§ 28.06 Distinctive Characteristics: FRE 901(b)(4)

• Jurisdiction: United States

§ 28.06 Distinctive Characteristics: FRE 901(b)(4)

The "appearance, contents, substance, internal patterns, or other distinctive characteristics, taken together with circumstances" may satisfy the authentication requirement.²⁴ For example, the contents of a letter may disclose information "known peculiarly" to a person (knowledge principle).²⁵ Similarly, "language patterns" may indicate the identity of the writer.²⁶ In short, any circumstantial method of proof may be used—e.g., postmark, letterhead, contents, and circumstances of discovery.²⁷ One case listed the following circumstances:

The written materials were found in an isolated and remote area where law enforcement agents observed no one other than Harvey. The materials were within Harvey's campsite; indeed, they were next to Harvey's own bed. The writings also make numerous references to Harvey's beloved dog, Drigo. These distinctive characteristics and circumstances are sufficient to support a finding that the materials were written by Harvey.²⁸

[A] E-mails, Text Messages, Social Networking

E-mails have also been authenticated under Rule 901(b)(4), for example, by using (1) the consistency with the e-mail address on another e-mail sent by the defendant; (2) the author's awareness through the e-mail of the details of defendant's conduct; (3) the e-mail's inclusion of similar requests that the defendant had made by phone during the same time period; and (4) the e-mail's reference to the author by the defendant's nickname.²⁹

Text messages. These messages can be authenticated in a similar fashion.³⁰ For example, identifying details in text messages that could have been known by only a small number of persons, including the defendant, defendant's conduct after the messages were sent, and nickname used in one message constituted circumstantial evidence sufficient to link defendant to the messages.³¹

Social networking. The concern that social-media evidence could be faked or forged has led some courts to impose a high bar for admissibility. For example, the Maryland Court of Appeals held that to authenticate social media posts, the party should either (1) ask the purported creator if she created the profile and the post, (2) search the internet history and hard drive of the purported creator's computer "to determine whether that computer was used to originate the social networking profile and posting in question," or (3) obtain information directly from the social networking site to establish the appropriate creator and link the posting in question to the person who initiated it.³² The first option is often unavailable in criminal prosecutions if the creator is the defendant who may not testify. The second option may not be available if the computer cannot be located.

In contrast, other courts adopt a more permissive approach, more in line with the relaxed standards of Rule 901. According to the Delaware Supreme Court, a proponent may use any form of authentication available under Rule 901—including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence.³³ The Rule 901 standard is evidence "sufficient to support a finding" by a reasonable juror that the proffered evidence is what its proponent claims it to be. In Parker v. State, the Delaware Supreme Court found several authenticating factors: "First, the substance of the Facebook post referenced the altercation that occurred between Parker and Brown. Although the post does not mention Brown by name, it was created on the day...