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Flashcards in Authentication & Expert Testimony Deck (31)
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tangible evidence

documentary evidence and physical objects


demonstrative evidence

Evidence that is representative or illustrative of an object or situation (e.g. animation of a car crash)


What is "authentication" of evidence?

All evidence must be authenticated (i.e. proven "genuine") before it may be admitted. The proponent must establish that the object is what they are claiming it to be. The final decision as to whether the evidence is authenticated rests with the jury. 

FRE 901(a) 


When is authentication not necessary

  1. Parties have stipulated to the facts; or 
  2. Party granted a written request for admission 


What are examples of methods by which evidence can be authenticated? 

  • Testimony by a custodian of the records
  • Testimony by a person who prepared or created the document
    • E.g. the lab technician who created the report
  • Testimony by a person who witnessed the signing of the document
  • Testimony by an expert witness qualified to render an opinion on the issue
    • E.g. a handwriting expert testifying that the letter was written in the defendant's unique penmanship
  • Showing the trier of fact a comparison of the unauthenticated evidence with an authenticated specimen

FRE 901



What is self-authenticating evidence?

Evidence that is so self-evident, it requires no extrinsic evidence of authenticity in order to be admitted.

FRE 902


What types of evidence are self-authenticating?

  • Certified copies of public records;
  • Official publications purporting to be issued by a public authority;
  • Newspapers and periodicals;
  • Trade inscriptions;
  • Notarized documents;
  • Commercial paper; 
  • Anything that a federal statute declares to be authentic;
  • Certified records of a regularly conducted activity; 
  • Certified records or data generated/copied from an electronic device or system 

FRE 902


How can a physical object be authenticated?

  1. Personal knowledge: Testimony of a witness with personal knowledge that the item is what it's claimed to be; 
  2. Distinctive characteristics: by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item (e.g. engraved initials on the gun); 
  3. Chain of custody

FRE 901(b)(1) and FRE 904(b)(4)


What is authentication by chain of custody?

Proves that the item in court has not been materially altered or tampered with. Every witness who handled the object must testify and state: 

  1. When the witness took custody of the evidence and from whom/where;
  2. Precautions taken to preserve the evidence;
  3. That the item was not substituted, nor tampered with while in their custody; and
  4. When the custody of the item was relinquished and to whom (e.g. for fingerprint testing)




How are reproductions (e.g. diagrams) authenticated?

Testimony of a witness with personal knowledge that the item is what it's claimed to be 

⚠️ Note: Does not need to be the creator, can be anyone with personal knowledge as to its authenticity 


How is a photo authenticated?

Testimony by anyone who witnessed the scene depicted in the photo and can attest to its accuracy 


What are the three ways to authenticate handwriting?

  1. Testimony of lay person who was familiar with the handwriting before litigation began 
    • E.g. Mother testifies that she recognizes the handwriting as her son's
  2. Comparison by a qualified expert (can use handwriting specimen written in preparation for trial)
  3. Comparison by trier of fact: jury can compare side-by-side specimens


Does having a signature on a piece of writing prove that the document is written by the person who signed it

No, there must be other proof that the person who signed the document is the one who wrote it 


How do you authenticate x-rays and other evidence whose accuracy depends on unseen processes?

Proponent must: 

  1. Establish a valid chain of custody
  2. Show that the machine was working properly
  3. Show that an accurate process was used; and 
  4. The operator of the machine was competent to operate it



How do you authenticate a wiretap or recording technology?

Proponent must show: 

  1. Recording device was capable of recording the conversation; 
  2. Operator of the device was qualified to operate it; 
  3. No changes have been made and recording was preserved in the manner shown to the court (i.e. chain of custody); 
  4. Recording is authentic and correct
  5. Identify of the speakers; and 
  6. The conversation was made in good faith without inducement



How do you authenticate ancient documents?

Presumed authentic if: 

  1. Document is at least 20 years old
  2. Document is unsuspicious in its appearance; 
  3. Found in a place natural for such a document 

FRE 901(b)(8)


How do you authenticate someone's voice?

By testimony of anyone who is familar with the voice (doesn't need to be familiar with the voice before litigation began)


How do you authenticate statements made during a telephone conversation?

Evidence showing the proponent called the number assigned to the person or business, and the person or business identified themselves upon answering

FRE 901(b)(6)


What are the only 2 situations in which the Best Evidence Rule applies? 

  1. Terms of the writing are being proven (e.g. contents of a will or photo); or 
  2. Witness relies on contents of the original during his/her testimony 


⚠️ Be careful: The Best Evidence answer on the MBE is usually wrong. Unless it is these 2 scenarios, the original copy is not needed. Also, the Best Evidence Rule only applies to situations where material terms are at issue. Be wary of questions where the terms are not material. 




When are duplicates admissible under the Best Evidence rule? 

  • There is no genuine question as to the original's authenticity (FRE 1003); 
  • All originals are lost or destroyed and not by the proponent acting in bad faith (FRE 1004(a)); 
  • Original cannot be obtained by any available judicial process (FRE 1004(b)); 
  • Party against whom the original was going to be used had control of the original and failed to produce it at trial (FRE 1004(c)); or 
  • Needed to prove the contents of an official, certified record (FRE 1005)


Are lay (non-expert) opinions admissible? 

Only if they are based on first-hand knowledge and: 

  1. Rationally based on the witness’s perception;
  2. Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
  3. Not based on scientific, technical, or other specialized knowledge

FRE 701


Can you ask a non-expert witness what someone might have been thinking



What are the requirements for expert testimony?

  1. Witness is qualified to be an an expert by knowledge, skill, experience, training, or education; 
  2. Witness's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
  3. Testimony is based on sufficient facts or data;
  4. Testimony is the product of reliable principles & methods; and
  5. Expert has reliably applied the principles and methods to the facts of the case

FRE 702


An expert's opinion can be based on what type of information? 

  1. Facts or data that expert has been made aware of or personally observed;
  2. Facts that were presented to the expert at trial (e.g. hypothetical question); or 
  3. Facts that experts in the field would rely on to form an opinion; 

FRE 703


Who decides whether expert testimony is admissible? 



The judge acts as the gatekeeper 


What are the Daubert factors?

Used to determine whether the expert's methods are scientifically valid. The court weighs: 

  1. Whether the method has been tested; 
  2. If the method has been subject to peer review and publication; 
  3. The error rate of the technique;
  4. The existence of standards controlling the technique's application; and
  5. General acceptance in the relevant scientific community

More Info: Daubert Factors


Can an expert rely upon inadmissible evidence to support their conclusions?

Yes, but the expert cannot disclose the evidence to the jury unless the court finds that the probative value of disclosure substantially outweighs its prejudicial effect.

FRE 703


Can an expert state their opinion without testifying to the underlying facts or data


Yes, unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data.

However, the expert may be required to disclose those facts or data on cross-examination.

FRE 705


Can experts give opinions on legal conclusions?

No, experts cannot state legal conclusions in their opinions.

(e.g. "he hit the victim with deadly force.")


Can an expert give an opinion on an ultimate issue in a case? 

Yes, but experts cannot give an opinion as to whether D had the requisite mental state for the crime