Authentication and Identification

Question 1

Requirement of Authentication or Identification

Condition Precedent to admissibility

Answer 1

requires sufficient evidence to support a finding that the matter in question is what its proponent claims it to be

 i) Sufficient evidence = that which a reasonable person could find “genuine” by a preponderance of the evidence
 ii) Judge determines admissibility; jury determines how much weight to give it
 iii) Generally, only tangible evidence needs to be authenticated iv) Methods of authentication:
      (1) Extrinsic Authentication – sponsoring witness required
      (a) Direct Evidence: someone with personal knowledge of, or familiarity with the item, or a “custodian of records” testifies to authenticate
      (b) Circumstantial Evidence: may be authenticated by chain of custody, ancient documents rule, or other distinctive characteristics

Question 2

Requirement of Authentication or Identification

Handwriting

Answer 2

i) Three ways to authenticate:
(1) layperson with familiarity;
(a) Familiarity is a weight-of-the-evidence issue, and it cannot be acquired for purposes of litigation;
(2) comparison by an expert; or
(3) comparison by the trier of fact

Question 3

Requirement of Authentication or Identification

Voice Authentication

Answer 3

i) All voices must be identified when a phone conversation or recording is offered into evidence
ii) Opinion of person who has heard speaker at any time, even if familiarity is acquired for the litigation

Question 4

Self-Authentication

CONTAC

Answer 4

C: Certified documents

O: Official publications

N: Newspapers and periodicals

T: Trade inscriptions

A: Acknowledged documents

C: Commercial paper

Question 5

CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Best Evidence Rule

Answer 5

a) Rule: To prove the contents of a writing, recording, or photograph, the original is required except as provided in the FRE
b) Independent Source Rule
i) Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the Best Evidence Rule does not apply

Question 6

CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Admissibility of Other Evidence of Content

CLOTS

Answer 6

a) Rule: The original is not required, and other evidence of the document is admissible if CLOTS
applies:
C: Collateral (writing, recording, or photo is not closely related to a controlling issue)

L: Lost (all the originals have been lost or destroyed, unless the proponent lost or destroyed them in bad faith)

O: Opponent (the opponent has possession of the original and has refused to deliver it)

T: Testimony or admission by opponent

S: Subpoena (the original cannot be obtained by any judicial procedure)

Question 7

CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Summaries

Answer 7

Contents of voluminous writings, recordings, or photos may be presented in a chart, summary, or calculation (originals must be made available at a reasonable time and place for examination/copying)