THE COURTS

[ 225 PA. CODE ART. IX ]

Proposed Amendment of Pa.R.E. 901

[46 Pa.B. 3795]
[Saturday, July 16, 2016]

 Proposed amendment of Pa.R.E. 901 governing authentication is being published for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

Daniel A. Durst, Counsel
Committee on Rules of Evidence
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717.231.9536
evidencerules@pacourts.us

 All communications in reference to the proposal should be received by September 1, 2016. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Committee on
Rules of Evidence

THOMAS W. DOLGENOS, Esq., 
Chair

Annex A

TITLE 225. RULES OF EVIDENCE

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

Rule 901. Authenticating or Identifying Evidence.

 (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

 (b) Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

 (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

 (2) Nonexpert Opinion about Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

 (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

 (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

 (5) Opinion About a Voice. An opinion identifying a person's voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

 (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

 (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

 (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

 (7) Evidence About Public Records. Evidence that:

 (A) a document was recorded or filed in a public office as authorized by law; or

 (B) a purported public record or statement is from the office where items of this kind are kept.

 (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

 (A) is in a condition that creates no suspicion about its authenticity;

 (B) was in a place where, if authentic, it would likely be; and

 (C) is at least 30 years old when offered.

 (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

 (10) Methods Provided by a Statute or a Rule. Any method of authentication or identification allowed by a statute or a rule prescribed by the Supreme Court.

 (11) Evidence About A Writing, Posting, Communication, or Image on an Electronic Device or Medium. A writing, posting, communication, or image on or sent from an electronic device may be attributed to a person by:

 (A) the testimony of a person with knowledge; or

 (B) circumstantial evidence such as content or exclusivity of ownership, access, or possession of the device or account at the relevant time.

Comment

 Pa.R.E. 901(a) is identical to F.R.E. 901(a) and consistent with Pennsylvania law. The authentication or identification requirement may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing, or event, the party must provide evidence sufficient to support a finding of the contended connection. See Commonwealth v. Hudson, [489 Pa. 620,] 414 A.2d 1381 (Pa. 1980); Commonwealth v. Pollock, [414 Pa. Super. 66,] 606 A.2d 500 (Pa. Super. 1992).

 In some cases, real evidence may not be relevant unless its condition at the time of trial is similar to its condition at the time of the incident in question. In such cases, the party offering the evidence must also introduce evidence sufficient to support a finding that the condition is similar. Pennsylvania law treats this requirement as an aspect of authentication. See Commonwealth v. Hudson, [489 Pa. 620,] 414 A.2d 1381 (Pa. 1980).

 Demonstrative evidence such as photographs, motion pictures, diagrams and models must be authenticated by evidence sufficient to support a finding that the demonstrative evidence fairly and accurately represents that which it purports to depict. See Nyce v. Muffley, [384 Pa. 107,] 119 A.2d 530 (Pa. 1956).

 Pa.R.E. 901(b) is identical to F.R.E. 901(b).

 Pa.R.E. 901(b)(1) is identical to F.R.E. 901(b)(1). It is consistent with Pennsylvania law in that the testimony of a witness with personal knowledge may be sufficient to authenticate or identify the evidence. See Commonwealth v. Hudson, [489 Pa. 620,] 414 A.2d 1381 (Pa. 1980).

 Pa.R.E. 901(b)(2) is identical to F.R.E. 901(b)(2). It is consistent with 42 Pa.C.S. § 6111, which also deals with the admissibility of handwriting.

 Pa.R.E. 901(b)(3) is identical to F.R.E. 901(b)(3). It is consistent with Pennsylvania law. When there is a question as to the authenticity of an exhibit, the trier of fact will have to resolve the issue. This may be done by comparing the exhibit to authenticated specimens. See Commonwealth v. Gipe, [169 Pa. Super. 623,] 84 A.2d 366 (Pa. Super. 1951) (comparison of typewritten document with authenticated specimen). Under this rule, the court must decide whether the specimen used for comparison to the exhibit is authentic. If the court determines that there is sufficient evidence to support a finding that the specimen is authentic, the trier of fact is then permitted to compare the exhibit to the authenticated specimen. Under Pennsylvania law, lay or expert testimony is admissible to assist the jury in resolving the question. See, e.g., 42 Pa.C.S. § 6111.

 Pa.R.E. 901(b)(4) is identical to F.R.E. 901(b)(4). Pennsylvania law has permitted evidence to be authenticated by circumstantial evidence similar to that discussed in this illustration. The evidence may take a variety of forms including: evidence establishing chain of custody, see Commonwealth v. Melendez, [326 Pa. Super. 531,] 474 A.2d 617 (Pa. Super. 1984); evidence that a letter is in reply to an earlier communication, see Roe v. Dwelling House Ins. Co. of Boston, [149 Pa. 94,] 23 A.718 (Pa. 1892); testimony that an item of evidence was found in a place connected to a party, see Commonwealth v. Bassi, [284 Pa. 81,] 130 A. 311 (Pa. 1925); a phone call authenticated by evidence of party's conduct after the call, see Commonwealth v. Gold, [123 Pa. Super. 128,] 186 A. 208 (Pa. Super. 1936); and the identity of a speaker established by the content and circumstances of a conversation, see Bonavitacola v. Cluver, [422 Pa. Super. 556,] 619 A.2d 1363 (Pa. Super. 1993).

