We dropped a new video on Authentication of Evidence for the Law Nerds. Hope you like it. Please subscribe to our YouTube page @GirardsLawFirm
Authenticity is simply that idea that the evidence is what it appears to be.
The bar of authentication of a document has been described in various ways as very low, as not a burdensome standard, as merely requiring some evidence, as not particularly high, or as minimal. Conclusive proof of authenticity is not required. The preliminary decision regarding authentication is committed to the trial judge. But, the ultimate determination as to whether the evidence is, in fact, what its proponent claims is thereafter a matter for the jury or trier of fact. The proponent need not rule out all possibilities inconsistent with authenticity, or prove beyond any doubt that the evidence is what it purports to be. It is the jury who ultimately decides if a document is authentic. The judge simply serves “a screening function” and decides whether there is “some evidence” that the document is what it purports to be. The standard can be stated thusly – “[i]s there a prima facie case the document is what it appears to be? If so, it must be admitted.” Or, “is there a fact issue on the genuineness of a document? If so, the document must be admitted into evidence if it is relevant.” To be clear, the proponent of the evidence does not need to prove the document is what it appears to be. If a reasonable juror could conclude the document is authentic, then it must be admitted, if relevant to the trial issues. It is the jury’s function, then, to determine whether the document in question is authentic or not. The requirement of authentication “is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” In ruling on the authenticity of a document, the court may consider evidence that is not admissible at trial. Sufficient evidence may include either the testimony of a witness with knowledge, or simply that "the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" show the document is more likely than not what it appears to be. "The party authenticating the exhibit need only prove a rational basis for that party's claim that the document is what it is asserted to be." "Once the threshold requirement is met ... any question as to whether the evidence is authentic is for the jury." To authenticate evidence, then, a party must clear only a "low bar." Authenticity can be established by comparing the contents of a document with information from other documents whose authenticity is already established, or from information provided by witnesses who possess that same information, and without reference to whether a records custodian produced the documents. The testimony of a witness with knowledge that a matter is what it is claimed to be can authenticate evidence, and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence." The proponent of the evidence must assure that adequate foundational facts are presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. Electronic messages are properly authenticated when circumstantial evidence ties the party to the messages. Screenshots of comments on a Facebook photograph are properly authenticated when a witness testifies that the comments were made using his or her Facebook account. In one case, a police officer's testimony was sufficient to authenticate "printouts" of internet conversations with a defendant. In another witness testimony was sufficient to authenticate printouts of an "online chat" with a defendant. Authentication of a documents is achieved in a variety of ways, even as simply as the document’s appearance and contents or by circumstantial evidence alone. The Texas Rules of Evidence, for example, provide a non-exclusive list of ways to authenticate a document, but also provide for any manner of authentication that tends to support the idea that the document is what it appears to be – even if it is just the appearance of the document. For example, authentication is proper when there is a party’s logo on the document.
Or, when there is a party’s letterhead on the document. Or, when the contents of the document are taken in conjunction with other circumstances. The circumstances surrounding a document and its description of the subject matter of a lawsuit will authenticate it even if the purported author denies it is his. For example, a party’s press release printed directly from its web address provides authentication with nothing more. A document that deals with matter sufficiently obscure or particularly within the knowledge of Defendant such that the contents are not a matter of common knowledge will in and of itself authenticate a document. As another example, an unsigned tax return that bears Defendant’s name on the face of the document was found to be authenticated by that fact alone. A document may be authenticated simply by comparison to other documents that have already been authenticated. E-mails can be authenticated on the basis of their content when considered in conjunction with the related circumstances. An advertisement can be authenticated simply by its appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. SEC documents are authenticated without need of “formal” authentication since the documents are required by law to be filed with the SEC, and no serious questions as to their authenticity can exist," especially if they are used to "determine what the documents state. A court is authorized "to take judicial notice of all public disclosure documents which are either required to be filed with the SEC or are actually filed with the SEC.The appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances can be used to authenticate evidence. The purpose of establishing a chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. The absence of a claim that the evidence has been tampered with or altered in some fashion is relevant to the inquiry. A document may also be authenticated by affidavit of trial counsel. For example, for copies of on-line public records of defendant’s subsidiaries, excerpts from websites, and data from the US Patent Office or affidavit of defendants’ shareholder reports, information from defendant’s and others’ websites, and other commercial reports). The other element of admissibility, relevance, is often obvious from the content of the documents themselves.
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