Whether the government's burden of establishing authentication and chain of custody for digital recordings is sufficient to protect a criminal defendant's due-process-rights,

QUESTION PRESENTED FOR REVIEW When the government is the proponent of evidence at a criminal trial, it bears the burden of establishing both authentication and chain of custody. Authentication requires that the government show that the evidence is what the government claims it is. Chain of custody requires that the government show that it is improbable that the original item has been contaminated or altered. When the proffered evidence is a recording that a law enforcement officer has made of a conversation with a defendant, the showing of both authentication and chain of custody can be established by the testimony of the law enforcement officer who was a participant in the conversation. When the proffered evidence is, instead, a recording of an intercepted phone call using a third party’s software and hardware for the interception, recording, storage, and retrieval of the recording, a more elaborate showing of authentication and chain of custody is required. The Tenth Circuit, in affirming Mr. Pebley’s conviction, cited and agreed with a 1999 decision in which the Tenth Circuit said it had adopted a flexible approach when determining whether the proponent of telephone recording evidence has laid sufficient foundation. The Tenth Circuit also said that it only required a “level of minimal familiarity” for a witness to be able to testify to the identification of a voice. Question presented: whether in the United States in the 21st century, where digital techniques such as CGI (computer generated images), photoshop, green screens, and “deepfakes” make it almost impossible to tell an authentic image or voice recording from one that has been created or altered, a “flexible” and “minimal” approach to authenticity and chain-of-custody issues for digital recordings is sufficient to protect the due process rights of a criminal defendant. i