Montana’s 2026 Evidence Modernization Proposal: Deepfake Authentication Gatekeeping and a Forfeiture-by-Wrongdoing Hearsay Exception

1. Introduction

In re the Montana Rules of Evidence (Supreme Court of Montana, No. AF 07-0031, Order dated May 2026) is an administrative rulemaking order—not a merits decision in a litigated dispute. The moving party is the Commission on Rules of Evidence, which petitioned the Court to adopt multiple amendments to the Montana Rules of Evidence after public notice and comment.

The Court’s Order grants the bench, bar, and the public 90 days to submit comments on attached proposed revisions. The proposals address five main topics:

  • Rule 612: clarifying the mechanics of refreshing recollection and expanding beyond “writings.”
  • Rule 803(6): removing “state crime lab report” language from the business-records exception to align with confrontation limits.
  • Rule 804(b)(6): adopting a forfeiture-by-wrongdoing hearsay exception.
  • Rule 901: adding a new authentication provision for evidence potentially fabricated by generative artificial intelligence.
  • Rule 106: revising Commission Comments (and explaining why Montana does not (yet) follow the 2023 federal completeness/hearsay approach).

The central policy tension running through the proposals is familiar: modernizing evidentiary practice (digital media, AI generation, confrontation doctrine) while preserving core trial fairness—especially accuracy, cross-examination, and reliable authentication.

2. Summary of the Opinion (Order)

The Court does three principal things:

  1. Publishes the Commission’s proposed revisions and comments.
  2. Invites written public comment for 90 days from the date of the Order.
  3. Directs dissemination through the Judicial Branch and State Bar websites and distribution to district courts for public review.

Substantively, the Order does not adopt or reject any amendment; it begins the notice-and-comment phase.

3. Analysis

3.1. Precedents Cited

A. Rule 106 (Completeness) and the Hearsay Boundary

The Commission Comments situate Montana’s completeness rule in a blend of historic statute and case law:

  • Northwestern Electric Equipment Co. v. Leighton: cited as part of the historical Montana completeness practice supporting admission of connected material to avoid distortion.
  • McGonigle v. Prudential Life Ins. Co. and Rasmussen v. Lee.: cited for the proposition that completing evidence often entered later in the opponent’s case under traditional practice—informing why a “timing” remedy matters.
  • McConnellv. Combination M & M Co. and Hulse v. N. Pac. Ry.: cited for a distinctly Montana principle—completeness may admit material that would otherwise be inadmissible, when needed to understand the offered fragment.

The Comments also confront modern federal developments and Montana’s caution:

  • State v. Campbell.: invoked to show the Court’s skepticism toward using “opened the door” rhetoric to smuggle in “classic” hearsay under completeness.
  • State v. Castle.: emphasized for the statement that “Rule 106 does not make admissible statements that would otherwise be inadmissible,” anchoring a restrictive Montana view.

Against this background, the Commission explains the 2023 federal change (allowing completing material “over a hearsay objection”) but explicitly declines—at least for now—to propose that Montana follow it, preferring further judicial development under Montana precedent.

B. Rule 612 (Refreshing Recollection): From Statutory Foundations to Functional Practice

  • Marron v. Great N, Ry.: cited for an older statutory-foundation approach requiring the writing be made/verified in specific ways—an approach the Commission describes as inconsistent with modern Rule 612 practice.
  • State v. Gallaghe-rr, State v. Watkins, and State v. LaFroniore: used to show Montana’s evolution toward a discretionary, circumstance-based refreshing practice; especially that the refreshing item need not be independently admissible.
  • United States v. Ricoardi: quoted for the key conceptual point: the evidence is the witness’s refreshed present recollection, not the accuracy of the refreshing item itself.
  • United States v. Rapov.: cited for the expansive idea that “anything” may refresh memory—supporting the proposal’s express recognition of non-writing items (including modern audio/video like body-camera footage).

