             IN THE SUPREME COURT OF THE STATE OF DELAWARE

ZACHARY SCHAFFER,                              §
                                               §      No. 238, 2017
       Respondent Below,                       §
       Appellant,                              §      Court Below: Family Court
                                               §      of the State of Delaware
       v.                                      §
                                               §      No. 1605005875
STATE OF DELAWARE,                             §
                                               §
       Petitioner Below,                       §
       Appellee.                               §

                              Submitted: January 24, 2017
                                Decided: April 10, 2018

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

                                        ORDER

       This 10th day of April, 2018, having considered the briefs, the record below,

and the argument of counsel, it appears to the Court that:

       (1)     In April 2016, a sixteen-year-old high school student died after being

attacked by another student in a school bathroom. She died not of blunt force

trauma from the attack, but from a rare, undiagnosed heart condition that was

aggravated by the emotional and physical stress of the attack. Schaffer,1 the

appellant here, was not the perpetrator, but she was charged in Family Court with

conspiring with the perpetrator and a third student to assault the victim. After a


1
       Schaffer is a pseudonym, assigned because she was tried in Family Court as a juvenile.
See Del. Sup. Ct. R. 7(d). The names of all other juveniles in this order are also pseudonyms.
bench trial, the Family Court adjudicated Schaffer delinquent of conspiracy in the

third degree.

      (2)       Schaffer challenges her delinquency adjudication on three grounds.

First, she contends that the State violated her due process rights under the United

States and Delaware constitutions by failing to recover an iPad that the school had

issued to the victim, which Schaffer believes may have contained information

favorable to her defense. Second, she contends that the trial judge erred by

allowing the State to introduce two Snapchat videos that the State attributed to her

without adequate authentication. Third, she contends that the evidence as a whole

was insufficient to support the Family Court’s finding that she was delinquent of

conspiracy in the third degree.

      (3)       We recently examined these events in connection with the charges

against the student who perpetrated the attack, Tracy Cannon.2 We focus here on

Schaffer’s role.

      (4)       The day before the fatal attack, the victim, Alcee Johnson-Franklin,

left class to meet Schaffer and Cannon in one of the school bathrooms. A feud had

been brewing on social media between Cannon and Johnson-Franklin, and a

faculty member who was near the bathroom reported hearing “a lot of screaming




2
      See Cannon v. State, ___ A.3d ___, 2018 WL 1097023 (Del. Mar. 1, 2018).
                                           2
and a lot of verbal talk.”3 At trial, the State offered—and the court admitted—a

short video of the confrontation, which Schaffer had allegedly recorded and posted

on Snapchat. The video had a caption, which read, “[Cannon] bouta fight her.” The

State also offered a second video that Schaffer allegedly posted, which consisted of

her, Cannon, and a third student walking down a hallway, during which could be

heard, “We gonna get her. She’s scared.”

      (5)    That night, Johnson-Franklin talked with a friend about the incident

by both text message and a video call. The next morning, Schaffer, Cannon, and

the third student from the video were all seen together in the school cafeteria prior

to class. At trial, another student testified that, as she was on her way to school that

morning, she received a call from that third student from the video, who asked her

if she had arrived at school yet, and if she knew where to find Johnson-Franklin.

      (6)    When Johnson-Franklin arrived at school, she passed by Schaffer,

Cannon, and the third student before walking into the same bathroom as the day

before. The three girls followed her. After an exchange of words between her and

Cannon, Cannon attacked her. A video taken by another student captured the

attack, which lasted only about a minute. Cannon “pulled [her] to the ground,

threw a quick succession of awkward punches, pulled her by her hair, and then




3
      App. to Opening Br. A-6.
                                           3
jumped on top of her. By the end, the two of them were on the floor, grappling and

kicking at each other until other students pulled them apart.”4

      (7)    Soon after, Johnson-Franklin went into cardiac arrest, and less than

two hours later, she was pronounced dead. Her autopsy revealed that she had

suffered from a rare heart condition, which she had not known that she had. “The

cause of her death was found to be ‘sudden cardiac death due to [a] large atrial

septal defect and pulmonary hypertension,’ with the emotional and physical stress

from the assault acting as a ‘contributing’ cause.”5

      (8)    The State filed delinquency petitions against Cannon, Schaffer, and

the third student. All three were charged with conspiracy in the third degree, and

Cannon—the perpetrator of the attack—was further charged with criminally

negligent homicide. The Family Court adjudicated Schaffer and Cannon delinquent

of conspiracy and further adjudicated Cannon delinquent of criminally negligent

homicide. The third student was found not delinquent.

