Fair, Accurate, and True? - ALI CLE

Fair, Accurate, and True?

Authenticating Evidence in the Age
of Digital Manipulation

William Sloan Coats and Gabriel Ramsey

Now that the technological tools for digitally altering audio, video, and pho-
tographs are readily available, the careful litigator has to demand proof that
the proffered evidence really is what the proponent says it is.

PARTIES IN LITIGATION rely on a wide va- tive or demonstrative proof. However, all such
riety of evidentiary materials. The products of evidence must be what the proponent claims it
various media technologies have been and will to be. In other words, the evidence must be au-
continue to be a significant part of that body of thenticated. In this article, we will discuss some
evidence. For instance, an advocate might offer of the ways that traditional “media” evidence
an audio or video recording of a conversation, a (audio, video, photographs, and the like) has
photograph of a crime scene or perhaps even a been authenticated, and how the capacity for
multimedia demonstration of some event. This digital manipulation challenges these methods.
evidentiary product may be offered as substan-

William Sloan Coats is a partner in the Silicon Valley office of Howrey & Simon in Menlo Park, California, and
Gabriel Ramsey is a law clerk with the firm and a student at University of California (Boalt Hall School of Law). This
article is based on a paper the authors prepared for an August 1999 seminar sponsosred by the ABA’s Section of
Science & Technology.

31

32 The Practical Litigator January 2000

NEW CHALLENGES IN AUTHENTICA- Similarly, using widely available software, “[a]
TION OF MEDIA EVIDENCE • Specific foun- few taps on a keyboard can copy and move an
dational requirements have developed for the object from a real photograph into another
authentication of various forms of media evi- scene, or, more subtly, change the size, shape, or
dence. For instance, authentication of an audio position of the object.” Julie K. Plowman, Note,
or video recording requires a particular founda- Multimedia in the Courtroom: A Valuable Tool or
tional showing, as does authentication of a pho- Smoke and Mirrors? 15 Rev. Litig. 415, 423-424
tograph. Often, simply a statement by a witness (1996). Advocates themselves have begun to use
with knowledge of the “fairness,” “truth,” and such new digital tools in the litigation and trial
“accuracy” of such evidence will suffice. In the process. “Even virtual reality in the courtroom
absence of a foundational witness’s testimony, is no longer science fiction. Lawyers increasing-
methods of authentication have largely evolved ly are presenting jurors with dramatic new
as a nexus between reliability of the “process” of forms of demonstrative evidence, including
creating the evidence and the reliability of the computer animations and simulations.” Robert
underlying technology. Further, expert analysis J. Bingle, Winning the Verdict with Videos and
of the media evidence produced by fairly undy- Virtual Reality, The National Law Journal, June
namic, traditional technologies has typically 15, 1998, at B07. To be sure, the products of these
been available to detect falsification or manipu- new technologies will increasingly make their
lation. These methods of authentication have appearance as evidence. See Jordan S. Gruber,
partly developed in response to the inherent Foundation for Audio Recordings As Evidence, 23
limitations of traditional audio recording, video Am. Jur., Proof of Facts 3d 315, §4 (1993) (dis-
recording, and photographic technology. cussing increased legal uses of audio record-
ings); Jordan S. Gruber, Videotape Evidence, 44
Digital Manipulation: Am. Jur., Trials 171, §1 (1992) (advent of the
Easy To Do, Hard To Detect “camcorder” has made videotape evidence
more prevalent).
In recent years, however, significant ad-
vances have been made in the digital technolo- The Old Assumptions May
gies capable of producing media evidence. The No Longer Suffice
advent of digital technology allows extensive
user input, and with the click of a mouse, objec- The apparent ease and undetectability of dig-
tive data may be almost immediately trans- ital alteration has some significant implications
formed in various degrees of subtlety. for authentication of recordings and photo-
Sophisticated digital editing tools are no longer graphs. As noted, current principles of authen-
only at the disposal of the technologically savvy. tication have developed partly in response to
Indeed, relatively inexpensive home computers certain assumptions about the inherent limita-
coupled with minimal technical ability allow tions of traditional media technologies. The de-
potentially undetectable alterations to audio gree to which these assumptions are appropri-
and video recordings. Jordan S. Gruber, Poten- ate in the context of today’s highly sophisticat-
tial for Fabricating Recorded Evidence Grows: ed multimedia tools is an open question, posing
Technological Advances In Audio and Video Re- challenges for advocates, judges, experts, and
cordings May Affect Court Admissibility Standards, legislative bodies alike.
The National Law Journal B13 (April 22, 1996).

