9: Authentication and identification Flashcards
Self-authenticating documents (FRE 902)
I.e., documents that do not require extrinsic evidence in order to be admitted.
i) Public documents bearing a governmental seal and a signature of an authorized governmental official or that are not sealed but are signed by an authorized governmental official and certified by another authorized governmental official;
ii) Certified copies of public records;
iii) Official publications issued by a public authority;
iv) Newspapers and periodicals;
v) Trade inscriptions (e.g., labels affixed in the course of business that indicate origin, ownership, or control);
vi) Notarized (acknowledged) documents;
vii) Commercial paper (including the signature thereon, and related documents);
viii) Any document, signature, or other item declared by federal statute to be authentic; and
ix) Records of a regularly conducted activity (e.g., a business) certified by a custodian of the records.
Authentication of a phone conversation
A phone conversation is properly authenticated if:
(1) The caller recognized the speaker’s voice;
(2) The speaker knew facts that only a particular person would know;
(3) The caller dialed a business and spoke to a person about business regularly conducted over the phone.
Handwriting
The two methods by which handwriting verification may be used to authenticate a writing are:
(i) comparison by an expert witness or the trier of fact, and
(ii) the opinion of a lay witness familiar with the handwriting of the alleged author.
Reproductions
When reproductions of tangible evidence—e.g., photographs, diagrams, maps, movies—are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does.
X-ray images, electrocardiograms, and the like
Such items are physical representations of things that cannot otherwise be seen (i.e., the inner workings and functionality of a human body), and, as such, unlike other reproductions, they cannot simply be authenticated by the testimony of a witness claiming that they are accurate reproductions of the facts.
To authenticate such an item, it must be shown that an accurate process was used, that the machine used was working properly, and that the operator of the machine was qualified to operate it. The chain of custody must also be established.
Notice to adverse party: business records
Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document.
The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it.
Standard for authentication
With respect to preliminary questions, the party offering the evidence ordinarily bears the burden to persuade the trial judge by a preponderance of the evidence.
To authenticate an item, however, the proponent must only produce sufficient evidence to support a finding that the thing is what its proponent claims it is, which is a lesser standard than a preponderance of the evidence.
Reply letter doctrine
A document may be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.
Oral statements
An oral statement must be authenticated as to the identity of the speaker in cases in which that identity is important.
A voice can be identified by any person who has heard the voice at any time.