      (9)    During the investigation into Johnson-Franklin’s death, investigators

learned that the school had issued iPads to all of its students. But while they were

able to locate the iPads of Cannon, Schaffer, and the third student, they were

unable to locate Johnson-Franklin’s. According to one of the detectives who

investigated her death, they would have “love[d] to have [it],” but they never

4
      Cannon, 2018 WL 1097023, at *7.
5
      Id. at *3.
                                          4
recovered it.6 They asked Johnson-Franklin’s family if they knew where to find it,

but they did not. A detective on the investigation team asked the school whether

they had the capability to remotely track the location of the school-issued iPads,

but the detective who testified at trial did not know what came of that discussion.

The detective did mention, based on his knowledge of the tracking technology—in

this case, Apple’s “Find My iPhone” feature—that it would work only if the iPad’s

battery was charged and the device was powered on. A faculty member who

testified at trial confirmed that the school did have that ability to remotely track the

students’ iPads, but she too did not know whether any attempts had been made to

use that technology to locate the missing iPad. She also suggested that the school

may have had some ability to remotely monitor how the students were using their

iPads, but said that they could not “necessarily go into their iPad.”7

      (10) At trial, Schaffer argued that the State’s failure to locate and turn over

the iPad violated her rights under Brady v. Maryland,8 which requires the State to

turn over evidence favorable to the accused that is within the State’s possession or

control, and our decisions in Deberry v. State9 and Lolly v. State,10 which, as a

matter of the due process guarantee of the Delaware Constitution, require the State



6
      App. to Answering Br. B-79.
7
      App. B-105.
8
      373 U.S. 83 (1963).
9
      457 A.2d 744 (Del. 1983).
10
      611 A.2d 956 (Del. 1992).
                                           5
to “gather [and] preserve” such evidence.11 Schaffer speculated that the iPad may

have contained evidence—in the form of text or video conversations—showing

that Johnson-Franklin was just as willing to fight Cannon as Cannon was to fight

her, which, Schaffer reasons, would disprove that she and Cannon had conspired to

assault her.12 Evidence the State was able to obtain of conversations Johnson-

Franklin had with one of her friends the day before the attack through data

recovered from the friend’s device (and the friend’s recollection of the

conversation) gave no indication that Johnson-Franklin had been willing to fight,

but Schaffer speculated that the missing iPad might contain evidence of other

conversations that would show otherwise. As a remedy for the State’s failure to

locate and turn over the iPad, Schaffer asked the Family Court to infer that it

would have contained evidence favorable to her defense.

       (11) The Family Court denied her request, reasoning that the State’s duty

to gather and preserve potentially favorable evidence does not extend so far as to

require the State to search for evidence whose whereabouts are unknown—under

penalty of a negative inference if it does not do so with sufficient diligence:

       The defendant seeks to hold the State responsible for finding
       something that was not found and doing so under the theory that the
11
       Id. at 960.
12
       See 11 Del. C. § 452 (“In any prosecution for an offense involving or threatening
physical injury, it is a defense that the victim consented to the infliction of physical injury of the
kind done or threatened, provided that . . . [t]he physical injury done or threatened by the conduct
consented to is not serious physical injury . . . .”). As we will discuss in greater detail, we express
no opinion on the merits of Schaffer’s line of reasoning.
                                                  6
       State had an obligation to find it . . . . That is, [that] the State did not
       find that which, with proper investigation, not only could but would
       have been found. And I cannot agree with that . . . . This is not a
       situation where the State retrieved something or knew where it was
       and that it has disappeared.13

       (12) Deberry and Lolly’s directive that the State must gather and preserve

potentially favorable evidence, and Brady’s directive that the State must turn it

over, together form “what might loosely be called the area of constitutionally

guaranteed access to evidence.”14 But while these two directives work together to

