IN RE: ORDER APPROVING THE AMENDMENT OF PENNSYLVANIA RULE OF EVIDENCE 902
NOW, this 4th day of November, 2019, upon
the recommendation of the Committee on Rules of Evidence; the
proposal having been published for public comment at 49 Pa.B.
165 (January 12, 2019):
Ordered pursuant to Article V, Section 10 of the Constitution
of Pennsylvania that Pennsylvania Rule of Evidence 902 is
amended in the attached form.
Order shall be processed in accordance with Pa.R.J.A. No.
103(b), and shall be effective January 2, 2020.
COURT OF PENNSYLVANIA COMMITTEE ON RULES OF EVIDENCE
of Pa.R.E. 902
November 4, 2019, upon recommendation of the Committee on
Rules of Evidence, the Court ordered the amendment of
Pennsylvania Rules of Evidence to renumber current paragraph
(13) to paragraph (15) and to add new paragraphs (13) and
(14) concerning the self-authentication of certified records
generated by an electronic process or system and certified
data copied from an electronic device, storage medium, or
Federal Advisory Committee on Evidence considered the expense
and inconvenience of producing a witness to authenticate an
item of electronic evidence given that the adversary often
either stipulates authenticity before the witness is called
or fails to challenge the authentication testimony once it is
presented. As business records are able to be
self-authenticated by certification, see F.R.E. 902(11) &
(12), the Advisory Committee proposed rule amendments in 2015
that provided for a similar procedure when the parties can
determine in advance of trial that a challenge to
authenticity will be made to electronic evidence, and can
then plan accordingly.
approved by the Rules Committee of the Judicial Conference,
F.R.E. 902(13) & (14) were adopted, effective December 1,
2017. Specifically, F.R.E. 902(13) states:
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).
establish authenticity under this rule, the proponent must
present a certification containing information that would be
sufficient to establish authenticity if that information was
provided by a witness at trial. If the certification provides
information that would be insufficient to authenticate the
record when the certifying person testified, then
authenticity is not established under the rule. The rule
specifically allows the authenticity foundation that
satisfies F.R.E. 901(b)(9) to be established by a
certification rather than the testimony of a live witness.
F.R.E. 902(14) states:
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).
rule sets forth a procedure by which parties can authenticate
data copied from an electronic device, storage medium, or an
electronic file, other than through the testimony of a
foundation witness. A proponent establishing authenticity
under this rule must present a certification containing
information that would be sufficient to establish
authenticity if that information was provided by a witness at
trial. If the certification provides information that would
be insufficient to authenticate the record when the
certifying person testified, then authenticity is not
established under the rule.
fuller discussion, together with examples, of the federal
rule amendments can be found at: Hon. Paul W. Grimm et.
al., Authenticating Digital Evidence, 69 Baylor
L. Rev. 1 (2017).
Committee on Rules of Evidence believed that rules similar to
the amended federal rules would be consistent with purpose of
the Pennsylvania Rules of Evidence "to administer every
proceeding fairly, eliminate unjustifiable expense and delay,
and promote the development of evidence law, to the end of
ascertaining the truth and securing a just
determination." Pa.R.E. 102. At the risk of
oversimplification, the federal rules do not alter the
requirement of authentication; they merely permit an
out-of-court certification to replace in-court testimony.
reliance on electronic processes and systems increases, so
does a sense of familiarity and trustworthiness that records
generated by same are done so without the potential bias or
error inherent as when records are generated by human
involvement. An accurate record generated by computation
requires only an understanding of the computation process or
system to be authenticated. Pa.R.E. 902(13) permits this task
to be accomplished by certification rather than live
testimony, which would eliminate unnecessary expense and
a comparison of a unique identifier produced by an algorithm
(i.e., hashtag) in the source data with the copied
data can be used to authenticate the copied data as being
identical to the source data. Pa.R.E. 902(14) allows the
authentication to be accomplished by certification and
without the need for extrinsic evidence.
stated, the use of certifications in lieu of testimony is not
a foreign concept in Pennsylvania. See, e.g.,
Pa.R.Crim.P. 574 (permitting the admission of forensic lab
reports by certification in lieu expert testimony). More
specifically, the use of certifications in lieu of
authentication testimony has long been acceptable by the
Rules of Evidence and statute. See Pa.R.E. 902(4),
(11), & (12); 42 Pa.C.S. § 6106 (self-authentication
of documents filed in public offices).
language of new paragraphs (13) and (14) does not vary from
federal counterparts. Portions of the federal rule commentary
were considered beneficial in understanding the operation and
application of the rules. Therefore, much, but not all, of
the federal commentary appears in the revised Comment to Rule
902. To maintain parallel numbering with the F.R.E. 902,
current paragraph (13) of Pa.R.E. 902 was renumbered to (15).
amendment becomes effective January 2, 2020. The rule text
being amended reflects the amendments of paragraphs (4), (6),
and (12) of Pa.R.E. 902, effective January 1, 2020.
IX. AUTHENTICATION AND IDENTIFICATION
902. Evidence That Is ...