Authenticating Evidence

Question 1

Rule 901(a) - Authenticating or Identifying Evidence - In General

Answer 1

In General. 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.

Question 2

Rule 901(b)(1) - Authenticating or Identifying Evidence - Examples - Testimony of a Witness with Knowledge

Answer 2

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

Question 3

Rule 901(b)(2) - Authenticating or Identifying Evidence - Examples - Nonexpert Opinion About Handwriting

Answer 3

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation

Question 4

Rule 901(b)(3) - Authenticating or Identifying Evidence - Examples - Comparison by an Expert Witness or the Trier of Fact

Answer 4

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

Question 5

Rule 901(b)(4) - Authenticating or Identifying Evidence - Examples - Distinctive Characteristics and the Like

Answer 5

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

Question 6

Rule 901(b)(5) - Authenticating or Identifying Evidence - Examples - Opinion About a Voice

Answer 6

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

Question 7

Rule 901(b)(6) - Authenticating or Identifying Evidence - Examples - Evidence About a Telephone Conversation

Answer 7

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(6) Evidence About a Telephone Conversation. For a telephone conversation, 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 reasonably transacted over the telephone.

Question 8

Rule 901(b)(7) - Authenticating or Identifying Evidence - Examples - Evidence About Public Records

Answer 8

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(7) Evidence About Public Records. Evidence 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.

Question 9

Rule 901(b)(8) - Authenticating or Identifying Evidence - Examples - Evidence About Ancient Documents or Data Compilations

Answer 9

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence 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

Question 10

Rule 901(b)(9) - Authenticating or Identifying Evidence - Examples - Evidence About a Process or System

Answer 10

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

Question 11

Rule 901(b)(10) - Authenticating or Identifying Evidence - Examples - Methods Provided by a Statute or Rule

Answer 11

Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

Question 12

Rule 902 - Evidence That is Self-Authenticating

Answer 12

Rule 902 offers a list of 12 items that are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted

Question 13

Rule 902(1) - Evidence That is Self-Authenticating - Domestic Public Documents That Are Sealed and Signed

Answer 13

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.

Question 14

Rule 902(2) - Evidence That is Self-Authenticating - Domestic Public Documents That Are Not Sealed but Are Signed and Certified

Answer 14

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.

Question 15

Rule 902(3) - Evidence That is Self-Authenticating - Foreign Public Documents

Answer 15

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 ofr 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 legislation; 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.

Question 16

Rule 902(4) - Evidence That is Self-Authenticating - Certified Copies of Public Records

Answer 16

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.

Question 17

Rule 902(5) - Evidence That is Self-Authenticating - Official Publications

Answer 17

A book, pamphlet, or other publication purporting to be issued by a public authority.

Question 18

Rule 902(6) - Evidence That is Self-Authenticating - Newspapers and Periodicals

Answer 18

Printed material purporting to be a newspaper or periodical.

Question 19

Rule 902(7) - Evidence That is Self-Authenticating - Trade Inscriptions and the Like

Answer 19

An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

Question 20

Rule 902(8) - Evidence That is Self-Authenticating - Acknowledged Documents

Answer 20

A document accompanied by a certificate acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgements.

Question 21

Rule 902(9) - Evidence That is Self-Authenticating - Commercial Paper and Related Documents

Answer 21

Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

Question 22

Rule 902(10) - Evidence That is Self-Authenticating - Presumptions Under a Federal Statute

Answer 22

A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.

Question 23

Rule 902(11) - Evidence That is Self-Authenticating - Certified Domestic Records of a Regularly Conducted Activity

Answer 23

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 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.

Question 24

Rule 902(12) - Evidence That is Self-Authenticating - Certified Foreign Records of a Regularly Conducted Activity

Answer 24

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).

Question 25

Authentication definition

Answer 25

Demonstrating that evidence is what it purports to be

Question 26

Rule 901 and conditional relevancy

Answer 26

Rule 901 authentication is a question of conditional relevance under Rule 104 – ultimate decision is up to the fact-finder; the judge is required only to find that a reasonable fact-finder could conclude the item is what it purports to be.

Question 27

Evidence categories

Answer 27

Live witness testimony

Real Evidence (fungible and non-fungible)

Writings

Illustrative Evidence

Silent Witness Exhibits

Question 28

Real Evidence

Answer 28

Tangible objects such as guns, drugs, bodily fluids, etc.

