Today, more and more evidence is coming from electronic sources, which can pose unique challenges for admissibility and authentication. As with all trial evidence, the proponent must show that electronic evidence is what she says it is. In other words, the proponent must authenticate the evidence.1 Despite the challenges, "the rules of evidence already in place for determining authenticity are at least generally adequate to the task" of authenticating electronic evidence (i.e. text messages, social media sites, and digital photographs).2
There is no one golden standard for authenticating electronic evidence; instead, "the best or most appropriate method... will often depend upon the nature of the evidence and the circumstances of the particular case."3
In two recent criminal cases, circumstantial evidence establishing distinctive characteristics and the like under TRE 901 (b)(4) has been accepted to establish authenticity. For example, in Jones v. State, a cell phone provided crucial evidence linking the defendant to the crime of possession with intent to deliver or manufacture a controlled substance, but first the prosecution had to authenticate the cell phone and the "pictures, text messages, contacts, and other information" it contained.4
The defendant argued that the electronic information on the phone could not be authenticated and denied that the phone was his.5 In response, the prosecution presented the following circumstantial evidence: (1) Defendant had possession of the phone at the time he was pulled over, (2) Defendant spoke on the phone in the presence of the officer, and (3) Defendant referred to the phone as his. The Court found this evidence was sufficient to establish that the phone belonged to the defendant and concluded that the contents of the phone were properly authenticated and admissible.
An example involving the authentication of information shared on social media arises from a fatal shooting in Dallas. In Tienda v. State, the prosecution sought to use information from a MySpace account to show the Defendant was involved.6 First, the State authenticated the account by linking the Defendant to the MySpace account through printouts of three pages, which showed pictures of the "defendant with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring" and included references to an ankle monitor, which was a condition of Defendant's house arrest.7 The MySpace pages also included specific references to the victim's death and the defendant's gang affiliation.8 On appeal, the Court of Criminal Appeal affirmed the lower courts' ruling that the circumstantial evidence from the MySpace pages was "sufficient to support a finding by a rational jury that the MySpace pages . . . were created by the appellant."9
To help our readers in practice, we created a simple worksheet connecting types of electronic evidence with suggestions of where to look in the rules for authentication strategies. We hope you find this worksheet useful.
1 Tex. R. Evid. 901(a).
2 Tienda v. State, 358 S.W. 3d 633, 639-40 (Tex. Crim. App. 2012); quoting Steven Goode, The Admissibility of Electronic Evidence, 29 Rev. Litig. 1, 7 (Fall 2009).
3 Id at 639.
4 Jones v. State, 466 S.W.3d 252, 262 (Tex. App.-Houston [1st Dist.] 2015).
6 The State referenced Tex. Evid. R. 901(b)(4).
7 Tienda, 358 S.W. 3d 633, 636.
8 Id at 645.