In Re: Order Approving the Amendment of Pa Rule of Evidence 901 ( 2020 )

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Authenticating or Identifying Evidence
(a) In General. Unless stipulated, 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.
(b) 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.
(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
(C) is at least 30 years old when offered.
(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 a Rule. Any method of authentication
or identification allowed by a statute or a rule prescribed by the Supreme
Court.
(11) Digital Evidence. To connect digital evidence with a person or entity:
(A) direct evidence such as testimony of a person with personal
knowledge; or
(B) circumstantial evidence such as:
(i) identifying content; or
(ii) proof of ownership, possession, control, or access to a
device or account at the relevant time when corroborated
by circumstances indicating authorship.
Comment
Pa.R.E. 901(a) is substantively identical to F.R.E. 901(a) and consistent with
Pennsylvania law. The authentication or identification requirement may be expressed
as follows: When a party offers evidence contending either expressly or impliedly that
the evidence is connected with a person, place, thing, or event, the party must provide
evidence sufficient to support a finding of the contended connection. See
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Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980); Commonwealth v. Pollock, 606
A.2d 500 (Pa. Super. 1992). The proponent may be relieved of this burden when all
parties have stipulated the authenticity or identification of the evidence. See, e.g.,
Pa.R.C.P. No. 212.3(a)(3) (Pre-Trial Conference); Pa.R.C.P. No. 4014 (Request for
Admission); Pa.R.Crim.P. 570(A)(2) & (3) (Pre-Trial Conference).
In some cases, real evidence may not be relevant unless its condition at the time
of trial is similar to its condition at the time of the incident in question. In such cases,
the party offering the evidence must also introduce evidence sufficient to support a
finding that the condition is similar. Pennsylvania law treats this requirement as an
aspect of authentication. See Commonwealth v. Hudson, 414 A.2d 1381 (Pa. 1980).
Demonstrative evidence such as photographs, motion pictures, diagrams and
models must be authenticated by evidence sufficient to support a finding that the
demonstrative evidence fairly and accurately represents that which it purports to depict.
See Nyce v. Muffley, 119 A.2d 530 (Pa. 1956).
Pa.R.E. 901(b) is identical to F.R.E. 901(b).
Pa.R.E. 901(b)(1) is identical to F.R.E. 901(b)(1). It is consistent with
Pennsylvania law in that the testimony of a witness with personal knowledge may be
sufficient to authenticate or identify the evidence. See Commonwealth v. Hudson, 414
A.2d 1381 (Pa. 1980).
Pa.R.E. 901(b)(2) is identical to F.R.E. 901(b)(2). It is consistent with 42 Pa.C.S.
§ 6111, which also deals with the admissibility of handwriting.
Pa.R.E. 901(b)(3) is identical to F.R.E. 901(b)(3). It is consistent with
Pennsylvania law. When there is a question as to the authenticity of an exhibit, the trier
of fact will have to resolve the issue. This may be done by comparing the exhibit to
authenticated specimens. See Commonwealth v. Gipe, 84 A.2d 366 (Pa. Super. 1951)
(comparison of typewritten document with authenticated specimen). Under this rule, the
court must decide whether the specimen used for comparison to the exhibit is authentic.
If the court determines that there is sufficient evidence to support a finding that the
specimen is authentic, the trier of fact is then permitted to compare the exhibit to the
authenticated specimen. Under Pennsylvania law, lay or expert testimony is admissible
to assist the jury in resolving the question. See, e.g., 42 Pa.C.S. § 6111.
Pa.R.E. 901(b)(4) is identical to F.R.E. 901(b)(4). Pennsylvania law has
permitted evidence to be authenticated by circumstantial evidence similar to that
discussed in this illustration. The evidence may take a variety of forms including:
evidence establishing chain of custody, see Commonwealth v. Melendez, 474 A.2d 617(Pa. Super. 1984); evidence that a letter is in reply to an earlier communication, see
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Roe v. Dwelling House Ins. Co. of Boston, 23 A. 718 (Pa. 1892); testimony that an item
of evidence was found in a place connected to a party, see Commonwealth v. Bassi,
130 A. 311 (Pa. 1925); a phone call authenticated by evidence of party's conduct after
the call, see Commonwealth v. Gold, 186 A. 208 (Pa. Super. 1936); and the identity of a
speaker established by the content and circumstances of a conversation, see
Bonavitacola v. Cluver, 619 A.2d 1363 (Pa. Super. 1993).
Pa.R.E. 901(b)(5) is identical to F.R.E. 901(b)(5). Pennsylvania law has
permitted the identification of a voice to be made by a person familiar with the alleged
speaker's voice. See Commonwealth v. Carpenter, 372 A.2d 806 (Pa. 1977).
