Wednesday, September 12, 2012
Solo and Small Firm Conference- ISBA
I will be speaking Friday September 14th to the Solo and Small Firm Conference of the Illinois State Bar Association. The topic of my presentation is authentication of evidence, in particular the authentication of digital evidence. More and more we use Facebook pages, text messages and other forms of digitally based information as evidence. Digital evidence, like any exhibit, must first be authenticated before it can be admitted. Authentication requires a preliminary showing that the proffered evidence is what it claims to be. Foundational testimony is often used to authenticate the exhibit but other methods can also be used: stipulations, request to admit the authenticity of the exhibit, and judicial notice may establish that the exhibit is authentic. Authenticity is not a difficult burden and questions about authenticity of the exhibit go toward the weight given to the exhibit, rather than its admissibility. General claims that “the exhibit could have been tampered with” are insufficient to disqualify it. Don’t forget: establishing authenticity is only the first step in admitting the document. You still must contend with other evidentiary obstacles such as hearsay, best evidence rule, relevance, etc.