CORE CRIMINAL LAW SUBJECTS: Evidence: Authentication

2012 (September Term)

United States v. Lubich, 72 M.J. 170 (MRE 901(a) provides that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims). 

(evidence may be authenticated through the testimony of a witness with knowledge that a matter is what it is claimed to be; MRE 901(b)(9) permits evidence resulting from a process or system to be authenticated via evidence describing the process or system used to produce the result and showing that the process or system produces an accurate result). 

(authentication simply requires establishing that the evidence is what the proponent claims it to be). 

(authentication under MRE 901 and admissibility as a hearsay exception are distinct inquiries; authenticity is a condition precedent to admissibility and requires only a prima facie showing that is sufficient to support a finding that the matter in question is what its proponent claims). 

(MRE 901 is the same as Fed. R. Evid. 901 and embraces the well-established view that authentication is a component of relevancy; it requires a preliminary determination by the judge that sufficient evidence of authenticity exists to present the authenticity question to the members for their ultimate factual determination). 

(generally speaking, the proponent of a proffered item of evidence needs only to make a prima facie showing that the item is what the proponent claims it to be; once the proponent has made the requisite showing, the trial court should admit the item, assuming it meets the other prerequisites to admissibility, such as relevance and compliance with the rule against hearsay, in spite of any issues the opponent has raised about flaws in the authentication; such flaws go to the weight of the evidence instead of its admissibility; the trial court’s admission of the exhibit means only that the factfinder may consider the item of evidence during its deliberations; the factfinder remains free to disregard the item if the trial evidence overcomes the preliminary showing of authenticity). 

(in general, electronic documents or records that are merely stored in a computer raise no computer-specific authentication issues; if a computer processes data rather than merely storing it, authentication issues may arise). 

(a military judge did not abuse her discretion when she overruled a defense authentication objection and admitted two prosecution exhibits that were based on computerized data; both a prosecution exhibit that listed the web sites accessed by appellant’s Navy Internet account and the dates and number of times the web sites were accessed and a prosecution exhibit that compiled the user names and passwords for the web sites accessed from appellant’s Navy Internet account were sufficiently authenticated to be admissible, where (1) defense counsel conceded that the data was from appellant’s Navy Internet account, (2) an NCIS cyber forensic examiner testified that he produced the exhibits by conducting a forensic examination utilizing automated forensic tool programs of data downloaded from appellant’s Navy Internet account by a Navy-Marine Corps Intranet (NMCI) department, and (3) he described the automated process that the NMCI department utilized to gather the data from appellant’s Navy Internet account; the government made a prima facie showing of authenticity by presenting evidence sufficient to allow a reasonable juror to find that data analyzed by the cyber forensic examiner was data from appellant’s Navy Internet account, where the examiner’s testimony established that NMCI transferred the data stored on the computers utilizing an automated process rather than analyzing or manipulating the data, and the government also met several of the illustrative criteria of MRE 901 authentication: (1) testimony of witness with knowledge (satisfied through examiner’s familiarity with the NMCI procedures), (2) distinctive characteristics and the like (satisfied as the computer data contained numerous references to appellant’s Navy Internet account), and (3) process or system (satisfied by examiner’s discussion regarding the NMCI process); once the exhibits were admitted, it was then up to the members to determine the true authenticity and probative value of the evidence based on the testimony of the NCIS cyber forensic examiner). 


United States v. Harris, No. 00-0553, 55 MJ 433 (the "silent witness" theory allows authentication of photographs by demonstrating the reliability of the process that created them, without the need of a human witness to the events shown by the film).

(the "silent witness" theory of authentication allows photographs to substantively speak for themselves after being authenticated by evidence that supports the reliability of the process or system that produced the photographs).

(in light of the line of Federal cases demonstrating, over a 25 year span, the evidentiary reliability of the "silent witness" theory of authentication, the Court of Appeals for the Armed Forces adopts it for military courts as well).

(the requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims, and authentication may be provided by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. Mil.R.Evid. 901(a) and (b)(9)).

(the record of trial established a reasonable foundation for authenticating photographs taken by a bank automated camera where: (1) the system was reliable; (2) the system was in working order when the photo in issue was taken; and (3) the film was handled and safeguarded properly from the time it was removed from the camera until the time of trial).

(the reliability of a camera system for purposes of authenticating a photo can, but need not, be shown by an expert witness; alternatively, witnesses can establish reliability without describing the technical mechanics of the operation of the camera by, for example, showing a time/date stamp on the film to demonstrate that the camera was in working order and by showing that the tapes or photographs have not been altered and have not been subject to tampering).

(operability of a bank surveillance camera system for purposes of authenticating the resultant photo was shown by the level of detail in the evidence about the process of video monitoring, the notation of the time and date on the photo when taken, and storage of the tapes; evidence of the bank’s procedures and the date and time on the film is enough to support a finding that the camera operated on the day in question, absent sufficient evidence to rebut this contention).

(evidence of the process used by a bank accounted for the integrity and chain of custody of videotapes, thereby supporting the foundation for authentication, where: (1) the tape was removed from the video recorder by a bank employee consistent with the bank’s practices; (2) removal of the tape was correctly noted in the videotape log maintained by the bank; (3) the tape was kept in a storage room until sent to the fraud investigator; and (4) the bank fraud investigator maintained the tape until he gave it to law enforcement).

(to establish chain of custody, the prosecution is not required to exclude every possibility of tampering; the government need only show by direct or circumstantial evidence a "reasonable probability" that the evidence is authentic; mere claims that photographs may be altered should not bar their admission, and gaps in the chain of custody go to the weight of the evidence rather than its admissibility).



United States v. Ayers, No. 99-0944, 54 MJ 85 (claim that a general regulation is not authentic or is not what it purports to be, is an evidentiary objection, based on lack of proper authentication, and is waived if not timely made).

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