C. Rule 803(6) (Business Records) and Confrontation Limits on Crime Lab Reports

  • State v. Clark.: cited for holding that a parallel provision in Rule 803(8) violated face-to-face confrontation under the Montana Constitution, motivating removal of similar language elsewhere.
  • Crawford v. Washington.: cited for the federal constitutional rule that “testimonial” hearsay against a criminal defendant requires prior cross-examination opportunity.
  • In the Matter of the Petition for Amendment of the Montana Rules of Evidence.: cited for the 2007 amendment removing crime-lab-report language from Rule 803(8), which the Commission now seeks to harmonize by deleting the leftover Rule 803(6) language.

D. Rule 804(b)(6) (Forfeiture by Wrongdoing): From Confrontation Doctrine to a Hearsay Exception

  • Davis v. Washington (citing Crawford v. Washington.): cited for the principle that a defendant’s wrongdoing can equitably forfeit confrontation rights.
  • Giies v. California: cited for the intent requirement—wrongdoing must be intended to, and must, procure unavailability.
  • State v. Sanchez: cited as Montana’s recognition of forfeiture by wrongdoing as a confrontation doctrine, but not yet as a codified hearsay exception.
  • State v. Martinez (concurring): cited to illustrate ongoing Montana discussion of forfeiture of confrontation rights without parallel hearsay treatment—supporting the need for an express evidentiary exception.

E. Rule 901 (Authentication): Traditional “Prima Facie” Foundations and the Proposed AI Exception

The Commission Comments recite a long line of Montana authentication decisions to establish the baseline:

  • State v. Davis, State v.Wilroy, State v. Fitzpatrick, and State v. Cooper: invoked for the core authentication threshold—prima facie connection; “clear, certain, and positive proof is not required”; authenticity can be shown circumstantially and lies within trial-court discretion.
  • Photo foundations: Pilgeram v. Hass, State v. Peters., Pickett V. Kryger, Lamb v. Page.
  • Handwriting familiarity and comparison: Statev. Mahoney, Statev.Howard, Ingebrightsen v.Hatcher, Leffek v. Luedeman, In Re Miller's Estate, Grosfield v. First Nat'l Bank
  • Other modalities: State V. Simon (ballistics comparison), Olsen v. Spoya (reply letter doctrine), State v. Vanella (voice ID), Wood v. Ferguson, Binghamv.Nat'lBankofMontana, Ratliff v. the City of Great Falls (telephone calls), West V. Wilson and Stokes v. Long (x-rays), among others.

This baseline matters because proposed Rule 901(c) intentionally departs from the ordinary “sufficient to support a finding” approach once a specific AI-fabrication concern is credibly raised.

3.2. Legal Reasoning

A. The Order’s Institutional Logic

The Court’s reasoning is procedural and institutional: evidence rules are of statewide importance; proposed changes should be vetted through transparent public comment; and notice must be widely disseminated. The Order operationalizes that process.

B. The Commission’s Substantive Logic (Embedded in the Proposal)

  1. Rule 612 is rewritten to make the steps of refreshing explicit and to modernize what can refresh memory (writings, recordings, “other items”). The logic is functional: the witness must return to present recollection, and adverse parties must have inspection/cross/exhibit rights, with in camera excision of unrelated material.
  2. Rule 803(6) removes a vestigial carve-in for Montana crime lab reports to avoid a mismatch with confrontation doctrine and prior Montana amendment practice (post-State v. Clark. and Crawford v. Washington.). The Commission’s reasoning is harmonization: criminal admissibility cannot be broader under “business records” than under “public records” when the constitutional defect is the same.
  3. Rule 804(b)(6) codifies forfeiture by wrongdoing as a hearsay exception (not merely a confrontation doctrine), tracking the federal formulation: wrongdoing or acquiescence, intended to and actually procuring unavailability. The Commission frames it as an equitable rule: the wrongdoer cannot benefit from silencing the witness.
  4. Rule 901(c) proposes a two-stage gatekeeping mechanism specifically for generative-AI fabrication: (i) the challenger must first show a jury reasonably could find AI fabrication; then (ii) the proponent must show to the court it is “more likely than not authentic.” The logic is to deter both (a) frivolous “deepfake” accusations and (b) the admission of sophisticated synthetic media that lay jurors may not reliably evaluate without screening.
  5. Rule 106 commentary explains why Montana does not yet adopt the federal 2023 “over a hearsay objection” approach, given Montana’s language in State v. Castle. and the concern that completeness not become an end-run around hearsay limits.

