Authentication Flashcards
(27 cards)
What is the basic idea behind authentication?
If you want to bring in some evidence, you have to prove it is what you say it is.
What is the standard of proof for authentication?
If a rational jury could find the evidence is what the proponent says it is
Standard is low - lower than a preponderance of the evidence
Who determines whether evidence is authentic?
The Judge!
Case example: Johnson
* D charged with assault with an axe
* At trial, the prosecution introduced the axe
* The victim identified the axe, but hesitantly (duh—the victim only saw it while being attacked)
* D argued that this wasn’t enough for authentication
* Holding: judge deemed the axe authentic –> axe came in
Is circumstantial evidence sufficient for authentication?
Yes!
Case example: Bagaric
- 6 Ds were charged with conspiracy
- At trial, the government wanted to offer evidence of a letter from one co-defendant to another
- Circumstantial evidence supported authentication (nicknames were used, specific references, etc.)
- Holding: this evidence was enough for the judge to authenticate the letter
Is a missing link in the chain of custody enough, on its own, to disallow admission?
No, a missing link in the chain of custody is not alone fatal to admissibility.
Case Example: Howard-Arias
- The coast guard towed a boat and found marijuana on it
- At trial, the government wanted to introduce the bale of marijuana
- D argued that since one DEA agent who had possessions of it at one point didn’t testify at trial, the chain of custody was incomplete, so the bale could not be authenticated.
- Holding: evidence was admissible; one missing linke isn’t enough to defeat admissibility - what would be necessary would be an additional reason to think the evidence was unreliable (E.g., basis to believe there was inference or tampering)
In addition to a missing link in the chain of custody, what else is needed to disallow admission on authentication grounds?
There needs to be an additional reason to think the evidence was unreliable (e.g., basis to believe tampering or interference)
What is something you can do when you object to the authenticity of the exhibit, but it gets admitted anyway?
You can still argue to the jury with respect to the weight the evidence should be given.
What are the 11 bases for authentication?
- Testimony of a witness with knowledge
- non-expert opinion on handwriting
- comparison to other pieces of evidence
- distinctive characteristics
- voice identification (person or machine)
- Telephone conversations
- Public records or reports
- Ancient documents presumed reliable
- Process or system
- Methods provided by statute or rule
- Congress can create new methods of authentication
Bases for authentication
What are the three most common ways to authenticate evidence?
- Testimony with knowledge
- Public records or reports
- Methods provided by statute or rule
Bases to authenticate evidence
What is an example of a non-expert opinion on handwriting
a unique letter
Bases to authenticate evidence
What does comparison to other pieces of evidence mean?
Comparison of the new exhibit with other exhibits that have already been authenticated
Bases to authenticate evidence
What is an example of comparison to other pieces of evidence?
A toxic water bottle gets entered; there are 60 others at issue - after the first few get entered into evidence, makes sense to show the rest are the same and admit them all.
Bases to authenticate evidence
Can you authenticate telephone conversations by tracking the number called and when?
Yes!
Bases to authenticate evidence
How do you authenticate evidence using public records or reports?
By evidence that a document was recorded or filed in a public office.
Bases to authenticate evidence
What is an example of authenticating evidence using public records or reports?
Deeds from the County Recorder of Deeds
Bases to authenticate evidence
What does Methods provided by statute or rule mean?
Any method of authentication or identification allowed by a federal statute or a prescribed rule by the supreme court is allowed.
Bases to authenticate evidence
What is an example of a method provided by statute or rule to authenticate evidence?
While questioning witness on the stand:
1. Do you recognize this?
2. What is it?
3. Do you know whose it is?
4. Do you have any reason to believe this item has been altered?
5. Then the proponent will move to admit the evidence.
What is self-authentication, generally?
Some evidence that is intrinsically reliable “authenticates itself”
What if self-authenticated evidence is prejudicial?
- It can still be excluded OR
- an opponent can still argue that the exhibit should be accorded little weight by the jury
What are the 9 categories of self-authenticating evidence?
- Notarizecd documents
- Original public documents
- Trade inscriptions
- Newspapers and periodicals
- Official publications
- Certified copies of public records
- Certified copies of business records
- Electronic data
- commerical paper
self-authenticating evidence
What are 3 examples of trade inscriptions
- Brand logo on a product
- label indicating country of origin
- Barcode that can be traced back to a specific company
Self-authenticating evidence categories
What is required to be considered an “official publication?”
It must be published by a public agency/authority (e.g., books, pamphlets, newletters, etc.)
Federal, state, or city agencies count
Self-authenticating evidence categories
Who certifies a copy of a public record?
the custodian or other authorized person can make the certification
Self-authenticating evidence categories
What is required for a certified copy of a business record from a domestic organization?
- The coversheet must be filled out under perjury laws of the US
- Proponent must give adverse party written notice of intent to offer the record
- Adverse party must have opportunity to inspect record
