Authentication and Identification

Question 1

What is the authentication requirement under Rule 901?

Answer 1

• Authentication as a condition precedent to admissibility requires evidence sufficient to support a finding that the matter in question is what its proponent claims it to be.
  o EXAMPLE: The letter claimed to be the defendant’s was actually written by the defendant.
  o EXAMPLE: The drugs being offered are the ones actually seized from the defendant on the night in question.
  o EXAMPLE: The text or social media post being offered as the plaintiff’s must actually be the plaintiff’s.

Question 2

What counts as sufficient evidence?

Answer 2

• “Sufficient evidence” is that which a reasonable person could find “genuine” by a POTE.

Question 3

Who determines weight and admissibility?

Answer 3

• The judge determines admissibility. The jury has the final decision as to how much weight to give it.

Question 4

What kinds of evidence need to be authenticated?

Answer 4

• With the exception of voice identification (e.g., who was on the other end of the line in a phone conversation) and evidence describing a process or system (e.g., a computer-based fingerprint analysis machine results), only tangible evidence needs to be authenticated.

Question 5

What are the two methods of authentication?

Answer 5

• Extrinsic: generally means a witness is required to authenticate the item.
• Intrinsic: generally means the item is self-authenticating; no need for a witness

Question 6

What would count as direct evidence?

Answer 6

• Direct Evidence - someone with personal knowledge of, or familiarity with the item, or a “custodian of records” testifies to authenticate the item

Question 7

Who is a custodian of records?

Answer 7

• A “custodian of records” is a person charged in an organization (business or government) with maintaining records of the organization.

Question 8

What is the test for authenticating a photo or diagram via extrinsic authentication?

Answer 8

• The test for a photograph or diagram (e.g., of the crime scene, autopsy, or an x-ray) is that it must be a “fair and accurate representation” of what the proponent claims it depicts.

Question 9

Must the actual photographer testify about a specific photograph?

Answer 9

• Need not be the actual photographer; merely someone who knows the scene at the relevant time is sufficient.

Question 10

How is authentication done through circumstantial evidence?

Answer 10

• Proving chain of custody
• Ancient documents rule
• Other distinctive characteristics
• Expert witness comparison

Question 11

What is the point of establishing chain of custody?

Answer 11

• Chain of custody - commonly for undistinguishable items; witness(es) can testify to where item was from the moment that mattered to the moment when offered.
  o EXAMPLE: Drugs are offered in a criminal prosecution. Officer can testify to personally seizing drugs (or seeing the seizure), placing them in and sealing a bag, delivering them to the police department’s Evidence Control Unit, picking them up the morning of trial, and opening them in court.
• Chain of custody also serves to confirm that the item of tangible evidence is in “substantially similar condition” in which the witness found it; this confirms it was not tampered with or materially altered.

Question 12

What is the ancient documents rule for authentication?

Answer 12

• An old document (at least 20 years old) found in a place where it would likely be found under circumstances suggesting authenticity.

Question 13

How can authentication be done through distinctive characteristics?

Answer 13

• Other distinctive characteristics - distinctive appearance, contents, substance, internal patterns, etc.
• EXAMPLE: Witness (W) can say email is from Defendant (D) because D always emails in a red text color and uses hearts to dot each “I,” and/or the email can be authenticated because it refers to a discussion W had with D a few days before.

Question 14

How can authentication be done through expert witness comparison?

Answer 14

• An expert may authenticate by comparison/analysis a document, handwriting, voice, or other item (e.g., a bomb fragment came from a particular manufacturer based on chemical analysis).

Question 15

How can handwriting be authenticated?

Answer 15

• By a layperson with familiarity (NOT acquired for litigation);
  o EXAMPLE: W can authenticate letter as defendant’s as they’ve been pen-pals for years.
• By comparison by an expert with person’s known writing sample; or
• By comparison by the trier of fact - this is unique!
  o EXAMPLE: If W claims letter was written by defendant, it can be submitted to the jury who can compare it themselves and if they believe by a POTE, it is the defendant, it is deemed authenticated.

Question 16

How is voice authentication done?

Answer 16

• Opinion of person who has heard speaker at any time, even if familiarity is acquired for the litigation.
  o EXAMPLE: Call to # assigned to person and circumstances show person answering is the one called (e.g., W called # assigned to X and person answered, “X speaking.”).
  o EXAMPLE: Call to # assigned to business and reasonably related business was transacted (e.g., W called # assigned to Pizza Palace and person answered, “Pizza for pick-up or delivery?”).
• Process or System Description: Evidence describing a process or system and showing that it produces an accurate result.

Question 17

Which documents are self-authenticated, meaning that they need no foundation witness to prove they are genuine?

Answer 17

• Certified documents
• Official publications
• Newspapers and periodicals
• Trade inscriptions
• Acknowledged documents
• Commercial paper

Question 18

What are examples of certified records that enjoy self-authentication?

Answer 18

• Documents bearing a seal of the United States, or of any state, district, commonwealth, territory, or possession thereof (public documents under seal);
• Certified documents bearing no seal, if a public officer certifies under seal that the signer has official capacity to sign and that the signature is genuine;
  o EXAMPLE: Conviction record; official transcript from a university or law school.
• Certified foreign documents: genuineness of the signature and the authorized person’s official position is required; or
• Certified copies of (official) public records

Question 19

What are the rules for admitting certified copies of official public documents?

Answer 19

• Must be filed or recorded in a public office and certified as correct by either the custodian or other qualified person; could include document under FRE 803(8) Public Records exception;
• certified copies of business records;
• certified electronically generated records from a reliable system or process, with notice; and
• certified copies of electronically stored data, with notice.

Question 20

What are examples of official publications?

Answer 20

• Books, pamphlets, and other publications issued by a public authority.
• EXAMPLE: FAA booklet on Airline Safety Standards; pamphlet on H1N1 (swine flu) issued by the CDC.

Question 21

What are examples of trade inscriptions?

Answer 21

• Signs, tags, or labels affixed in the ordinary course of business indicating ownership, control, or origin.
• EXAMPLE: Label on a can of Green Giant peas

Question 22

What are examples of acknowledged documents?

Answer 22

• Notarized documents, i.e., documents accompanied by a certificate of acknowledgment executed in the manner provided by law.
• NOTE: The hearsay rule could apply to render a notarized affidavit inadmissible

Question 23

What are examples of commercial paper?

Answer 23

• Negotiable instruments; bills of lading. Signatures required as provided by general commercial law (UCC).