On December 1, 2017, Rule 902 of the Federal Rules of Evidence will be amended to ease the burden and expense of authenticating electronic evidence at trial. Rule 902 sets forth the types of evidence that are “self-authenticating.” In other words, no extrinsic evidence (e.g. witness testimony) is needed to lay the foundation for admission at trial.
The new amendments adding Paragraphs (13) and (14) to Rule 902 will permit parties to submit a certification (similar to an affidavit) in lieu of witness testimony to authenticate the electronic evidence. Instead of appearing at trial to testify, Paragraph 13 will permit a witness to attest, by certification, that “[a] record [was] generated by an electronic process or system that produces an accurate result.” Similarly, Paragraph 14 allows “[d]ata copied from an electronic device, storage medium, or file,” to be “authenticated by a process of digital identification, as shown by a certification.” The amendment to Rule 902 will apply to all forms of electronic evidence including video surveillance, social media postings, and internal electronic data.
All certifications “must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed.” Fed. R. Evid. 902(12). Opposing counsel must also be given reasonable written notice before the trial or hearing of the intent to offer the record, and the offering party must make the record and certification available for inspection, so that the opposing party has a fair opportunity to challenge them. Id.
The certifications a qualified witness executes must contain the same information as would be presented through testimony at trial. Consider, for example, video surveillance that a bank's camera captured after business hours. First, a bank's supervisor in the loss control division should state in the certification how he or she has knowledge of the surveillance system's operations. U.S. v. Rembert, 863 F.2d 1023, 1028 (D.C. Cir. 1988). Second, the certification should explain the method in which the bank surveillance is captured. Specifically, the certification would need information such as the activation and operation of the camera, the procedure for handing and storing the video after it is recorded, the chain of custody of the video, and the fair and accurate representation of the scene depicted. U.S. v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014); U.S. v. Marshall, 332 F.3d 254, 263 (4th Cir. 2003).
Each type of electronic evidence will present its own unique certification. The amendments to Rule 902 are certain to decrease the cost and burden of calling a witness to lay the foundation for electronic evidence at trial. But notwithstanding the amendments to Rule 902, electronic evidence is still subject to a number of other evidentiary objections. Rule 902 seeks only to ease the burden of laying the foundation for electronic evidence at trial.