“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. [MRE 602] does not apply to a witness’s expert testimony under [MRE 703].” MRE 602.
B.Authenticating or Identifying Evidence
“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what its proponent claims it is.” MRE 901(a). “[C]hallenges to the authenticity of evidence involve two related, but distinct, questions. The first question is whether the evidence has been authenticated—whether there is sufficient reason to believe that the evidence is what its proponent claims for purposes of admission into evidence. The second question is whether the evidence is actually authentic or genuine—whether the evidence is, in fact, what its proponent claims for purposes of evidentiary weight and reliability.” Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 154 (2017).
1.Question 1: Authentication or Identification1
The first question, whether the evidence has been authenticated, “is reserved solely for the trial judge.” Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 154 (2017). The proponent of that evidence bears the burden of showing that a foundation has been established, and must provide evidence sufficient to support a finding that the matter in question is what the proponent claims it is. Id. at 155; MRE 901. The proponent is not required “to sustain this burden in any particular fashion,” and “evidence supporting authentication may be direct or circumstantial and need not be free of all doubt.” Mitchell, 321 Mich App at 155. The proponent is required “only to make a prima facie showing that a reasonable juror might conclude that the proffered evidence is what the proponent claims it to be.” Id. “Once the proponent of the evidence has made the prima facie showing, the evidence is authenticated under MRE 901(a) and may be submitted to the jury. Mitchell, 321 Mich App at 155. Authentication may be opposed “by arguing that a reasonable juror could not conclude that the proffered evidence is what the proponent claims it to be”; however, “this argument must be made on the basis of the proponent’s proffer,” and “the opponent may not present evidence in denial of the genuineness or relevance of the evidence at the authentication stage.” Id.
Committee Tip:
The best practice would be to conduct a hearing regarding the authenticity of evidence outside the presence of the jury. See MRE 103(d); People v Berkey, 437 Mich 40, 46 (1991).
The following are examples only — not a complete list — of evidence that satisfies the requirements of MRE 901(a):
•Testimony of Witness with Knowledge;
•Nonexpert Opinion2 About Handwriting;
•Comparison by an Expert Witness or the Trier of Fact;3
•Distinctive Characteristics and the Like;
•Opinion About a Voice;
•Evidence About a Telephone Conversation;
•Evidence About Public Records;
•Evidence About Ancient Documents or Data Compilation;
•Evidence About a Process or System; and
•Methods Provided by a Statute or Rule. MRE 901(b)(1)-(10).
In People v Jambor (Jambor I), 271 Mich App 1, 3-5 (2006), the prosecution sought to introduce into evidence four white fingerprint cards, one of which contained the defendant’s latent fingerprint, allegedly removed from the scene of a break-in. The evidence technician who collected the latent print died before trial, and the prosecution attempted to authenticate the evidence by testimony from a police officer who observed the evidence technician collecting the prints at the crime scene. Id. However, the witness testified that he only observed the technician working with black cards, not white ones, and the prosecution could offer no explanation for the inconsistency in the colors of the cards the witness observed and the cards the prosecution sought to admit at trial. Id. at 5-6. The Jambor I Court concluded that the prosecution had failed under MRE 901 to lay a proper foundation for admitting the evidence and affirmed the trial court’s order excluding it. Jambor I, 271 Mich App at 7. However, the Michigan Supreme Court reversed the Court of Appeals ruling:
“The exhibits were sufficiently authenticated as fingerprint cards relating to the offense, containing complaint number, address, signature of the preparing officer, and were referenced and described in a report prepared by the officer as confirmed by a witness whose credibility was not questioned, thereby satisfying MRE 901.” People v Jambor (Jambor II), 477 Mich 853 (2006).
When deciding whether a social-medial account is authentic, courts should be mindful of concerns such as “fake social-media accounts, hacked accounts, and so-called deep fakes[.]” People v Smith, 336 Mich App 79, 107 (2021). In Smith, the prosecutor relied on four Facebook posts made by non-testifying third parties to “tease[] from the exhibits . . . that defendant (pictured) was known by the nickname Brick Head (written by someone next to the picture).” Id. at 108 (“the prosecutor did not use the posts solely as photographic evidence to identify defendant”). “Although a close call, . . . the trial court did not abuse it discretion by authenticating the four Facebook posts” where an MDOC parole officer “established that the exhibits were accurate depictions of what he claimed they were–four Facebook posts that [the officer] viewed when investigating defendant’s possible connection with the [crime]”; the officer “had personal knowledge of defendant and defendant’s affiliates, including those who were pictured in the posts”; the officer “had known defendant as Brick Head for ‘quite some time,’ which reinforced the authenticity of the posts that likewise connected defendant with that nickname”; and there was “nothing on the face of the posts that would suggest that they were faked or hacked so as to undermine the prima facie case for admission.” Id. at 109. “It was not an abuse of discretion, therefore, for the trial court to conclude that a reasonable juror might conclude that the four exhibits were what the prosecutor and [officer] claimed they were–the Facebook pages that the [officer] viewed, printed, and believed were associated with defendant’s affiliates.” Id. at 109-110 (concluding, however, that three of the four exhibits were improperly admitted because they consisted of hearsay for which there was no exception, though the erroneous admission was harmless given the cumulative nature of the hearsay evidence). “As technology advances, trial courts and lawyers will need to be vigilant when considering questions of authenticity, at both the first and second stages.” Id. at 110.
