On August 20, 2022, a viral TikTok post made the unverified claim that Disney World would be lowering its drinking age to eighteen. The video was based on a blog post that claimed Disney was fighting in state court for a “resort exemption” that would permit anyone eighteen or older to consume alcohol on the property. The video accumulated millions of TikTok views within days, ultimately spreading to Facebook, Instagram, and Twitter, and attracting coverage from ABC 10 News. What is the problem? The story was completely fake. Anyone who read the original story in detail would have recognized that it was fake, as the text itself admitted it was “totally made up.” But those sharing the video did not verify it, and false information was spread from platform to platform under the guise of real news.
Imagine a world where you can no longer trust your own eyes or ears. A news report shows a world leader declaring war, but it turns out to be a shockingly realistic fake. Or equally as concerning, a world leader whose country is involved in a war, telling his armed forces to lay down their weapons and surrender. Forged documents are presented as evidence in court, impossible to distinguish from the real thing. As rapidly advancing technology makes the creation of fakes easier than ever, we are entering an alarming new era in which the specter of fraud looms large. As people increasingly obtain their news online, the opportunity for deception grows.
In the realm of evidence law, the rules governing authentication serve as a gatekeeper for the admissibility of documentary and similar proof presented in court. Federal Rule of Evidence (FRE) 901 requires the proponent of an item of evidence to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” In contrast, Rule 902 enumerates certain categories of evidence that are deemed “self-authenticating” and “require no extrinsic evidence of authenticity in order to be admitted.” While most of Rule 902’s provisions mandate some form of authoritative certification, seal, signature, or process to mark the covered items with the indicia of authenticity, three exceptions stand out: (1) Rule 902(5) covering “[o]fficial [p]ublications,” (2) Rule 902(6) pertaining to “[n]ewspapers and [p]eriodicals,” and (3) Rule 902(7) relating to “[t]rade [i]nscriptions and the [l]ike.” This Article argues that these exceptions, which permit admission without human confirmation, have no place in the modern evidentiary framework. In an age of increasingly sophisticated forgeries and “deepfakes,” the potential for abuse far outweighs any efficiency gained from excusing authentication for these categories of evidence—and the exemptions should be abolished.
Part I of this Article provides background on the evidentiary framework governing authentication of evidence, contrasting the default rule requiring extrinsic evidence of authenticity with the exceptions for self-authenticating evidence. It then introduces the specific self-authentication provisions at issue, Rules 902(5), 902(6), and 902(7). Part II presents the argument for abolishing these problematic provisions by first demonstrating how they are outliers in not requiring human confirmation, contending that they are outdated in an age of sophisticated forgeries, and concluding that the minimal burden of authenticating such evidence under Rule 901 is justified. Part III anticipates and responds to potential counterarguments that could be raised in defense of these provisions. Finally, the Article concludes by recommending an amendment to Rule 902 to eliminate these exceptions and ensure a more consistent and reliable approach to authentication of evidence.