New Rules of Evidence Are Needed For Authenticating Digital Evidence

All evidence is required to meet the foundation requirement of admissibility, which would include relevancy, the best evidence rule and hearsay. Under the law, the courts require authentication because before a tangible object or writing can be admitted into evidence, it must be shown that it is in fact what it claims to be. Thus evidence that is not authenticated is not relevant and must be excluded from consideration by the court.

Digital evidence has the same requirements as all other evidence in terms of authentication and foundation before it could be admitted into evidence. Digital evidence is also known sometimes as electronically stored information (ESI). That phrase was made a part of the Federal Rules of Civil Procedure in 2006. The leading case on the application of the Federal Rules of Civil Procedure and adopted by Illinois came to be in the 2007 Maryland case of Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D. Md. 2007). In that case, magistrate Judge Paul Grimm of the U.S. District Court for the District of Maryland noted that the failure to authenticate ESI “almost always is self-inflicted injury which can be avoided by thoughtful advanced preparation.”

One of the principal problems with digital evidence is that it can be manipulated, changed, fabricated by hackers and other sophisticated software users. It is also difficult to show to the court who was responsible for creating the digital evidence, whether it was on a keyboard on a computer or by cell phone or iPad. In some mobile apps, text messages seem to come from a particular person’s telephone, when in fact they did not. But evidence authentication does not require certainty. People v. Anderson, No. 311448, 2014 W.L.1383399 at 4 n. 3 (Mich. Ct. App. April 8, 2014); State v. Mays, 729 A.2d 1074, 1079 (N.J. Super. Ct. App. Div. 1999). In these cases dealing with authenticity, the parties hired experts to testify about who was the sender or recipient of certain digital evidence.

The approach must be to use the current standard rules of evidence for digital evidence to be allowed to be considered by the fact finder. If the evidence is in dispute, the court needs to weigh the issues of credibility, the source of the digital document and whether a reasonable jury could find from a prima facie test that the evidence should be admitted and given to the jury to consider. Once the digital evidence is in the hands of the jury, it is up to jury members to determine whether the facts upon which the relevance of the evidence is conditioned has been successfully proven by a preponderance of the evidence (in a civil case).

In a jury case, the judge or court decides whether the evidence is authentic or clearly inauthentic, and the judge determines that a reasonable jury could or could not find to the contrary. The fact finder, the jury, determines whether facts claimed are proven. Under the Federal Rules of Evidence, 901(b) “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” 901(b) lists 10 non-exclusive methods to satisfy the authentication requirement.

When applying this rule, 901(b)(1) testimony of a witness with knowledge regarding digital evidence, there must be testimony that an item is what it is claimed to be. A witness would need to testify that he or she received or posted or e-mailed a photo, a text message, an online chat, or forwarded a website and/or participated in some social media process. 901(b)(3) “comparison by an expert witness or the trier of fact,” requires comparison with an authenticated specimen by an expert witness or the trier of fact.” This could be used to authenticate e-mail, online chats, websites, text messages and other social media, but must be compared to already-authenticated items that are similar.

Federal Rule of Evidence 902 allows for self-authenticating evidence ,which is sometimes official publications or trade manuals or certified domestic records of regularly conducted activities.

When computers are involved, which they normally are in digital evidence, a forensic expert will need to provide authentication testimony to make sure that the material has not been altered in any way. Further, social media has become significant as a large pool of potential evidence in many state and federal civil and criminal cases. Where the state of mind of an individual is at issue, social media is the place to go. However, like most evidence, the court requires authentication. Because the digital evidence coming from social media is difficult to establish the party that created it, many judges are requiring more evidence of authentication from experts.

Because of the great increase in digital evidence in the courtroom, judges and lawyers are conversant with the rules required by most courts in authenticating digital evidence. The rule should not be extended or made more extreme just because of the nature of the evidence, but nonetheless authentication is the standard. The Federal Rules of Evidence in Illinois do just fine in working to admit or deny the authentication of digital evidence in Illinois’ courtrooms.

Kreisman Law Offices has been handling civil jury trials, catastrophic injury cases, nursing home abuse cases, commercial litigation and birth injury cases for individuals, families and businesses for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Mundelein, Midlothian, Crete, Harwood Heights, River Grove, Cicero, Joliet, Waukegan, Arlington Heights, Prospect Heights, Deerfield, Glenview, Northfield, Schiller Park, Bensenville, Elmhurst, Chicago (Little Village, Rogers Park, Polish Village, Irving Park, Lincoln Square, Edgewater, Near North), Park Ridge and Buffalo Grove, Ill.

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