Authentication & Expert Testimony

Question 1

Define

tangible evidence

Answer 1

documentary evidence and physical objects

Question 2

Define

demonstrative evidence

Answer 2

Evidence that is representative or illustrative of an object or situation (e.g. animation of a car crash)

Question 3

What is “authentication” of evidence?

Answer 3

All evidence must be authenticated (i.e. proven “genuine”) before it may be admitted. The proponent must establish that the object is what they are claiming it to be. The final decision as to whether the evidence is authenticated rests with the jury.

FRE 901(a)

Question 4

When is authentication not necessary?

Answer 4

1. Parties have stipulated to the facts regarding its authenticity; or
2. Party granted a written request for admission
3. If the evidence is self-authenticating (see FRE 902).

Question 5

What are examples of methods by which evidence can be authenticated?

Answer 5

• Testimony by a custodian of the records
• Testimony by a person who prepared or created the document
  
  • E.g. the lab technician who created the report
• Testimony by a person who witnessed the signing of the document
• Testimony by an expert witness qualified to render an opinion on the issue
  
  • E.g. a handwriting expert testifying that the letter was written in the defendant’s unique penmanship
• Showing the trier of fact a comparison of the unauthenticated evidence with an authenticated specimen

FRE 901

Question 6

What is self-authenticating evidence?

Answer 6

Evidence that is so self-evident, it requires no extrinsic evidence of authenticity in order to be admitted.

(e.g., notarized document)

FRE 902

Question 7

What types of evidence are self-authenticating?

Answer 7

• Commercial paper;
• Certified copies of public records;
• Official publications purporting to be issued by a public authority;
• Newspapers and periodicals;
• Trade inscriptions;
• Notarized documents;
• Anything that a federal statute declares to be authentic;
• Certified records of a regularly conducted activity;
• Certified records or data generated/copied from an electronic device or system

FRE 902

Question 8

How can a physical object be authenticated?

Answer 8

1. Personal knowledge: Testimony of a witness with personal knowledge that the item is what it’s claimed to be;
2. Distinctive characteristics: by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item (e.g. engraved initials on the gun);
3. Chain of custody

FRE 901(b)(1) and FRE 904(b)(4)

Question 9

What is authentication by chain of custody?

Answer 9

Proves that the item in court has not been materially altered or tampered with. Every witness who handled the object must testify and state:

1. When the witness took custody of the evidence and from whom/where;
2. Precautions taken to preserve the evidence;
3. That the item was not substituted, nor tampered with while in their custody; and
4. When the custody of the item was relinquished and to whom (e.g. for fingerprint testing)

Question 10

How are reproductions (e.g. diagrams) authenticated?

Answer 10

Testimony of a witness with personal knowledge that the item is what it’s claimed to be

⚠️ Note: Does not need to be the creator, can be anyone with personal knowledge as to its authenticity

Question 11

How is a photo authenticated?

Answer 11

Testimony by anyone who witnessed the scene depicted in the photo and can attest to its accuracy

Question 12

What are the three ways to authenticate handwriting?

Answer 12

1. Testimony of lay person who was familiar with the handwriting before litigation began
   
   • E.g. Mother testifies that she recognizes the handwriting as her son’s
2. Comparison by a qualified expert (can use handwriting specimen written in preparation for trial)
3. Comparison by trier of fact: jury can compare side-by-side specimens

Question 13

Does having a signature on a piece of writing prove that the document is written by the person who signed it?

Answer 13

No, there must be other proof that the person who signed the document is the one who wrote it

Question 14

How do you authenticate x-rays and other evidence whose accuracy depends on unseen processes?

Answer 14

Proponent must:

1. Establish a valid chain of custody;
2. Show that the machine was working properly;
3. Show that an accurate process was used; and
4. The operator of the machine was competent to operate it

Question 15

How do you authenticate a wiretap or recording technology?

Answer 15

Proponent must show:

1. Recording device was capable of recording the conversation;
2. Operator of the device was qualified to operate it;
3. No changes have been made and recording was preserved in the manner shown to the court (i.e. chain of custody);
4. Recording is authentic and correct;
5. Identify of the speakers; and
6. The conversation was made in good faith without inducement

Question 16

How do you authenticate ancient documents?

