Authentication & Identification Flashcards
Authentication or Identification
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must procure evidence sufficient to support a finding that the item is what the proponent claims it is.
Authentication: Non-Testimonial Evidence
Is accomplished by laying a foundation of preliminary evidence sufficient to sustain a finding that the matter is what it purports to be.
Intrinsic Authorization
Intrinsic authorization generally means the item is self-authenticating (no need for a W).
Extrinsic Authentication (Sponsoring Ws)
Extrinsic authorization is when a W is required to authenticate an item.
Extrinsic Authentication: Expert Witness Comparison
An expert may authenticate by comparison/analysis a document, handwriting, voice or other item.
Methods of Extrinsic Authentication
Include:
- Direct evidence
- Circumstantial evidence (chain of custody, ancient documents rule, other distinctive characteristics).
Extrinsic Authentication: Direct Evidence
When someone with personal knowledge of, or familiarity with the item (custodian of records) testifies to authenticate them.
Custodian of Records
A person charged in an organization (business or government) with maintaining records of the organization.
Extrinsic Authentication: Chain of Custody
Chain of custody is often the method used for undistinguishable items, where witnesses testify where item was from the moment that mattered to the moment when offered.
-For tangible object W will claim that it is the same object and is in a substantially similar condition.
Ancient Document Rule
States that a document or data compilation is sufficiently authenticated as an ancient document if the party who offers it shows that it:
- is in a condition that creates no suspicion about its authenticity
- was in a place where, if authentic, it would likely be; and
- is at least 20 years old when offered
Extrinsic Authentication: Public Office
- Evidence that:
- a document was recorded or filed in a public office as authorized by law; or
- a purported public record or statement is from the office where items of this kind are kept
Special Rules for Handwriting Authentication
Handwriting can be authenticated by:
- A layperson with familiarity (not acquired for litigation)
- By comparison by an expert with a person’s known writing sample (that has been authenticated)
- By comparison by the trier of fact (not allowed in all states)
Special Rules for Voice Authentication
Voice can be authenticated by:
- Opinion of person who has heard speaker at any time, even if familiarity is acquired for the litigation
- Phone conversations (# assigned to person + circumstances show person answering is the one called; or # assigned to business + reasonable relation to business transacted).
- Process or system description (showing that it produces an accurate result)
Photo Authentication
Photos should be authenticated by:
- Having a person testify that he/she is:
- familiar with the scene depicted in the photo
- the photo is an accurate depiction of the scene
-the person testifying is not required to have taken the photo.
Intrinsic Authentication: Items that are Self-Authenticating (CONTAC)
Include:
- Certified documents (documents, bearing a seal, documents bearing no seal, foreign documents, and official copies).
- Official Publications
- Newspapers and periodicals
- Trade inscriptions
- Acknowledged documents (e.g. notarized documents)
- Commercial paper (e.g. instruments that have signatures required as provided by general commercial law (UCC))
Self-Authenticating Evidence: Document that Bears Seal
A document is self-authenticating if it bears:
- a seal purporting to be that of the U.S. or any state, district, commonwealth, territory, or insular possession thereof; and
- a signature purporting to be an execution or attestation
Self-Authenticating Evidence: Documents that Bear No Seal
A document can still be self-authenticating even if it bears no seal if:
- it bears the signature of an officer or employee of an entity named in Rule 902(1)(A)
- another public officer who has a seal and official duties within that same entity certifies under seal (or its equivalent) that the signer has the official capacity and that signature is genuine.
Self-Authenticating Evidence: Foreign Authorization
A document may be self-authenticating if it is purported to be signed or attested by a person who is authorized by a foreign country to do so:
- the document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester
- if all the parties have been given a reasonable opp to investigate the document’s authenticity and accuracy, the court may, for good cause, either –> order that it be treated as presumptively authentic without final certification or allow it to be evidenced by an attested summary with or without final certification
Self-Authenticating Evidence: Copies of Official Records
A document is self-authenticating if it is a copy of an official record or a copy of a document that was recorded or filed in a public office as authorized by law –> if the copy is certified as correct by:
- the custodian or another person authorized to make the certification; or
- a certificate that complies with the FRE, a federal statute, or a rule prescribed by the Supreme Court
