Authenticating and Identifying Evidence

Steps at trial to admit evidence

- Mark it for identification (pretrial) - Lay the foundation (authenticate or ID) with the witness - Move to have the document admitted into evidence - Permit opposing counsel to examine and object - Submit the document to the court - Court will rule and admit to jury

Self-Authenticating Documents

A proponent of such a document is not required to present any authenticating evidence to introduce it. The opponent may still offer evidence to challenge its genuineness, and if the challenging evidence could support a finding, the issue goes to the jury. Self-authenticating documents also could be inadmissible for other reasons, e.g. best evidence rule; hearsay; privileged. Examples: Certified public documents, such as deeds or probated wills; newspapers and periodicals; trade inscriptions; certified business records; official publications;

Authenticating and IDing Voices and Telephone Calls

A voice ID can be made based on familiarity acquired "at any time," including in anticipating of litigation. "Minimal familiarity" is sufficient to identify a voice(U.S. v. Vitale) Probable exam question: difference between voice and handwriting IDs on when familiarity can be acquired - Handwriting familiarization must be before litigation - Voice familiarization is ok after litigation arises Two ways to identify voices: 1. Opinion can be given about a voice under any circumstances - Person who made the call is usually IDed this way by the recipient - The person calling could lie, no way to know how is actually calling except by identifying the voice 2. If a call was made to the number assigned to a particular person can show that the person who answered the call was the one called OR - If X calls Y and a voice answers and says this is Y, that is sufficient to authenticate the person who received the call. - Use to identify the recipient of a call who identifies herself Evidence that a call was made to a number assigned to a particular business if the call was made to a business and the call related to business transacted over the phone

Single Witness Method

A witness can testify to the item's identification (this is or appears to be the one) and that its condition is the same / it has not been immaterially altered between the event and now. If a person who had knowledge at the time of the event can plausibly testify to identification and condition, then you can use single witness. An immaterial change in condition, such as a piece of hair falling off the end of an ax blade, does not undermine the use of the single witness method. (U.S. v. Johnson - The ability/inability of the W to specify particular identifying features of an object (ax) as well as the evidence of the object's alleged changed condition, should then go to the question of the right to be accorded this evidence.)

Authenticating Handwriting TRE

Authenticating Handwriting TRE When using an authenticated example to compare to the evidence, either the other side must admit the exemplar is genuine, or the judge must find it is genuine Not enough to show that the specimen be supported with evidence sufficient to support finding that it is genuine

Chain of Custody Method

Chain of custody: The "chain" begins at seizure and ends in court, and "custody" means there is always only one custodian who is responsible for the item; each custodian can be called in order to testify that this is the same item When the object, according to its natures and features, does not lend itself to single witness ID, then you have to show chain of custody. Examples: The white powder; the vial of blood; the bag of weed An uninterrupted chain of custody is not a prerequisite to admissibility. Gaps or breaches in the chain of custody go to weight, not admissibility. There is a presumption of regularity in the absence of affirmative evidence of tampering or substitution. (U.S. v. Olson - the nature of the evidence (bullets) also made alteration unlikely. When items have been in official custody and there's no affirmative evidence of tampering, a presumption of regularity attends official acts of public officers and the cts presume that their official duties have been discharged properly.)

Photographic Evidence

Common law relied mostly on pictorial testimony: Witness was independently familiar with the content of the photo, so the foundation would be laid with, "Does this photo fairly and accurately depict what you saw?" As long as W shows personal knowledge, doesn't matter who took the pic Silent Witness Theory - The photographic "speaks for itself" and is substantive evidence of what it portrays independent of a sponsoring witness (e.g. surveillance video that recorded an event nobody saw). - The foundation is laid with process: tell us how this photographic evidence was created so that we can know circumstantially that it is what it purports to be. - Example: Testimony that a store owner positioned a surveillance camera, loaded new tapes, started the camera, checked to see it was working, and saw no evidence of tampering on the video is sufficient to authenticate surveillance video. (Fisher v. State)

Authenticating and Identifying Writings

Comparing an authenticated specimen to the evidence at hand is legitimate way to authenticate writing, including handwriting. Jury makes the final comparison. - Can have expert (ok if their only familiarity is for litigation) or nonexpert who is familiar with the writing for reasons other than the current litigation - Authenticated comparison: Only have to show that the specimen be supported with evidence sufficient to support finding that it is genuine (court doesn't have to find it's genuine) - Examples of exemplars: Handwriting on an IRS tax return is presumed to be the taxpayer's. Handwriting from the forms the party filled out on the first day of work, taken from her personnel file, also are sufficient. (U.S. v. Managan) - Distinctive characteristics or circumstances can authenticate a document (e.g. writings found in an isolate area where only A was seen, within A's campsite next to A's bed, with frequent references to A's beloved dog). - Reply letter doctrine: If you write a letter to someone you don't know, and in an appropriate time you get a response via a letter bearing a signature purportedly from the addressee, then the addressee is presumed to have signed it because that's a form of exhibiting special knowledge peculiar to the purported writer (that a reply was called for) Public Records or Reports. - Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. - Public Records: redundant bc you have 902, not normally done thru 901(b)(7) Ancient Documents or Data Compilation. - Evidence that a document or data compilation, in any form, - is in such condition as to create no suspicion concerning its authenticity, - was in a place where it, if authentic, would likely be, and - has been in existence 20 years or more at the time it is offered

Conditional Relevancy

Court must decide preliminary questions about whether a witness is qualified, privilege exists, or evidence is admissible - Technical questions, like hearsay - Almost everything goes under this Preliminary Questions of fact for the jury: - When relevancy depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. - Finder of fact handles issues like relevancy - Pure relational issues - Authentication and identification fall under this - If uncharged crime offered under 404(b): If an uncharged crime is relevant to motive in the present case, whether ∆ did the uncharged crime is a jury question

Demonstrative (Illustrative) Evidence

Demonstrative/illustrative evidence is not real evidence. it is tangible things and items that are similar to real evidence brought in to serve as a visual aid to help the jury better understand verbal testimony (e.g. model, map, x-ray) Foundation: The item: - Must depict relevant information that is or will be proven by other, substantive evidence; - Must be accurate (perfect accuracy not required as long as, on balance, the item is helpful) - Must be helpful, likely to aid the trier of fact in understanding the evidence Example—a facsimile: If the machete murder weapon has been disposed of, but you have an accurate description of it from witnesses, you can bring one in just like, with an instruction that it's not the actual item Limitation: Demonstrative evidence does not go the jury room except in the discretion of the trial court and with the consent of both parties.

Methods of Authenticating Real Evidence

Real evidence means tangible things other than writings that played a part in the events in the real world. Two traditional methods of foundation for an item of real evidence—whether a party can use the single witness (which is easier) or is required to use chain of custody depends on the nature of the object. Single witness method Chain of Custody Method

Authentication and Identification

To authenticate or identify evidence, there must be a finding that the evidence is what the proponent claims it is If only question is relevancy, question for the judge. If there is a dispute as to authenticity or identy, it goes to the jury. Identification: Is this the one (as opposed to a different one)? Authentication: Is it authentic (as opposed to a fake or a forgery)? Authenticity is narrower: very low threshold, and a very limited role for the judge. 901(b) provides a non-exclusive list of traditional methods of authentication and identification, broad enough to cover just about everything, especially 901(b)(4). Applies to documents, records, physical evidence, and evidence that one human saw another human