Authentication

Question 1

901

Answer 1

Authentication or Identifying Evidence

Establishing that a piece of evidence “is what the proponent says it is.”

Authentication methods are open-ended and non-exhaustive.

Question 2

What Standard of Review is used for Authentication?

Answer 2

104(b) - Huddleston

-Must be sufficient evidence to support a jury finding of the conditional fact by a preponderance of the evidence.

Question 3

Authentication: Chain of Custody

Answer 3

• In play with generic or common items, often drugs
• same item
• Substantially same condition
• Huddleston FRE 104(b)
• Any defect in the chain of custody goes to weight and not admissibility.
• The court must decide based on the piece of evidence at issue.

Question 4

If there is a defect in the chain of custody does that mean it is inadmissible?

Answer 4

NO

• Any defect in the chain of custody goes to weight and not admissibility.
• The court must decide based on the piece of evidence at issue.

Question 5

901(b)(1)

Answer 5

Testimony of a Witness with knowledge

Question 6

901(b)(2)

Answer 6

Nonexpert Opinion About Handwritting

• a non expert
• may testify that handwriting is GENUINE
• as long as her familiarity with the handwriting was NOT ACQUIRED for the CURRENT LITIGATION

(A sufficient familiarity with the handwriting of another person may be acquired by seeing him write, exchanging correspondence, or by other means. )

Question 7

901(b)(3)

Answer 7

Comparison by an Expert Witness OR the trier of fact

Question 8

901(b)(4)

Answer 8

Distinctive Characteristics and the Like

Question 9

901(b)(5)

Answer 9

Opinion About a Voice

-Lay witness opinion as to familiarity with a voice based on hearing voice at any time.

Question 10

901(b)(6)

Answer 10

Evidence about a Telephone Conversation

• Evidence that a call was made to the number assigned at the time:
• To a person, if circumstances show that the person answering was the one called, e.g., self-identification.
• To a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

Question 11

Are hand writing exemplars allowed?

Answer 11

YES

• A handwritting exemplar is an identifying physical characteristic which falls outside the protection of the 5th Amendment.
• The government may introduce evidence the fact that the suspect refused to provide an exemplar after being directed to so by the court
• the government may introduce evidence that the individual intentionally distorted his handwriting when giving the exemplar

Question 12

Authentication: Photos

Answer 12

1) the photographer is NOT needed to authenticate a photograph
2) ANY witness familiar with what it portrays may authenticate
3) Counsel may CHALLENGE the witness’s authentication on cross examination

Question 13

Authentication Issues: Email

Answer 13

• Bears purported author’s address
• content reflects KNOWLEDGE of the purported conduct
• author identifies himself via his purported nickname or provides identifying information

Question 14

Can an expert witness make an opinion about a voice under 901(b)(5)

Answer 14

YES

• a voice can be identified by any person who has heard the voice at any time (including one made familiar solely for the purpose of litigation, compared to handwriting where it cannot)
• If expert witness must be classified under 702

Question 15

Difference between handwriting and opinion about a voice?

Answer 15

Can have an expert under opinion about a voice but not handwriting under 901(b)(2)

Question 16

What if the court does not allow an expert witness to review the handwriting? What else could be done?

Answer 16

901(b)(3) the trier of fact (jury) can look at the writing exempler to determine