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Affidavit of Evidence vs. Affidavit of Authentication

The Federal Rules of Evidence speak about business records in two different rules: hearsay exception and self-authentication. The rules allow for business records to come into evidence if they comply with 803(6) (i.e., regularly conducted business activity); and rule 902(11) allows for a sworn affidavit from the custodian claiming that the records were properly stored and collected.

Anytime hearsay or outside testimony arises, then Crawford v. Washington will rise as well. In a recent Fourth Circuit case, U.S. v. Denton, the court examined the issue about whether or not a social media record entered into evidence complied with Crawford. There were two records in evidence: 1.) the actual social media records connecting the defendant to the activity; and 2.) the affidavits sworn by the social media companies from the custodian that the records were properly kept. The defense objected on appeal to the introduction of the affidavits (and thus the underlying records) because the defendant was not able to cross examine the custodian, thus violating Crawford.

What is the Crawford standard? A defendant has the right to confront " all testimonial out-of-court statements unless the witness is unavailable and the defendant was afforded a prior opportunity for cross-examination." A Crawford issue usually hinges on whether or not the statement was testimonial...and the Supreme Court has provided some guidance, but not a whole lot. From Denton:

The court makes clear, and the defense does not dispute, that business records in this case under Rule 803 are not testimonial. But the defense argues that the affidavit is testimonial.

However, the court holds that while affidavits are usually testimonial, there is a clear distinction between affidavits used to provide evidence against a defendant and evidence used to authenticate a piece of evidence. This case falls under the latter:


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