Answer 16

Presumed authentic if:

1. Document is at least 20 years old;
2. Document is unsuspicious in its appearance;
3. Found in a place natural for such a document

FRE 901(b)(8)

Question 17

How do you authenticate someone’s voice?

Answer 17

By testimony of anyone who is familar with the voice (doesn’t need to be familiar with the voice before litigation began)

Question 18

How do you authenticate statements made during a telephone conversation?

Answer 18

Evidence showing the proponent called the number assigned to the person or business, and the person or business identified themselves upon answering

FRE 901(b)(6)

Question 19

Define

What are the only 2 situations in which the Best Evidence Rule applies?

Answer 19

1. Terms of the writing are being proven (e.g. contents of a will or photo); or
2. Witness relies on contents of the original during his/her testimony

⚠️ Be careful: The Best Evidence answer on the MBE is usually wrong. Unless it is these 2 scenarios, the original copy is not needed. Also, the Best Evidence Rule only applies to situations where material terms are at issue. Be wary of questions where the terms are not material.

Question 20

When are duplicates admissible under the Best Evidence rule?

Answer 20

• There is no genuine question as to the original’s authenticity (FRE 1003);
• All originals are lost or destroyed and not by the proponent acting in bad faith (FRE 1004(a));
• Original cannot be obtained by any available judicial process (FRE 1004(b));
• Party against whom the original was going to be used had control of the original and failed to produce it at trial (FRE 1004(c)); or
• Needed to prove the contents of an official, certified record (FRE 1005)

Question 21

Are lay (non-expert) opinions admissible?

Answer 21

Only if they are based on first-hand knowledge and:

1. Rationally based on the witness’s perception;
2. Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
3. Not based on scientific, technical, or other specialized knowledge

FRE 701

Question 22

Can you ask a non-expert witness what someone might have been thinking?

Answer 22

No

Question 23

What are the requirements for expert testimony?

Answer 23

1. Witness is qualified to be an an expert by knowledge, skill, experience, training, or education;
2. Witness’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
3. Testimony is based on sufficient facts or data;
4. Testimony is the product of reliable principles & methods; and
5. Expert has reliably applied the principles and methods to the facts of the case

FRE 702

Question 24

An expert’s opinion can be based on what type of information?

Answer 24

1. Facts or data that expert has been made aware of or personally observed;
2. Facts that were presented to the expert at trial (e.g. hypothetical question); or
3. Facts that experts in the field would rely on to form an opinion;

FRE 703

Question 25

**Who** decides whether expert testimony is admissible?

Answer 25

The judge acts as the gatekeeper

Question 26

What are the ***Daubert*** factors?

Answer 26

Used to determine whether the expert's methods are scientifically valid. The court weighs: 1. Whether the method has been **tested;** 2. If the method has been **subject to peer review** and **publication;** 3. The **error rate** of the technique; 4. The existence of **standards** controlling the **technique's application**; and 5. General **acceptance** in the relevant **scientific community** ## Footnote *More Info:* [Daubert Factors](https://www.law.cornell.edu/wex/daubert_standard)

Question 27

Can an expert rely upon **inadmissible** evidence to support their conclusions?

Answer 27

Yes, but the expert **cannot** disclose the evidence to the jury unless the court finds that the **probative value** of disclosure **substantially outweighs** its **prejudicial effect**. ## Footnote [FRE 703](https://www.law.cornell.edu/rules/fre/rule_703)

Question 28

Can an expert state their opinion without testifying to the **underlying facts or data**?

Answer 28

Yes, unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data. However, the expert may be required to disclose those facts or data on **cross-examination.** ## Footnote [FRE 705](https://www.law.cornell.edu/rules/fre/rule_705)

Question 29

Can experts give opinions on **legal conclusions**?

Answer 29

No, experts cannot state legal conclusions in their opinions. ## Footnote (e.g. "he hit the victim with _deadly force_.")

Question 30

Can an expert give an opinion on an **ultimate issue** in a case?

Answer 30

Yes, but experts cannot give an opinion as to whether D had the **requisite mental state for the crime**

Question 31

Can the court **appoint** expert witnesses?

Answer 31

Yes, court-appointed expert witnesses are allowed. The expert: 1. Must **advise** the parties of any **findings** the expert makes; 2. May be **deposed** by any party; 3. May be **called to testify** by the court or any party; and 4. May be **cross-examined** by any party