Authentication of Evidence
What is Authentication of Evidence?
Why is the authentication of evidence so important? The improper authentication of evidence can lead to charges being reduced or even dismissed. In some cases, improperly authenticated evidence can be used to overturn a guilty verdict.
For example, one Tennessee man had his conviction for a DUI fourth offense reduced to a DUI first offense because of improperly authenticated evidence. (Link to State v. Troutman, 327 S.W.3d 717). In that case, his defense attorney noticed that the public records the State submitted as evidence of his prior DUI convictions were not properly signed or sealed to indicate the authenticity as required by law. The State did not verify that a crucial piece of evidence they introduced was properly authenticated before its use and, as a result, the court overturned the conviction for DUI fourth.
How is Evidence Properly Authenticated?
This case demonstrates the importance of properly authenticated evidence. Any and all exhibits offered as real evidence must be authenticated before they are presented. This means that anything that could be admitted as evidence must be properly authenticated first, including text messages, surveillance footage, social media posts, and videos recorded by third parties. In one homicide case, Facebook posts were introduced to demonstrate a history of aggression between the victim and the defendant. The defense attorney argued that properly authenticating Facebook posts is difficult because of the myriad of ways social media accounts and posts can be falsified.
But what does it mean for something to be authenticated? Tennessee law provides a non-exhaustive list of examples of authentication, including testimony from parties with knowledge, proof of distinctive characteristics, evidence of phone conversations, and even voice identification. The most common type of evidence authentication is eyewitness testimony. In most cases, witnesses will be asked to identify the person(s) that they saw committing the crime, verify their statements about the events, and confirm the authenticity of any evidence they might have handled. In the case of social media posts, third party video footage, and text messages or phone calls, someone familiar with technology will typically testify to their authenticity. Authentication of these types of evidence, especially social media posts, usually involves verifying an IP address, phone location, or access information.
Now with the advent and advancement of artificial intelligence and deep fake technology, there should be serious concerns about the reliability of voice identification as a method of authentication. Specifically, manipulated recordings have become much more realistic and difficult to detect, increasing the risk of falsified evidence leading to an inequitable result. People are fooled by deep fake technology every day; viral videos of famous people saying or doing compromising things frequently cause confusion and uproar online. As this technology becomes easier to access by the day, people with no background in this software can easily become proficient in its use. For example, in a recent child custody case, the child’s mother was able to teach herself how to digitally alter clips of the father’s voice and make it appear as if he had been threatening his wife. Expert examination was required to determine that the recording had been manipulated to create a plausible audio file for use against the father in the custody hearing. In a justice system in which juries are swayed by “hard evidence,” manipulated media could easily misinform a jury and improperly discredit people. In the words of one officer questioned about deep fakes and the possibility of manipulated media being used, law enforcement is “woefully underprepared” to determine their inauthenticity.
Even though this new age of technology makes it more difficult to verify the authenticity of media, courts have attempted to streamline the process by providing reliable options for authentication of videos. Especially useful in the authentication of video evidence is the option to have an “authenticated” sample compared to the proposed piece of evidence. The most important part of the authentication process is that it allows attorneys the opportunity to challenge the proposed evidence. This system of redundancies allows the proper time and effort to ensure that inconsistencies in evidence are caught and alternative theories are presented.
Contact an Experienced Attorney Who Will Fight for You.
If it seems like the evidence against you is insurmountable, having an attorney who will fight for you and against the authentication of that evidence can mean all the difference for your case. At May & McKinney, PLLC, our team of experienced attorneys will fight to make sure that any evidence that might be used against you has been properly authenticated before it can hurt you.
Contact May & McKinney, PLLC, if you are facing criminal charges in Tennessee!
