He said she said. It’s a classic comment about communications, two different versions of the truth. We know people distort, misspeak, forget and outright lie. When it comes to legal evidence, all those factors come into play. How can a legal system function with all that going on?
Luckily, regarding online evidence, there is the Federal Rules of Evidence 901. FRE 901 is the evidentiary principle that something is what they say it is. He said (or she said) is not enough; it needs to be PROVEN. As, the rule is relatively short, here is the whole rule:
Rule 901. Authenticating or Identifying Evidence
(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is
(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.
Unfortunately, there’s no specific mention of online evidence such website or social media content. However, there are cases that offer precedent. One of the first:
Lorraine v Markel American Insurance Company (2007)
In this case, the authenticity of emails were called into question during proceedings, and so the court took the opportunity to address the standard of authentication necessary when producing digital content or ESI as evidence. In this case, neither plaintiffs nor defendants authenticated the exhibits attached to their motions, rendering them useless as evidence, and this was the first reason for dismissing the motions.
A party seeking to introduce digital content as evidence must make a prima facie showing that the evidence is what it claims to be.
Though this case is from 2007, this 100-page opinion still stands as good law today for a number of reasons. Even at the time of hearing it was held that “counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence,” as the manual preparation of evidence has been quickly replaced by electronically stored and created evidence.
Properly Scrutinize Electronic Evidence
Despite similarities with the methods of authentication of traditional evidence, federal courts have acknowledged a duty to properly scrutinize electronic evidence given the ease with which it can be edited, and that such evidence may require higher levels of examination than traditional forms of evidence.
The analysis of authentication of ESI is subject to existing rules of evidence (in the context of United States Federal Law), rather than limited to a new form of authentication for specific types of new evidence.
Justice Grimm stated though this standard of authentication, is “not a particularly high barrier to overcome,” the “failure to authenticate…. almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation….”
The authentication standards of Rule 901 are designed to create a threshold standard to test the reliability of evidence (subject to review by cross-examination at a later stage if necessary). Determining what degree of the foundation is appropriate in any given case is in the judgment of the court. The required foundation will vary not only with the particular circumstances but also with the individual judge.
Of course, if you want to be sure your web and social media is correctly authenticated and up to the standards that courts demand, use PageFreezer to archive your online content. We provide 256-bit digital signature and timestamp on all archived content, so there is irrefutable evidence what was online, and when.