How Can You Make Sure You Authenticate Electronic Communications in Your Orlando Area Dissolution of Marriage Case?
There is not just one way to authenticate electronic communications, such as screenshots of text messages. Even when messages are not obtained directly from the sender’s phone, electronic communications, like other traditional communications, may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication. Whether someone fabricated the messages goes to the weight of the evidence, not its admissibility.
Even when there is no picture or name of the sender of the message, you can still authenticate the screenshot by context. Does the text reference information only known to the sender and the receiver of the text? Does the text message contain sufficient evidence connecting the text message to the sender? This is important in the absence of a phone number or identifying name information in the messages.
Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirement of this is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims. That is pursuant to Florida Statute 90.901. The ultimate determination of the authenticity of evidence is a question for the factfinder, and that authentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic. In determining whether evidence submitted is sufficient for this purpose, the trial judge must evaluate each instance on its own merits, there being no specific list of requirements for such determination.
The case law regarding authentication of electronic communications is evolving. Testimony that a person received a text or email from another is not sufficient, by itself, to authenticate the identity of the sender. However, other factors can circumstantially authenticate such a message.
Even when messages are not obtained directly from the sender’s phone, electronic communications, like other traditional communications, may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances. Just as a letter that has been received, an email or text may be circumstantially authenticated by its contents or fact that it was in reply to an email sent by the recipient.
In a recent Florida case opinion involving a video found posted on a Facebook page, the court explained that evidence can be authenticated even if the witness does not call the creator of evidence or search the device which was used to create the evidence. The court found the video’s distinctive characteristics and content, in conjunction with circumstantial evidence, were sufficient to authenticate the video.
If you have more questions regarding a Marital and Family Law matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at: AnnMarieGildenLaw.com; and check me out on these other sites: Ann Marie Giordano Gilden on Facebook; Ann Marie (Giordano) Gilden on LinkedIn; and Ann Marie Giordano Gilden on AVVO and Lawyers.com.
This article is for informational purposes only, and it does not form an attorney client privilege.