursued its investigation leading
ultimately to the Defendant being charged with possession of
child pornography. The process of retrieval and reporting of
the data was described generally by Detective Petit at the
hearing. Detective Petit-a detective in the Warwick Police
Department, as well as a member of the statewide task force
on internet pornography-testified at the hearing associated
with the State's motion. In summary, he testified that
the police agency was provided with the CyberTip.
Detective
Petit also testified as to his knowledge of the process,
which this Court finds to be anecdotal. Detective Petit
testified that he confirmed through telephone calls to NCMEC
and Microsoft their policies and procedures, but admitted on
cross-examination that he had no personal knowledge of how
the data was generated. Without such personal knowledge, the
defense argues that it is unable to test the reliability of
the data contained in the report; nor was a witness presented
who could authenticate the document. It is the unavailability
of such witnesses that Defendant contends denies him the
right of confrontation secured to him under the Sixth
Amendment to the United States Constitution.
Analysis
The
seminal case discussing the Sixth Amendment right of
confrontation is Crawford v. Washington, 541 U.S.
36, 53-54 (2004). In Crawford, the United States
Supreme Court held that the Confrontation Clause bars the
admission of "[t]estimonial statements of witnesses
absent from trial, " unless the witness is unavailable
or was already cross-examined. Id. at 59.
Crawford states that in order to trigger the right
to confrontation, the proffered evidence must first
constitute hearsay. Id. at 36; United States v.
Cameron, 699 F.3d 621, 641 (1st Cir. 2012); United
States v. Washington, 498 F.3d 225, 229 (4th Cir. 2007).
The Rhode Island Rules of Evidence define hearsay as ".
. . a 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." R.I. R. Evid.
801(c). "A 'declarant' is a person who
makes a statement." R.I. R. Evid. 801(b) (emphasis
added). Based upon the Crawford test, I find the
document proposed as evidence by the State to be testimonial
in nature and subject to confrontation. Similarly, the
information provided in the CyberTip was intended to be used
for prosecutorial purpose. The information concerning the
subject image and how the computer-generated information
tying the image to the Defendant in the CyberTip must be
tested for its reliability through cross-examination of the
person or persons with personal knowledge of how the data was
collected for the report. Without the Defendant being
provided an opportunity to test the reliability of the data
through cross-examination of a person or persons having
personal knowledge of how the computer was able to provide
data to tie an allegedly pornographic image to the Defendant,
the information obtained through the CyberTip cannot be
introduced.
The
Court specifically rejects the State's contention that
because the data is electronically generated, without the
input of a human being, introduction of the document through
Detective Petit would not deny the Defendant his right to
confrontation. Two federal circuits appear to agree with the
State's analysis, holding that an out-of-court statement
generated automatically by a machine is not hearsay, in that
to be considered hearsay the proffered evidence must be made
by a declarant. By definition, a declarant must be a person.
See United States v. Hamilton, 413 F.3d 1138, 1142
(10th Cir. 2005); Washington, 498 F.3d at
229. Here, the State claims that the information contained in
the CyberTip was automatically generated and therefore is not
a statement made by any declarant. The State analogizes the
facts herein as similar to those before the Fourth Circuit in
Washington. In Washington, the proffered
evidence was a report of blood testing and the issue was the
admissibility of tests generated by a gas chromatograph
proving that the defendant's blood contained evidence of
drugs and alcohol. 498 F.3d at 229-30. In
Washington, the Fourth Circuit Court of Appeals
found that a blood test result indicating that PCP and
alcohol was present in the defendant's system was not a
statement of a person, but that of a chromatograph machine
captured on a computer printout. Id. at 230. The
chromatograph was operated by a lab technician and the
defendant's argument was that the lab technician is
required for cross-examination. The court found, however,
that "there would be no value in cross-examining the lab
technicians on their out-of-court statements . . . because
they made no such statements. They would only be able to
refer to the machine's printouts, which [the doctor] also
had." Id. Here, the State argues that the
information contained in the CyberTip is like the blood test
reports in that it is merely an automatically-produced set of
information from a machine, and that it is not an
out-of-court statement subject to cross-examination.
The
State also cites to the Tenth Circuit Court of Appeals in
Hamilton, wherein the court found, in connection
with a prosecution involving child pornography, that the
"header information, "[1] even though automatically
generated by a computer hosting the newsgroup, was not
hearsay because it did not involve an out-of-court statement
made by a declarant. Therefore, the information contained
therein is not subject to the Confrontation Clause.
The
State contends that the identifying information contained in
Section A of the CyberTip is not hearsay and may be
introduced without concern for the Defendant's right to
confrontation. The First Circuit however has found to the
contrary in connection with a child pornography trial. The
court found that tip reports that were passed on to law
enforcement authorities by a national reporting organization
containing information provided to the national organization
by an internet service provider were testimonial statements
since their primary purpose was to establish or prove past
events potential to a later criminal prosecution. The court
found that the admission of such reports without an
opportunity to cross-examine the reports' authors
violated the Confrontation Clause. Because the rationale of
Crawford was inextricably tied to the reliability of
data generated electronically, this Court accepts the
rationale articulated by the First Circuit over that adopted
by the Fourth and Tenth Circuits.
In this
case, the data contained in the CyberTip constitutes the only
evidence upon which the State relies to tie this Defendant to
the images uploaded to his Cloud account which Microsoft
reported to NCMEC. The reliability and authenticity of such
data is essential to the State's burden of proof and
should be tested in the "crucible of
cross-examination."
Conclusion
Thus,
this Court finds that once properly authenticated, a
representative of the entity providing the inculpatory data
must be made available for cross-examination by the
Defendant. The admission of such report without the
availability of such witness or witnesses violates the
Defendant's constitutional right of confrontation. The
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