Authentication and Identification

Question 1

What is authentication and identification?

Answer 1

Authentication is accomplished by laying a foundation of preliminary evidence sufficient to sustain a finding that the matter is what it purports to be.

FRE 901.

Question 2

What types of evidence is there?

Answer 2

1. Tangible evidence:
   a. Real evidence
   b. Demonstrative evidence
   c. Scientific evidence

Question 3

How are physical objects authenticated?

Answer 3

1. By testimony of personal knowledge showing familiarity with the object;
2. By distinctive markings or characteristics; or
3. By chain of custody.

Question 4

What is the ancient document rule?

Answer 4

Where a writing has been in existence for a long time, circumstantial evidence is required to authenticate it.

A document or data compilation is sufficiently authenticated as an ancient document if the party who offers it satisfies the judge that the evidence is:

1. in a condition that creates no suspicion about its authenticity;
2. was in a place where, if authentic, it would likely be; and
3. is at least 20 years old when offered.

Question 5

How are documents authenticated?

Answer 5

Someone who had first-hand knowledge of the document:

1. custodian
2. one who prepared it
3. eyewitness to the signing
4. opinion by expert
5. jury

Question 6

How is handwriting authenticated?

Answer 6

1. Layperson with familiarity
2. Comparison by an expert
3. Comparison by the trier of fact.

Question 7

How does voice identification work?

Answer 7

All voices must be identified when a phone conversation or recording is offered into evidence.

Generally, direct evidence is offered by testimony of a witness who recognizes the voice.

Question 8

How are telephone calls authenticated?

Answer 8

For a telephone conversation, evidence that a call was made to the number assigned at the time to:

1. a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
2. a particular business, if the call was made to a business and the call related to business reasonably transacted over the phone.

Question 9

How is scientific devices or systems authenticated?

Answer 9

Evidence regarding the accuracy of the process or system is required. An expert may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate.

Question 10

What is self-authentication?

Answer 10

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

1. Certified documents
2. Official publications
3. Newspapers and periodicals
4. Trade inscriptions
5. Acknowledged documents
6. Commercial paper

FRE 902

Question 11

Is a subscribing witness’s testimony necessary?

Answer 11

A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

FRE 903.