How to Authenticate Evidence in California

The authentication of evidence is a critical, yet often overlooked, part of preparing a case for trial. In addition to being relevant, evidence must be authentic to be admissible. This article aims to shed light on the authentication process.   

Why Does Authentication Matter?

Authentication of evidence is required before it can be received into evidence. (Evid. Code § 1401.) 

What is Authentication?

Authentication is the introduction of evidence sufficient to sustain a finding that it is what the proponent claims it is. (Evid. Code § 1400.) 

Stipulation to Authenticity

The parties routinely stipulate to the authenticity of evidence where there is no good faith dispute as to the authenticity. (Evid. Code § 1400.) A stipulation is an agreement between the parties that a document or thing is authentic, which is filed with the court before trial. A stipulation may say something like: “Documents produced to a party to this action by another party or a third party in response to compulsory process (e.g., subpoena, Request for Production) shall be deemed authentic for the purposes of this lawsuit, absent good cause.”

Burden of Proof

If a party objects to the authenticity of evidence, then the burden of proof is on the proponent of the evidence to establish its authenticity by a preponderance of the evidence. (Evid. Code § 403(a); People v. Lucas (2014) 60 Cal.4th 153, 262.) 

Even if conflicting inferences can be drawn from the evidence supporting authentication, that consideration goes to the weight of the evidence and not to its admissibility. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321.)

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Means of Authentication

The California Evidence Code sets forth common means of authentication in sections 1410-1421, including:

Testimony of a Witness with Knowledge 

A writing may be authenticated by anyone who saw the writing made or executed. (Evid. Code § 1413.) More broadly, a writing may also be authenticated by anyone with knowledge to lay a basic foundation for the evidence. For example, a witness can be asked the following questions to authenticate evidence:

1. Do you recognize what has been marked for identification as Exhibit 1?
2. What is it?
3. How do you recognize it?
4. Is it true and accurate?

The witness does not have to have created or observed the creation of the evidence to authenticate it. (Evid. Code § 1411.)

Admissions of Authenticity 

A writing may be authenticated by evidence that: (a) The party against whom it is offered has at any time admitted its authenticity; or (b) The writing has been acted upon as authentic by the party against whom it is offered. (Evid. Code § 1414.)

Requests for Admission can be served to obtain a party’s admission to the authenticity of evidence. (Code Civ. Proc. § 2033.060(g).) The evidence should be attached to the Request for Admission as numbered exhibits. The requests should say something like: “Admit to the genuineness of the document attached as Exhibit 1,” and so on. 

A California Judicial Counsel form can also be used, which states: “You are requested to admit that [...] the original of each of the following documents, copies of which are attached, is genuine.” (Form DISC-020.)

Genuineness of Handwriting 

A writing may be authenticated by evidence of the genuineness of the handwriting of the maker. (Evid. Code § 1415.)

Lay Witness: A witness who is not otherwise qualified to testify as an expert may state his opinion whether a writing is in the handwriting of a supposed writer if the court finds that he has personal knowledge of the handwriting of the supposed writer. (Evid. Code § 1416.)

Trier of Fact: The genuineness of handwriting, or the lack thereof, may be proved by a comparison made by the trier of fact. (Evid. Code § 1417.) 

Expert Witness: The genuineness of writing, or the lack thereof, may be proved by a comparison made by an expert witness. (Evid. Code § 1418.)

References Known Only by the Claimed Author

A writing may be authenticated by evidence that the writing contains matters that are unlikely to be known to anyone other than the claimed author. (Evid. Code § 1421.)

Circumstantial Evidence

Evidence may also be authenticated by circumstantial evidence. The California Evidence Code does not exhaustively list all means of authentication. Rather, it specifically states: “Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.” (Evid. Code § 1410.) 

“Circumstantial evidence, content, and location are all valid means of authentication.” (People v. Gibson (2001) 90 Cal.App.4th 371, 383.) There are “innumerable ways in which a document may be authenticated by circumstantial evidence,” if the evidence is “sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (McAllister v. George (1977) 73 Cal.App.3d 258, 262-263.)

Declaration of Authenticity 

Subpoenaed records are required to be produced along with a declaration of authenticity. (Code Civ. Proc. § 2020.430.) A declaration of authenticity is an affidavit signed by the custodian of records certifying the authenticity of the business records. (Evid. Code § 1561.) Specifically, the affidavit must state the following: 

1. The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.
2. The copy is a true copy of all the records described in the subpoena, or [...] the records were delivered to the attorney, the attorney’s representative, or deposition officer for copying at the custodian’s or witness’ place of business, as the case may be.
3. The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.
4. The identity of the records.
5. A description of the mode of preparation of the records.

(Evid. Code § 1561.)

An affidavit that meets these requirements is admissible at trial to establish the authenticity of the records produced. (Evid. Code § 1562.) 

Judicial Notice

Certain types of evidence (e.g., court files and records) may be authenticated by judicial notice. (Evid. Code. § 451 and 452.)

Presumptions Affecting Authenticity 

Seals

A seal is presumed to be genuine and its use authorized if it purports to be the seal of a public entity (e.g., a state, federal or local government) in the United States or a department, agency, or public employee of such public entity. (Evid. Code § 1452.) A public seal is a stamp or impression made by a public officer to attest to the execution of an official document. (Code Civ. Proc. § 1931.)

