Authenticating Digital Evidence
Hon. Paul W. Grimm, Daniel J. Capra & Gregory P. Joseph · Baylor Law Review, 69 Baylor L. Rev. 1 (2017) · 69 Baylor Law Review 1, Winter 2016-2017 issue · 2017
Access and status
Cost
Free
Free to read or download at source. No account, no purchase.
Status
Current
Current as at the verification date below. Standards and tools both move — confirm at source before you rely on it.
What it is
A law review article by a federal judge who writes extensively on digital evidence, the Reporter to the Advisory Committee on Evidence Rules, and a leading evidence practitioner, written as Rules 902(13) and 902(14) were being adopted. It works through the authentication routes for electronic evidence and explains what the new self-authentication provisions were designed to do.
Who it is for, and when
Read it for the reasoning behind 902(13) and 902(14) from the people closest to drafting them, which is more useful than the committee note when you are deciding what a certification has to say. Examiners should read the discussion of hash values and digital identification as an account of what the rule expects from them. It is the single best background reading before your first 902(14) certificate.
What it does not cover
It was written before the rules took effect, so it contains no case law applying them and does not reflect nine years of subsequent practice. It is US federal and addresses admissibility, not examination method.
Go to the source
Open at law.baylor.edu (opens in a new tab)https://law.baylor.edu/sites/g/files/ecbvkj1546/files/2023-11/7_grimm_capra_joseph.pdf
Details
- Type
- Paper or report
- Written for
- Lawyers and courtsWorking examinerAdvancedLawyers and courts, Working examiner, Advanced
- Author
- Hon. Paul W. Grimm, Daniel J. Capra & Gregory P. Joseph
- Publisher
- Baylor Law Review, 69 Baylor L. Rev. 1 (2017)
- Version verified
- 69 Baylor Law Review 1, Winter 2016-2017 issue
- Year
- 2017
- Topics
- authentication, legal-admissibility, evidence-handling, us-federal
- Checked at source
Related entries
Two subsections of Rule 902 that let a party authenticate electronic evidence by written certification instead of live testimony: 902(13) covers a record generated by an electronic process or system that produces an accurate result, and 902(14) covers data copied from an electronic device, storage medium, or file when authenticated by a process of digital identification. Both borrow the certification and pretrial notice machinery of Rule 902(11).
A consensus commentary on getting electronically stored information into evidence — authentication, hearsay, best evidence, and the certification routes — rewritten for the second edition to take account of Rules 902(13) and 902(14).
A roughly 1,500-page updated treatise covering discovery and admission of electronic evidence against federal and state rules and case law, in eight chapters, with companion Best Practices Guides including an information technology primer for lawyers.
An illustration of sufficient authentication: "Evidence describing a process or system and showing that it produces an accurate result." It is the route by which the output of software, an acquisition tool, or an automated system is authenticated through testimony about the tool rather than about the document.
The UK guide that states the four ACPO principles for handling digital evidence — do not change the original data, record everything done, have a competent person do any live examination, and place responsibility for compliance on the officer in charge. Its own front matter records that ACPO agreed the revised guide for adoption by police forces in England, Wales and Northern Ireland.