TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1108. Electronic, Recorded, and In-Game Evidence
Scope. This rule governs the offer and admission of electronic, recorded, and in-game evidence in every proceeding in the courts of this State. It supplies the foundation required by Rule 901 for such evidence, the manner in which such evidence is produced to the court and to the parties, and the duties of a party offering it. This rule does not enlarge or diminish Rule 401, Rule 403, Rule 802, or Title Five.
What May Be Offered. Subject to this rule, the following may be offered in evidence:
a screenshot or still capture of a screen;
a screen recording, video capture, or GIF;
an export or log of messages posted in a Discord server channel or thread, including the proceeding communications of another case;
an export or log of direct messages or group direct messages;
a log or capture of in-game chat or of an in-game system message;
an in-game record as defined by Rule 1001(5), including an arrest record, a warrant entry, a citation, a licence, an employment record, a transaction record, and an inventory record;
a recording or log of a law-enforcement dispatch or radio transmission;
an audio recording, including a recording of a deposition taken under Rid. R. Civ. P. 23(3)(a);
a document produced by the court’s electronic filing system, and the docket of a case; and
a file stored upon a trusted file hosting service and produced under Rid. R. Civ. P. 32(6)(a)(i).
Foundation. The proponent of an item within Rule 1108(2) shall establish the foundation stated in this subdivision. The foundation may be established by testimony, by stipulation under Rule 901(6), by a certification which Rule 902 makes sufficient, or by the appearance of the item itself where Rule 902 so provides.
Common Requirements. For every item the proponent shall establish:
what the item is claimed to be, as Rule 901(1) requires;
the source from which it was obtained — the server and channel or thread, the conversation, the account, the in-game system, the dispatch channel, or the electronic filing system;
when it was made or obtained, expressed in Coordinated Universal Time;
by whom it was made or obtained; and
that it fairly and accurately represents what it purports to represent, and that it has not been altered except as Rule 1108(6) permits and discloses.
Screenshots and Still Captures. A screenshot or still capture is authenticated by the testimony of a person who observed the matter displayed that it fairly and accurately displays it, or by the testimony of the person who made the capture as to how and when it was made, together with the display within the capture of the identifying data described in Rule 901(2)(i)(iii). Where the capture displays Discord and the communications displayed are offered for the truth of what they say, Rule 1108(4) applies.
Screen Recordings, Video Captures, and GIFs. A screen recording, video capture, or GIF is authenticated as Rule 902(4) provides, or by the testimony of the person who made it, or by the testimony of a person who observed the matter recorded that the recording fairly and accurately depicts it. The reaffirmation of a law enforcement officer is not required.
Chat and Direct-Message Logs. An export or log of messages is authenticated by the testimony of a participant in the exchange, of a person who observed it, or of the person who made the export, identifying the server and channel or the conversation, the usernames of the participants, and the interval of time covered. Rule 901(2)(i)(v) permits authentication by the distinctive contents of the exchange alone.
In-Game Records. An in-game record is authenticated as Rule 901(2)(k) provides, by evidence describing the system and showing that it produces an accurate result, together with testimony of a person familiar with the system that the item is a record of that system. Where the record is an official record, Rule 1005(6) and Rule 902 also apply.
Dispatch and Radio Transmissions. A dispatch or radio transmission, or a recording or log of one, is authenticated as Rule 901(2)(l) provides. A transmission clearing a search warrant by the command prescribed in Rid. R. Crim. P. 44(11) is authenticated by evidence that it appeared in the dispatch channel, and the officer who transmitted it need not testify.
Audio Recordings. An audio recording is authenticated by the testimony of a participant in or a person who heard the matter recorded that the recording fairly and accurately reproduces it, by the testimony of the person who made the recording, or by an opinion identifying a voice under Rule 901(2)(e). Inaudible portions do not require exclusion where the audible portions are sufficiently intelligible to be probative; the court may exclude a recording so unintelligible as to invite speculation.
Documents from the Electronic Filing System. A document produced by the electronic filing system and the docket of a case are self-authenticating under Rule 902(8). The proponent need show no more than that the item was produced by that system, which its case number, Bates number, and record of the transmitting account establish. Where a record of that system is not public — including a tendered filing not yet filed, a rejected filing, the reason recorded for a rejection, and a filing in a sealed matter — Rule 1005(5)(a) governs the manner of proving it.
Verification of Identity.
When Required. Where an item displays or reports a communication and the identity of the account which made the communication is material, the proponent shall establish that identity.
