California Criminal Trial Manual

Authentication

General Principles
  • EC 1401: a writing must be authenticated before the writing may be received in evidence.
  • EC 1400: to authenticate a writing, the proponent must establish by evidence or other means provided by law facts sufficient to sustain a finding that it is the writing the proponent claims it to be.
  • EC 1421: a writing may be authenticated by evidence that the writing refers to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.
911 Calls
  • 911 Call: it is settled that computer systems that automatically record date in real time, especially on government-maintained computers, are presumed to be accurate. Thus, a witness with general knowledge of an automated system may testify to his or her use of the system and that he or she has downloaded the computer information to produce a recording. No elaborate showing of the accuracy of the recorded data is required (People v. Dawkins (2014) 230 Cal.App.4th 991, 1003.)
  • An audio recording is typically authenticated by showing it is a reasonable representation of that which it is alleged to portray. (See People v. Gonzalez (2006) 38 Cal.4th 932, 952.)
  • EC 1553(a): establishes rebuttable presumption that “[a] printed representation of images stored on a video or digital medium is presumed to be an accurate representation of the images it purports to represent.” The presumption affects the burden of proof and is rebutted by a showing that the “printed representation of images stored on [the] video or digital medium is inaccurate or unreliable.” (Ibid.) The burden then shifts to the proponent of the printed representation to prove by a preponderance of the evidence that it accurately represents the existence and content of the images on the video or digital medium. (Ibid.) If the proponent of the evidence fails to carry his burden of showing the printed representation accurately depicts what it purportedly shows, the evidence is inadmissible for lack of adequate foundation. (People v. Chism (2014) 58 Cal.4th 1266, 1303.)
Social Media
  • Authentication: adequate foundation for the admission of social media evidence requires that there be sufficient evidence for a trier of fact to find that the evidence is what it purports to be; if evidence supports a finding of authenticity, the fact that any conflicting inferences can be drawn regarding authenticity goes to the weight of the evidence, and not admissibility. (In re K.G. (2015) 238 Cal.App.4th 989.)
  • Facebook Messages: properly authenticated based on messages content and circumstantial evidence from victims (D previously communicated similar content to victims via text, messages included things D knew about or had access to, independent of the messages themselves. (People v. Cruz (2020) 46 Cal.App.5th 715, 730-731.)
  • Hearsay: not hearsay when not admitted as truth of any matter asserted on website (People v. Valdez (2011) 201 Cal.App.4th 1429.) OR statement by party opponent (EC 1220)
Text Messages
  • People v. Perez (2017) 18 Cal.App.5th 598: adequate foundation for admission of text messages where recipient identified screen shots of text messages from his phone, & described content of the texts
    • While all writings must be authenticated before they are received into evidence (EC 1401), the proponent’s burden of producing evidence to show authenticity (EC 1400) is met when sufficient evidence has been produced to sustain a finding that the document is what it purports to be. The author’s testimony is not required to authenticate a document (EC 1411); instead, its authenticity may be established by the contents of the writing (EC 1421) or by other means (EC 1410).
Video Surveillance
  • The foundation for a video recording may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. It may be supplied by other witness testimony, circumstantial evidence, content and location. (People v. Goldsmith (2014) 59 Cal.4th 258, 268.)
  • Location: i.e. surveillance footage obtained from location of robbery is circumstantial evidence the videos depict robberies under investigation. (See People v. Wilson (2021) 11 Cal.5th 259, 305 [document D authored located in D’s residence supported authentication].)
  • Content: i.e. officer testimony events depicted in videos matched descriptions of incidents heard from witnesses; admitting into evidence photographs of stills of video corroborated the videos did in fact exist.
  • Circumstantial evidence: specific evidence authenticating videos, which appear to have been committed by same suspects during same time frame
  • The proof that is necessary to authenticate a photograph or video varies with the nature of the evidence that the photograph or video recording is being offered to prove and with the degree of possibility of error. (People v. Goldsmith (2014) 59 Cal.4th 258.)
  • The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e. that it is genuine for the purpose offered. (People v. Goldsmith (2014) 59 Cal.4th 258, 267.)
  • A writing can be authenticated by circumstantial evidence and by its contents. (People v. Landry (2016) 2 Cal.5th 52, 87.)
  • The fact that conflicting inferences can be drawn regarding the writing goes to the document’s weight as evidence, not its admissibility. (People v. Flinner (2020) 10 Cal.5th 686, 729.)
Lost or Destroyed Writings
  • EC 1523 does not bar the admissibility of oral testimony if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent.
  • Thus the intentional destruction of the original will not bar introduction of oral testimony so long as the destruction was not accompanied by fraudulent intent. (People v. Meyers (2014) 227 Cal.App.4th 1219, 1226, fn. 1.)
Authentication: Sample Foundations