The trial court did not abuse its discretion in admitting a shoe and an insole containing the defendant’s DNA after concluding that it was properly authenticated under MRE 901. See People v Muhammad, 326 Mich App 40, 59 (2018). In Muhammad, the defendant asserted that a shoe insole from which DNA evidence was obtained had been contaminated when it was photographed. Id. at 58. The shoe and insole were properly authenticated under MRE 901 and there was no evidence showing that the insole was contaminated or tampered with where “[t]he record showed that police stowed the shoe and the insole in a sealed paper bag before sending the shoe to a . . . [l]aboratory, and that after testing, the shoe and insole were returned to the police department.” Muhammad, 326 Mich App at 59. Thereafter, the detective “removed the insole from the shoe, wrapped the shoe insole in plastic, and returned the insole to the paper bag in plastic after taking photographs” and “testified that defendant’s DNA samples were contained in separate plastic tubes.” Id.
The trial court did not abuse its discretion by admitting an ultrasound image after concluding that it was properly authenticated under MRE 901(a). Mitchell, 321 Mich App at 156. A reasonable jury could conclude that the ultrasound image was an actual depiction of the plaintiff’s procedure where “[t]he image showed a sticker that attached the ultrasound to the underlying progress note, and the sticker included plaintiff’s identifying information, the date of the procedure at issue, and the name of the doctor who performed the surgery.” Id. Accordingly, “the digital image had distinctive characteristics that tended to permit an inference that it depicted the ultrasound generated on the date at issue.” Id. at 156-157, citing MRE 901(b)(4). Additionally, the imaging supervisor testified that the ultrasound image, which was a digital scan, “was made from the original record and was part of plaintiff’s medical record.” Mitchell, 321 Mich App at 157. While the plaintiff “raised several sound arguments against the image’s authenticity, the evidence need not be free from all doubt to be authenticated for purposes of admission[.]” Id.
Committee Tips:
• Care should be taken not to demand too much when it comes to authentication. Authentication is a low, not high, burden to carry.
•The method of authentication under MRE 901(b)(4), distinctive characteristics and the like may seem counterintuitive. For example, the contents of a letter may be used to establish the author of a letter. This is a common form of authentication of a letter, whether in hard copy, text, email, or otherwise.
2.Question 2: Weight or Reliability Given to the Evidence (Determination of Genuineness)
“[T]he second question—the weight or reliability (if any) given to the evidence—is reserved solely to the fact-finder[.]” Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich App 144, 156 (2017). “When a bona fide dispute regarding the genuineness of evidence is presented, that issue is for the jury, not the trial court. Accordingly, the parties may submit evidence and argument, pro and con, to the jury regarding whether the authenticated evidence is, in fact, genuine and reliable.” Id. (internal citation omitted)
“Once a proper foundation has been established, any deficiencies in the chain of custody go to the weight afforded to the evidence, rather than its admissibility.” People v White, 208 Mich App 126, 133 (1994) (holding that “a perfect chain of custody is not required”; “evidence may be admitted where the absence of mistaken exchange, contamination, or tampering has been established to a reasonable degree of probability or certainty”).
Where the trial court properly admitted an ultrasound image under MRE 901(a), it “erred by precluding plaintiff from arguing to the jury that the purported image was not, in fact, an accurate digital scan of the original, i.e., that the image was not genuine or reliable and therefore had little-to-no probative value.” Mitchell, 321 Mich App at 157. The Court explained:
“The trial judge’s role in examining the genuineness and reliability of the image concluded when he held that the image was admissible. Where a bona fide dispute is presented on the genuineness and reliability of evidence, the jury, as finder of fact, is entitled to hear otherwise admissible evidence regarding that dispute. Furthermore, any potential confusion to the jury related to the chain-of-custody involving a non-defendant could have been cured with an appropriate instruction by the trial judge. By foreclosing plaintiff from presenting any evidence disputing whether the image actually depicted plaintiff’s procedure, the trial judge in effect determined that the image was indeed genuine and reliable, even though such questions of evidentiary weight are reserved for the jury.” Mitchell, 321 Mich App at 157.
While evidentiary errors are not generally grounds for reversal, the Court held that “substantial justice require[d]” it to reverse and vacate the judgment because the evidentiary error “involved a (arguably the) crucial piece of evidence.” Mitchell, 321 Mich App at 158.
Committee Tip:
A determination of genuineness and the weight and credibility to give evidence remains with the fact-finder irrespective of whether the evidence falls under MRE 901(b) or MRE 902 (self-authenticating evidence).
C.Self-Authenticating Evidence
The following items of evidence, found in MRE 902(1)-(11), are self-authenticating and require no extrinsic evidence of authenticity in order to be admitted:
•Domestic Public Document That is Sealed and Signed;
•Domestic Public Document That is Not Sealed but is Signed and Certified;
•Foreign Public Document;
•Certified Copy of Public Record;
•Official Publication;
•Newspapers and Periodicals;
•Trade Inscription and the Like;
•Acknowledged Document;
•Commercial Paper and Related Documents;
•Presumptions Under Law; and
•Certified Domestic or Foreign Record of a Regularly Conducted Activity.
Committee Tip:
Compare the illustrative language of MRE 901(b) discussed in Section 1.3(B)(1) with the list in MRE 902 discussed in this Section. The former is a list of possibilities; the latter is a finite list.