Authentication Generally: Chain of Custody, Electronic Communications

Overview Authentication of things and identification of people represent a special aspect of relevancy, Fed.R.Evid. 401. To illustrate, a telephone conversation offered to show knowledge on the part of a speaker is not relevant unless the person speaking is sufficiently identified, nor is a purported letter of the defendant relevant unless it is properly shown that the defendant actually wrote the letter. Proof of authenticity or identification may be by either direct or circumstantial evidence. The laying of the foundation must be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, Fed.R.Evid. 103(c). Documents and real evidence once properly authenticated must be offered into evidence. Satisfaction of the requirement of authentication or identification is a matter to be approached in accordance with Fed.R.Evid. 104(b). Accordingly, once the court finds that evidence has been introduced sufficient to permit a reasonable juror to find that the matter in question is what its proponent claims it is, a sufficient foundation for introduction in evidence has been laid, Fed.R.Evid. 104(b). When an item is offered into evidence, the court may permit counsel to conduct a limited cross-examination, referred to as voir dire, on the foundation offered. In reaching its determination, the court must view all the evidence introduced as to authentication or identification, including issues of credibility, most favorably to the proponent. The ultimate decision as to whether a person, document, or item of real or demonstrative evidence is as purported is for the trier of fact. Of course, the party who opposed introduction of the evidence may still offer contradictory evidence before the trier of fact or challenge the credibility of the supporting proof in the same way that he can dispute any other testimony. However upon consideration of the evidence as a whole, if a sufficient foundation has been laid in support of introduction, contradictory evidence goes to the weight to be assigned by the trier of fact and not to admissibility. Primarily in civil proceedings the time and uncertainty incident to authenticating documents and items of real or demonstrative evidence at trial may often be avoided by the use of procedures available before trial. Authentication may be accomplished through a pleading, by a request to admit, by stipulation, by deposition, by interrogatory, or as a result of an agreement reached at the pretrial conference. Compliance with the requirement of Fed.R.Evid. 901 of course does not guarantee that the documentary, real, demonstrative or testimonial evidence subsequently offered is admissible, for the offered evidence may still be excluded because of some other bar to admission, such as the rule against hearsay, lack of relevancy, or Fed.R.Evid. 403. Fed.R.Evid. 901(b) provides a list of ten illustrations of authentication or identification conforming to the requirements of the rule. The illustrations are not exclusive but serve only as examples, leaving room for growth and development in this area of the law, Fed.R.Evid. 102. Of particular interest are chain of custody authentication; Fed.R.Evid. 901(b)(1), and process or system, Fed.R.Evid. 901(b)(5) and (9). While ordinarily the authentication of an item is satisfied by the introduction of evidence, in some instances the item alone is treated as sufficient to support a finding of its authentication, Fed.R.Evid. 902. Chain of custody Where the item is not readily identifiable because it is fungible, such as where narcotics are involved, the object must be authenticated by means of a chain of custody. Chain of custody ideally consists of testimony of continuous possession by each individual having possession, together with testimony by each that the object remained in substantially the same condition during its presence in his possession. All possibility of alteration, substitution or change of condition, however, need not be eliminated to establish an adequate chain of custody. For example, normally an object may be placed in a safe to which more than one person had access without each such person being produced. Similarly, an actual break in the chain of custody will not result in exclusion of the evidence when the chain of custody established to have occurred viewed as a whole supports the improbability of alteration, substitution or change of condition. Overall, the more authentication is genuinely in issue, the greater the need to negate the possibility of alteration, change in condition, or substitution. The prevailing standard is that the proponent of the evidence established to the court that there is a reasonable probability that no modification occurred. Upon such a showing, a presumption of regularity as to the chain of custody arises. The requirements of a chain of custody has been more rigorously applied in criminal than in civil cases. Electronic communications: e-mail, text message, website, social media. An E-mail or text message may be authenticated through various traditional common law methods such as the reply doctrine, distinctive characteristics, chain of custody, or process or system similar to the foundation presented above with respect to faxed documents. To further insure the accuracy of the message and the identity of the sender a “hash” tag digital signature, created and verified by cryptography, may be utilized. Information obtained from a web site may be authenticated similarly as may be information obtained from a social media profile page. The authentication of electronic communications is complicated by the fact that the source of the communication may not in fact be from the person or entity as indicated on the communication itself. Fake/false websites and social media accounts are numerous. Moreover, the actual electronic communication located on or ostensibly sent from an electronic communication device such as a text message, email or social media posting may have originated from someone other than the purported sender or poster. Access to username and password may be obtained in incalculable ways. Accounts on electronic devices may be “hacked.” Such device may be left with an open account permitting an unauthorized user with access to the website, text, email, or social media account to send or receive the electronic communication sought to be authenticated. In this constantly evolving universe of electronic communications, one thing is clear: “Standing alone the fact that the [electronic communication] bears the person’s name is not sufficient. Under Fed.R.Evid. 901, without more, the self-authentication of the author of a letter or the caller on a voicemail message is not enough; and by parity of reasoning, self-identification is insufficient here.” Imwinkelried, Evidentiary Foundations §402[6] at 60 (Eighth Edition 2012). With respect to websites, text messages, e-mails and social media postings, the various approaches taken by state courts over the last few years, presented within “State Law Variations” infra, are particularly illuminating and useful. The prospect for self-authentication of a record generated by an electronic process or system, such as a website page, is provided through a process of certification by a qualified person that complies with the certification requirements of Fed.R.Evid. 902(11) or (12) pursuant to Fed.R.Evid. 902(13), adopted effective December 1, 2017. Data copied from an electronic device, storage medium, or file, may be authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Fed.R.Evid. 902(11) or (12), pursuant to Fed.R.Evid. 902(14) adopted effective December 1, 2017, by means of a “hash value” establishing that the original and the copy are identical. Self-authentication, i.e., the authentication of the item by itself is taken a sufficiently establishment for purposes of admissibility without extrinsic evidence to that effect, Fed.R.Evid. 902, will be discussed in full in the next article in this series.