Authentication

In general

• “To lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated.”

Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied(quoting Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied)

See Bartlett v. State, 711 N.E.2d 497, 502 (Ind. 1999)(“To lay a foundation for the admission of evidence at trial, the proponent of the evidence must show that the evidence has been authenticated . . . .”)

• Indiana Evidence Rule 901 governs authentication or identification of exhibits . . . .

Taylor v. State, 943 N.E.2d 414, 418 (Ind. Ct. App. 2011), trans. denied

Text of the rule

• In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Evid. R. 901(a)

Producing evidence sufficient to support a finding that the item is what the proponent claims it is

• “Absolute proof of authenticity is not required.”

Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied(quoting Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied)

Harrison v. State, 32 N.E.3d 240, 255 (Ind. Ct. App. 2015), trans. denied(citing Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied)

Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996)(citing Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994), trans. denied)

• The proponent of the evidence needs to establish only a reasonable probability that the document is what it is claimed to be.

Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied(citing Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied)

Harrison v. State, 32 N.E.3d 240, 255 (Ind. Ct. App. 2015), trans. denied(citing Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied)(“[T]he proponent of the evidence need establish only . . . a reasonable probability that the document is what it is claimed to be.”)

See In re Paternity of B.B., 1 N.E.3d 151, 156 (Ind. Ct. App. 2013)(citing Thomas v. State, 734 N.E.2d 572, 573 (Ind. 2000))(“When evidence establishes a reasonable probability that an item is what it is claimed to be, the item is admissible.”)

• Once this reasonable probability is shown, any inconclusiveness regarding the exhibit's connection with the events at issue goes to the exhibit's weight, not its admissibility.

Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied(citing Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied)

Harrison v. State, 32 N.E.2d 240, 255 (Ind. Ct. App. 2015), trans. denied(citing Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied)

E.g., Cohen v. State, 714 N.E.2d 1168, 1174 (Ind. Ct. App. 1999), trans. denied(citing Hutchinson v. State, 515 N.E.2d 514, 515 (Ind. 1987))(“When the testimony of a witness is used to authenticate a photograph, the witness's failure to identify specific details or items in the photograph does not render it inadmissible. Instead, a witness's uncertainty as to the specific details and items in the photograph goes only to the weight of the evidence.”)

Methods of authentication: In general

• [A]uthentication of an exhibit can be established by either direct or circumstantial evidence.

Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied(citing Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996))

Methods of authentication: Examples from the Indiana Rules of Evidence

• Evid. R. 901(b) provides a non-exclusive list of methods by which evidence may be authenticated.

Rice ex rel. Lopez v. Harper, 892 N.E.2d 209, 214 (Ind. Ct. App. 2008), reh’g denied, trans. denied

• Examples. The following are examples only, not a complete list, of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be, by a witness with knowledge.

(2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a person's voice whether heard firsthand or through mechanical or electronic transmission or recording based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a statute, by the Supreme Court of this State, or by the Constitution of this State.

Evid. R. 901(b)

Methods of authentication: Authenticating electronic data

• We have previously acknowledged that federal courts have recognized Federal Rule of Evidence 901(b)(4) as one of the most frequently used means to authenticate electronic data, including text messages and emails.

Wilson v. State, 30 N.E.3d 1264, 1268 (Ind. Ct. App. 2015), trans. denied(citing Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied)

• The language of Federal Rule 901(b)(4) is identical to the language of Indiana's Rule 901(b)(4).

Wilson v. State, 30 N.E.3d 1264, 1268 n. 2 (Ind. Ct. App. 2015), trans. denied

• We see no reason why the writings or recordings generated and saved inside of a cellular telephone should be exempted from the same authentication requirement. . . . Even though we have determined that a text message stored in a cellular telephone is intrinsic to the telephone, a proponent may offer the substance of the text message for an evidentiary purpose unique from the purpose served by the telephone itself. . . . [I]n such cases, the text message must be separately authenticated pursuant to Indiana Evidence Rule 901(a).

Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied(emphasis added)

See In re Paternity of B.B., 1 N.E.3d 151 (Ind. Ct. App. 2013)(citing Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App. 2009), trans. denied)(“When the substance of a text message is offered for an evidentiary purpose, the text message must be separately authenticated pursuant to Evid. R. 901(a).”)

See also Pavlovich v. State, 6 N.E.3d 969, 976 (Ind. Ct. App. 2014), trans. denied(“This authentication requirement applies to the substantive content of text messages purported to be sent by a party.”)

Methods of authentication: Opinions about voices

• Indiana Evidence Rule 901(b)(5) provides that an item may be authenticated by a witness's opinion recognizing a party's voice on a recording, in a transmission, or firsthand.

Pavlovich v. State, 6 N.E.3d 969, 978 n. 6 (Ind. Ct. App. 2014), trans. denied

• Interpreting the parallel Federal Rule of Evidence 901(b)(5), the Seventh Circuit has held that this rule requires “that the witness have only ‘minimal familiarity’ with the voice.”

Pavlovich v. State, 6 N.E.3d 969, 978 n. 6 (Ind. Ct. App. 2014), trans. denied(quoting United States v. Cruz–Rea, 626 F.3d 929, 934 (7th Cir. 2010))

• [The witness] heard enough of [the defendant’s] voice in person to meet this minimal requirement.

Pavlovich v. State, 6 N.E.3d 969, 978 n. 6 (Ind. Ct. App. 2014), trans. denied

Methods of authentication: Other methods of authentication

• Indiana Evidence Rule 901(b)(10) states that evidence may be authenticated by any other method provided by the Indiana Supreme Court, statute, or our constitution.

Mann v. State, 754 N.E.2d 544, 547 (Ind. Ct. App. 2001), trans. denied

See Kidd v. State, 738 N.E.2d 1039, 1043 (Ind. 2000), reh’g denied(citing Evid. R. 901(b)(10))(“An item may be authenticated by any method provided by rule of this Court, statute, or state constitution.”)

See also Bartlett v. State, 711 N.E.2d 497, 502 (Ind. 1999)(“A piece of evidence may be authenticated by any method described in the Indiana Rules of Evidence, or by any method provided by an Indiana statute or rule.”)

See also Dumes v. State, 718 N.E.2d 1171, 1177 (Ind. Ct. App. 1999), supplementing opinion on reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000)(“Evidence may be authenticated by any method provided by Indiana statute or rule.”)

Evidence that is self-authenticating

• Typically, evidence outside of an exhibit, such as authenticating witness testimony[,] creates an inference sufficient for authentication.

Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied(citing Dumes v. State, 723 N.E.2d 460, 463 (Ind. Ct. App. 2000), supplementing opinion on reh’g, 723 N.E.2d 460 (Ind. Ct. App. 2000))

• However, Indiana Evidence Rule 902 is one exception to the general requirement that other evidence establish the authenticity of an exhibit.

• Rule 902 states that certain evidence can be self-authenticating . . . .

Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied

• For more information about evidence that is self-authenticating, please review Self-Authenticating Evidence.