Authenticating Evidence 33

AUTHENTICATION BASICS • Federal Rule Lack of a Percipient Witness:
of Evidence 901 sets out the essential require- Is the Medium Reliable?
ment of authentication or identification of evi-
dence as a “condition precedent to admissibili- However, when there is no percipient witness
ty.” Fed. R. Evid. 901(a). The requirement is sat- to testify about the recording, a more complex
isfied if the proponent provides foundational foundation is necessary. The full inquiry would
proof “sufficient to support a finding that the require the proponent to establish “the scientific
matter in question is what its proponent theory underlying operation of the recording de-
claims.” Id. Various methods of authentication vice, the qualifications of the operator, the condi-
of “media” evidence have developed to meet tion of the equipment, the unchanged condition
this requirement. of the recording, and a chain of custody from the
recording device to the courtroom.” Allen, et al.,
Sound and Video: Is It supra, at 225. Generally, courts today have come
What the Proponent Says It Is? to trust and do not require proof of the underly-
ing science of basic recording and photographic
For example, sound or video recordings in- technologies. Id. However, courts vary in other
troduced as evidence may be authenticated by aspects of the foundation. Some require only
testimony of a foundational witness “with proof of “an exhibit’s identity, perhaps a mini-
knowledge” that the evidence is what it is mal chain of custody, but not its accuracy” and
claimed to be. Recordings of out-of-court events others insist “on a more complete showing of
“are a cross between real evidence and eyewit- how a recording was made, of its chain of cus-
ness testimony. They are a record of real events, tody, and of its unchanged condition in order to
imprinted not in human memory but on tape or show accuracy.” Id.
film or some other medium by mechanical, elec-
tronic, or other processes. The recording reveals Photographs: “Fair,”
what the equipment ‘saw’ or ‘heard,’ perhaps “Accurate,” and “True”
with less risk of human fallibility than an eye-
witness.” Ronald J. Allen, et al., Evidence: Text, Photographs require a foundation similar to
Cases, and Problems 224 (2d ed. 1997). Fed. R. that required for audio and video recordings.
Evid. 901 (b)(1). The proponent must be able to offer founda-
tional testimony regarding recognition or famil-
A foundational witness may provide testi- iarity with the subject matter and that the pho-
mony “that identifies the events recorded, that tograph is a “fair,” “accurate,” and “true” de-
states the basis for the witness’s ability to iden- piction of what it represents. See id. at 217;
tify the events, and that affirms that the record- Edward J. Imwinkelried, Evidentiary Found-
ing is a ‘fair,’ ‘accurate,’ or ‘true’ record of the ations, 99 (4th ed. 1998). Typically, this is not an
events perceived.” Allen, et al., supra, at 224. extremely burdensome foundational prerequi-
For example, a participant in a taped conver- site. Indeed, some types of demonstrative evi-
sation could authenticate transcripts of the dence, such as photographs of a crime scene are
tape by testifying that they were correct to the “admitted as a matter of course.” Allen, et al.,
best of his knowledge. See United States v. supra, at 217-218.
Wright, 932 F.2d 868, 880 (10th Cir.), cert denied,
502 U.S. 962 (1991). HOW DOES DIGITAL MANIPULATION
AFFECT TRADITIONAL METHODS OF
AUTHENTICATION? • Digital editing tech-