At virtually every trial, in addition to calling witnesses to testify, you’ll need to offer physical evidence—emails, letters, text messages, screen shots, guns, drugs, etc. To get that evidence past the gatekeeper—the trial judge—you generally need to clear three basic hurdles: the relevancy hurdle, the hearsay hurdle (if dealing with an out-of-court statement), and the authenticity hurdle. This last hurdle is the subject of this article.
You’ve almost certainly heard the general authenticity standard articulated before. It sounds vaguely Confucius-like. Specifically, Rule 901 says that a lawyer proves an item is authentic by producing “evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. 901(a). In other words, the lawyer must offer evidence sufficient to support a finding that, for example, this was the gun shot by the bad guy, this was the letter sent by the defendant to the plaintiff, that this was the email that his or her client received.
But how much evidence does one need to prove that—to use a popular phrase—“it is what it is”? What is the quantum of proof?
Just recently, in PDVSA US Litig. Tr. v. Lukoil Pan Americas, LLC, No. 19-10950, 2021 WL 1031834, at *1 (11th Cir. Mar. 18, 2021), the Eleventh Circuit addressed this subject again. The Court once again made clear that the bar for authenticating evidence is quite low. Specifically, a person only needs to satisfy a “prima facie” burden, which, critically, is less than a preponderance of the evidence (i.e., more likely than not) standard. In other words, though it may sound strange, to authenticate a piece of evidence, the lawyer does not need to prove to the trial judge that it is “more likely than not” that the evidence is what the lawyer claims it to be. Something less will suffice.
A. A Two-Step Process
In the case, the Eleventh Circuit again described a two-step process for authenticating evidence: the judge step and the factfinder step.
At the judge step, the proponent of the evidence must prove to the judge that the proffered evidence is what it purports to be. The standard of proof here is a “prima facie” standard. PDVSA US Litig. Tr., 2021 WL 1031834, at *1 (noting that a “district court must first make a preliminary assessment of authenticity . . . , which requires a proponent to make out a prima facie case that the proffered evidence is what it purports to be.”).
If the proponent gets past the judge step, we move to the “factfinder step.” The evidence technically comes “in” and now the proponent must prove to the factfinder (i.e., the judge in a bench trial or the jury in a jury trial) that the proffered evidence is what the proponent claims it to be. Id. (“If the proponent satisfies this prima facie burden, the inquiry proceeds to a second step, in which the evidence may be admitted, and the ultimate question of authenticity is then decided by the [factfinder].”). The standard of proof here is a “preponderance standard.” United States v. Mar. Life Caribbean Ltd., 913 F.3d 1027, 1033 (11th Cir. 2019).
B. Difference in Standards
The Eleventh Circuit made clear that the standards of proof applied at each step (a prima facie standard at step one and a preponderance standard at step two) are not the same. The prima facie standard of proof is lower than the preponderance standard. Black’s Law Dictionary describes “prima facie evidence” as “evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.” Black’s Law Dictionary (11th Ed. 2019) p. 1441. In another context, the Eleventh Circuit has described the prima facie burden as “light,” a “low bar to hurdle,” and requiring only a “small showing” that can be “easily made.” Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1235 (11th Cir. 2019).
By contrast, to satisfy a preponderance standard, the proponent must do more than establish that, if credited, the evidence would be sufficient to prove that the item is what it purports to be. Instead, the proponent must prove that, in fact, it is more likely than not that the evidence is what the proponent claims it to be. One way of thinking about these standards is the difference between “could” and “should.” To satisfy the prima facie standard, a proponent must prove to the judge that the factfinder could find the evidence authentic. But, to satisfy the preponderance standard, the proponent must prove to the factfinder that it should find that the evidence is what the proponent claims it to be.
C. Takeaways
When offering evidence at a jury trial or bench trial, keep in mind what you need to show to get your evidence “in.” Ultimately, as the Eleventh Circuit reminds us, you only need to satisfy a low, “prima facie” standard.
