Authentication (FRE 901)

Federal Rule of Evidence 901(a) establishes the general authentication requirement: the proponent of evidence must produce evidence sufficient to support a finding that the item is what the proponent claims it to be. This is a condition precedent to admissibility — evidence that cannot be authenticated is inadmissible regardless of its relevance. The standard is relatively low; the proponent need not prove authenticity beyond a reasonable doubt or even by a preponderance. Rather, the proponent must present enough evidence that a reasonable juror could find the item authentic. Ultimate authenticity is a question for the jury.

FRE 901(b) provides a non-exhaustive list of examples of authentication methods. These include testimony of a witness with knowledge, non-expert handwriting comparison, comparison by an expert or the trier of fact, distinctive characteristics and circumstantial evidence, voice identification, telephone conversation identification, public records evidence, ancient document authentication (documents 20+ years old in a condition raising no suspicion found in a natural place of custody), process or system evidence, and methods provided by statute or rule.

FRE 902 identifies categories of self-authenticating documents that do not require extrinsic evidence of authenticity. These include domestic and foreign public documents under seal, certified copies of public records, official publications, newspapers, trade inscriptions, acknowledged documents, commercial paper, certified domestic and foreign business records, and certified electronic records. The 2017 amendments added FRE 902(13) and 902(14) for certified records generated by an electronic process and certified data from electronic devices. Authentication of electronic evidence — emails, text messages, social media posts, and website content — has become one of the most active areas of authentication litigation.