Authentication & Expert Testimony

Question 1

Tangible Evidence

Answer 1

Documentary evidence and physical objects

Question 2

Demonstrative Evidence

Answer 2

Evidence that is representative or illustrative of an object or situation

Question 3

What is “authentication” of evidence?

Answer 3

[FRE 901(a)] All evidence must be authenticated (i.e. proven “genuine”) before it may be admitted. The proponent must establish that the object is what they are claiming it to be. The final decision as to whether the evidence is authenticated rests with the jury.

Question 4

When is authentication not necessary?

Answer 4

(1) Parties have stipulated to the facts; or (2) party granted a written request for admission

Question 5

What are examples of methods by which evidence can be authenticated?

Answer 5

• Testimony by a custodian of the records;
• Testimony by a person who prepared or created the document
• Testimony by a person who witnessed the signing of the document
• Testimony by an expert witness qualified to render an opinion on the issue
• Showing the trier of fact a comparison of the unauthenticated evidence with an authenticated specimen
  [FRE 901]

Question 6

What is self-authenticating evidence?

Answer 6

[FRE 902] Evidence that is so self-evident, it requires no extrinsic evidence of authenticity in order to be admitted.

Question 7

What types of evidence are self-authenticating?

Answer 7

[FRE 902]
- Commercial paper;
- Certified copies of public records;
- Official publications purporting to be issued by a public authority;
- Newspapers and periodicals;
- Trade inscriptions;
- Notarized documents;
- Anything that a federal statute declares to be authentic;
- Certified records of a regularly conducted activity;
- Certified records or data generated/copied from an electronic device or system

Question 8

How can a physical object be authenticated?

Answer 8

(1) Personal knowledge: Testimony of a witness with personal knowledge that the item is what it’s claimed to be;
(2) Distinctive characteristics: by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item;
(3) Chain of custody
FRE 901(b)(1) & (b)(4)

Question 9

What is authentication by chain of custody?

Answer 9

Proves that the item in court has not been materially altered or tampered with. Every witness who handled the object must testify and state:
(1) When the witness took custody of the evidence and from whom/where;
(2) Precautions taken to preserve the evidence;
(3) That the item was not substituted, nor tampered with, while in their custody; and
(4) When the custody of the item was relinquished and to whom (e.g. for fingerprint testing)

Question 10

How are reproductions authenticated?

Answer 10

Testimony of a witness with personal knowledge that the item is what it’s claimed to be

Question 11

How is a photo authenticated?

Answer 11

Testimony by anyone who witnessed the scene depicted in the photo and can attest to its accuracy

Question 12

What are the three ways to authenticate handwriting?

Answer 12

(1) Testimony of lay person who is familiar with the handwriting before litigation began; (2) Comparison by a qualified expert (can use handwriting specimen written in preparation for trial); (3) Comparison by trier of fact: jury can compare side-by-side specimens

Question 13

Does having a signature on a piece of writing prove that the document is written by the person who signed it?

Answer 13

No, there must be other proof who signed the document is the one who wrote it

Question 14

How do you authenticate x-rays and other evidence whose accuracy depends on unseen processes?

Answer 14

Proponent must: (1) Establish a valid chain of custody; (2) Show that machine was working properly; (3) Show that an accurate process was used; and (4) The operator of the machine was competent to operate it

Question 15

How do you authenticate a wiretap or recording technology?

Answer 15

Proponent must show: (1) Recording device was capable of recording the conversation; (2) Operator of the device was qualified to operate it; (3) No changes have been made and recording was preserved in the manner shown to the court; (4) Recording is authentic and correct; (5) Identify the speakers; and (6) the conversation as made in good faith without inducement

Question 16

How do you authenticate ancient documents?

Answer 16

[FRE 901(b)(8)] Presumed authentic if: (1) Document is at least 20 years old; (2) Document is unsuspicious in its appearance; (3) Found in a place natural for such a document.

Question 17

How do you authenticate someone’s voice?

Answer 17

By testimony of anyone who is familiar with the voice (doesn’t need to be familiar with the voice before litigation began)

Question 18

How do you authenticate statement made during a telephone conversation?

Answer 18

[FRE 901(b)(6)] Evidence showing the proponent called the number assigned to the person or business and the person or business identified themselves upon answering

Question 19

What are the only situation in which the Best Evidence Rule applies?

Answer 19

(1) Terms of the writing being proven (e.g. contents of a will or photo); or (2) Witness relies on contents of the original during his/her testimony – ** Only applies to situations where material terms are at issue.

Question 20

When are duplicates admissible under Best Evidence Rule?

Answer 20

• There is no genuine question as to the original’s authenticity [FRE 1003]
• All originals are lost or destroyed and not by proponent acting in bad faith [FRE 1004(a)]
• Original cannot be obtained by any available judicial process [FRE 1004(b)]
• Party against whom the original was going to be used had control of the original and failed to produce it a trial [FRE 1004(c)] or
• Needed to prove the contents of an official, certified record [FRE 1005]

Question 21

Are lay (non-expert) opinions admissible?

Answer 21

[FRE 701] Only if they are based on first-hand knowledge and:
(1) Rationally based on the witness’s perception;
(2) Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(3) Not based on scientific, technical, or other specialized knowledge.

Question 22

What are the requirements for expert testimony?

Answer 22

[FRE 702] (1) Witness is qualified to be an expert by knowledge, skill, experience, training, or education;
(2) Witness’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidnece or to determine a fact in issue;
(3) Testimony is based on sufficient facts or data;
(4) Testimony is the product of reliable principles and methods; and
(5) Expert has reliably applied the principles and methods to the facts of the case

Question 23

An expert’s opinion can be based on what type of information?

Answer 23

[FRE 703] (1) Facts or data that expert has been made aware of or personally observed;
(2) Facts that were presented to the expert at trial; or
(3) Facts that experts in the field would rely on to form an opinion

Question 24

Who decides whether expert testimony is admissible?

Answer 24

The judge acts as the gatekeeper

Question 25

What are the Daubert factors?

Answer 25

Used to determine whether the expert’s methods are scientifically valid. The court weighs:
(1) Whether the method has been tested;
(2) If the method has been subject to peer review and publication;
(3) The error rate of the technique;
(4) The existence of standards controlling the technique’s application; and
(5) General acceptance in the relevant scientific community

Question 26

Can an expert rely upon inadmissible evidence to support their conclusions?

Answer 26

[FRE 703] Yes, but the expert cannot disclose the evidence to the jury unless the court finds that the probative value of disclosure substantially outweighs its prejudicial effect.

Question 27

Can an expert state their opinion without testifying to the underlying facts or data?

Answer 27

[FRE 705] Yes, unless the court orders otherwise, an expert may state an opinion - and give the reasons for it - without first testifying to the underlying facts or data. However, the expert may be required to disclose those facts or data on cross-examination.

Question 28

Can experts give opinions on legal conclusions?

Answer 28

No, experts cannot state legal conclusions in their opinions.

Question 29

Can an expert give an opinion on an ultimate issue in a case?

Answer 29

Yes, but experts cannot give an opinion as to whether D had the requisite mental state for the crime

Question 30

Can the court appoint witnesses?

Answer 30

Yes, court-appointed expert witness are allowed. The expert:
(1) Must advise the parties of any findings the expert makes;
(2) May be deposed by any party;
(3) May be called to testify by the court or any party; and
(4) May be cross-examined by any party