Authentification

Question 1

Best Evidence Rule (Requirement of the Original)

Answer 1

The Best Evidence Rule provides that an original writing, recording, or photograph is required in order to prove its contents, unless the FRE or a federal statute provides otherwise. If an exception to the best-evidence rule applies, a party may prove the contents of a writing, recording, or photo with secondary evidence (i.e., evidence other than the original).

• An original is not required if the proffering party is not seeking to prove the contents of the writing, recording, or photograph with the writing, recording, or photograph.
• Also not required if an offering party uses other evidence to prove facts contained in a writing, recording, or photograph. (ex. A party to a recorded convo may testify about the contents of the conversation without admitting the recording into evidence).

Question 2

Exceptions to the Best Evidence Rul

Answer 2

If an exception applies, then a party may prove the contents of a writing, recording, or photography by using secondary evidence (i.e., evidence other than the original).

Admissibility of Duplicates: unless there is a genuine dispute over the authenticity of an original document, or it would be unfair to admit a duplicate, an exact copy of the document is admissible just as the original would be (unless there is a question as to whether the document was forged, etc.)

Admissibility of Other Evidence of Content: the contents of a writing, recording, or photograph may be proven by testimony or other methods if one of the following occurs:
- If all originals are lost and destroyed, original is not required UNLESS the proponent acted in bad faith.
- If an original cannot be obtained by judicial process, original is not required.
- If party against whom the original would be offered had control of it and did not bring it to trial, original is not required.
- Original is not required if the evidence is not closely related to the issue.

Question 3

Authentification

Answer 3

For evidence to be admissible, the party proffering the evidence must demonstrate that the evidence is what the party claims is it.

Question 4

Examples of Authentification

Answer 4

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. (ex. Police officer took alleged cocaine off the accused and tagged it and bagged it.)

(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation. (ex. Husband knows wife’s handwriting and no expert is needed).

(3) 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. (ex. Trying to figure out wife’s handwriting so give handwriting expert something the wife wrote, so expert can compare).

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (ex. Look at the writing and see if it contains things only the wife would know).

(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under the circumstances that connect it with the alleged speaker. (ex. How do I know it was the accused? Because I have talked to the accused before and it sounded like his voice.)

(6) Evidence About a Telephone Conversation. For a telephone convo, evidence that a call was made to the number assigned to it at the time to:
(A) A particular person, if circumstances, including self-identification, show that the person answering was the one called; or (ex. I looked at my phone and # said X, and that is the Δ’s #).
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence about public records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence about Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion of its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by SCOTUS.

Question 5

Self-Authenticating Evidence

Answer 5

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

(1) Domestic Public Documents that are sealed and signed;
(2) Domestic Public Documents that are not sealed but are signed and certified;
(3) Foreign public documents;
(4) Certified copies of public records;
(5) Official publications;
(6) Newspapers and periodicals;
(7) Trade inscriptions and the like;
(8) Acknowledged documents;
(9) Commercial paper and related documents;
(10) Presumptions under a federal statute;
(11) Certified domestic records of a regularly conducted activity;
(12) Certified foreign records of a regularly conducted activity;
(13) Certified records generated by an electronic process or system; and
(14) Certified data copied from an electronic device, storage medium, or file.