Further subdivided into two subcategories: fungible evidence and non-fungible evidence

Question 29

Fungible Evidence

Answer 29

Things that are freely interchangeable with other things of the same kind or that lack visually identifiable distinguishing characteristics (i.e. fast food hamburger is virtually indistinguishable from all other hamburgers from that chain) and

Question 30

Non-fungible Evidence

Answer 30

Has distinguishing characteristics or features (i.e., a gun with a serial number)

Question 31

Writings

Answer 31

Includes business records, diaries, letters, contracts, official government documents.

Printed, handwritten, and electronic (such as emails or texts).

To authenticate, proponent must prove authorship Rule 902 provides for self-authentication for many writings.

Question 32

Illustrative Evidence

Answer 32

Includes photos, maps, models, and movies.

Designed to help the fact-finder visually understand what happened in the case and is relevant as long as it fairly and accurately depicts the portrayed scene or incident.

Question 33

Foundational Elements of Illustrative Evidence

Answer 33

(1) the evidence fairly and accurately depicts something the witness observed and
(2) the evidence will be helpful to assist the fact-finder in understanding the witness’s testimony

Question 34

Silent Witness Exhibits

Answer 34

Include surveillance videotapes or wiretap recordings

The term comes from the fact that there is typically no live witness

Question 35

Two threshold authentication requirements for all categories of evidence

Answer 35

(1) relevance

2) the evidence is what it purports to be (authentication

Question 36

Rule 1002 - Requirement of the Original

Answer 36

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Referred to as the “best evidence rule”

Question 37

Rule 1003 - Admissibility of Duplicates

Answer 37

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Question 38

Best evidence rule - “writing” definition

Answer 38

A “writing” consists of letters, words, numbers, or their equivalent set down in any form.

Question 39

Best evidence rule - “recording” definition

Answer 39

A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.

Question 40

Best evidence rule - “photograph” definition

Answer 40

A “photograph” means a photographic image or its equivalent stored in any form.

Question 41

Best evidence rule - “original” definition

Answer 41

An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout—or other output readable by sight—if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

Question 42

Best evidence rule - “duplicate” definition

Answer 42

A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Question 43

Rule 1004 - Admissibility of Other Evidence of Content

Answer 43

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.

Question 44

Rule 1005 - Copies of Public Records to Prove Content

Answer 44

The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

Question 45

Rule 1006 - Summaries to Prove Content

Answer 45

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Question 46

Rule 1007 - Testimony or Statement of a Party to Prove Content

Answer 46

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

Question 47

Rule 1008 - Functions of the Court and Jury

Answer 47

Ordinarily, the court determines whether the proponent has fulfilled the factual condition for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.

Question 48

Best evidence rule’s broad definition of photograph

Answer 48

The rule broadly defines photographs to include X-rays, video tapes, and motion pictures

Question 49

Best evidence rule “original writing” - computer printouts

Answer 49

An original writing also includes computer printouts of information stored on a computer

Question 50

Best evidence rule - treatment of negatives with regards to photographs

Answer 50

With photos, the definition of original includes both the negative and prints from it, however if the negative contains details that are not visible in a print, there is a preference for the negative to be treated as the original

Question 51

Best evidence rule - duplicate

Answer 51

A duplicate is a faithful and accurate reproduction of the original

Question 52

Technological changes with regards to duplicates

Answer 52

Key phrase – “other equivalent techniques which accurately reproduce the original”

This phrase is broad enough to encompass technological changes that improve the speed and accuracy of the duplication process

Question 53

When does the best evidence rule come into play at trial?

Answer 53

The Best Evidence Rule only comes into play when the contents of a writing, recording, or photograph are at issue

If the contents are not in issues, there is no need to produce an original document at trial

Question 54

Example of when the best evidence rule would come into play at trial

Answer 54

Proving the contents of a contract

Question 55

Key foundational requirement to using secondary evidence under Rule 1004

Answer 55

A key foundational prerequisite to the use of secondary evidence under Rule 1004 is a finding that the original once existed, or exists and cannot be obtained

Question 56

Secondary evidence - losing/destroying documents in bad faith

Answer 56

If a proponent has lost or destroyed documents or recordings in bad faith, the proponent does not get the benefit of using secondary evidence to prove its contents

Question 57

Two strongly-held values encompassed by Rule 1005

Answer 57

(1) the significant role of public records in the judicial process and
(2) the importance of retaining the originals of public records in their normal locations to ensure their availability to the public and to avoid their loss or damage