State and federal courts have struggled with how to adjust to this brave new digital evidentiary world when deciding whether to admit electronic evidence in civil and criminal trials. Some courts have skillfully applied traditional evidentiary rules to determine admissibility of digital evidence, treating it as no more inherently reliable or unreliable than non-digital evidence. Others have expressed deep skepticism about the underlying reliability of digital evidence and subjected it to far greater levels of scrutiny than applied to non-digital evidence when deciding whether to admit it. Nowhere has this difference in approach been more evident than in the standards required for authentication of digital evidence. The cases divide between, on the one hand, courts that have expressed concern about the reliability of digital evidence and required lawyers introducing it to offer evidence to negate the possibility that it may have been “spoofed” or fabricated, and, on the other hand, courts that have not required enhanced evidence of authentication beyond that required for “hard copy” exhibits.
Examples of cases requiring enhanced evidence include Griffin v. State, 19 A.3d 415 (Md. 2011), which reversed the conviction of the defendant based, in part, on admission of social media evidence because of failure to demonstrate that someone other than the defendant’s girlfriend could have created the website and made incriminating postings; and Commonwealth v. Williams, 926 N.E. 2d 1162 (Mass. 2010), which held that a MySpace page improperly was admitted because prosecution failed to introduce foundational evidence about how secure the social media site was, who could access it, and whether a password or other code was necessary to do so.
Examples of cases not requiring enhanced evidence include Tienda v. State, 358 S.W. 3d 633 (Tex. Crim. App. 2012), which rejected the approach in Griffin v. State, holding that authenticity of a social media posting could be established by circumstantial indicia of authenticity demonstrating that it was connected to the defendant, without the need to show enhanced evidence of reliability; and State v. Assi, 2012 WL 3580488 (Ari. Ct. App. Aug. 21, 2012), which held that the state had sufficiently authenticated a social media page as the defendant’s based on circumstantial evidence such as use of the defendant’s nickname and testimony of a witness familiar with the defendant’s MySpace postings.
Guidelines to Consider
Given that the law still appears to be emerging on this issue, what do practitioners who may appear in courts that have not yet announced the standards they will apply for admissibility of digital evidence need to know to be able to get digital evidence admitted? Some suggestions are offered below.
Viewed from a broad perspective, the following potential evidentiary issues may be relevant to the admissibility of electronic or digital evidence. (While all references are to the Federal Rules of Evidence, the concepts discussed are found in the rules of evidence in the states as well, and the substance often is identical or substantially similar to the federal rules.)
- The evidence must be relevant to what is at issue in the case (Evidence Rule 401).
- If the evidence is non-testimonial, such as tangible or digital documents, recordings or writings, they must be shown to be authentic (Evidence Rules 901–903).
- If the evidence contains intentionally assertive statements that are offered for their substantive truth, they are hearsay and may not be admitted unless covered by one of the hearsay exceptions, which are collected in Evidence Rules 803, 804, and 807. In addition, such statements may not be hearsay if they fall into the two categories of assertive statements that are defined out of the hearsay rule by Evidence Rules 801(d)(1) (certain special prior witness statements that are substantively admissible, as well as being admissible to impeach or rehabilitate, Rules 801(d)(1)(A)–(C)) and 801(d)(2)(A)–(E) (opposing party statements, or “admissions”)).
- If the digital evidence is a writing, recording, or photograph, and its contents are being offered into evidence, the requirements of the original writing rule must be met (Evidence Rules 1001–1008).
- The probative value of the evidence must be assessed against its possible unfair prejudice (Evidence Rule 105), Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).
Of these rules, the ones that have caused the most difficulty for judges and lawyers attempting to admit digital evidence are the authentication rules, and the remainder of this article will focus on them.
The basic requirement for authentication or identification of evidence is found at Evidence Rule 901(a), which requires the proponent to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Conceptually, this is one of the easiest evidentiary concepts to grasp; in practice, its application can be a challenge, especially when applied to digital evidence. Rule 901(b) provides ten non-exclusive methods that may be used to authenticate evidence, all of which typically require extrinsic evidence. (In contrast, Rule 902 identifies 12 methods by which evidence may be self-authenticated, that is to say, without the need for extrinsic evidence.) Several of the methods identified in Rule 901(b) are especially useful for authenticating digital evidence. As with the foundation for any evidence, the proponent is only required to establish sufficient evidence that a jury could find by a preponderance of evidence that the item is authentic.
Rule 901(b)(1) allows evidence to be authenticated by a witness with personal knowledge that the item is what the proponent claims it is. Examples are the author of an e-mail, tweet, or text message; the owner of a social media site; the sponsor of a blog; and the creator of a video posted on YouTube. This is the easiest way to authenticate digital evidence and the least likely to be challenged.
Rule 901(b)(3) allows the fact finder or an expert to compare an authenticated specimen with an item that must be authenticated to determine whether the item in question is sufficiently similar to the one known to be authentic to show that it is what the proponent claims. Although most frequently used for authenticating handwriting or other “hard-copy” documents, 901(b)(3) can be a very effective and inexpensive way to authenticate e-mails, social media postings, tweets, blogs, and website content. You start with an exemplar known to be authentic (in civil cases this can be established by a request to admit genuineness or authenticity under Fed. R. Civ. P. 36; in a criminal case this may have to be established through subpoenaing from the service provider an authentic exemplar) and simply compare it side-by-side to the disputed item, and the jury or judge is allowed to make the comparison and decide whether the questioned item is sufficiently similar to the authentic one to infer that it is authentic.
Rule 901(b)(4) permits the authentication of digital evidence by distinctive characteristics or circumstances, such as its “appearance, contents, substance, internal patterns, or other distinctive characteristics . . . taken together with all the circumstances.” This is an especially helpful way to authenticate e-mail, tweets, text messages, social media postings, blogs, and websites. For example, e-mail addresses usually contain the name or other identifier of the sender, and people frequently “customize” their e-mails by using distinctive fonts, grammatical acronyms (“lol”), emoticons, and logos or clip art that allow the fact finder to conclude that, taken together, the e-mail is authentic. Although some courts have expressed skepticism regarding the sufficiency of this means of authentication for digital evidence, there is no legitimate basis for doing so, and the trend appears to be developing that more thoughtful courts are acknowledging the effectiveness of Rule 901(b)(4) as a method of authenticating digital evidence (e.g., the Tienda and Assi rulings noted above).
The final method of authentication identified in Rule 901 that may be especially effective for digital evidence is Rule 901(b)(9), which is “[e]vidence describing a process or system and showing that it produces an accurate result.” This method requires someone with the scientific, technical, or specialized knowledge to explain how the particular medium of digital evidence is reliable and accurate, which implicates Rule 702, the expert witness rule. And, as with the introduction of any technical or specialized information, the lawyer will need to be prepared to present this evidence to the judge or jury.
Plan to Succeed
It is imperative to keep in mind that whichever method (or methods) you select to authenticate digital evidence, your success will be directly influenced by how much advance thought and planning you do. A “seat-of-the-pants” approach is not going to be effective. Advance planning is critical. If you identify the digital evidence you want to use prior to trial, learn as much as possible about how it works (using the Internet can be an inexpensive and helpful way to do so), carefully select which authentication method you want to use, and (if it involves using an expert or subpoenaing records) make arrangements sufficiently far in advance to be prepared at trial, you will greatly enhance your chances of success.