Evidence

Authentication

FRE 901(a)

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.

Examples
FRE 901(b)
  1. The following are examples only — not a complete list — of evidence that satisfies the requirement:
    1. Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
    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.
    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.
    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.
    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 circumstances that connect it with the alleged speaker.
    6. Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
      1. a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
      2. 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:
      1. a document was recorded or filed in a public office as authorized by law; or
      2. 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:
      1. is in a condition that creates no suspicion about its authenticity;
      2. was in a place where, if authentic, it would likely be; and
      3. 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 the Supreme Court.
  • For ancient documents, they must have logically had a reason to have been corrected if incorrect.
Chain of Custody

A chain of custody is not technically required, but a court will if it has any doubt. It is required if the item is not distinctive in its appearance, such as with DNA evidence.

A break in the chain is not necessarily fatal to authenticity if the evidence is not key to the case. It will likely be admitted, and the break will be up to the jury to determine the weight of the evidence.

Best Evidence Rule
FRE 1002

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

  • If you are not trying to prove the content of the writing (if the writing is the source of the information), you (such as with eyewitness testimony), you are not required to produce the original.
FRE 1003

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.

  • Duplicates are admissible only if it is a mechanical process that produced the duplicate. If a human produced it, human error raises a question about its authenticity.
FRE 1004

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

  1. all the originals are lost or destroyed, and not by the proponent acting in bad faith;
  2. an original cannot be obtained by any available judicial process;
  3. the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
  4. the writing, recording, or photograph is not closely related to a controlling issue.
  • A court may find bad faith where it does not exist if it thinks the evidence should not be admitted for the purpose of the rule. (Maybe if gross negligence)
Inscribed Chattel

Inscribed chattels are short, easy-to-remember writings.

The best evidence rule is not applied to writings that are inscribed chattels, allowing it to show that the writing was there.

Inscribed chattels are really similar to verbal objects.

Some factors that courts might use in finding something an inscribed chattel are:

  1. Need of precise information
  2. Central to issue
  3. Civil or criminal
  4. Case of prod.
  5. Simplicity or complexity