Authentication Article by Paul Mark Sandler
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August 25, 2024In Authentication is key to direct and cross-examination (thedailyrecord.com) (Aug. 22, 2024), my friend Paul Sandler wrote: “It can be said that direct and cross-examination are the central features of the trial, and essential to examinations are the exhibits sought to be introduced in evidence.”
Paul cites to the applicable Maryland Rules and wrote that: “In State v. Swinton 847 A2d 921 (2004), the court enunciated six factors for the authentication of computer-enhanced evidence: the computer equipment is standard and competent and in good working order; qualified computer operators were employed; proper procedures were followed in the input and output of information; a reliable software program was utilized; the equipment was programmed and operated correctly; and the exhibit is properly identified as the output in question.”
Paul’s excellent article provides a mock examination showing how to authenticate a computer printout of records.
I have addressed authentication in a number of blogs:
- Can a witness authenticate a video if the video contains images that the witness did not see?
- “Unfriending” Evidence – Maryland Follows “Reasonable Juror” Standard in Authentication of Social Media
- Authentication of Asbestos-Containing Chalk Purchased on eBay – Exemplar Evidence
- The “Silent Witness” Theory of Authentication of Video Evidence
- Authentication of ESI on Motion Compelling Arbitration Despite Factual Dispute
- Authentication of a Disputed Email and Attachment
- Turtle and Tourist Photos Were Insufficient to Authenticate Texts in Criminal Case
- Authentication of Disputed Signature by Description of Information Governance Policy
- Two Recent Maryland Decisions on Authentication of Text Messages
- Authenticity and the Role of the Trial Court as Gatekeeper Under Md. Rule 5-104
One of the best solutions is to cooperate. ESI may be authenticated by agreement, such as a stipulation, and it is a topic that should be addressed in a Fed.R.Civ.P. 26(f) conference and “ESI Protocol” or discovery plan. See “ESI Protocol” v. “Discovery Plan”
Paul’s article concludes: “As you prepare for trial, it is essential to select the correct method for authenticating exhibits at trial, and to ask the correct questions to convince the court to accept the exhibits.”
