Federal Rules of Evidence – Authentication and Identification

Federal Rules of Evidence Law School Supplements

Recap of Best Evidence Doctrine:

There’s no hierarchy of probative value
Rule 1007: Testimony or Written Admission of Party:
- Contents of writings, recordings or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original
Rule 1005; Public Records:
- The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercised of reasonable diligence, then other evidence of the contents may be given.
Rule 1008: Functions of Court and Jury

Chapter 13: Foundational Evidence, Authentication

A. Introduction

Class Notes:
- Foundation = mechanism to screen out evidence that isn’t reliable
  - If there’s no foundation present you might not know what your proper objections are or are not
  - Underlying policy, this is used to screen out irrelevant, or prejudicial evidence
- General Requirement of Authentication (Laying the Foundation):
  - 1. General requirement of authentication or identification is satisfied by the proponent providing evidence that the matter in question is what it claims it to be. (e.g. This is the gun I found at the crime scene)
  - 2. The burdens of production and persuasion are on the proponent of the evidence (e.g. up to the person presenting evidence to show authenticity)
  - 3. Authentication issues are decided under Rule 104(b). (Ultimately up to the jury to decide on authenticity and whether or not to admit it)
- Rule 901: Requirement of Authentication or Identification:
  - (a) General Provision:
    - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
- Example Procedure for Authenticating Trial Exhibits:
  - 1. Be sure you know exactly what exhibits the other side is going to use at trial and preserve your objections. Know your trial strategy regarding each of these exhibits.
  - 2. Mark all of your exhibits for identification. Find out how the court wants it done and comply. Do not wait until the last minute. This should be done well in advance of trial
  - 3. Organize a copy of all your marked exhibits in a binder for the court.
  - 4. Be sure you are prepared to authenticate each of your marked exhibits. Consider requests for admission and/or stipulations.
  - 5. Authenticate a given exhibit (e.g. have a witness testify that the exhibit is what it claims to be).
  - 6. Offer the exhibit into evidence. Be sure to keep a proof and exhibit checklist.
  - 7. Permit opposing counsel the opportunity to review it.
  - 8. Obtain court ruling. Be sure you understand the ruling and ways you can satisfy judge’s concerns, if any, regarding admission of the exhibit.
  - 9. Be sure to make a record if the court rules against you.
  - 10. If admitted, publish the exhibit to the jury the most effective way allowed.
  - NOTE: court has discretion
- The mere production of a document helps with authenticity
- Civ Pro Rule 16 :: Pretrial Conference
  - Conference with the court before trial
  - Discuss issues
Example Problem:
- In case against holly for murder of John, the prosecution moves into evidence a knife found at the murder scene. The prosecution does not call any witness to testify that this knife is the one found at the murder scene. The prosecution, however, does call a pathologist, who testifies that John was killed by multiple stab wounds.
- Holly’s counsel object to the admission of the knife. The prosecution argues that this is a matter for the jury to decide under Rule 104(b). What is the correct ruling?
- Sustained = well taken objection  must be ample evidence for jury to decide one way or the other and prosecution didn’t put anything in
- Someone has to testify that the knife was the one found at the murder
- Objections:
  - If objections (aside from 402 or 403) to exhibits are not raised they are waived
Tangible Evidence Generally Proved By:
- 1. Witness testimony, based upon
FRE 901: Requirement of Authentication or Identification:
- (b) Illustrations: By way of illustration only, and not by way of limitation, the following are examples of authentication or identification confoming with the requirements of this rule
General Notes:
- Authentication:
  - Authenticating an item of evidence means offering “evidence sufficient to support a finding that the matter in question is what its proponent claims”  FRE 901(a)
  - FRE 902: allows “self-authentication” for trade inscriptions that would include at least the label on a can of peas, and perhaps logos that would appear in newspaper ads
    - FRE 901 relaxes authentication rule to allow courts to consider appearance, contends and internal patterns and expands list of things that are self-authenticating
  - FRE 104(b): A Screening Mechanism:
    - Trial judge plays a screening function, passing ultimate decision on authenticity to jury  BUT if proponent offers no proof of authenticity to enable jury to find an exhibit authentic  then exhibit MUST be excluded
- Traditional Steps to Authenticate and Introduce Exhibit:
  - 1) Getting the court reporter to mark the exhibit for identification
  - 2) Offering testimony identifying or describing the exhibit (heart of authentication process)
  - 3) Offering the exhibit in evidence
  - 4) Letting counsel for other parties examine it
  - 5) Giving the other lawyers a chance to object
  - 6) Submitting the exhibit to the court to examine if it wishes to do so
  - 7) Getting a ruling
  - 8) Asking permission to present the exhibit, if admitted, to the jury by reading it to them or showing it to them

