you agree that we can take account of a fifth of circumstantial evidence and and information in the content of the records themselves in looking at that a subsequent matter for the prosecution to prove that we have here that these records exist that these words were communicated back and forth and then not the record keeper but the prosecution has the responsibility of showing that the witnesses did or did not make such statements now jupiter this is that the government wasn't certifying these as mr brown's records why is new right to look at this at least from a nine o two eleven business records perspective as authentic  right you're arguing that this would should not have been authenticated under nine to eleven but you're also arguing that it couldn't have been under even one no one has that right traditional kinds of business records where those things are kept with a company right so if your argument is that this is mistaken identification or this was an appropriately linked up to a business record would you then say that bank records your bank transaction records can't be authenticated as a business record if part of the defense is that someone else was using my credit card ok well then there is testimony there is evidence that tony brown is believe or that he that he he has introduced himself as such now isn't up then to the jury could decide mean facebook isn't showing that facebook is simply showing we have these records that these communications took place on a certain date and then the prosecution has shown that tony brown has presented himself this apart because not nine o two eleven is self authenticating and that means that the records by by virtue of the certification alone are authentic ated premised on the idea that there's something inherently reliable and trustworthy about the way business records are created and maintained it does not permit of extrinsic evidence for purposes of authentication in contrast to n one which does you've just listed various pieces of evidence in the record extrinsic the documents themselves to support authenticity that it seems to me is a nine to one issue but in some ways  shows exactly why and i know two eleven is not the right mechanism for authenticity of social media records your position that so from a sofa media including the content of those chats i just by virtue of being certified by the state third party service provider as has on its servers on their bike is ed noted as as a business record under related three because it does doesn't it and does doesn't the inquiry for nine o two eleven basically equate with admissibility or at least the hearsay exception of eight o three how could it possibly be that the content of social media records between two parties neither of which is part of the recording of the business  but again all those are all things those are all pieces of evidence extrinsic to the documents themselves that you might use to authenticate documents under nine zero one and if you proceeded by way of nine a one your next step would be to look at questions of admissibility including hearsay exceptions like can this be admitted because it's a part of the admission the rule that i hear you asking us to espouse is that social media communications are per se business records so that all the traditional rules of hearsay like whether this is a party admission or how it is that the content of these communications can come into evidence go by the wayside that this this can be admitted not just authenticated but it knitted as a business record how could how could that that that that's just so fundamental to the rules of evidence i don't understand how we could take that route inquiry i mean let's take a sample i assume you're familiar with wiretap evidence so there's no question that things like subscriber information and dates and times and phone the phone numbers of to and from those the content of the conversations those transcripts automatically come in as business records right we would we need to look to some other basis for a exception to the hearsay rules to get those communications actually into evidence right so how is this any different i mean i understand that the certification might get us past authenticity for the facebook subscriber information for the dates the times of the communication but but how do we make what seems like a huge leap from that to the actual content of the communication but but in business records if you subpoena and get someone the law rather summons telephone calls to move on what can how long that still does not permit you to presented evidence the content of any of those telephone calls and i think in that respect it's a similar situation not as a business record not not from the tarpon company but let me ask you another question one of a harmless  placement and secondly he points out that a one day trial may have been trumped by the heavy volume of actual facebook conversations so that if in fact there was an evid hearing that the the volume of those conversations may not have been harmless to the records themselves ties mr brown to believe button and let's assume for these purposes that that would support authentication under nine a one for four of these five chats they would come in as a hearsay exception to party y exception would would bring that into evidence