“protect[] the innocent from erroneous conviction and ensur[e] the integrity of our

criminal justice system,”15 they deal with “two distinct universes” of State

conduct—Brady being concerned with the evidence that is in the State’s possession

or control, and Deberry and Lolly being concerned with evidence that, because of

the State’s wrongful failure to gather and preserve it, is not.16

       (13) We can therefore dispense at the outset with Schaffer’s contention that

the State’s failure to locate and turn over the iPad ran afoul of Brady. Brady

applies only to evidence in the prosecution’s possession or control,17 which the


13
        App. B-202.
14
        See California v. Trombetta, 467 U.S. 479, 485 (1984) (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982)).
15
        Id.
16
        United States v. Femia, 9 F.3d 990, 993 (1st Cir. 1993) (discussing the federal due
process analogs to Deberry and Lolly).
17
        See Lavallee v. Coplan, 374 F.3d 41, 43 (1st Cir. 2004) (“[E]xculpatory or impeaching
evidence is so-called ‘Brady material’ only if it is within the government’s custody, possession,
or control.”); United States v. Hamilton, 107 F.3d 499, 509 (7th Cir. 1997) (“Brady . . . does not
require a prosecutor to provide evidence that she could not reasonably have had knowledge of or
                                                7
iPad was not. It is true that the concept of “control” is generally understood to be

broad enough to reach evidence outside of the prosecution’s possession if the

prosecution (or a member of the investigative team) has knowledge of and “ready

access” to it,18 but the prosecution did not have ready access to an iPad whose

present whereabouts were unknown. Schaffer contends that the prosecution had

control over the iPad all along because of possibility that the school could track its

location, but even if all the conditions on the iPad’s end were ripe for it to be

tracked, the school would have been able to—at best—give investigators a

potential area to search. Hollywood portrayals aside, electronic devices cannot

always be tracked with pinpoint precision,19 so even if the iPad responded to the

school’s efforts to track it, there still may have been more searching to do (and,


control over.”); United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985) (“[T]he
prosecution must disclose any information within the possession or control of law enforcement
personnel . . . .”); United States v. Canniff, 521 F.2d 565, 573 (2d Cir. 1975) (recognizing that
Brady does not extend to materials that the government does not possess and has “no right to or
control over”).
18
        United States v. Trevino, 556 F.2d 1265, 1272 (5th Cir. 1977) (rejecting a Brady claim
for materials over which the prosecutor did not have “ready access”); accord United States v.
Reyeros, 537 F.3d 270, 281–82 (3d Cir. 2008) (recognizing that whether evidence falls within
the scope of Brady turns on in part on whether the prosecution “has ‘ready access’ to the
evidence”); see Boyer v. State, 436 A.2d 1118, 1126–27 (Del. 1981) (“If the State either has in
its actual possession or has access to the F.B.I. criminal records of witnesses for the prosecution,
Brady, of course, would mandate disclosure of those records . . . .”).
19
        See Apple Inc., Get Help with Find My iPhone, https://support.apple.com/en-
us/HT204233 (Dec. 21, 2017) (cautioning that a device’s “location circle”—the area on a map in
which the device reports that it is located—may be “too large to be useful” if the device does not
have access to a wireless internet or GPS signal); Jones v. United States, 168 A.3d 703, 735–36
(D.C. 2017) (recognizing that while “case law is replete with references to iPhone owners or law
enforcement officers locating stolen iPhones by using the Find My iPhone app,” “[t]he facts
caution against assuming that the Find My iPhone app or similar find-my-device
apps always pinpoint an address or do so accurately”).
                                                 8
depending upon where it turned up, warrants to obtain). In the end, that all may

have worked, but as anyone who has lost a phone would likely agree, being able to

see a spot on a map where the missing device might be is not the same as having

“ready access” to it.

       (14) For that same reason, we can also dispense with Schaffer’s contention

that the State’s failure to turn over the iPad violated the State’s discovery

obligations under Family Court Rule of Criminal Procedure 16. That Rule—like its

Superior Court counterpart—requires the State to produce, upon request, items

material to the preparation of the accused’s defense. But, as with Brady, it applies

only to materials that “are within the possession, custody or control of the State.”20

       (15) The real thrust of Schaffer’s argument is not that the State failed to

give her access to an iPad that it had, but that the State did not do enough to track it

down and preserve it. That argument is governed by Lolly and Deberry, not Rule

16 and Brady.

