Authentication and Identification

Question 1

Authentication as a condition precedent to admissibility requires evidence to be?

Answer 1

Sufficient to support a finding that the matter in question is what the proponent claims it to believe. Sufficient evidence is that which a reasonable juror could find to be genuine by a preponderance of the evidence

Question 2

All evidence, whether direct or circumstantial, may be classified as either?

Answer 2

1. Testimonial

or

2. Tangible

Question 3

When is demonstrative evidence is admissible?

Answer 3

1. Must assist the trier of fact
2. Fairly and accurately the scene
3. Witness must be substantially familiar with the evidence shown
   e. g. maps and charts

Question 4

How can real evidence be authenticated?

Answer 4

Testimony from witness about first hand knowledge.

Question 5

What is required for chain of custody with fungible items?

Answer 5

1. Accounting for an item’s whereabouts from the time of issue until trial. Big area for impeachment by defense counsel in criminal cases.
2. The party entering the item must account for any change in the evidence.

Question 6

How can documents be authenticated or identified?

Answer 6

Can be authenticated by:

1. Custodian: witness must be substantially familiar with the items
2. A person who prepared the document/report (preparer of lab report)
3. An eyewitness to the signing of the document
4. An opinion by expert witness re: handwriting, fingerprints, shoeprints, tire tread marks, ballistics, etc.

Or

5. By the jury: comparing samples.

Question 7

What are the three ways to authenticate handwriting?

Answer 7

1. Lay person familiar with the writing (≠ as a result of preparing for trial)
2. Comparison by expert
3. Comparison by trier of fact

Question 8

What does a showing that a call was made to the number assigned prove?

Answer 8

That call was received by the person assigned to that number.

Question 9

A showing that a call was made from an assigned number proves?

Answer 9

That the call came from the person assigned to a number.

Question 10

What documents need no foundation witness to prove they are genuine?

Answer 10

1. Certified documents (public documents under seal)
2. Official Publications by a public authority
3. Newspapers and periodicals
4. Trademarks
5. Acknowledged documents (notarized documents)

And

6. Commercial paper (bills of lading).

Question 11

When analyzing writings, what are the issues the proponent must overcome regarding admissibility?

Answer 11

The proponent must prove it is:

1. Original writing
2. Not Privileged
3. Relevant
4. Authentic
5. Not Hearsay

Question 12

What is required to prove the content of a writing, recording, or photograph?

Answer 12

The original is required unless an exception applies. The purpose is to reduce fraud. This rule covers every instrument used to capture statements.

Question 13

When does the best evidence rule apply?

Answer 13

The contents of a writing are an issue in the case:

1. Legally operative documents: Where the writing has independent legal significance
2. Document-dependent testimony: the only reason the witness knows this is because they saw/heard what was captured (if independently known, does not apply).

Question 14

When is best evidence rule not applicable?

Answer 14

Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the best evidence Rule does not apply.

Question 15

What qualifies as an original for the purposes of the best evidence rule?

Answer 15

1. An original
2. A Xerox Copy
3. Certified Copy of a Public Record
4. Summaries of Voluminous Records: Unless there is a genuine question of authenticity

Question 16

If best evidence rule applies, when is the original not required?

Answer 16

If the evidence is:

1. Lost (≠ bad faith)
2. Opponent has possession of the evidence
3. Collateral use of document
4. Subpoena cannot obtain document.

Question 17

When do summaries qualify for the best evidence rule?

Answer 17

1. A showing that the originals themselves would be admissible hearsay (substantive evidence) under either an exception or exclusion 2. The opponent must be given a chance to examine it 3. Authentication: Summaries must be properly authenticated by the preparer.