Authenticating Digital Evidence
Paul W. Grimm, Daniel J. Capra, Gregory P. Joseph · FLASH - Fordham Law Archive of Scholarship & History (Fordham University) · 2017
of the rulemaking process could mean that a rule might be outmoded by technological development before it could be enacted; (2) the Evidence Rules do not ordinarily set forth lists of factors that are relevant to admissibility, given the risk of underinclusiveness; (3) authentication will require weighing relevant factors on a case-by-case approach-an approach that requires more flexibility than might be found in a set of hard-and-fast rules; and (4) the existing rules on authenticity are broad and flexible enough to cover electronic evidence.8 After the Advisory Committee decided not to propose rule amendments to authenticate digital evidence, the Reporter to the Advisory Committee began to work with two noted authorities on electronic evidence-Hon.Paul Grimm and Gregory P. Joseph, Esq.-to set forth standards and principles governing such authentication.The result is this article; it is the work of the authors alone.This article begins (in Part II) with an analysis of the basic rules on authenticating evidence, with a focus on digital evidence and the interplay between Evidence Rules 104(a) (providing that the judge is to decide admissibility factors by a preponderance of the evidence) and Rule 104(b) (providing that for questions of conditional relevance-such as authenticity-the standard of proof for admissibility is enough evidence sufficient to support a finding).Following the introduction, Part III sets forth some guidelines on authentication of the kinds of electronic evidence that are most frequently offered in litigation today: (1) emails; (2) texts; (3) chatroom conversations; (4) web postings; and (5) social media postings.9 In Part IV, we consider whether and when the proponent might argue that the court can take judicial notice of the authenticity of certain digital evidence.Finally, Part V 8 See generally Memorandum from Daniel J. Capra, Fordham Univ.Sch. of Law, to Judicial Conference Advisory Comm. on Evidence Rules (Oct.