Authentication of Evidence Flashcards
Basics of Authentication of Evidence
- The FRE doesn’t have a rule that says evidence must be authentic. But if evidence is not authentic, it’s not relevant so authentication is an implied rule based on FRE 401 and 402
- Whether evidence is authentic is a 104(b) decision, so just because the judge lets it in doesn’t mean the opposing party can’t try to convince the jury it’s not authentic
- Just because evidence is authentic, doesn’t mean is admissible
FRE 901(a) Authenticating or Identifying Evidence
In General
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
FRE 901(b)(1) Authenticating or Identifying Evidence
Examples
Testimony of a Witness with Knowledge
Testimony that the item is what it is claimed to be.
FRE 901(b)(2) Authenticating or Identifying Evidence
Examples
Nonexpert Opinion About Handwriting
A nonexpert’s opinion that handwriting is genuine, based on familiarity with it that was not acquired for the current litigation
FRE 901(b)(3) Authenticating or Identifying Evidence
Examples
Comparison by an Expert Witness or the Trier of Fact
A comparison with an authenticated specimen by an expert witness or the trier of fact
FRE 901(b)(4) Authenticating or Identifying Evidence
Examples
Distinctive Characteristics and the Like
The appearance, contents, substance, internal pattern, or other distinctive characteristics of the item, taken together with all the circumstances
FRE 901(b)(5) Authenticating or Identifying Evidence
Examples
Opinion About a Voice
An opinion identifying a person’s voice – whether heard firsthand or through mechanical or electrical transmission or recording – based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
FRE 901(b)(6) Authenticating or Identifying Evidence
Examples
Evidence About a Telephone Conversation
For a telephone conversation, evidence that a call was made to the number assigned at the time to
- A particular person, if circumstances, including self-identification, show that the person answering the phone was the one called or
- A particular business, if the call was made to a business and the call was related to business reasonably transacted over the telephone.
FRE 901(b)(7) Authenticating or Identifying Evidence
Examples
Evidence About Public Records
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.
FRE 901(b)(8) Authenticating or Identifying Evidence
Examples
Evidence About Ancient Documents or Data Compilations
For a document or data compilation, evidence 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
FRE 901(b)(9) Authenticating or Identifying Evidence
Examples
Evidence About a Process or System
Evidence describing a process or system or showing that it produces an accurate result
FRE 901(b)(10) Authenticating or Identifying Evidence
Examples
Methods Provided by a Statute or Rule
Any method of authentication or identification allowed by a federal statute or prescribe by the Supreme Court
FRE 902 Evidence That is Self-Authenticating
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted
Public Document v. Public Record
Public documents are filed at a public agency by private parties
Public records are records that are created by public agencies.
Acknowledgement
A document signed before a notary public acknowledging the contents in the document is true.
FRE 902(4) Evidence That is Self-Authenticating
Certified Copies of Public Records
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 Rule 902(1), (2), or (3), a federal statute or a rule prescribed by the Supreme Court
FRE 902(8) Evidence That is Self-Authenticating
Acknowledged Documents
A document accompanied by a certificate of acknowledgement that is lawfully executed by a notary public or another officer who is authorized to take acknowledgements
FRE 902(11) Evidence That is Self-Authenticating
Certified Domestic Records of a Regularly Conducted Activity
The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complied with a federal statute or a rule prescribed by the Supreme Court. Before a trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record – and must make the record and certification available for inspection – so that the party has a fair opportunity to challenge them.
Demonstrative Evidence
Demonstrative evidence is typically used to demonstrate, illustrate, or explain. Often, this kind of evidence is used to add clarity or vividness to a witness’s testimony
Testimony for Demonstrative Evidence for Truthfulness
Absent a stipulation, there must be testimony that the proffered demonstrative evidence is a fair and accurate representation of whatever it displays
Personal Familiarity for Demonstrative Evidence
It is usually necessary that the witness providing the evidentiary foundation have personal familiarity with the subject that is displayed by the demonstrative evidence
Ratio of the Scale
When an exhibit is drawn or constructed to scale, the proponent must establish the ratio of the scale used and demonstrate that the distances reflected in the exhibit are accurate.
Substantial Purposes of Demonstrative Evidence
Where the demonstrative evidence is being used for substantive purposes (rather than merely illustrative), the proponent must provide evidence sufficient to support two prepositions
- The subject or thing pictured or heard is in fact the subject or thing counsel contends it is and
- The recorded image or voice is an accurate reproduction.
