Authentication

Question 1

FRE 901: Introduction to Authentication

Answer 1

• Basic Rule (FRE 901(a)). “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”
• Standard of Proof. There must be sufficient proof from which a rational jury could find that the evidence is what its proponent claims it is. The judge makes this determination.
• There’s no single “formula” for authentication. FRE 901(b) sets forth illustrations of acceptable strategies for authentication, but this list is not exhaustive.
• Admissibility vs. weight. Some objections to the authenticity of an exhibit may be sufficient to cause the judge to exclude the exhibit, but these objections may still be argued to the jury with respect to the weight the evidence should be given.

Question 2

FRE 901(b): Illustrations of Acceptable Bases for Authentication

Answer 2

(1) Testimony of witness with knowledge.

(2) Non-expert opinion on handwriting.

(3) Comparison by trier or expert witness (e.g., comparison of the new exhibit with other exhibits that have already been authenticated).

(4) Distinctive Characteristics

(5) Voice Identification (either by a person or by a machine).

(6) Telephone Conversations.
- Telephone conversations may be authenticated by “evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Public records or reports.
- These records may be authenticated by “[e]vidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept.”

(8) Ancient documents or data compilation.
- These may be authenticated by “[e]vidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered.”

(9) Process or system. These may be authenticated by “[e]vidence describing a process or system used to produce a result and showing that it produces an accurate result.”

(10) Methods provided by statute or rule. This provision sanctions ”any method of authentication or identification allowed by a federal statute or a rule prescribed the Supreme Court.”

Question 3

FRE 902: Self-Authentication

Answer 3

• The first sentence of FRE 902 indicates that self-authenticating exhibits “require no extrinsic evidence of authenticity in order to be admitted.”
• A large number of the self-authenticating exhibits are public documents, but many are not.
• Remember that even if the court admits an exhibit as self-authenticating, the opponent can still argue that the exhibit should be accorded little weight by the jury.
  • Additionally, remember that FRE 403 can be invoked to prevent admission of self-authenticating documents.

Question 4

FRE 902: List of Self-Authenticating Items

Answer 4

(1) Domestic Public Documents Under Seal
- “A document that bears: (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and (B) a signature purporting to be an execution or attestation.”

(2) Domestic Public Documents Not Under Seal
- “A document that bears no seal if: (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and (B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.”

(3) Foreign Public Documents
- “A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either: (A) order that it be treated as presumptively authentic without final certification; or (B) allow it to be evidenced by an attested summary with or without final certification.”

(4) Certified Copies of Public Records
- “A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by: (A) the custodian or another person authorized to make the certification; or (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.”
-Note: Because the first three categories require original documents, (4) is used much more frequently.

(5) Official publications
- “A book, pamphlet, or other publication purporting to be issued by a public authority.”

(6) Newspapers and periodicals

(7) Trade Inscriptions and the like
- “An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.”

(8) Acknowledged Documents
- “A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.”

(9) Commercial Paper and Related Documents
- “Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.”

(10) Presumptions Under Acts of Congress
- “A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.”

(11) Certified Domestic Records of Regularly Conducted Activity
- “The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.”

(12) Certified Foreign Records of Regularly Conducted Activity
- “In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).”

(13) Certified Records Generated by an Electronic Process or System
- “A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).”

(14) Certified data copied from an electronic device, stage medium, or file.
- “Data collected from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).”

Question 5

FRE 903: Testimony of Subscribing Witness Unnecessary

Answer 5

• “A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.”
• Examples of subscribing witnesses include the government officials who prepare a cover sheet indicating that a copy of a government record is true and accurate.