Before any document or other item of physical evidence can be admitted into evidence, the proponent of such evidence must “authenticate” the item, i.e., present evidence sufficient to support a finding that the item in question is what the proponent claims it to be.15 The burden of proof is with the party offering the item as evidence.15.1 This burden is considered a lenient one.15.2 The decision whether the evidence has been sufficiently authenticated is a matter relegated to the sound discretion of the trial judge.15.3 The mere authentication of evidence does not mean that it is automatically admissible. The evidence remains subject to other rules affecting admissibility.15.4
Evidence can be authenticated in a number of ways,16 through direct or circumstantial evidence,16.1 including, without limitation:
Testimony Of A Witness With Knowledge. A witness with personal knowledge can testify that a matter is what it is claimed to be.17
Non-Expert Opinion Of Handwriting. A non-expert may render an opinion as to the genuineness of handwriting, based upon familiarity not acquired specifically for the litigation.18
Comparison By Trier Of Fact Or Expert Witness. The trier of fact or an expert witness can compare the item with specimens which have been authenticated.19
Distinctive Characteristics And The Like. Appearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with surrounding circumstances, can permit an item to be authenticated.20 The rule does not specify a minimum number or minimum quality of distinct characteristics. Accordingly, courts have relied upon a variety of factors to authenticate such evidence. For example, in criminal cases, documents that contain information and details that only those involved in the crime could know are considered reliable 20.1
Voice Identification. Testimony of a witness identifying a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by an opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.21
Telephone Conversations. Telephone conversations can be authenticated by evidence that a call was made to the number assigned at the time by the telephone, company to a particular person or business, if (a) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (b) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.22 The rule does not deal with incoming calls. Voice recognition may supply the necessary foundation. Otherwise, other means will have to be used.23
Public Records Or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office or a purported public record, report, statement or data compilation in any form is from the public office where items of this nature are kept.24
Ancient Documents Or Data Compilation. Evidence that a document or data compilation, in any form, (a) is in such condition as to create no suspicion concerning its authenticity, (b) was in a place where it, if authentic, would likely be, and (c) has been in existence 20 years or more at the time it is offered.25
Process Or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.26 For a scientific test or the results thereof to be admissible, the test itself must be relevant and reliable.27 That a scientific test is not conclusive or is not generally accepted in the scientific community goes to the weight of the evidence and not its admissibility.28
Methods Provided By Statute Or Rule. Any method of authentication or identification provided by statute or in the Delaware Constitution.29
Chain Of Custody. Used primarily in criminal cases to authenticate an item which is claimed to be involved with a crime, such an item can be authenticated by having witnesses establish a “chain of custody” which indirectly establishes the identity and integrity of the evidence by demonstrating that the item is associated with or at least like the one associated with the crime and tracing; its continuous whereabouts, addressing such relevant factors as the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers having tampered with the item.30 The burden is on the party seeking to admit the evidence to demonstrate a reasonable probability that there has been no tampering with the evidence.31
For the purpose of establishing in any criminal or civil proceeding the chain of physical custody or control of a controlled substance, as defined in Chapter 47 of Title 16 of the Delaware Code, a statement signed by each successive person in the chain of custody that the person delivered the evidence to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the need for personal appearance in court by the person making the statement.31.1 The written statement must contain a written description of the material in question or its container so as to distinguish it as the particular item in question and must state that the material was delivered in essentially the same condition as it was received.31.2 In this context, “chain of custody” refers to (i) the seizing police officer, (ii) the packaging police officer, if different from the seizing police officer, and (iii) the forensic toxicologist, forensic chemist or other person who actually touched the substance and not merely the outer-sealed package in which the substance was placed by the law-enforcement agency before or during the analysis of the substance.31.3 “Chain of custody” does not include any person who handled the substance in any form subsequent to the analysis of the substance.31.4
In a criminal proceeding, if the defendant demands it in writing at least five days before the trial, the prosecutor must require the presence of the forensic toxicologist, forensic chemist, or any other person in the chain of custody, as a prosecution witness.31.5 The presumption of a valid chain of custody does not apply to the testimony of that witness.31.6 The presumption applies to the statement or report to be introduced at trial only if it is given or made available to counsel for the defendant (or the defendant, if acting pro se) at least ten days prior to the introduction of the report or statement at trial.31.7
A break in the chain of custody is not necessarily fatal to the admissibility of the evidence, but goes to the weight of the evidence.31.8
The chain of custody rule requires the State to authenticate the evidence proffered and eliminate the possibilities of misidentification and adulteration, not to an absolute certainty, but only as a matter of reasonable probability. In other words, the State must demonstrate an orderly process from which the trier of fact can conclude that it is improbable that the original item has been tampered with or exchanged.31.9
Under this statute there is a presumption that the evidence was not tainted during transportation. However, a defendant is free to call witnesses to rebut that presumption.31.10
In prosecutions for driving under the influence, the prosecution must, upon written demand of a defendant filed in the proceedings at least 15 days prior to the trial, require the presence of the Forensic Toxicologist, Forensic Chemist, State Police Forensic Analytical Chemist, or any person necessary to establish the chain of custody as a witness in the proceeding. The chain of custody or control of evidence is established in these cases when there is evidence sufficient to eliminate any reasonable probability that such evidence has been tampered with, altered or misidentified.31.11
Social media, i.e., electronic communications in which users create online communities to share information, personal messages, and other content, is subject to the same authentication requirements set forth above as any other evidence. The proponent of such evidence may use any form of verification available under Rule 901 to authenticate a social media post, including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question. The judge, as the gatekeeper of evidence, may admit a social media post where there is sufficient evidence to support a finding by a reasonable juror that the proffered evidence is what the proponent claims it to be. If the judge does so, any weight to be ascribed to the evidence is a matter for the jury.31.12