       (16) In Deberry, we held that the State has a duty to preserve evidence that

is potentially favorable to the accused,21 and in Lolly, we held that Delaware’s due




20
        Del. Fam. Ct. R. Crim. P. 16(b); see United States v. Bryan, 868 F.2d 1032, 1037 (9th
Cir. 1989) (equating the reach of federal Rule 16, which likewise requires the government to
produce materials in its “possession, custody, or control,” to Brady); United States v. Libby, 429
F. Supp. 2d 1, 10 (D.D.C. 2006) (“[T]he possession, custody, or control analysis under Brady is
identical to the analysis under [federal] Rule 16.”).
21
        Deberry, 457 A.2d at 751–52.
                                                9
process guarantee also imposes a duty on the State to gather it.22 Both of these

duties safeguard the accused’s right of access to potentially favorable evidence

under Brady and Rule 16. As we have recognized, “[o]nly if evidence is carefully

preserved during the early stages of investigation will disclosure be possible

later.”23

       (17) The duty to preserve evidence, under Deberry, stems from the obvious

concern that, if there were no duty to preserve evidence that comes into the State’s

possession, “disclosure might be avoided by destroying vital evidence before

prosecution begins or before defendants hear of its existence.” 24 The justification

for a constitutional duty to gather, under Lolly, is not as immediately apparent. But

it too flows naturally from the State’s duty, under Brady and Rule 16, to disclose.

As we have observed, the duty to disclose does not stop with evidence in the

prosecution’s possession; it can reach even evidence outside the possession of the

prosecution if that evidence is known and readily accessible. But if the State has no

duty to gather, evidence that was known and readily accessible to the prosecution

at one time or another during the investigation—like the blood observed at the

crime scene in Lolly—may no longer be readily accessible or even in existence by

the time of trial. A duty to preserve with no duty to gather would safeguard the


22
       Lolly, 611 A.2d at 960.
23
       Deberry, 457 A.2d at 751.
24
       Id.
                                         10
accused’s right of access to evidence in the State’s possession while leaving

unguarded the right, under Brady and Rule 16, to evidence outside of the State’s

possession that the prosecution knows about and has ready access to. The duty to

gather, then, ensures that the full sweep of the accused’s rights under Brady and

Rule 16 are protected.

      (18) But just as the scope of Brady and Rule 16 justifies a duty to gather,

so too does it suggest its limits. A duty to gather evidence that investigators know

about and have ready access to can be comfortably squared with the prosecution’s

duty to disclose known and readily accessible evidence, but as the duty to gather

extends beyond those bounds, it becomes more tenuous.

      (19) Our cases bear that out. We have faulted the State for failing to gather

evidence that it knew of and had ready access to during an investigation, like blood

observed at a crime scene,25 cigarette butts lying near a victim’s body,26 or clothing

concealing firearms,27 but we have not when the evidence in question was further

afield, like surveillance videos in the hands of private parties or information from a

victim’s social media account.28

      (20) This understanding of the limits on the duty to gather evidence

ensures that it does not grow into a more expansive (and burdensome)
25
        Lolly, 611 A.2d at 960–61.
26
        Hughes v. State, 569 A.2d 81, 88 (Del. 1989).
27
        Johnson v. State, 27 A.3d 541, 547 (Del. 2011).
28
        Williams v. State, 100 A.3d 1022, 2014 WL 4179121, at *3 (Del. 2014) (unpublished
table decision).
                                           11
constitutional imperative “to seek [it] out.”29 And that distinction is dispositive

here. Schaffer faults the State for not making use of the school’s tracking abilities

to help it recover the missing iPad,30 but while investigators had hoped to find it,

the iPad was never, as we have observed, readily accessible to them. So even if the

State neglected to avail itself of the school’s tracking abilities as part of its search,

recovering the iPad did not fall within the scope of its duty to gather evidence. As

such, the State’s failure to find it and turn it over did not violate Schaffer’s rights

under the Delaware Constitution.