Official Signatures

A signature is presumed to be genuine and authorized if it purports to be the signature, affixed in his official capacity, of a public employee of any public entity in the United States. (Evid. Code § 1453.)

Printed Copies

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. (Evid. Code § 1553.)

Self-Authenticating Evidence

Certain writings are presumed to be authentic (i.e., self-authenticating). (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2014) ¶ 8:360, p. 8C-34.) Examples of self-authenticating writings include: 

• Deeds, mortgages, grants of easements (Evid. Code § 1451.)
• Documents bearing the seal of a public entity (Evid. Code § 1452.)
• Documents bearing an official or corporate signature (Corps. C. § 313.)
• Regularly published newspapers (Evid. Code § 645.1.) 
• Printed representations of computer information (Evid. Code § 1552.) 

Practical Examples of Authenticating Evidence

Emails

• The sender or recipient of the email can testify that they wrote or received it. 
• When the sender or recipient is unavailable, circumstantial evidence may be used, including email addresses, names, contents, and metadata. 

Photographs and Video

• The person who took a photograph or video can testify to its authenticity. 
• A witness who has been to the location or seen the object depicted in the photograph or video can testify that the photograph or video truly and accurately represents the location or object.  
• Where no one is qualified to authenticate a photograph or video from personal observation, a photograph or video may be authenticated by the aid of expert testimony. (People v. Beckley (2010) 185 Cal.App.4th 509, 515.)

Computer Data

• A printout of computer information or a computer program is presumed to be an accurate representation of the computer information. (Evid. Code § 1552; Ampex Corp v. Cargle (2005) 128 Cal.App.4th 1569, 1573.) 
• California law distinguishes between records that a computer generates on its own and records that a person inputs into the computer. The former, such as an automated time signature, is presumed to be authentic. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1450.)

Official Records 

• Various presumptions may be used to authenticate official records with an official seal or signature. (Evid. Code § 1450-1454.) 
• Official records include government documents, or documents filed with the government (e.g., Secretary of State). 
• There is also a presumption that official signatures are genuine. (Evid. Code § 1530, 1453.)

Websites

• When a party places material (or authorizes it to be placed) in its website, it makes an admission of whatever the material says. The fact that it is on the party’s website makes it self-authenticating. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2014) ¶ 8:359.6, p. 8C-33.) 
• Websites may be authenticated by testimony from a witness about what he or she observed. What is on the website, at the time the witness views it, should be preserved in a form that can be presented in court. (In re K.B. (2015) 238 Cal.App.4th 989.) 
• It may be possible to admit archived versions of web site content, stored and available at a third party web site (e.g., Wayback Machine). It may be authenticated by a witness who previously saw or used the site. It may also be possible to obtain a declaration or witness to testify to the archive.

Social Media Posts

• The simplest way to authenticate a social media post is to get the person who posted it to admit that it is authentic. This can be established during a deposition or at trial.
• A witness who received, viewed, or downloaded the post may testify to its authenticity. 
• A forensic computer expert may search for the content themselves and describe their process in detail, including the technical details which make them believe that the post is authentic. 
• The social media posts may also be requested from a party in discovery, which should make them easier to authenticate.
• Lastly, the social media post can be subpoenaed from the social media service provider. However, social media companies are resistant to providing subpoenaed information.   

Surveillance Footage

• Surveillance footage can be authenticated by the testimony or supporting affidavits from technicians with personal knowledge of the surveillance system. The testimony should confirm that the witness was familiar with the recording system, it was functioning properly, he or she made a copy of the footage, and the subject footage is the same as the copy and was not altered in any way.  

Google Maps Images

• Google Map images can be authenticated by attaching them to a Request for Admission. 
• If the defense is not willing to stipulate to their authenticity, then the best practice (particularly for critical historical images) is to subpoena them from Google. Google will then produce them with a declaration of authenticity. 
• Alternatively, a witness may be able to authenticate the images if the witness has personal knowledge of the appearance of the location at the time the images were taken.  

Medical Records 

• Medical records are admissible as business records, provided a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception.  
• Compliance with a subpoena may dispense with the need for a witness to establish the business records exception if the records are produced by the custodian or other qualified witness, together with a declaration of authenticity. 
• Absent a declaration of authenticity, a stipulation between the parties, or an admission to authenticity, the testimony of a qualified witness may be needed to authenticate the records. 

Physical Evidence

• Physical evidence, such as an accident vehicle or component part, is authenticated by demonstrating a continuous and unbroken chain of custody from collection at the scene to presentation in court. (People v. Riser (1956) 47 Cal. 2d 566, 580.) 
• Any destructive inspection or testing of physical evidence should be videotaped to maintain chain of custody. 

Conclusion

Authentication of evidence is a meticulous process, requiring thorough preparation and attention to evidentiary requirements. By adhering to the California Evidence Code and leveraging practical methods, litigators can ensure their evidence is admissible.

At the Hulburt Law Firm, we understand the importance of meticulous trial preparation. Our experienced personal injury attorneys, Conor and Leslie Hulburt, bring a wealth of knowledge and dedication to every case. If you need assistance navigating the complexities of a trial, contact us today for a free consultation.

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