Authentication Flashcards
901
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.
What Standard of Review is used for Authentication?
104(b) - Huddleston
-Must be sufficient evidence to support a jury finding of the conditional fact by a preponderance of the evidence.
Authentication: Chain of Custody
- 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.
If there is a defect in the chain of custody does that mean it is inadmissible?
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.
901(b)(1)
Testimony of a Witness with knowledge
901(b)(2)
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. )
901(b)(3)
Comparison by an Expert Witness OR the trier of fact
901(b)(4)
Distinctive Characteristics and the Like
901(b)(5)
Opinion About a Voice
-Lay witness opinion as to familiarity with a voice based on hearing voice at any time.
901(b)(6)
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.
Are hand writing exemplars allowed?
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
Authentication: Photos
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
Authentication Issues: Email
- Bears purported author’s address
- content reflects KNOWLEDGE of the purported conduct
- author identifies himself via his purported nickname or provides identifying information
Can an expert witness make an opinion about a voice under 901(b)(5)
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
Difference between handwriting and opinion about a voice?
Can have an expert under opinion about a voice but not handwriting under 901(b)(2)
What if the court does not allow an expert witness to review the handwriting? What else could be done?
901(b)(3) the trier of fact (jury) can look at the writing exempler to determine