Authentication & Identification

Question 1

Authentication or Identification

Answer 1

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must procure evidence sufficient to support a finding that the item is what the proponent claims it is.

Question 2

Authentication: Non-Testimonial Evidence

Answer 2

Is accomplished by laying a foundation of preliminary evidence sufficient to sustain a finding that the matter is what it purports to be.

Question 3

Intrinsic Authorization

Answer 3

Intrinsic authorization generally means the item is self-authenticating (no need for a W).

Question 4

Extrinsic Authentication (Sponsoring Ws)

Answer 4

Extrinsic authorization is when a W is required to authenticate an item.

Question 5

Extrinsic Authentication: Expert Witness Comparison

Answer 5

An expert may authenticate by comparison/analysis a document, handwriting, voice or other item.

Question 6

Methods of Extrinsic Authentication

Answer 6

Include:

• Direct evidence
• Circumstantial evidence (chain of custody, ancient documents rule, other distinctive characteristics).

Question 7

Extrinsic Authentication: Direct Evidence

Answer 7

When someone with personal knowledge of, or familiarity with the item (custodian of records) testifies to authenticate them.

Question 8

Custodian of Records

Answer 8

A person charged in an organization (business or government) with maintaining records of the organization.

Question 9

Extrinsic Authentication: Chain of Custody

Answer 9

Chain of custody is often the method used for undistinguishable items, where witnesses testify where item was from the moment that mattered to the moment when offered.

-For tangible object W will claim that it is the same object and is in a substantially similar condition.

Question 10

Ancient Document Rule

Answer 10

States that a document or data compilation is sufficiently authenticated as an ancient document if the party who offers it shows that it:

• is in a condition that creates no suspicion about its authenticity
• was in a place where, if authentic, it would likely be; and
• is at least 20 years old when offered

Question 11

Extrinsic Authentication: Public Office

Answer 11

• Evidence that:
• a document was recorded or filed in a public office as authorized by law; or
• a purported public record or statement is from the office where items of this kind are kept

Question 12

Special Rules for Handwriting Authentication

Answer 12

Handwriting can be authenticated by:

• A layperson with familiarity (not acquired for litigation)
• By comparison by an expert with a person’s known writing sample (that has been authenticated)
• By comparison by the trier of fact (not allowed in all states)

Question 13

Special Rules for Voice Authentication

Answer 13

Voice can be authenticated by:

• Opinion of person who has heard speaker at any time, even if familiarity is acquired for the litigation
• Phone conversations (# assigned to person + circumstances show person answering is the one called; or # assigned to business + reasonable relation to business transacted).
• Process or system description (showing that it produces an accurate result)

Question 14

Photo Authentication

Answer 14

Photos should be authenticated by:

• Having a person testify that he/she is:
• familiar with the scene depicted in the photo
• the photo is an accurate depiction of the scene

-the person testifying is not required to have taken the photo.

Question 15

Intrinsic Authentication: Items that are Self-Authenticating (CONTAC)

Answer 15

Include:

• Certified documents (documents, bearing a seal, documents bearing no seal, foreign documents, and official copies).
• Official Publications
• Newspapers and periodicals
• Trade inscriptions
• Acknowledged documents (e.g. notarized documents)
• Commercial paper (e.g. instruments that have signatures required as provided by general commercial law (UCC))

Question 16

Self-Authenticating Evidence: Document that Bears Seal

Answer 16

A document is self-authenticating if it bears:

• a seal purporting to be that of the U.S. or any state, district, commonwealth, territory, or insular possession thereof; and
• a signature purporting to be an execution or attestation

Question 17

Self-Authenticating Evidence: Documents that Bear No Seal

Answer 17

A document can still be self-authenticating even if it bears no seal if:

• it bears the signature of an officer or employee of an entity named in Rule 902(1)(A)
• another public officer who has a seal and official duties within that same entity certifies under seal (or its equivalent) that the signer has the official capacity and that signature is genuine.

Question 18

Self-Authenticating Evidence: Foreign Authorization

Answer 18

A document may be self-authenticating if it is purported to be signed or attested by a person who is authorized by a foreign country to do so:

• the document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester
• if all the parties have been given a reasonable opp to investigate the document’s authenticity and accuracy, the court may, for good cause, either –> order that it be treated as presumptively authentic without final certification or allow it to be evidenced by an attested summary with or without final certification

Question 19

Self-Authenticating Evidence: Copies of Official Records

Answer 19

A document is self-authenticating if it is a copy of an official record or a copy of a document that was recorded or filed in a public office as authorized by law –> if the copy is certified as correct by:

• the custodian or another person authorized to make the certification; or
• a certificate that complies with the FRE, a federal statute, or a rule prescribed by the Supreme Court