       (21) Schaffer’s second contention is that the Family Court erred by

allowing the State to introduce evidence of two Snapchat videos that the State said

she had taken. The videos were key evidence bolstering the State’s theory that

Schaffer had conspired with Cannon to assault Johnson-Franklin—especially the

second video, which bore a caption that read, “We gonna get her. She’s scared.”

Schaffer contends that the State did not present evidence sufficient to authenticate

the videos. We disagree.




29
        Mason v. State, 963 A.2d 139, 2009 WL 189839, at *1 (Del. 2009) (unpublished table
decision).
30
        Because the detective who testified did not know what came of the discussions the other
detective had with the school about trying to track the iPad, the record is unclear whether the
iPad could not be remotely located or whether the police simply did not follow up on this lead.
But that gap in the record does not inure to the State’s benefit. See Deberry, 457 A.2d at 752
(“The State must justify the conduct of the police or prosecutor, and the defendant must show
how his defense was impaired by the loss of the evidence.”).
                                              12
        (22) It is an “inherent logical necessity” that evidence should not be

admitted unless the party offering it can show that the evidence is what it is

claimed to be.31 That requirement is codified in Delaware Rule of Evidence 901,

which requires the proponent to “produce evidence sufficient to support a finding

that the item is what the proponent claims it is.”32

        (23) But while the authentication requirement is fundamental, it imposes

only a “lenient burden”33 that is “easily met.”34 The proponent need not

conclusively prove the evidence’s authenticity, but merely provide a “rational

basis” from which a reasonable finder of fact could draw that conclusion.35 And

there are no hard-and-fast rules about how that must be done. The proponent can

point    to   “witness    testimony,     corroborative     circumstances,     distinctive

characteristics,” or other evidence probative of authenticity.36

        (24) We review a trial court’s evidentiary rulings only for an abuse of

discretion.37 There was no abuse of discretion here. At trial, two witnesses—both

classmates of Schaffer—testified about the videos. Both of them were friends with


31
       7 John Henry Wigmore, Evidence in Trials at Common Law § 2129 (James H.
Chadbourn rev., 1978)
32
       D.R.E. 901(a).
33
       Guy v. State, 913 A.2d 558, 564 (Del. 2006) (Whitfield v. State, 524 A.2d 13, 16
(Del.1987)).
34
       Cabrera v. State, 840 A.2d 1256, 1264–65 (Del. 2004)
35
       Id.
36
       Parker v. State, 85 A.3d 682, 687–88 (Del. 2014) (rejecting imposing a heightened
authenticity requirement—or other special requirements—to evidence of social media posts).
37
       Id. at 684.
                                           13
Schaffer on Snapchat, which means that they would be able to view photos and

videos posted from Schaffer’s account, and one testified that she had seen photos

and videos Schaffer had posted from that account in the past. That same witness

testified that both of the videos in question had been posted to Schaffer’s account,

and when the two videos were played in court, the witness confirmed that they

were the videos that Schaffer had posted. The other witness recalled having seen

one of the videos posted to Schaffer’s account—the video bearing the caption “We

gonna get her. She’s scared”—and specifically remembered the video having made

reference to Johnson-Franklin being “scared.”38

       (25) Schaffer takes issue with the fact that the witnesses could not

remember exactly when they watched the videos and that the first witness did not

specifically mention the text in the captions of the videos (even though the second

witness did).39 She also points to the fact that videos introduced at trial did not have

time stamps on them, even though the first witness testified that when a Snapchat

video is played back through the platform, it bears a time stamp until that video is

deleted from the posting user’s account.

       (26) None of those contentions show that the Family Court abused its

discretion. The fear with social media evidence is that it “could be faked or
38
        See App. B-54 (“[T]here was a video of them, [Schaffer] and [Cannon], saying that she
was scared . . . .”).
39
        That may have been due to the fact that Schaffer’s counsel objected immediately after the
first witness began to describe the contents of the video, given that, at that point of the trial, the
video had not yet been admitted into evidence.
                                                 14
forged”—particularly given how easily it can be to create a social media account

masquerading as someone else.40 But here, the State presented a witness who was

familiar with Snapchat account that the video was posted from and was able to link

that account to Schaffer from having seen photos and videos that Schaffer had

posted to that account in the past.41 And while Schaffer hypothesizes that the

videos could have been manipulated after they had been posted to her account to

add the captions “[Cannon] bouta fight her” and “We gonna get her. She’s scared,”

the State’s first witness confirmed that the recordings played back in court were the

same videos she remembered watching from Schaffer’s account, and the State’s

second witness recalled one of those captions from memory.

