Pg 12

Question 1

What are some possible problems that can arise in the process of trying to authenticate a photograph?

Answer 1

Lighting, camera angle, differences in position between the event and the photo, pictures intentionally doctored, different purposes that the picture is being offered for, etc.

Question 2

How can lighting present a problem when you’re trying to authenticate a photograph?

Answer 2

Can make visibility lower or better than it actually was when the event happened

Question 3

How can camera angle present a problem for authenticating a photograph?

Answer 3

Lenses can alter the perspective or give an odd angle so that the jury has a false impression about the distance or the relationship between the objects and their positions

Question 4

How can differences in the position between the event and the photo create a problem for authenticating a photograph?

Answer 4

If the event happened in the daytime and the picture is at night etc.

Question 5

Is it assumed that a picture has been intentionally doctored when you’re trying to authenticate a photograph?

Answer 5

No, it is assumed that the picture wasn’t intentionally doctored unless there’s specific evidence to suggest it

Question 6

Why is it necessary to consider the purpose that a picture is being offered for when you’re trying to authenticate a photograph?

Answer 6

If an accident happened in the summer where a leafy tree obscured the defendant’s view, and the picture is in the winter where the view is fine, that can affect how fair and accurate the picture is and make a picture misleading. But if the purpose of the picture is just to show the general layout of the intersection, it is fine.

Question 7

What is the requirement of a witness when you’re trying to authenticate photograph?

Answer 7

The person does not need to be the one who took the picture to authenticate it, he just has to have familiarity with the scene in the picture. This means he doesn’t have to have ever seen the picture before, he just has to be familiar enough with what the picture is of to have a basis in personal knowledge to say that the picture fairly and accurately depicts the original scene

Question 8

If a photograph was taken in the daytime on a clear day of an accident scene using a fisheye lens to show the width of the intersection, is that objectionable when you’re trying to authenticate the photograph?

Answer 8

Yes, because the purpose is to show the width of the intersection and the fisheye lens distorts that

Question 9

What are the potential problems that can come up when you’re trying to authenticate a video?

Answer 9

All the same ones that come up with pictures, but also a question about whether the video is just a portion of a whole which would make it misleading or if the video is spliced together to misrepresent events

Question 10

If you’re going to do an in court demonstration to show the jury what happened, what is necessary?

Answer 10

You need foundation that the parameters of the demonstration bear a fair and reasonable relationship to the underlying events and are done in circumstances that are similar enough to fairly infer something about the underlying events from the demonstration

Question 11

Would it be permissible to smash a watermelon with a sledgehammer in court to demonstrate what happened to the victim’s head in a car crash?

Answer 11

No, that would not be a fair and reasonable representation to what actually happened for the jury to infer something about the underlying events from the demonstration

Question 12

What kind of situation would you use a computer model or simulation that would need to be authenticated?

Answer 12

If a plane crash had a black box so you wanted to pair it with digital visual reconstruction of what happened to the plane

Question 13

What are the two issues for authentication of a computer model or simulation?

Answer 13

– The reliability of the program that was used to change the data into images or sounds
– the reliability of the data itself that was inputted into the program to make the simulation model. It must be from someone with knowledge and it must be a reasonably reliable form

Question 14

When is an objection to authentication considered to be premature?

Answer 14

If it is raised before the document is offered into evidence. The document must actually be offered into evidence before an authentication objection can be made.

Question 15

If opposing counsel is in the middle of asking questions to lay the foundation for an exhibit, and you make an authentication objection, what will happen?

Answer 15

It will be overruled because it was premature since the document hadn’t actually been offered into evidence yet

Question 16

Before an item of evidence has been moved into evidence, is it permissible to discuss the contents of that document?

Answer 16

No, because that would violate the best evidence rule. You can only discuss the content after it has been moved into evidence

Question 17

At what point in the process is it permissible to object to authentication of an item?

Answer 17

Only once the opposing party tries to move the item into evidence. Anything before that is premature because they are still trying to lay foundation to authenticate the item. Once the item is moved into evidence, an authentication objection is fine

Question 18

What are the different rules to objecting to an authentication of an item and objecting based on best evidence rule?

Answer 18

• Best evidence rule: must object before the item is moved into evidence (because once it becomes evidence it can be freely quoted from)
  – authentication: must object after the item is moved into evidence (or once the person asks for it to be moved into evidence)

Question 19

What does it mean for an item to be self authenticating?

Answer 19

Certain types of evidence on their face are authentic and no extrinsic evidence is needed because the likelihood of fabrication or error is low compared to the time and expense needed to authenticate it

Question 20

In order for an item to be self authenticating, what is needed?

Answer 20

Production in court of the actual item. If that can’t happen then regular authentication rules apply

Question 21

If you are unsure whether the self authenticating rules apply to a piece of evidence, what should you do?

Answer 21

Analyze under the regular standard for authentication

Question 22

What is the procedure for admitting self authenticating evidence?

Answer 22

The item gets marked for identification, it is shown to the opposing counsel, and then moved into evidence. It is not necessary to show it to a witness and ask questions about it

Question 23

If opposing counsel makes an authentication objection to a self-authenticating piece of evidence, what usually happens?

Answer 23

It will be overruled because self authenticating documents do not need witness testimony

Question 24

What are the 12 categories of self authenticating evidence?

Answer 24

– Domestic public documents that are sealed and signed
– domestic public documents that are not sealed but are signed and certified
– foreign public documents
– certified copies of official public records
– official publications
– newspapers and periodicals
– trade inscriptions and trademarks
– acknowledged notarized documents
– commercial paper and related documents
– presumption under federal statute
– certified domestic records of a regularly conducted activity
– certified foreign records of a regularly conducted activity

Question 25

What is involved in the self authenticating evidence category of domestic public documents that are sealed and signed?

Answer 25

Document that has a seal from the US/any state/ District/ Commonwealth/ territory/department agency/officer of an entity listed above plus has a signature that is an execution/attestation that the document is authentic. This means that the signer examined the document and found it to be a genuine public document
** NEED: official seal and signature from someone in an agency with authority

Question 26

What is the reason that domestic public documents that are sealed and signed can be self authenticating?

Answer 26

Because it is hard to get someone from a public agency to come to court just to authenticate a document

Question 27

What is involved in the self authenticating evidence of a domestic public document that is not sealed but is signed and certified?

Answer 27

It does not have a seal, but the document has the signature of an officer/employee of the entity or another public officer that has a seal and official duties in the same entity and that person certifies under the seal that the signer has official capacity and that the signature is genuine
** NEED: signature and certification that document is authentic

Question 28

What is involved in the self authenticating evidence category of foreign public documents?

Answer 28

Document is signed or attested by someone authorized by a foreign country’s law to do so and includes a final certification of the genuineness of the signature and the official position of the signer. This can come from a secretary of the US Embassy, consul general, vice consul, consular agent, or diplomatic official of a foreign country that is assigned to the US.