The volatile nature of digital evidence makes the Federal Rules of Evidence woefully inadequate and in need of change.
By William N. Sosis, Family Lawyer
The authentication of digital evidence in the legal system has failed to keep pace with the growth in digital information. According to a study conducted by the National Institute of Standards and Technology (NIST), mobile device sales have outpaced PC sales three to one since 2003. There are more mobile devices on earth today than people. More data has been created in the past two years than in the entire previous history of the human race. This enormous shift from paper to digital information requires that law firms and attorneys increasingly become competent with how digital information is stored, retrieved, and authenticated during legal proceedings. Since digital information is transmitted in binary form, it is far more susceptible to deletion, modification, and fabrication than non-digital evidence. State ethics rules in over half of all jurisdictions now require attorneys to become familiar with technologies likely to impact their practices. Some states go further. The Florida Supreme Court, for example, mandates technology courses for lawyers. Attorneys in Florida are required to take an additional three hours in an approved technology program course. With the Internet, mobile devices, and social network sites are fast becoming relevant sources of evidence in litigation, the remaining states cannot be far behind.
Current Federal Rules of Evidence Inadequate
But requiring attorneys to become familiar with technology has little, if any, impact toward the authentication of digital evidence without changes to the Federal Rules of Evidence (FRE). Current FRE rules were introduced in 1975 but remain predominantly the same today. Given the volatile nature of digital evidence, the rules are woefully inadequate. In cases where digital evidence is dispositive, admitting such evidence must be fairly balanced against the nature of digital evidence. While many articles are written on digital evidence, courts continue to struggle with the requirement of authentication set out in FRE 901(a). Namely, that admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. As a result of the ambiguity of “evidence sufficient to support a finding,” two standards exist for authenticating social media evidence: the Maryland standard (Griffin v. State) and the Texas standard (Tienda v. State).
Under the Texas standard, courts rely on circumstantial and extrinsic evidence for admitting incriminating digital evidence. In Tienda, for example, the Texas court affirmed the conviction of a criminal defendant based on MySpace evidence. In that case, the defendant argued that the MySpace evidence was not properly authenticated. In affirming the lower court’s decision, the court agreed with the lower court’s applications of FRE 901(a) and 901(b)(4). On the other hand, in Griffin v. State, the Maryland court recognized that the unique nature of digital evidence requires more than a perfunctory analysis of FRE 901(a) and 901(b)(4). There, the court determined methods for appropriately authenticating electronically stored information printed from a social networking website such as MySpace.
Effective December 1, 2017, two new subsections were added to FRE 902 addressing the authentication of digital evidence. As stated in a committee note, “The amendment provides a procedure in which the parties can determine in advance of trial whether a real challenge to authenticity will be made, and can then plan accordingly.” The changes to FRE 902 therefore appear only for the purpose of allowing even easier authentication of electronic evidence. The new subsections, 902(13) and (14), are intended to streamline the authentication of digital evidence by (1) potentially limiting authentication to a certification requirement, (2) requiring the proponent of the digital evidence to provide notice to the other side, (3) reducing the need for authentication witnesses, and (4) shifting the burden to the party that raises authenticity issues. Although the Committee Notes further state that “Nothing in the amendment is intended to limit a party from establishing authenticity of electronic evidence on any ground provided in these Rules,” the deleterious effects of shifting the burden to poor criminal defendants that wish to raise authenticity issues seems self-evident.
William N. Sosis is an attorney in Wyckoff, NJ. He holds a B.S. in Computer Science and Mathematics and a M.S. degree in Operations Research. He has over 25 years of experience in information technology working for various Fortune 500 companies. www.sosislaw.com
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 Lee Reiber, Mobile Forensic Investigations: A Guide to Evidence Collection, Analysis, and Presentation, 2016, accessed January 15, 2018, http://proquest.safaribooksonline.com/?fpi=9780071843645.
“The Zettabyte Era: Trends and Analysis,” Cisco, accessed January 15, 2018, https://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/vni-hyperconnectivity-wp.html.
 Vishal Kumar, “Big Data Facts,” AnalyticsWeek, March 26, 2017, accessed January 15, 2018, https://analyticsweek.com/content/big-data-facts/.
“Digital Evidence and Forensics,” National Institute of Justice, accessed January 14, 2018, http://www.nij.gov:80/topics/forensics/evidence/digital/pages/welcome.aspx.
Sarah Andropoulos, “Most States Now Require Tech Competence for Lawyers. What Does That Mean For You? — Legal Marketing & Technology Blog — February 9, 2017,” last modified February 9, 2017, accessed January 14, 2018, https://onward.justia.com/2017/02/09/states-now-require-tech-competence-lawyers-mean/.
 “Global Social Media Statistics Summary 2017,” Smart Insights, April 27, 2017, accessed January 15, 2018, https://www.smartinsights.com/social-media-marketing/social-media-strategy/new-global-social-media-research/.
“History of the Federal Rules of Evidence | Litigation News | ABA Section of Litigation,” last modified July 29, 2010, accessed January 14, 2018, https://apps.americanbar.org/litigation/litigationnews/trial_skills/061710-trial-evidence-federal-rules-of-evidence-history.html.
“How to Get Social Media Evidence Admitted to Court,” accessed January 14, 2018, https://www.americanbar.org/publications/youraba/2016/november-2016/how-to-get-social-media-evidence-admitted-to-court.html.
Griffin v. State, 19 A. 3d 415 (Court of Appeals 2011).
Tienda v. State, 358 SW 3d 633 (Court of Criminal Appeals 312AD).
“Poor Criminal Defendants Face ‘Too Many Barriers’ To Get Lawyers, Says DOJ,” NPR.Org, accessed January 15, 2018, https://www.npr.org/2015/11/10/455509547/poor-criminal-defendants-face-too-many-barriers-to-get-lawyers-says-doj.