Video Surveillance

Sample Foundation for video footage from a Ring camera outside Mr. Smith’s home, where the owner of Ring camera lays the requisite foundation.

  • Q: MR. SMITH, DO YOU HAVE SOME SORT OF VIDEO SURVEILLANCE SYSTEM AT YOUR HOUSE?
  • A: YES.
  • Q: PLEASE DESCRIBE THE SYSTEM. WHAT KIND IS IT?
  • A: IT’S A RING CAMERA.
  • Q: DOES IT RECORD IN REAL TIME?
  • A: YES.
  • Q: IS THERE A DATE AND TIME STAMP ON THE RECORDING?
  • A: YES.
  • Q: IS IT ACCURATE? HOW CAN YOU TELL? In other words, have you ever reviewed video footage after the fact and confirmed the time stamp was accurate
  • A: I’VE WATCHED THE CAMERA LIVE, AND SAW THE TIMESTAMP ON THE VIDEO WAS THE SAME AS THE TIME ON MY WATCH.
  • Q: HOW ARE THE IMAGES STORED?
  • A: THE VIDEO IS STORED IN THE CLOUD.
  • Q: WERE YOU ABLE TO RETRIEVE VIDEO SURVEILLANCE FOOTAGE RELATED TO THIS CASE? HOW?
  • A: YES. I DOWNLOADED THE VIDEO CLIP FROM THE CLOUD.
  • Q: DID YOU PROVIDE THAT VIDEO FOOTAGE TO LAW ENFORCEMENT?
  • A: YES.
  • Q: HAD THE VIDEO FOOTAGE YOU PROVIDED TO LAW ENFORCEMENT BEEN ALTERED IN ANY WAY?
  • A: NO.
  • Q: IS THE VIDEO FOOTAGE YOU PROVIDED RELIABLE? HOW DO YOU KNOW? In other words, have you ever reviewed video footage after an incident where you were physically present, and found it to be accurate
  • A: I’VE SEEN MYSELF ON THE VIDEO BEFORE, AND THE VIDEO WAS ACCURATE.
  • Q: I’M SHOWING YOU WHAT’S BEEN MARKED AS PEOPLE’S EXHIBIT 1 FOR IDENTIFICATION PURPOSES. DO YOU RECOGNIZE WHAT IS DEPICTED IN PEOPLE’S EXHIBIT 1.
  • A: YES.
  • Q: WHAT DO YOU RECOGNIZE THAT TO BE?
  • A: THE VIDEO FOOTAGE FROM MY RING CAMERA I GAVE TO THE POLICE.
  • Q: IS THE VIDEO FOOTAGE CONTAINED ON PEOPLE’S EXHIBIT ONE A FAIR AND ACCURATE DEPICTION OF THE VIDEO FOOTAGE YOU PROVIDED TO LAW ENFORCEMENT CAPTURING THE EVENTS OUTSIDE YOUR HOME ON OCTOBER 11, 2024?
  • A: YES.
  • Q: MOVE FOR THE ADMISSION OF PEOPLE’S EXHIBIT ONE INTO EVIDENCE. PERMISSION TO PUBLISH?