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Authentication of Written Communications

This short article/blog was written for my, Eric Roy, and my staff's benefit. It is probably the least interesting subject I have written on. That being said, it is important that we, as advocates, understand the general principles of authentication. To this end we need to have a general idea at least as to how to authenticate various evidentiary instruments in trial. Although it may be difficult to remember every suggested step for establishing a necessary foundation, I feel that if you have a general idea of the various techniques available then you can creatively improvise to lay a foundation for whatever type of evidence you wish to introduce. The Evidentiary considerations below are written from the perspective of the Federal Rules of Evidence which many state courts have adopted in full or in part.

When it comes to laying a foundation for written records, your first consideration should be whether these records are electronic or tangible in nature. Generally speaking, even businesses which store all their files digitally additionally also store a hard copy in filing cabinets. This duplicate storage procedure is often times an industry requirement. If you wish to authenticate a tangible business record or writing then you will need to demonstrate that your witness has personal knowledge as to how the business's filing system functions. This simply means that the witness will need to know where the filing cabinets are located, how they are organized, how they are maintained and updated, and so forth. This same witness will need to be able to testify that it was him or her that actually removed the file at issue and that the file they removed was the correct file. Finally, you will need to approach the witness and hand the witness your proposed exhibit, which is the business writing you wish to tender. Your witness will need to testify that the written record in the witness's hands is the same record which the witness previously removed from the filing cabinet. This witness should go on to explain how it is that he or she knows it to be the same business record. After laying this foundation you can ask that your proposed exhibit be admitted into evidence. If the judge grants your request you can then request from the court that you be able to publish the contents of the writing to the jurors, if you are in fact in a jury trial that is.

Alternatively, and more commonly now, you may be dealing with digital records stored in a computer hard drive. Computer or digital evidence is "scientific evidence". That being said, given the fact that computers are so widely used and adopted today, judges will typically take judicial notice of the validity and general reliability of computers. Ordinarily, if you wish to lay a foundation for scientific evidence, you would need to prove validity of the underlying theory and the reliability of the scientific instrument. This is no longer the case for computers given their overwhelming occurrence and acceptance in today's society.

Generally speaking, with regard to digital records or writings, courts will only require you to lay a foundation by demonstrating that the business has used the computer system in question for some period of time and that the witness recognizes the business writing to be from this computer or computer network. That being said, there are courts that will require more than this in order to properly lay a foundation. These courts may require the proponent of the exhibit to prove that the computer in which the document was actually drawn from was reliable, that the business input and output procedures are reliable, and that proper procedures were used to obtain the business writing at hand. As with tangible records, your witness will need to observe the exhibit while on the witness stand. The witness will need to explain that the business writing which he or she is looking at on the witness stand is the exact one that the witness removed from the computer system. The witness needs to explain how he or she knows this document to be the same one.

The general idea here, whenever you are dealing with technology, is to prove that the technology in question is reliable first and foremost. To do this you can question your witness as to his or her knowledge of the technologies' reliability. You can have your witness talk about how long the company or the witness has been relying on this technology. The witness can go on to talk about any safeguards which are in place which make the technology dependable. If the technology is one meant to communicate between entities such as a fax machines, computers, etc.. then go on to have the witness testify as to why the message delivered from sender to recipient must be from the specific sender who you indicate it comes from. For instance, the witness can talk about the fact that the password is private. That the communication in the message itself contains information only reasonably known by the sender. These are just some examples. Remember that what you are doing when you lay the foundation for a written document is demonstrating to the court a sufficient foundation of proof to support a finding that the exhibit is what you claim it to be and sent or received by who you claim it was sent or received by. This doesn't need to be conclusive proof, it only needs to be enough proof to support a finding that it is what you say it is. Thus it is a question of law left to the judge.

Whenever you are dealing with written communication, whether that communication be by way of pen and paper, email, or fax consider what it is you are trying to prove with the communication. Your goal may really only be to show that the recipient received the correspondence, or that the sender sent the correspondence. If your goal is only to accomplish one of these two goals then you don't need to focus on providing a foundation for the other half of the equation. For instance, if your goal is simply to show that your witness received a faxed or email communication, you may only need to show that the fax or email was produced from the recipient's computer or fax machine and that the recipient was the one who printed this communication from that machine and lastly that the witness identifies the exhibit before them in court to be that same written communication which they retrieved from the computer or fax machine. Finally, as always, have your witness explain the basis for recipient assurance that this is in fact the same document.

If on the other hand you need to prove that the faxed or emailed communication comes from a specific sender then you can consider a variety of options. One item of evidence might be that the corresponding transmittal cover sheet shows the sender's contact information. Another might be that the communication disclosed in the letter is information upon which only the sender would have reasonable knowledge of. Another item of proof might be that the content of the communication is responsive to prior written communication provided initially by the later recipient party. You will need your witness to testify as to their basis for knowing the sender's fax number or their email address or whatever other indicia of proof you may have to support your authentication that the sender is who you say it is. Of course, though it seems commonsensical, don't forget to have your witness testify as to the reliability of the fax machine or computer which provided the communication in the first place. This is typically where you begin your line of questioning.

Another method you may be able to use to authenticate the sender of the written communication is by means of demonstrating that the sender completed some action which was consistent with the terms of the written communication. So, for example, if the sender said he or she was going to complete X, Y, and Z in the letter and then you have a witness who observed alleged sender complete X, Y, and Z then this might be sufficient evidence to authenticate that the letter was in fact sent by this actor. Remember, when we lay foundation for evidence we are simply providing the court with sufficient foundational proof to support a finding that the exhibit is what we say it is. We don't need offer conclusive proof, we only need provide sufficient proof which would allow a reasonable jury to make a finding that the proposed item of evidence is what we say it is.

For more information on this subject matter I suggest you read the applicable Federal Rules of Evidence. In addition to the rules themselves, I direct you to Edward Imwinkelried (2012) Evidentiary Foundations. This publication is an excellent source of information and it is my personal source of information for the majority of the information I have summarized above. I suggest you read his publications along with the Federal Rules of Evidence in order to obtain a thorough understanding of this subject matter.

Categories: Family Law