Authentication and Identification Flashcards
What is the authentication requirement under Rule 901?
- Authentication as a condition precedent to admissibility requires evidence sufficient to support a finding that the matter in question is what its proponent claims it to be.
o EXAMPLE: The letter claimed to be the defendant’s was actually written by the defendant.
o EXAMPLE: The drugs being offered are the ones actually seized from the defendant on the night in question.
o EXAMPLE: The text or social media post being offered as the plaintiff’s must actually be the plaintiff’s.
What counts as sufficient evidence?
- “Sufficient evidence” is that which a reasonable person could find “genuine” by a POTE.
Who determines weight and admissibility?
- The judge determines admissibility. The jury has the final decision as to how much weight to give it.
What kinds of evidence need to be authenticated?
- With the exception of voice identification (e.g., who was on the other end of the line in a phone conversation) and evidence describing a process or system (e.g., a computer-based fingerprint analysis machine results), only tangible evidence needs to be authenticated.
What are the two methods of authentication?
- Extrinsic: generally means a witness is required to authenticate the item.
- Intrinsic: generally means the item is self-authenticating; no need for a witness
What would count as direct evidence?
- Direct Evidence - someone with personal knowledge of, or familiarity with the item, or a “custodian of records” testifies to authenticate the item
Who is a custodian of records?
- A “custodian of records” is a person charged in an organization (business or government) with maintaining records of the organization.
What is the test for authenticating a photo or diagram via extrinsic authentication?
- The test for a photograph or diagram (e.g., of the crime scene, autopsy, or an x-ray) is that it must be a “fair and accurate representation” of what the proponent claims it depicts.
Must the actual photographer testify about a specific photograph?
- Need not be the actual photographer; merely someone who knows the scene at the relevant time is sufficient.
How is authentication done through circumstantial evidence?
- Proving chain of custody
- Ancient documents rule
- Other distinctive characteristics
- Expert witness comparison
What is the point of establishing chain of custody?
- Chain of custody - commonly for undistinguishable items; witness(es) can testify to where item was from the moment that mattered to the moment when offered.
o EXAMPLE: Drugs are offered in a criminal prosecution. Officer can testify to personally seizing drugs (or seeing the seizure), placing them in and sealing a bag, delivering them to the police department’s Evidence Control Unit, picking them up the morning of trial, and opening them in court. - Chain of custody also serves to confirm that the item of tangible evidence is in “substantially similar condition” in which the witness found it; this confirms it was not tampered with or materially altered.
What is the ancient documents rule for authentication?
- An old document (at least 20 years old) found in a place where it would likely be found under circumstances suggesting authenticity.
How can authentication be done through distinctive characteristics?
- Other distinctive characteristics - distinctive appearance, contents, substance, internal patterns, etc.
- EXAMPLE: Witness (W) can say email is from Defendant (D) because D always emails in a red text color and uses hearts to dot each “I,” and/or the email can be authenticated because it refers to a discussion W had with D a few days before.
How can authentication be done through expert witness comparison?
- An expert may authenticate by comparison/analysis a document, handwriting, voice, or other item (e.g., a bomb fragment came from a particular manufacturer based on chemical analysis).
How can handwriting be authenticated?
- By a layperson with familiarity (NOT acquired for litigation);
o EXAMPLE: W can authenticate letter as defendant’s as they’ve been pen-pals for years. - By comparison by an expert with person’s known writing sample; or
- By comparison by the trier of fact - this is unique!
o EXAMPLE: If W claims letter was written by defendant, it can be submitted to the jury who can compare it themselves and if they believe by a POTE, it is the defendant, it is deemed authenticated.
How is voice authentication done?
- Opinion of person who has heard speaker at any time, even if familiarity is acquired for the litigation.
o EXAMPLE: Call to # assigned to person and circumstances show person answering is the one called (e.g., W called # assigned to X and person answered, “X speaking.”).
o EXAMPLE: Call to # assigned to business and reasonably related business was transacted (e.g., W called # assigned to Pizza Palace and person answered, “Pizza for pick-up or delivery?”). - Process or System Description: Evidence describing a process or system and showing that it produces an accurate result.
Which documents are self-authenticated, meaning that they need no foundation witness to prove they are genuine?
- Certified documents
- Official publications
- Newspapers and periodicals
- Trade inscriptions
- Acknowledged documents
- Commercial paper
What are examples of certified records that enjoy self-authentication?
- Documents bearing a seal of the United States, or of any state, district, commonwealth, territory, or possession thereof (public documents under seal);
- Certified documents bearing no seal, if a public officer certifies under seal that the signer has official capacity to sign and that the signature is genuine;
o EXAMPLE: Conviction record; official transcript from a university or law school. - Certified foreign documents: genuineness of the signature and the authorized person’s official position is required; or
- Certified copies of (official) public records
What are the rules for admitting certified copies of official public documents?
- Must be filed or recorded in a public office and certified as correct by either the custodian or other qualified person; could include document under FRE 803(8) Public Records exception;
- certified copies of business records;
- certified electronically generated records from a reliable system or process, with notice; and
- certified copies of electronically stored data, with notice.
What are examples of official publications?
- Books, pamphlets, and other publications issued by a public authority.
- EXAMPLE: FAA booklet on Airline Safety Standards; pamphlet on H1N1 (swine flu) issued by the CDC.
What are examples of trade inscriptions?
- Signs, tags, or labels affixed in the ordinary course of business indicating ownership, control, or origin.
- EXAMPLE: Label on a can of Green Giant peas
What are examples of acknowledged documents?
- Notarized documents, i.e., documents accompanied by a certificate of acknowledgment executed in the manner provided by law.
- NOTE: The hearsay rule could apply to render a notarized affidavit inadmissible
What are examples of commercial paper?
- Negotiable instruments; bills of lading. Signatures required as provided by general commercial law (UCC).