       (27) The fact that the witnesses could not remember exactly when they

watched the videos does little to undermine their authenticity, and the fact that

videos did not have the time stamps that one witness expected to see was simply a

fact that the finder of fact could weigh in deciding how much evidentiary weight to

give to the videos. As we have said, a link between the proffered evidence and its

source “need not be conclusive” to pass muster under Rule 901.42 As long as the


40
       Parker v. State, 85 A.3d 682, 685 (Del. 2014).
41
       Cf. United States v. Vayner, 769 F.3d 125, 132 (2d Cir. 2014) (“It is uncontroverted that
information about [the defendant] appeared on the [VK.com] page: his name, photograph, and
some details about his life . . . . But there was no evidence that [the defendant] himself had
created the page or was responsible for its contents. . . . [T]he mere fact that a page with [the
defendant’s] name and photograph happened to exist on the Internet . . . does not permit a
reasonable conclusion that this page was created by the defendant or on his behalf.”).
42
       Cabrera, 840 A.2d at 1265.
                                               15
proponent has supplied a basis to find the evidence authentic—which the State did

here—the rest goes to “the appropriate weight to be given the evidence, not its

admissibility.”43

      (28) Schaffer’s final contention is that there was insufficient evidence for

the Family Court to find her delinquent of conspiring to commit assault. “[W]hen a

juvenile challenges whether the record supports a finding of delinquency, we ask,

just as we would were this an adult criminal case, whether the evidence, viewed in

the light most favorable to the State, would permit a reasonable judge of the facts

to find ‘the essential elements of the crime beyond a reasonable doubt.’”44

      (29) Schaffer does not contend the evidence was insufficient to show that

she conspired with Cannon to attack Johnson-Franklin. Her contention is solely

that Johnson-Franklin was a “mutual combatant,”45 which, in her view, transforms

what happened from a criminal assault to a fight between two willing parties and

exonerates her from the conspiracy charge. She relies on 11 Del. C. § 452, which

provides,

      In any prosecution for an offense involving or threatening physical
      injury, it is a defense that the victim consented to the infliction of
      physical injury of the kind done or threatened, provided that . . . [t]he
      physical injury done or threatened by the conduct consented to is not
      serious physical injury.


43
      Id.
44
      Cannon, 2018 WL 1097023, at *1.
45
      Opening Br. 26.
                                         16
       (30) Even if Schaffer’s theory has merit—a question on which we express

no opinion46—it had little evidentiary support. She points to the fact that when

Johnson-Franklin left class to meet her and Cannon in the bathroom on the day

before her death, Johnson-Franklin told a friend in class with her that she

“suspected that [the argument] would come to a fight” and asked her friend to keep

the classroom door open so that, if a fight broke out, her friend could come to her

aid.47 But on appeal, we read the record in the light most favorable to the State, and

that evidence just as much suggests that Johnson-Franklin was afraid of a fight

breaking out, not looking to be a part of one. Schaffer also points to the fact that

one of Johnson-Franklin’s friends testified that just before Cannon attacked

Johnson-Franklin, she tried and failed to separate the two of them as they were

arguing with each other. Schaffer says that shows that Johnson-Franklin “wanted

to continue,”48 but wanting to continue arguing is not consent to a physical

altercation. We find no error in the Family Court’s determination that Schaffer was

delinquent of conspiracy beyond a reasonable doubt.




46
        See Potts v. State, 919 A.2d 562, 2007 WL 646202, at *1 (Del. Mar. 5, 2007) (assuming
without deciding that even if § 452 establishes a viable defense to assault where two parties
“intended to fight . . . one-on-one,” it had no applicability where the victim was “blind-sided . . .
[and] attacked with a deadly weapon”).
47
        App. B-56.
48
        Opening Br. 28.
                                                17
     NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Family Court be AFFIRMED.


                              BY THE COURT:


                              /s/ Gary F. Traynor
                              Justice




                               18
