Evidence - Authentication And Identification

Front 1

A Condition Precedent to Admissibility

(Requirement of Authentication or Identification)
(FRE 901)

Back 1

To authenticate, need evidence sufficient to support a finding that the matter is what proponent clams it to be.

The “Sufficiency” Requirement
(1) For purposes of authentication, evidence is “sufficient” if a reasonable juror could find, by a preponderance of the evidence, that it is “genuine.”
(2) Evidence that is “sufficient” for purposes of authentication must be admitted by the judge; the jury, however, has the final decision as to how much weight to give it.

Front 2

Demonstrative Evidence

(Requirement of Authentication or Identification)
(FRE 901)

Back 2

Tangible.

Relevance depends on whether it can explain or simulate material facts.

Ex: maps, charts, diagrams, etc.

Foundation: must fairly and accurately represent the scene

witness who testifies must be substantially familiar with it.

Front 3

Real Evidence

(Requirement of Authentication or Identification)
(FRE 901)

Back 3

Physical evidence actually connected to the case (e.g. gun)

To authenticate:
1. personal knowledge
2. distinctive characteristics

Fungible Items:
Fungible Items
--cannot tell uniqueness
--requires an accounting of its whereabouts from the time of issue until trial (chain of custody).
--> A break in the chain of custody does not automatically render the item inadmissible but will go to the weight of that evidence.

Photographs and X-rays:
--Must be an accurate portrayal of what it depicts.
--Authentication by the photographer or x-ray technician is not required.

Front 4

Documents

(Requirement of Authentication or Identification)
(FRE 901)

Back 4

Type of real evidence

To authenticate:
--need first-hand knowledge of document

The “Reply” Doctrine
--authenticate with circumstantial evidence
--> Ex: a reply to a letter is circumstantial evidence that the reply was written by the person to whom the original letter was sent.

Ancient Documents
--For documents that are more than 20 years old, they are authenticated if they are found in the place where one would expect it to be found.

Front 5

Handwriting

(Requirement of Authentication or Identification)
(FRE 901)

Back 5

Authenticated by
(1) a layperson with familiarity with a person’s handwriting,
(2) by expert testimony, or
(3) by comparison by the trier of fact.

If authentication of handwriting is done by testimony from a layperson said to be familiar with a person’s handwriting, that familiarity cannot be acquired for purposes of litigation.

Front 6

Voice Identification

(Requirement of Authentication or Identification)
(FRE 901)

Back 6

All voices must be identified when a phone conversation or recording is offered in evidence

Front 7

Telephone Calls

(Requirement of Authentication or Identification)
(FRE 901)

Back 7

Outgoing call: show that the call was answered by the person to whom that number is assigned.

Incoming call: show that there is a reliable process whereby you are able to identify the source of the call or use circumstantial evidence.

Call involved a business: show that the call was made to the number assigned to that business and that the conversation related to transactions reasonably engaged in by that business.

Front 8

Experts

(Requirement of Authentication or Identification)
(FRE 901)

Back 8

Experts may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate.

Experts may also authenticate a scientific device under Daubert (or Frye).

Front 9

Self-Authentication
(FRE 902)

Back 9

Need no foundation witness to prove they are genuine: CONTAC

C: certified
O: official publications
N: newspapers and periodicals
T: trade inscriptions
A: acknowledged
C: commercial paper

Signed document with witness subscriber, subscriber's testimony usually unnecessary.