Authentication and Identification Flashcards
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 under 104(b)
“Sufficient evidence” is
that which a reasonable juror could find “genuine” by a preponderance of the evidence.
The judge must admit the evidence and the jury can decide how much weight to give to this evidence under 104(b)
Real evidence may be authenticated by:
Testimony of a witness with personal knowledge showing familiarity with the object
Chain of custody for fungible items:
(1) Must be used with fungible items (all items appear identical—cocaine, pills, blood). Accounting for an item’s whereabouts from the time of issue until trial (essay fallback issue)—bloody glove, victim’s underwear.
(2) The party entering the item must account for any change in the evidence.
Documents may be authenticated or identified by:
- Someone who had first-hand knowledge of the document, such as custodian, author, eye witness, expert…
- Circumstantial evidence
- Ancient documents
(a) More than 20 years old
(b) Found in its proper place
Handwriting
Three ways to authenticate:
(1) Lay Person with familiarity (602 + 701)
(2) Expert Opinion
(3) Jury
Familiarity is a weight of the evidence issue.
Caveat: Familiarity cannot be acquired for purposes of litigation
Voice Identification
a. All voices must be identified when a phone conversation or recording is offered in evidence.
b. Generally, direct evidence is offered by testimony of a witness who recognizes the voice.
Telephone Calls
Note: This rule applies to various types of messaging via social media (e.g., Facebook, Twitter, LinkedIn, Skype, Instagram, text messaging, etc.).
a. A showing that a call was made to the number assigned then the call is assumed to have gone to that person
b. A showing that a call was made from an assigned number then the call is assumed to have come from that person
c. In the case of a business the call was made to the business and the conversation related to a business reasonably transacted
Expert may authenticate a scientific device:
Either under Daubert or Frye
Self-Authentication (Rule 902)
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
Mnemonic: CONTAC. C - Certified Documents O - Official Publications N - Newspapers T - Trade Inscriptions A - Acknowledged Documents C - Commercial Paper
When analyzing writings, the issues the proponent must overcome regarding admissibility are included in the following mnemonic: OPRAH.
a. O: Original writings
b. P: Privileged
c. R: Relevancy
d. A: Authentication
e. H: Hearsay
