Rules Only Applied to Physical Evidence

Question 1

Rule 901(a)

Answer 1

Authentication
- 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
- evaluated under Rule 104(b) - judge decides whether reasonable jury could find the item authentic

Question 2

Rule 901(b)

Answer 2

Lists examples of evidence that satisfies authentication:
1) testimony of a witness with knowledge
2) nonexpert opinion about handwriting (someone who knows your writing)
3) comparison by an expert witness or trier of fact (compare writing samples and say look similar)
4) distinctive characteristics of the item
5) opinion about a voice
6) evidence about a telephone conversation (ex: you call the number and the person answers saying it’s so-and-so)

Question 3

Rule 902

Answer 3

• deals with evidence that is self-authenticating (doesn’t require any extrinsic ev of authenticity to be admissible)
• ex’s: signed and sealed domestic public docs (1), domestic public docs that aren’t sealed but are signed and certified (2), newspapers and periodicals (6)

Question 4

Authentication and 104(b)

Answer 4

• item of physical evidence is admissible only if relevant and relevant only if sufficiently authenticated -> trial judge usually decides under 104(b) if there’s sufficient evidence that the proponent says it is
• could a reasonable jury conclude it’s authentic?
• can be admitted subject to connection

Question 5

Chain of Custody

Answer 5

• can be quite lenient
• needs to be sufficiently strong that reasonable jury could conclude the material that got tested was the one seized (think this was a specific ex from my notes)
• any gaps in the chain goes to weight

Question 6

902(13)

Answer 6

• certified records generated by an electronic system
• there needs to be some kind of live witness or a certification produced before trial that the system produces an accurate result

Question 7

902(14)

Answer 7

• certified data copied from an electronic device storage medium, or file
• electronically stored info
• authenticated by process of digital id -> need qualifies person to certify this

Question 8

Vayner Case

Answer 8

• gov tried to argue def had clearly committed the fraud because the gmail address used was the one listed on “his” Russian Facebook page
• appeals court rejected this - not sufficiently authenticated because the page has his photo and name but could’ve been created by anyone
• evaluation of web page depends on context

Question 9

US v. Brown

Answer 9

• authentication of Facebook chats
• not self-authenticating (gov couldn’t submit as 902(11) “Certified Domestic Records of a Regularly Conducted Activity” b/c certification from FB only proved they’d come from the FB accounts, not who the participants were)
• BUT court concluded sufficiently authenticated under the general 901(a) provision - victims’ testimony matched up with the chats, defendant’s admissions lined up, facts at trial lined up, + gov had introduced ev on how the chats were maintained by FB
• note that gove was not required to directly confirm the chats with the victims, all of whom testified (party gets to make its own case)

Question 10

US v. Bertram

Answer 10

• email exchanges - need to prove that they’re authentic -> gov relied on distinctive characteristics within the emails
• unique email addresses, internal references to nicknames, matched other ev re phone convos, + had electronic signature blocks
• witness who authenticated wasn’t sender, recipient or on CC - just worked at the company + could identify things from first-hand experience

Question 11

State v. Brown

Answer 11

• failure of authentication under 901(b)(9)
• gov called trial witness who explained monitor, but witness couldn’t explain precisely how it worked -> held not enough for authentication

Question 12

Rule 901(b)(9)

Answer 12

Evidence About a Process or System - need witness who can explain evidence about a process or system + that it produces an authentic result

Question 13

Rule 901(b)(9) vs. Rule 902(13)

Answer 13

• for 901(b)(9), you need someone to explain how the tech works
• for 902(13), you just need someone to explain that it’s a true and accurate copy of the system data

Question 14

Rule 1002

Answer 14

Best Evidence Rule

• an original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise
• mostly used for writing, although can apply to recordings and photographs

Question 15

Rule 1003

Answer 15

Admissibility of Duplicates
- a duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate

Question 16

Rule 1004

Answer 16

An original is not required and other evidence of the content of writing, recording or photo is admissible if:

a) all originals are lost or destroyed (+ not in bad faith by proponent)
b) original can’t be obtained by any available judicial process
c) the party against whom the original would be offered had control of the original, was at that time put on notice that original would be subject of proof at trial or hearing, and fails to produce the original, or
d) the writing, recording, or photograph is not closely related to a controlling issue

Question 17

Rule 1008

Answer 17

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording or photograph under Rule 1004 or 1005

BUT in jury trial, jury determines (under 104(b)) any issue about whether:

a) an asserted writing, recording or photo ever existed,
b) another one produced at the trial or hearing is the original, or
c) other evidence of content accurately reflects the content

Question 18

Demonstratives

Answer 18

• physical evidence created for the purpose of the trial (mainly to illustrate something in your case)
• there are currently no rules relating to demonstratives because it’s very unclear whether or not they should be considered evidence

Question 19

Guidelines for Demonstratives

Answer 19

• should be fair and accurate in terms of representing what it purports to demonstrate
• should not be exchanged in advance
• should not confuse or mislead the trier of fact
• should not go into jury room for deliberations