The Pennsylvania Rules of Evidence, like the Federal Rules of Evidence and evidentiary rules of other states, provide that certain items such as business or public records may be offered into evidence via a certification of authenticity. This circumvents the requirement that a live witness must testify to their authenticity because the certification creates self-authenticating evidence. Nonetheless, despite technological advances and our ever-increasing ability to verify the credibility of electronic data, the proponent of the electronic evidence is often required to invest unnecessary time and expense to call a live witness for the sole purpose of authenticating their proposed electronic evidence.
2017 Changes to the Federal Rules of Evidence and Proposed Changes in Pennsylvania
On December 1, 2017 the Federal Rules of Evidence were modified to adopt F.R.E. 902(13) and 902(14). This allows for authentication of electronic evidence such as computer files, social media posts, smart device data, web page printouts, electronic copies, and other electronic evidence via certification in lieu of live testimony.
In light of the Federal changes, the Supreme Court of Pennsylvania’s Committee on Rules of Evidence has proposed a change to the state’s rules that would allow self-authentication of electronic evidence. Proposed Pa.R.E. 902(13) and Pa.R.E. 902(14) each directly mirrors the language of its Federal counterpart. More specifically, the proposed modifications read as follows:
Rule 902. Evidence That Is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:
(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).
(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 must also meet the notice requirements of Rule 902(11).
While parties may still stipulate to the authenticity of electronic evidence without certification, judicial notice may be taken, or authenticity may be established under other Rules of Evidence.
Pa.R.E. 902(11) Notice Requirement: As part of these changes, proposed Rules of Evidence 902(13) and 902(14) would adopt and apply to the new subsection the Notice Requirement currently laid out in Rule 902(11). In other words, the proponent would be required to make an adverse party aware, by means of reasonable written notice, of their intention to offer the record via certification. Further, the record and certification would be required to be made available for inspection, providing the adverse party with fair opportunity for challenge.
Who is a “Qualified Person”?: The language of the proposed amendments leaves the term “qualified person” largely undefined, but the comments of Proposed Rule 902(14) do indicate a requirement that the certification’s signatory be able to provide “information that would be sufficient to establish authenticity were the information provided by a witness at trial.”
What This Means For Electronic Evidence
Examples of electronic evidence which would be impacted by 902(13) include data proving the internet was accessed from a certain location, GPS coordinates to show the presence (or lack thereof) at a specific location at a specific time, activity tracker data used to disprove elements of an alleged injury, or evidence of presence at home as tracked by voice recordings on a home smart speaker.
Rule 902(14), on the other hand, would impact copies of data pulled from electronic devices, such as cell phone records, computer-generated data printouts, or hard copies of other electronically logged data. In assessing this evidence, the qualified person reviewing the data would compare digital footprints to determine whether a copy of data matches the original, therefore indicating the authenticity of the data in the copy.
Even with the adoption of self-authentication certifications, social media and other forms of electronic evidence may still be precluded as a result of admissibility challenges under hearsay, relevance, the Confrontation Clause (in criminal cases), or other Rules of Evidence. In addition, the ethical boundaries that apply to the collection and preservation of electronic data will continue to govern the methods and extent to which this evidence may be accessed and used in court proceedings.
Only time will tell whether these amendments are adopted and, if they are, the impacts they will have on Pennsylvania practitioners and courts. In the meantime, it is important to ensure compliance during the online evidence-collecting process, regardless of whether it is self-authenticating. For those who may be unfamiliar with the legal precedents surrounding this process, our previous post provides an overview.