 Pa.R.E. 901(b)(5) is identical to F.R.E. 901(b)(5). Pennsylvania law has permitted the identification of a voice to be made by a person familiar with the alleged speaker's voice. See Commonwealth v. Carpenter, [472 Pa. 510,] 372 A.2d 806 (Pa. 1977).

 Pa.R.E. 901(b)(6) is identical to F.R.E. 901(b)(6). This paragraph appears to be consistent with Pennsylvania law. See Smithers v. Light, [305 Pa. 141,] 157 A. 489 (Pa. 1931); Wahl v. State Workmen's Ins. Fund, [139 Pa. Super. 53,] 11 A.2d 496 (Pa. Super. 1940).

 Pa.R.E. 901(b)(7) is identical to F.R.E. 901(b)(7). This paragraph illustrates that public records and reports may be authenticated in the same manner as other writings. In addition, public records and reports may be self-authenticating as provided in Pa.R.E. 902. Public records and reports may also be authenticated as otherwise provided by statute. See Pa.R.E. 901(b)(10) and its Comment.

 Pa.R.E. 901(b)(8) differs from F.R.E. 901(b)(8), in that the Pennsylvania Rule requires thirty years, while the Federal Rule requires twenty years. This change makes the rule consistent with Pennsylvania law. See Commonwealth ex rel. Ferguson v. Ball, [277 Pa. 301,] 121 A. 191 (Pa. 1923).

 Pa.R.E. 901(b)(9) is identical to F.R.E. 901(b)(9). There is very little authority in Pennsylvania discussing authentication of evidence as provided in this illustration. The paragraph is consistent with the authority that exists. For example, in Commonwealth v. Visconto, [301 Pa. Super. 543,] 448 A.2d 41 (Pa. Super. 1982), a computer print-out was held to be admissible. In Appeal of Chartiers Valley School District, [67 Pa. Cmwlth. 121,] 447 A.2d 317 (Pa. Cmwlth. 1982), computer studies were not admitted as business records, in part, because it was not established that the mode of preparing the evidence was reliable. The court used a similar approach in Commonwealth v. Westwood, [324 Pa. 289,] 188 A. 304 (Pa. 1936) (test for gun powder residue) and in other cases to admit various kinds of scientific evidence. See Commonwealth v. Middleton, [379 Pa. Super. 502,] 550 A.2d 561 (Pa. Super. 1988) (electrophoretic analysis of dried blood); Commonwealth v. Rodgers, [413 Pa. Super. 498,] 605 A.2d 1228 (Pa. Super. 1992) (results of DNA/RFLP testing).

 Pa.R.E. 901(b)(10) differs from F.R.E. 901(b)(10) to eliminate the reference to Federal law and to make the paragraph conform to Pennsylvania law.

 Pa.R.E. 901(b)(11) has no counterpart in the Federal Rules of Evidence. Circumstantial evidence may include self-identification, the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, including a display of knowledge only possessed by the author, or the exclusivity of ownership, possession, control, or access of the device or account attributed to the item.

 There are a number of statutes that provide for authentication or identification of various types of evidence. See, e.g., 42 Pa.C.S. § 6103 (official records within the Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and foreign records); 35 P.S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed in a public office); 42 Pa.C.S. § 6110 (certain registers of marriages, births and burials records); 75 Pa.C.S. § 1547(c) (chemical tests for alcohol and controlled substances); 75 Pa.C.S. § 3368 (speed timing devices); 75 Pa.C.S. § 1106(c) (certificates of title); 42 Pa.C.S. § 6151 (certified copies of medical records); 23 Pa.C.S. § 5104 (blood tests to determine paternity); 23 Pa.C.S. § 4343 (genetic tests to determine paternity).

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013; adopted      , 2016, effective     , 2016.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

 Final Report explaining the     , 2016 amendment published with the Court's Order at 46 Pa.B.      (    , 2016).

REPORT
Proposed Amendment of Pa.R.E. 901

 The Committee on Rules of Evidence is considering amendment of Rule 901 to add a new paragraph (b)(11) to provide an example of evidence for the authentication of a writing, posting, communication, or image on an electronic device or medium. The Committee's consideration of this issue arose from its review of Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014) and the lack of rules-based guidance for resolving authentication questions involving electronic communications.

 The Committee acknowledges that there is often a lack of direct evidence of authentication absent an admission or eyewitness. Rather, authentication is frequently proven by circumstantial evidence. The Committee found that the same circumstantial evidence used to establish the authenticity of writings, see Commonwealth v. Brooks, 508 A.2d 316 (Pa. Super. 1985), have been used to authenticate electronic communications, see, e.g., U.S. v. Siddiqui, 235 F.3d 1318 (11th Cir. 2000) and Massimo v. State, 144 S.W.3d 210 (Tex. App. 2004).

 The Committee deliberated whether ownership, access, or possession of a device or to an account should be considered for authenticating whether an electronic communication was sent from or received by the person having ownership, access, or possession of the device or access to the account. Members expressed concern that mere possession of or access to a device or account does not equate to exclusive possession or access to support the inference that the person sent or received the communication.

 Therefore, the Committee has included ownership, access, or possession of a device or to an account as a factor to be considered, but qualifies it by reference to exclusivity. Therefore, to permit ownership, access, or possession to be the sole means of authentication of an electronic communication, the proponent should demonstrate by prima facie evidence that ownership, access, or possession was exclusive.

 All comments, concerns, and suggestions concerning this proposal are welcome.

[Pa.B. Doc. No. 16-1199. Filed for public inspection July 15, 2016, 9:00 a.m.]

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