Discord. Identity upon Discord is sufficiently established by a reload of the client performed within the same continuous recording or capture, together with a display of the Discord identifier of the account, as Rule 902(4)(b) provides. That method is sufficient but is not exclusive.
Roblox. Identity upon Roblox is sufficiently established by a display of the username or account identifier together with evidence connecting the account with the person to whom it is attributed, as Rule 901(2)(j) provides.
Other Methods. Identity may be established by the testimony of a person acquainted with the account; by the account’s appearance of record in the case; by an in-game record associating the account with the conduct; by the distinctive contents of the communication; by a reply which responds to a communication known to have been sent; or by any other method sufficient under Rule 901.
Access by Others. Evidence that another person had access to the account goes to weight. Neither expert testimony nor proof of exclusive access is required, as Rule 901(2)(h) and Rule 901(5) provide.
Change of Username. Evidence that the account changed its username or display name does not defeat identification where the account identifier or other evidence connects the account across the change. Rule 1105(4) governs the use of such a change as evidence of consciousness of guilt or liability.
Completeness.
Requirement. A log, export, capture, or excerpt of a conversation or of a channel shall be offered together with so much of the surrounding exchange as is necessary to an understanding of the part offered.
What Shall Be Stated. The proponent shall state the interval of time covered by the item, expressed in Coordinated Universal Time, and shall state expressly whether any message within that interval has been omitted and upon what ground.
Adverse Party’s Right. An adverse party may, under Rule 106(1), introduce any other part of the exchange which is on the same subject, is part of the same conversation or channel, and is necessary to an understanding of the part admitted. The adverse party may make the request when the item is offered or at any later time before the close of the evidence.
Remedy. Where a proponent offers an excerpt which omits material context, the court may require the proponent to supply the omitted portion; may admit the omitted portion upon the adverse party’s request; may exclude the excerpt; and, where the omission was made to mislead, may proceed under Rule 1101 or Rule 1107(4).
Not a Requirement of the Whole. This subdivision does not require a party to offer an entire channel, conversation, or log where a portion is complete in itself and its meaning is not altered by what surrounds it.
Alteration, Editing, and Compositing.
Duty to Disclose. A party offering a recording, capture, log, or export which has been trimmed, cropped, cut, spliced, composited, enhanced, annotated, redacted, translated, reordered, or otherwise altered shall disclose the alteration when the item is offered, shall state what was done, by whom, and when, and shall state what the item would have shown but for the alteration.
Preservation of the Original. A party who alters an item shall preserve the unaltered original and shall produce it upon request of any party or upon order of the court. A failure to preserve the original is governed by Rule 1101.
Permissible Alteration. Trimming a recording to the relevant portion, enhancing audio or image quality without changing content, adding a caption identifying the item, and translating text are permissible where disclosed. The court may admit an altered item where the alteration does not impair its accuracy and the alteration has been disclosed.
Impermissible Alteration. An item shall be excluded where the alteration adds, removes, reorders, or changes content so as to convey a meaning the original did not convey; where an annotation asserts a fact not in evidence; where the alteration cannot be described; or where the proponent has failed to disclose it and the failure is not shown to be inadvertent and harmless.
Undisclosed Alteration. Where an alteration is discovered after the item is admitted, the court may strike the item, may permit evidence and cross-examination upon the alteration, may give a curative instruction or make a corresponding statement in a bench trial, and may proceed under Rule 1101, Rule 1107(4)(b), Rid. R. Civ. P. 11, or Rid. R. Crim. P. 48.
Fabrication. An item shown to have been fabricated shall be excluded, and the court may refer the matter to the appropriate prosecuting authority under R.C.C. § 2.11 and, where the item was offered under oath or under an electronic signature, under R.C.C. § 2.10.
Metadata, Timestamps, and Identifying Data.
Preservation of Identifying Data. An item shall be offered bearing the usernames, display names, timestamps, message identifiers, account identifiers, case numbers, Bates numbers, and other identifying data it ordinarily bears. No party shall strip, alter, or obscure such data.
Time. Every time stated in connection with an item shall be expressed in Coordinated Universal Time. Where the item displays a time in another zone or in a relative form, the proponent shall state the conversion and the basis for it.
Effect of Missing Data. The absence of identifying data does not require exclusion where the item is otherwise authenticated, but is a matter for cross-examination and for the weight the fact finder gives the item.
Form of Production and Offer.