Pa.R.E. 901(b)(6) is identical to F.R.E. 901(b)(6). This paragraph appears to be
consistent with Pennsylvania law. See Smithers v. Light, 157 A. 489 (Pa. 1931); Wahl
v. State Workmen's Ins. Fund, 11 A.2d 496 (Pa. Super. 1940).
Pa.R.E. 901(b)(7) is identical to F.R.E. 901(b)(7). This paragraph illustrates that
public records and reports may be authenticated in the same manner as other writings.
In addition, public records and reports may be self-authenticating as provided in Pa.R.E.
902. Public records and reports may also be authenticated as otherwise provided by
statute. See Pa.R.E. 901(b)(10) and its Comment.
Pa.R.E. 901(b)(8) differs from F.R.E. 901(b)(8), in that the Pennsylvania Rule
requires thirty years, while the Federal Rule requires twenty years. This change makes
the rule consistent with Pennsylvania law. See Commonwealth ex rel. Ferguson v. Ball,
121 A. 191 (Pa. 1923).
Pa.R.E. 901(b)(9) is identical to F.R.E. 901(b)(9). There is very little authority in
Pennsylvania discussing authentication of evidence as provided in this illustration. The
paragraph is consistent with the authority that exists. For example, in Commonwealth v.
Visconto, 448 A.2d 41 (Pa. Super. 1982), a computer print-out was held to be
admissible. In Appeal of Chartiers Valley School District, 447 A.2d 317 (Pa. Cmwlth.
1982), computer studies were not admitted as business records, in part, because it was
not established that the mode of preparing the evidence was reliable. The court used a
similar approach in Commonwealth v. Westwood, 188 A. 304 (Pa. 1936) (test for gun
powder residue) and in other cases to admit various kinds of scientific evidence. See
Commonwealth v. Middleton, 550 A.2d 561 (Pa. Super. 1988) (electrophoretic analysis
of dried blood); Commonwealth v. Rodgers, 605 A.2d 1228 (Pa. Super. 1992) (results of
DNA/RFLP testing).
Pa.R.E. 901(b)(10) differs from F.R.E. 901(b)(10) to eliminate the reference to
Federal law and to make the paragraph conform to Pennsylvania law.
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Pa.R.E. 901(b)(11) has no counterpart in the Federal Rules of Evidence.
“Digital evidence,” as used in this rule, is intended to include a communication,
statement, or image existing in an electronic medium. This includes emails, text
messages, social media postings, and images. The rule illustrates the manner in
which digital evidence may be attributed to the author.
The proponent of digital evidence is not required to prove that no one else
could be the author. Rather, the proponent must produce sufficient evidence to
support a finding that a particular person or entity was the author. See Pa.R.E.
901(a).
Direct evidence under Pa.R.E. 901(b)(11)(A) may also include an admission
by a party-opponent.
Circumstantial evidence of identifying content under Pa.R.E.
901(b)(11)(B)(i) may include self-identification or other distinctive characteristics,
including a display of knowledge only possessed by the author. Circumstantial
evidence of content may be sufficient to connect the digital evidence to its
author.
Circumstantial evidence of ownership, possession, control, or access to a
device or account alone is insufficient for authentication of authorship of digital
evidence under Pa.R.E. 901(b)(11)(B)(ii). See, e.g., Commonwealth v. Mangel, 181
A.3d 1154, 1163 (Pa. Super. 2018) (social media account bearing
defendant’s name, hometown, and high school was insufficient to authenticate
the online and mobile device chat messages as having been authored
by defendant). However, this evidence is probative in combination with other
evidence of the author’s identity.
Expert testimony may also be used for authentication purposes. See, e.g.,
Commonwealth v. Manivannan, 186 A.3d 472 (Pa. Super. 2018).
There are a number of statutes that provide for authentication or identification of
various types of evidence. See, e.g., 42 Pa.C.S. § 6103 (official records within the
Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and
foreign records); 35 P.S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed
in a public office); 42 Pa.C.S. § 6110 (certain registers of marriages, births and burials
records); 75 Pa.C.S. § 1547(c) (chemical tests for alcohol and controlled substances);
75 Pa.C.S. § 3368 (speed timing devices); 75 Pa.C.S. § 1106(c) (certificates of title); 42
Pa.C.S. § 6151 (certified copies of medical records); 23 Pa.C.S. § 5104 (blood tests to
determine paternity); 23 Pa.C.S. § 4343 (genetic tests to determine paternity).
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Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced
January 17, 2013, effective March 18, 2013; amended November 4, 2019, effective
January 1, 2020; amended May 20, 2020, effective October 1, 2020.
Committee Explanatory Reports:
Final Report explaining the January 17, 2013 rescission and replacement
published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013). Final Report
explaining the November 4, 2019 amendment of paragraph (1) published with the Court’s
Order at 49 Pa.B. 6946 (November 23, 2019). Final Report explaining the May 20,
2020 adoption of paragraph (b)(11) published with the Court’s Order at 50 Pa.B. ___
(__________, 2020).
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