§ 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, Internet

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 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. A number of cases involve postings on MySpace. Authentication is more difficult in this context because, unlike e-mails and text messages that are sent directly from one party to an intended recipient, MySpace is published for all to see. Thus, in one case the authentication of MySpace messages was deemed inadequate because the prosecution failed to offer any evidence regarding who had access to the MySpace page and whether a person other than the accused could have penned the messages.³² In contrast, in another case the evidence was admitted because the legal compliance officer for MySpace testified that the messages had been exchanged by users of accounts created by the defendant and the rape victims.³³

Chat rooms. Data posted on a Web site may have been posted by anyone, with or without the owner's consent.³⁴ Traditional methods of authentication may solve these problems,³⁵ even with material downloaded from chat rooms.³⁶

[B] Reply Rule

The federal drafters specifically mentioned the reply doctrine as a method of authentication under Rule 901(b)(4). The method works this way: I properly address and mail a letter to a person. My letter is not returned though I included my return address. Then, in due course, I receive a letter back purportedly from the person to whom I wrote, responding to the content of my letter. The return letter is authenticated circumstantially by the reply rule. This method is not foolproof, but few people would have knowledge of my letter's content. Besides, authentication only requires a prima facie showing.

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Notes:

^[24] Fed. R. Evid. 901 advisory committee's note.

^[25] See United States v. Thompson, 449 F.3d 267 (1st Cir. 2006) (an anonymouse handwritten letter sent to jail; "The anonymous letter's content precisely fits Thompson's circumstances and predicament in May 2004. Coming only one week after the Thompson and Canney joint arrests, the...