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).
2001
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).
2000