15. D.R.E. 901(a).
15.1. Cole v. State, 922 A.2d 364, 374-75 (Del. 2007).
15.2. Guy v. State, 913 A.2d 558, 564 (Del. 2006)
15.3. Hendricks v. State, 871 A.2d 1118, 1121 (Del. 2005); Demby v. State, 695 A.2d 1127, 1133 (Del. 1997).
15.4. D.R.E. 901, comment.
16. The examples listed are not intended to be an exclusive enumeration of means of authentication, but leave room for imagination and development. Fed. R. Evid. 901 advisory committee’s note.
16.1. Johnson v. State, 878 A.2d 422, 429 (Del. 2005).
17. D.R.E. 901(b)(1). See also Thompson v. State, No. 330, 1990, slip op. at 5, Christie, J. (Del. June 3, 1991) (ORDER), disposition reported at 597 A.2d 354 (Del. 1991) (TABLE).
18. D.R.E. 901(b)(2); Smith v. State, 902 A.2d 1119, 1123 (Del. 2006).
19. D.R.E. 901(b)(3).
20. D.R.E. 901(b)(4).
20.1. Smith v. State, 902 A.2d 1119, 1124 (Del. 2006).
21. D.R.E. 901(b)(5); Shockley v. State, 565 A.2d 1373, 1384 (Del. 1989); Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982).
22. D.R.E. 901(b)(6).
23. Fed. R. Evid. 901(b) advisory committee’s note.
24. D.R.E. 901(b)(7).
25. D.R.E. 901(b)(8).
26. D.R.E. 901(b)(9).
27. Santiago v. State, 510 A.2d 488, 489 (Del. 1986); Fetters v. State, 436 A.2d 796, 800 (Del. 1981); Whalen v. State, 434 A.2d 1346, 1354 (Del. 1980), cert. denied, 455 U.S. 910 (1982); Foraker v. State, 394 A.2d 208, 213-14 (Del. 1978); State v. Moore, 307 A.2d 548, 550 (Del. Super. 1973); State v. Davis, 490 A.2d 601, 604 (Del. Super. 1985).
28. See Johnson v. State, 550 A.2d 903, 908 (Del. 1988); Santiago v. State, 510 A.2d 488, 489 (Del. 1986); Fensterer v. State, 509 A.2d 1106, 1109 n.1 (Del. 1986); Whalen v. State, 434 A.2d 1346 (Del. 1980), cert. denied, 455 U.S. 910 (1982); State v. Moore, 307 A.2d 548, 550 (Del. Super. 1973).
29. D.R.E. 901(b)(10).
30. Tricoche v. State, 525 A.2d 151, 152-53 (Del. 1987); Whitfield v. State, 524 A.2d 13, 16 (Del. 1987).
31. McNally v. State, 980 A.2d 364, 371 (Del. 2009); Tricoche v. State, 525 A.2d 151, 153 (Del. 1987); Whitfield v. State, 524 A.2d 13, 16 (Del. 1987); Donophan v. State, 424 A.2d 301, 303 (Del. 1980), overruled on other grounds by Whitfield v. State, 524 A.2d 13 (Del. 1987); Goldsmith v. State, 405 A.2d 109, 113 (Del. 1979); Bey v. State, 402 A.2d 362, 364 (Del. 1979); Wilson v. State, 343 A.2d 613, 617 (Del. 1975); Tatman v. State, 314 A.2d 417, 418 (Del. 1973); Clough v. State, 295 A.2d 729, 730 (Del. 1972).
31.1. 10 Del. C. § 4331(3)(a).
31.2. 10 Del. C. § 4331(3)(b).
31.3. 10 Del. C. § 4331(1).
31.4. 10 Del. C. § 4331(2).
31.5. 10 Del. C. § 4331(a)(1).
31.6. 10 Del. C. § 4331(a)(2).
31.7. 10 Del. C. § 4331(a)(3).
31.8. Demby v. State, 695 A2d 1127, 1134 (Del. 1997).
31.9. Demby v. State, 695 A2d 1127, 1131 (Del. 1997).
31.10. Demby v. State, 695 A2d 1127, 1132 (Del. 1997).
31.11. 21 Del. C. §4177(h)(4).
31.12. Parker v. State, 85 A.3d 682, 687-77 (Del. 2014).
© 2014 David L. Finger