B. Tangible Objects

United States v. Johnson (United States Court of Appeals for the Ninth Circuit, 1980):
- Facts:
  - D was convicted of assault resulting in serious bodily injury for an attack with an axe on a victim named Papse (who is called as witness at trial)
  - Axe was seized from D’s home 5 days after assault  D argues insufficient foundation or authentication axe was admitted
    - D argues this was error because Papse (victim) couldn’t distinguish this axe from any other
    - P
- Legal Issue:
  - Was there sufficient authentication of the ax to support its admission into evidence?
- Holding/Rationale:
  - Rule:
    - FRE 901(a) provides that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
  - Application:
    - Although record reveals that ID of ax made by Papse may not have been free from doubt, witness did state that he was pretty sure it was the weapon used against him
    - Based on testimony reasonable juror could have found that ax was weapon used in assault
- Class Notes:
  - Court said testimony was sufficient for authentication  Papse saw axe and thought it was same one
  - “The terms of the Rule are thus satisfied, and the proffered evidence should ordinarily be admitted, once a prima facie case has been made on the issue. At this point the matter is committed to the trier of fact to determine the evidence’s credibility and probative force”
    - This is a 104(b) determination
  - Seizing Object:
    - When police seize object they’ll note all distinctive markings so they can ID the object later as the one found at the scene
  - PROBLEM 13-A:
    - They control every aspect of the chain of custody to prove authentication
United States v. Howard-Arias (1982):
- Facts:
  - D was on board ship that was rescued by another boat  coast guard arrived and found pot on the boat that was recovered
  - D argues that they can’t prove authentication b/c no proof of chain of custody from boat to trial
- Legal Issue:
  - What is rule regarding Chain of Custody and authentication?
- Holding/Rationale:
  - Chain of Custody Rule:
    - Real evidence must be authenticated prior to its admission into evidence
    - Ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item was switched/tampered with before trial
  - Resolution  rests on discretion of trial judge
- Class Notes:
  - There was incomplete chain of custody
  - Special agent who received pot from costguard wasn’t able to testify does this equate to broken chain of title? NO
    - This didn’t matter to court because it wasn’t initial person who seized drugs (that would have mattered more)
    - This goes to weight of evidence, but court will still allow it to be admissible  they said this was minor link
  - Courts almost always require the original link in the chain
  - Well trained officers will restrict access to evidence as much as possible

C. Writings

Class notes:
- Must prove that particular person signed or authored the writing someone can ID signature based on familiarity
  - Rule 901(b)(2): Nonexpert opinion on handwriting
    - If a witness tries to say its not their handwriting then just ask them to write out a long handwritten passage
  - Rule 901(b)(3) Comparison by trier or expert witness = Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated
  - Rule 901(b)(4) Distinctive characteristics and the like = Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
    - Kind of encompass the common law “Reply Doctrine” authenticate showing that a “reply” clearly was imitated by a prior letter
- Common Law Reply Doctrine:
  - Writing can be seen as coming from B if it can be shown to be response to earlier writing from A to B
United States v. Bagaric (US Court of Appeals for Second Circuit, 1983):
- Facts:
  - Ds were convicted of violations of RICO  1 D challenges admission of evidence linking him to co-racketeer
  - Evidence = letter discovered during search of D’s home
- Legal Issue:
  - Was letter properly authenticated? YES
- Holding/Rationale:
  - Rule : Authentication finding MAY be based entirely on circumstantial evidence including appearance, contents, substance, etc
  - Application: Letter was addressed to D and contents of letter went further to authentication
Rule 901(b)(7) Public records or reports
Rule 901(b)(8) Ancient documents or data compilation = Evidence that a document or data compilation, in any form, A is in such condition as to create no suspicion concerning its authenticity, B was in a place where it, if authentic, would likely be, and C, has been in existence 20 years or more at the time it is offered

D. Tape Recordings:

Turnage v. State (Supreme Court of Minnesota, 2006):
- Facts:
  - D was convicted of murder and sentenced to life imprisonment for killing Wa Van (apartment manager)
  - Prosecution introduces tape evidence and D argues there was no foundation to establish the tape-recorded copies of his telephone calls were same as originals
- Legal Issue:
  - Is there genuine issue of authenticity? NO
- Holding/Rationale:
  - Standard of Review:
    - DC has broad discretion over admissibility of evidence, and standard of review for adequacy of foundation w/ respect to admission of evidence is abuse of discretion
  - Application:
    - DC didn’t abuse discretion
    - 1) initial digital recordings of conversations satisfy required foundation elements that court noted in Furlev and would have been admissible as original tape recordings
    - 2) duplicated copies of digital tapes satisfied the requirement for admitting a duplicate recording
      - Standard under MRE 1003 is admissible unless genuine issue of material fact

