Can I be real with you for a second?
What investigators need to know about authentication.
Today, the sky is gray. The air is starting to smell a little bit like mud; a thaw. The ground is a tease. The weather is a lie. Winter will get one last swipe at us before we get a good look at anything that really feels like spring, whatever the calendar says.
I’ve been absent from Bullshit Hunting for a bit. Bogged down in an endless trial, initially set to run from just after New Years to somewhere around Valentine’s Day. But, delays. Continuances. Posturing. And an endless shuffle of documents.
My brain is stuck, a bit, in trial mode. No amount of exchanging fart jokes with Justin will pull it entirely out of the courthouse. Perhaps, then, it is a good time to explain the concept of “authentication.”
What it is… and why you should care.
Before a fact-finder (a judge, or jury) may consider a document, it must be admitted into evidence. For a lawyer to admit a document into evidence, he or she must (through witnesses, usually) prove to the court that, more likely than not, the document is what it appears to be.
This is “authentication.”
Courts have described authentication as a “low bar.” In many cases, it is. Authentication, when it works, can go like this:
Attorney: Your honor, may I approach the witness?
Judge: You may.
(Attorney walks up to witness stand, stopping at counsel table to show opposing counsel a photograph, then gives the item to the witness).
Attorney: I am showing you a document, sir, marked for identification as Plaintiff’s D.
Witness: Okay.
(Attorney walks back to podium, leaving witness with photograph).
Attorney: Do you recognize that document?
Witness: Yes, this is a photograph I took, after the fire.
Attorney: And is it a fair and accurate depiction of the fire scene, as you recall it?
Witness: Yeah. Well, that part of it.
Attorney: I’d move to admit the document as the next exhibit.
The classic, easiest way of authenticating a document is through a witness with personal knowledge. This often means the person who created it – wrote a letter, filled out an invoice, or, as in the example above, took a photograph.
Lovely. Crisp. Straightforward. A bit quaint, though.
Imagine a case where every bit of documentary evidence was a document, suitable for printing, created by a known, living, adult human author, subject to the jurisdiction of the relevant court, or otherwise willing to come in and testify under oath.
Documents. Created by people. One at a time. Wild.
Gimme, Gimme, Gimme some background.
The Federal Rules of Evidence, drafted in 1972, and enacted in 1975, are precisely as old as Swedish pop supergroup ABBA.
Faxes existed, and commercial photocopiers were in their infancy. “Photostat” machines, which were expensive to maintain and operate, were available at some libraries and public buildings, but retail copy stores1 — as opposed to print shops — were only beginning to exist.
Anything written had an author; records had keepers, and locations. It was a world of originals, drafts, and copies.
“Do you recognize this document?2” makes sense, when it was something the witness might’ve typed themselves, and placed into a file; or a letter received, stamped with the date, envelope paperclipped to the pages, just in case.
If the witness has seen it before, they’ll recognize it. The paper. The formatting, maybe their handwriting. And, conceivably, they’ll be able to competently testify that the item handed to them in court is exactly what it appears to be.
Silent Witness Doctrine
Technology, of course, changed.
When security and surveillance cameras were first developed, they posed an authentication issue. There was no operator. No photographer, clicking a shutter, ready to testify “That is my photograph, I took it, and it’s a fair and accurate representation of what I saw.”
In response to these new automatic cameras, which created theoretically useful and relevant images without human intervention, courts created the “silent witness” doctrine. Images, or recordings, could be introduced in court based on testimony concerning the process that produced them, its reliability, and the accuracy of the results.
Alternately, documents created by a process, rather than a person, can be admitted through the testimony of a subscribing witness, who can competently testify that the matter depicted is accurate.
For example:
Witness: Yeah, that’s the bank. I know because I work there. That’s the lobby, and that’s my desk.
Attorney: And can you tell me, who these people are in this image?
Witness: Well, that’s me. Right there, holding the banana. And that’s Mr. Stevens, right there, behind the counter.
New Challenges, Same Principles
Because authentication is meant to be a low bar — the proponent does not have to establish that a document is, indisputably, decisively, what it appears to be — courts have traditionally permitted circumstantial evidence to be offered where direct testimony is unavailable.
This, in the Fernando era of the rules’ drafters, was most often used in connection with recorded telephone calls, or phone messages.
Similarly, this has become the approach in social media messages, and emails. Forensic evidence of the precise origin of an email to a device in the possession of a particular party isn’t going to be available to most litigants3.
In authenticating matter obtained from social media, or messages from social media platforms, courts have considered circumstantial evidence, such as:
Other evidence concerning the use of the account, including the posting of photographs of an identifiable individual;
Prior use of the user name associated with that account, by an identifiable individual;
The cell phone number or email address associated with the account, by an identifiable individual, or in connection with the individual’s known associates, or businesses;
The nature of other messages sent by the account, and their content, compared to messages known to be associated with an identifiable individual.
Tragically, civil litigators, when hiring investigators, can be stuck in the Dancing Queen era. We often fail to think about authentication early enough, and demand the same from the people we work with, with unfortunate results.
A social media report that contains screenshots of a litigant for example, riding elephants in China, when she said she was at home completely unable to function might be initially impressive; but if there’s no care taken to gather the supporting information that links the litigant to the account, the jury will never see it.
Kinko’s was founded in 1970.
“Do you recognize this document?” is, lately, particularly fraught, due to the legal world’s reliance on outlook as a means of sending, receiving, and storing messages.
An email sent from a gmail account, viewed on a mobile phone, will look very different to its sender than when printed to pdf from outlook, bates-numbered and scanned.
Lawyers aren’t great, in civil litigation, with technology. It’s very scary to us. We all had to learn the term “metadata” in about 2013, and most of us have never recovered.