Authenticity of Digital Evidence: Pa.’s Rules Differ From Federal Rules  

Until May 20, when Pennsylvania announced that changes to its Rule of Evidence 901 would be effective as of Oct. 1, federal and Pennsylvania’s Rule of Evidence 901, “Authenticating or Identifying Evidence,” were identical. Rule 901(a) provides a general section to describe how 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. Rule 901(b) provided 10 generalized examples “of evidence that satisfies the requirement” that evidence must be authenticated or identified to be admissible. With the May 20 announcement and Pennsylvania Supreme Court’s “final report” as to the amendment of Rule 901, Subsection 901(b)(11), which summarizes how to “connect digital evidence with a person or entity,” was added to Pennsylvania Rule 901, effective Oct. 1. In this month’s column, I discuss the significance of the amendment to Pennsylvania Rule 901.

Authentication of Digital Evidence

Both the federal and Pennsylvania’s Rule of Evidence 901 are titled, “Authenticating or Identifying Evidence.” More importantly, both begin with Subsection (a), titled “In General.” Subsection (a) reads: “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,” and then gives a list of examples—described as “examples only—not a complete list” of evidence that, per the rules, “satisfies the requirement.” That list includes: the “testimony of a witness with knowledge;” a nonexpert’s opinion “that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation;” a “comparison with an authenticated specimen” of the type of evidence in question “by an expert witness or the trier of fact;” the “appearance, contents, substance, internal patterns, or other distinctive characteristics” of the item at issue, “taken together with all the circumstances;” 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;” evidence that a telephone call “was made to the number assigned at the time” either to “a particular person, if circumstances, including self-identification, show that the person answering was the one called,” or “a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone;” evidence that “a document was recorded or filed in a public office as authorized by law,” or “a purported public record or statement is from the office where items of this kind are kept;” a document or data compilation “is in a condition that creates no suspicion about its authenticity,” “was in a place where, if authentic, it would likely be,” and “is at least 20 years old when offered;” evidence “describing a process or system and showing that it produces an accurate result;” and, any “method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.”