Manner. An item within Rule 1108(2) is offered by transmitting it in the proceeding communications, or by filing it through the electronic filing system under a filing code for an exhibit or item of evidence, or in such other manner as the court directs. Where the item is transmitted in the proceeding communications, that transmission is the offer and the record of it.
Copies to the Parties. The proponent shall make the item available to every other party at the time it is offered, and shall afford a fair opportunity to examine it before the court rules upon its admission.
Trusted File Host. Where the volume, size, or format of an item makes transmission or filing impracticable, the item may be uploaded, dependent upon the rules implemented by the presiding judge, to a trusted file hosting website, as Rid. R. Civ. P. 32(6)(a)(i) permits. A party proceeding under this paragraph shall post in the proceeding communications the address at which the item may be obtained, together with a description identifying the item and stating the matters required by Rule 1108(3)(a); shall maintain the item at that address, unaltered, until the proceeding is concluded and any appeal is determined; and shall produce the item to the court or to any party in another form upon order of the court.
Objection to the Host. A party may object that a file hosting service is not trusted, that access to the item is restricted, that the item at the address has changed, or that the address has ceased to resolve. The court shall determine the objection under Rule 104(1) and may require production by another means, may condition admission upon such production, or may exclude the item.
The Record of the Offer. The record of an item offered under this rule consists of the transmission in the proceeding communications, the filing through the electronic filing system, or the posting under Rule 1108(8)(c) together with the description it requires. The court may direct that a party lodge a further description of an item so that the record identifies it after the address at which it was hosted has ceased to resolve.
Size of Documents; Large Recordings.
The Limit. The electronic filing system enforces a limit of fifty (50) megabytes for each document. A document exceeding that limit cannot be received by that system, and no order of the court can cause it to be received.
Consequence. A recording, capture, or other item which exceeds that limit shall not be offered by upload to the electronic filing system. It shall be offered by transmission in the proceeding communications where the medium permits, or by a link to a trusted file hosting website which the court permits under Rule 1108(8)(c).
Division Not Required. A party is not required to divide an item into portions of less than fifty megabytes in order to file it, and shall not divide an item in a manner which impairs its integrity or its completeness under Rule 1108(5).
Number of Documents. There is no limit upon the number of documents comprising a single filing. A party may file each item as a separate document within one filing.
Timeliness. A filing is filed when the electronic filing system has received every document comprising it. A filing which remains tendered because a document has not been received is not filed, and an item which the system has not received is not before the court.
Marking; Description. Every item offered under this rule shall be given an exhibit designation by the court or by the party offering it, and shall be described upon the record by what it is claimed to be, its source, the interval of time it covers, and the usernames appearing in it. The court shall maintain a list of the items offered and of its rulings upon them.
Sensitive Material. The electronic filing system provides no capacity to seal or to redact a document, and confidentiality attaches by case type only. A party offering an item under this rule shall not include within it material which the party has a duty not to file, and shall offer a version from which such material has been excluded, disclosing the exclusion under Rule 1108(6)(a). Where material has already been transmitted or filed, the remedies available are an order binding the persons who possess it, enforceable by contempt, and a corrected refiling bearing its own filing date. The court shall not order the Clerk or the system to seal, redact, remove, or amend a document upon the docket.
Hearsay and Other Rules Not Dispensed With. Authentication of an item under this rule establishes only that the item is what its proponent claims. A statement contained in or reported by an item remains subject to Rule 802, and is admissible only where Rule 801(4), Rule 803, Rule 804, or another rule, statute, or decision so provides. An item remains subject to Rule 401, Rule 403, Rule 404, and Title Five.
Best Evidence. Where an item is offered to prove the content of a writing or record which it displays, Title Ten applies. A capture of a screen displaying a writing or record is a duplicate under Rule 1001(3)(a) and is admissible under Rule 1003(2). Where the underlying log, record, or file is within the proponent’s control, the court may require its production under Rule 1003(6).
Objections. An objection to an item offered under this rule shall be made when it is offered and shall state the ground with specificity, identifying the requirement of Rule 1108(3) claimed not to be satisfied, the omission claimed under Rule 1108(5), the alteration claimed under Rule 1108(6), or the other rule relied upon. The court shall rule upon the record.
Preservation by the Parties. A party who obtains an item within Rule 1108(2), or who becomes aware that such an item exists and is within its control, is subject to the duty to preserve stated in Rule 1101(3). A party shall preserve the item in the form in which it was obtained, together with the unaltered original of any capture or recording it offers.