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Law Outlines Evidence Outlines

Authentication Of Exhibits Outline

Updated Authentication Of Exhibits Notes

Evidence Outlines

Evidence

Approximately 64 pages

The outline is in a checklist format. This means any fact-pattern can be easily analyzed by just following the simple steps laid out in the outline.
The outline covers witness threshold requirements, requirements for physical evidence, relevance, hearsay, most hearsay exceptions/exclusions, the Confrontation Clause, character evidence and habit, other forbidden inferences, impeachment, expert/lay opinions, and privileges. ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

AUTHENTICATION OF EXHIBITS

0) ALL OTHER RULES APPLY ON TOP OF THESE

1) Authentication: is the item what the proponent claims it is?

*104(b): judge makes preliminary determination on whether foundation of evidence is sufficient (preponderance) to support a reasonable jury in finding the preliminary condition of relevance fulfilled.

(Here, the preliminary condition is that the document is what it claims to be and is authentic.

Ultimately up to the jury, like all 104(b) evaluations.

1) Evidence in question is a tangible item

(Document, recording, weapon, etc)

-NO=>authentication rules don’t apply.

-YES: Proponent of the evidence must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (FRE 901(a)).

2) Is the item self-authenticating under (FRE 902)?

-Require no EE of authenticity to be admitted (but jury can still decide that it’s inauthentic).

-EXAMPLES: Not exclusive

-various official, public documents, and records certified or w/ signature + seal.

-newspapers + periodicals hard to forge and easy to catch forgeries since they’re everywhere.

-trade inscriptions (TM label)

-notarized docs

-commercial paper and related docs (to the extent allowed by commercial law)

-certified business records of a regularly conducted activity (OVERLAP w/ 803(6)(A)-(C))

-Meets 803’s requirements.

+gave reasonable written notice to adverse pty and make it available for inspection.

YES=>authenticated

NO=>continue

3) REAL or DEMONSTRATIVE: Proponent contends that the item is actual item at issue in the case?

NO=> Tangible item offered as demonstrative evidence (such as a chart, map or replica)

1) authenticated by a witness who demonstrates familiarity with whatever is depicted

2) who testifies that the exhibit fairly and accurately represents the subject?

(ex: photographs not to scale, different lighting)

(3): no attacks (misrepresents the record, or too emotionally upsetting (403).

-YES=>authenticated

-NO=>should sustain objection as to authenticity.

YES=> Sufficient evidence for a judge to believe that the jury would find that the item is what the proponent claims it is?

Flexible and easy standard: party seeking authentication can just rely on general principle that the item is what the proponent claims it to be. “rational basis for claim that docment is what proponent asserts it to be” (Long).

-Real evidence authenticated by showing that the exhibit in court is the actual item in question. Hasn’t undergone any significant change….

-Chain of custody (not as big a deal as Slansky makes of it)

-often most effective way to authenticate un-distinct exhibits.

(Ex: all cocaine looks the same, not that I would know)

1) Demonstrate where evidence was kept at all times

But breaks in chain usually not a problem, just go to weight not admissibility.

2) And condition under which the evidence was maintained.

But slight alterations that didn’t change contents are irrelevant.

Bruther v. GE Co. [deadly lightbulb]

-threshold met: jury can determine if it is in fact authentic, (there was a gap, weren’t sure where it was, but then saw it broken in the closet. No reason to keep broken bulbs lying around).

US v. Grant

-heroin sample seized at airport, in airport vault, ??? (2 weeks), then signed in to DEA lab. Casts doubt, but not enough to reverse finding of admissibility.

EXAMPLES of evidence that satisfy the authenticity requirement. Not a complete list. (901(b)). NEXT PAGE

EXAMPLES of evidence that satisfy the authenticity requirement. Not a complete list. (901(b)).

*(1) Testimony of a witness with knowledge (including the introducing party themselves)

-can be used for photo, recorded convo, etc.

*(2) Non-expert opinion about handwriting

Iff 1) familiar with handwriting + 2) familiarity not acquired for the current litigation.

*(3) Comparison (can also be writing) by an expert witness or trier of fact “with a authenticated specimen”

Ex: authenticated signature with the signature in question.

(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.

Ex: will refers to family member by intimate nickname.

MODERN ISSUE: statements made on social media (like admitting to a crime – admisions by a party opponent that need authentication) often authenticate social media pages w/ distinctive characteristics on them (pics of the person, their pet, b-day, etc.)

BUT concern about hijacking.

*(5) Voice ID’s: “whether heard firsthand or through mechanical or electronic transmission or recording”

*if it’s on a recording, that has to be authenticated too (maybe just by (1), but still authenticated).

“based on hearing the voice at any time under circumstances that connect it with the alleged speaker”

Just have to testify that you heard the voice before, including hearing for the first time in context of litigation.

Mitch: idea is that voices are easy to ID, more distinctive, but that doenst make sense.

(6) Evidence about a telephone convo (number called, who it was assigned to, if circumstances indicate that they likely answered).

-IDing # as registered in person’s name is probably sufficient.

(SOME) ...

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