Authentication of Evidence

Question 1

Basics of Authentication of Evidence

Answer 1

• 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

Question 2

FRE 901(a) Authenticating or Identifying Evidence

In General

Answer 2

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.

Question 3

FRE 901(b)(1) Authenticating or Identifying Evidence

Examples

Testimony of a Witness with Knowledge

Answer 3

Testimony that the item is what it is claimed to be.

Question 4

FRE 901(b)(2) Authenticating or Identifying Evidence

Examples

Nonexpert Opinion About Handwriting

Answer 4

A nonexpert’s opinion that handwriting is genuine, based on familiarity with it that was not acquired for the current litigation

Question 5

FRE 901(b)(3) Authenticating or Identifying Evidence

Examples

Comparison by an Expert Witness or the Trier of Fact

Answer 5

A comparison with an authenticated specimen by an expert witness or the trier of fact

Question 6

FRE 901(b)(4) Authenticating or Identifying Evidence

Examples

Distinctive Characteristics and the Like

Answer 6

The appearance, contents, substance, internal pattern, or other distinctive characteristics of the item, taken together with all the circumstances

Question 7

FRE 901(b)(5) Authenticating or Identifying Evidence

Examples

Opinion About a Voice

Answer 7

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.

Question 8

FRE 901(b)(6) Authenticating or Identifying Evidence

Examples

Evidence About a Telephone Conversation

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 the phone was the one called or
2. A particular business, if the call was made to a business and the call was related to business reasonably transacted over the telephone.

Question 9

FRE 901(b)(7) Authenticating or Identifying Evidence

Examples

Evidence About Public Records

Answer 9

Evidence that

1. A document was recorded or filed in a public office as authorized by law or
2. A purported public record or statement is from the office where items of this kind are kept.

Question 10

FRE 901(b)(8) Authenticating or Identifying Evidence

Examples

Evidence About Ancient Documents or Data Compilations

Answer 10

For a document or data compilation, evidence that it

1. Is 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

Question 11

FRE 901(b)(9) Authenticating or Identifying Evidence

Examples

Evidence About a Process or System

Answer 11

Evidence describing a process or system or showing that it produces an accurate result

Question 12

FRE 901(b)(10) Authenticating or Identifying Evidence

Examples

Methods Provided by a Statute or Rule

Answer 12

Any method of authentication or identification allowed by a federal statute or prescribe by the Supreme Court

Question 13

FRE 902 Evidence That is Self-Authenticating

Answer 13

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted

Question 14

Public Document v. Public Record

Answer 14

Public documents are filed at a public agency by private parties

Public records are records that are created by public agencies.

Question 15

Acknowledgement

Answer 15

A document signed before a notary public acknowledging the contents in the document is true.

Question 16

FRE 902(4) Evidence That is Self-Authenticating

Certified Copies of Public Records

Answer 16

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

1. The custodian or another person authorized to make the certification or
2. A certificate that complies with Rule 902(1), (2), or (3), a federal statute or a rule prescribed by the Supreme Court

Question 17

FRE 902(8) Evidence That is Self-Authenticating

Acknowledged Documents

Answer 17

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

Question 18

FRE 902(11) Evidence That is Self-Authenticating

Certified Domestic Records of a Regularly Conducted Activity

Answer 18

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.

Question 19

Demonstrative Evidence

Answer 19

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

Question 20

Testimony for Demonstrative Evidence for Truthfulness

Answer 20

Absent a stipulation, there must be testimony that the proffered demonstrative evidence is a fair and accurate representation of whatever it displays

Question 21

Personal Familiarity for Demonstrative Evidence

Answer 21

It is usually necessary that the witness providing the evidentiary foundation have personal familiarity with the subject that is displayed by the demonstrative evidence

Question 22

Ratio of the Scale

Answer 22

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.

Question 23

Substantial Purposes of Demonstrative Evidence

Answer 23

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.