The digital age is fully upon us and affects our daily routine, providing us with speed, access and efficiency in almost every task we perform. Regardless of the device being used, our ability to communicate, exchange information, post on social media, enjoy streaming entertainment, manage home security systems and purchase online is instantaneous and highly efficient.
Technology isn’t just for ordering an Uber or receiving same-day purchases from Amazon. In fact, through amendments to Rule 902, under the Federal Rules of Evidence, technology is bringing both time and cost savings to federal courtrooms. Two new amendments—Rule 902(13) and Rule 902(14)—update Rule 902 by adding two new categories for self-authenticating evidence.
Pursuant to Rule 902(13):
“Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).”
Pursuant to Rule 902(14):
“Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).”
Prior to these amendments, digital evidence, under Rule 901, required a live witness at trial to authenticate the data. Self-authenticating evidence isn’t a new concept, as Rule 902 permits certain types of documents, such as newspapers, periodicals, certified business records, commercial paper and government documents, to be self-authenticated for admissibility at trial. While a witness might not be required at trial, self-authentication has its own requirements for admissibility. As detailed in the Rule 902 committee notes, certification is attained via a person who would be qualified at trial to testify as to the authenticity. Further, a qualified person must be an information technology practitioner qualified to testify as to the operations of data systems and digital evidence collection.
So what’s the technology that allows this courtroom efficiency? It all comes down to a “hash” under the Committee Notes on Rules—2017 Amendment:
“Today, data copied from electronic devices, storage media, and electronic files are ordinarily authenticated by ‘hash value.’ A hash value is a number that is often represented as a sequence of characters and is produced by an algorithm based upon the digital contents of a drive, medium, or file. If the hash values for the original and copy are different, then the copy is not identical to the original. If the hash values for the original and copy are the same, it is highly improbable that the original and copy are not identical. Thus, identical hash values for the original and copy reliably attest to the fact that they are exact duplicates. This amendment allows self-authentication by a certification of a qualified person that she checked the hash value of the proffered item and that it was identical to the original. The rule is flexible enough to allow certifications through processes other than comparison of hash value, including by other reliable means of identification provided by future technology.”
These new rules governing self-authentication of digital data should benefit the courts, law enforcement and litigants. Though forensic experts will still be needed for investigation, collection and certification, the new rules generally obviate the need for live witness testimony and associated travel costs. This will undoubtedly speed up court proceedings and hopefully reduce congested dockets by reducing time spent on authentication. This is especially important because the digital age has greatly increased the likelihood of evidence being digital. Furthermore, law enforcement computer forensic experts or seized computer evidence recovery specialists should benefit from the new rules, as they can now reallocate their time to more pressing matters.