3.3. Impact

A. If Adopted, Likely Doctrinal and Practical Effects

  • AI/Deepfake litigation will become evidence-rule litigation. Proposed Rule 901(c) would create a structured pathway for challenging synthetic media, potentially increasing pretrial motions, expert retention, and in limine hearings.
  • Authentication burdens shift in a defined subset of cases. Ordinary Rule 901(a) is a relatively low threshold; 901(c) would impose a higher “more likely than not” showing after a specific threshold showing by the opponent.
  • Refreshing recollection becomes cleaner and broader. Rule 612 would more clearly accommodate modern materials (bodycam, digital recordings), while cabining misuse by insisting the witness ultimately testifies from refreshed memory.
  • Business-records doctrine is brought into constitutional alignment. Removing the crime-lab language reduces confusion and avoids arguments that a rule text authorizes what confrontation doctrine forbids in criminal cases.
  • Forfeiture-by-wrongdoing becomes an evidentiary tool, not only a constitutional concept. Codifying Rule 804(b)(6) would give trial courts a direct hearsay exception to apply once the requisite intent and causation are proven—likely under Rule 104(a).
  • Rule 106 remains a contested frontier. By declining to follow the federal 2023 hearsay-override model, Montana may see continued litigation over whether and when completeness can admit otherwise inadmissible hearsay, especially in criminal defendant statement scenarios discussed in the Comments.

4. Complex Concepts Simplified

  • Rule of Completeness (Rule 106): If one side introduces a snippet of a statement or conversation, the other side may be allowed to introduce additional parts so the jury is not misled by the snippet’s context.
  • Hearsay: An out-of-court statement offered for its truth. It is usually excluded unless an exception applies.
  • Refreshing Recollection (Rule 612) vs. Recorded Recollection (Rule 803(5)): “Refreshing” uses an item to jog memory so the witness can testify from memory; “recorded recollection” is used when the witness lacks memory and the record itself (typically read) becomes the evidence.
  • Confrontation Clause: In criminal cases, defendants generally have the right to confront and cross-examine the witnesses against them; “testimonial” hearsay raises serious constitutional limits.
  • Forfeiture by Wrongdoing: A party who intentionally makes a witness unavailable (e.g., intimidation) cannot then object that the witness’s prior statements are inadmissible because the witness is absent.
  • Authentication: Showing that evidence is what it purports to be (a real photo, a genuine recording, an unaltered document). Proposed Rule 901(c) adds special scrutiny when generative AI fabrication is credibly at issue.
  • Rule 104(a) / “Preponderance”: Many admissibility questions are decided by the judge. “Preponderance” means “more likely than not.”
  • In camera review: The judge privately reviews material (often to remove irrelevant or protected portions) before deciding what must be disclosed or admitted.

5. Conclusion

This Order is best understood as a formal gateway to potentially consequential evidentiary reform. The attached proposals would: (1) modernize the mechanics of refreshing recollection (Rule 612), (2) align business-records text with confrontation doctrine regarding crime lab reports (Rule 803(6)), (3) add an explicit forfeiture-by-wrongdoing hearsay exception (Rule 804(b)(6)), (4) introduce a novel, structured authentication safeguard against generative-AI fabrication (Rule 901(c)), while (5) preserving Montana’s more restrictive posture on completeness and hearsay for now (Rule 106 Comments, mindful of State v. Castle.).

The likely significance—if the amendments are adopted—would be to make Montana one of the early jurisdictions to embed “deepfake-aware” authentication gatekeeping into its evidence code, while simultaneously filling a doctrinal gap by pairing recognized confrontation forfeiture principles with a codified hearsay exception.