F. Telephone Conversations

United States v. Pool (US Court of Appeals for Fifth Circuit, 1981):
- Facts:
  - D’s convicted of several charges dealing w/ attempt to import pot into US
  - D (Loye) appeals conviction count 9 (using phone for indictment) on grounds that phone call alleged to be from him was insufficiently authenticated
  - Conversation was with DEA (undercover agent) and D but was never recorded  D was ID-ed by DEA based on this conversation
- Legal Issue:
  - Was conversation properly authenticated? NO
- Holding/Rationale:
  - General Rule:
    - A telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X
  - Application:
    - Standard of admissibility is prima facie and evidence may be circumstantial BUT not sufficient evidence here
- Class Notes on Case:
  - Witness must be able to make showing of ID of person on the other end of the line
  - Need more than calling and saying “This is X”
  - You could MAYBE use caller id
  - Rule 901(b)(6) Telephone Conversations:
    - Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if A in the case of a person, crcumstances, including self-ID, show the person answering to be the one called, or B in the case of a business, the call was made to a place of business and the conversation related to business …
- Problem 13-H:
  - Evidence about a telephone convo
  - 901(b)(5) doesn’t help and nor does 901(b)(6) because he called a country club and he’d never spoke to the person before
  - Could maybe get it in under 901(b)(4)
    - Copies are authenticated under 902(4)
    - 902(2) authenticates only an original public document
Class Notes:
- Rule 901(b)(5) Voice Identification: ID of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker
- Problem 13-b: K should be sufficient authenticating witness
Photographs:

G. Self-Authentication

General Notes:
- FRE 902 allows for admissibility of self-authenticating exhibits  BUT it does not bar counter proof by the opponent
- Newspaper is self-authenticating under 902(6) and label on candy bar is self-authenticating under 902(7)
- A privately published book doesn’t qualify under 902(5)
Self-Authentication:
- 1. Extrinsic evidence not required for foundation.
- 2. Rule 902 sets forth ten situations where this applies
- 3. In no instance is the opposite party foreclosed from disputing authenticity
Self-Authentication of Public Documents:
- FRE 902(1) Domestic Public Documents Under Seal:
  - Rule relates only to original public document and tells you when original of public document (under seal) is self-authenticating
  - Probably not going to use 902(1) because you probably won’t get original
- FRE 902(2) Domestic public documents not under seal:
  - Authenticating original public document (not under seal)
  - Doesn’t deal with copies
- FRE 902(3): Foreign Public Documents
  - This deals with original public documents and not copies
- FRE 902(4):
  - Deals with copies of original public documents
  - Purpose is so original need not be removed from public records
- FRE 902(9) Commercial paper and related documents
Rule 903 Subscribing Witness’ Testimony Unnecessary:
- The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of writing.
  - This is referring to a will  don’t need testimony from the ppl who signed it unless there is argument that it wasn’t actually their signature
Hearsay:
- First define what is hearsay
- Once it is hearsay, we must determine whether there should be exceptions to the hearsay rule

H. Demonstrative Evidence

Belli, Demonstrative Evidence: Seeing is Believing (1980)
- General Notes:
  - Demonstrative Evidence = anything which appeals to the jurors’ senses (something to see, touch, taste, smell, or listen to)
- The Uses of Demonstrative Evidence:
  - Demonstrative evidence used for 3 major purposes:
    - 1) to establish the liability of D
    - 2) to illustrate the full extent and severity of P’s injuries, and
    - 3) to complement the written transcript for use on appeal
- Types of Demonstrative Evidence:
  - Photos are most frequently used type of demonstrative evidence
  - When P was injured, photos are especially important in raising juror emotions and obtaining a higher award
Notes:
- Belli refers to demonstrative evidence as anything that appeals to senses
  - Definition is broader than most others b/c it could encompass testimony
  - Most commentators distinguish between “real” evidence (tangible objects) and “demonstrative” evidence (evidence having no independent probative value that serves as visual aid in understanding testimony or other evidence)
- Admissibility with Tests or Experiments:
  - Admissibility of evidence depends upon a foundational showing of substantial similarity between the tests conducted and actual conditions. Perfect identity between experimental and actual conditions is neither attainable nor required. Dissimilarities effect the weight of the evidence, not admissibility.
  - Finally, the decision whether to admit or exclude evidence of experiments in a particular case rests largely in discretion of trial judge and his decision will not be overturned on appeal absent a clear showing of abuse of discretion.

Federal Rules of Evidence – Authentication and Identification

Federal Rules of Evidence Law School Supplements

Federal Rules of Evidence Law School Supplements

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