The Coming Amendment to FRE 902

Federal Rule of Evidence 902 covers certain types of evidence that are self-authenticating. About a year from now, on December 1, 2017, two new sections will be added to this Rule, assuming they are approved by the Supreme Court and not rejected or modified by Congress. The proposed revisions are given in this report by the Rules Committee of the Judicial Conference of the United States. The first new section, section 13, concerns:

(13) Certified Records Generated by an Electronic Process or System

A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12).

The proponent must also meet the notice requirements of Rule 902(11).

So documentation generated by a computer may be considered authentic without additional extrinsic evidence. In noting that certification under this section only covers the admissibility requirements for authenticity, and allows open the possibility for it be objected to on other grounds, the notes to the proposed new section give two examples of types of evidence that may be certified: a printout of a web page, or output from a computer such as a spreadsheet.

The second new section, section 14, concerns:

14) Certified Data Copied from an Electronic Device, Storage Medium, or File.

Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

The notes discuss how the use of hash values (which they define - somewhat inaccurately - as, " unique alpha-numeric sequence of approximately 30 characters that an algorithm determines based upon the digital contents of a drive" - MD5 hash values have 32 characters, and SHA1 hash values have 40 characters) can be used to authenticate data copied from an electronic device without testimony by a foundation witness. A certification can be submitted by a qualified person attesting to the fact that the hash value of an electronic file offered into evidence matches that of the original. The notes also leave open the possibility that technical processes other than hash values can be used to verify copied data.