Chapter 8 - Authentication and the Original Writing Rule

Inconvenience or impossibility of producing the "original"

Courts will consider the inconvenience or impossibility of producing the "original." 1. One solution is to require introduction of a photograph of the item 2. Another solution is to define the item as something other than a "writing, recording or photograph" covered by Rule 1002.

Rule 1003: Admissibility of Duplicates

Rule 1003 provides an easy way to avoid introducing the original: i. A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

Rule 1005: Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met: (1) the record or document is otherwise admissible; and (2) the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

What is authentication

a. Authentication is a requirement that the proponent of evidence provide a basis for the fact finder to believe that the evidence is what the proponent claims it is i. The rule applies to documents, records, or other physical things described in testimony or offered into evidence ii. It also applies to references to human beings as having been seen by a witness or as having spoken to a witness

Rule 1002: Original Writing Rule

a. The original writing rule applies only to writings, recordings, and photographs. Rule 1002 states its basic requirement: i. An original writing, recording, or photograph is required in order to prove ITS CONENT (ONLY APPLIES AND MAKES THE DOCUMENT NECESSARY IF THE PROPONENT IS TESTIFYING AS TO WHAT WAS ON THE DOCUMENT. IF TESTIFYING AS TO SOMETHING ELSE, LIKE THE TAILOR/DRESS EXAMPLE, DON'T NEED DOCUMENT) unless these rules or a federal statute provides otherwise. b. If a party seeks to introduce testimony specifically about what such an item says, the party must produce the original of the item or satisfy the requirements w/ a method authorized by other rules related to this issue.

Rule 901(a): Authentication in General

a. The requirement of authentication is ordinarily very easy to satisfy under the FRE. Rule 901(a) sets out the general rule: i. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. b. Testimony that satisfies the authentication requirements is often called "foundation testimony."

what is the original writing rule

b. The original writing rule, also known as the best evidence rule, applies to documents, photographs, and recordings i. If their contents are the subject of testimony, the party offering the testimony must provide the original of the writing, document, or recording ii. This rule is applies far less strictly under the FRE than it was at common law, so that the requirement of an original can usually be satisfied by introducing a copy or by providing an excuse for failure to have the original

Rule 1004: Admissibility of Other Evidence of Content

c. If a duplicate is not available, a party can offer an excuse, instead, under Rule 1004 i. An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: 1. (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; 2. (b) an original cannot be obtained by any available judicial process; 3. (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or 4. (d) the writing, recording, or photograph is not closely related to a controlling issue.

Witness's Personal Knowledge

d. If the witness has a means of knowing about a past reality that does not depend on having obtained the knowledge from the writing, recording, or photograph, he or she is allowed to testify from personal knowledge, and the fact that a tangible record of the event or condition exists has no bearing on the testimony. i. Example: whether the P had given a dress to a tailor for alterations might be an issue at trial. The original writing rule would not prevent the P form testifying that she did leave the dress w/ the tailor even if the tailor had given her a receipt that said she had left the dress. Her statement about leaving the dress would not be testimony about the contents of a writing (the receipt) even though the existence of the receipt is constituent w/ her testimony 1. If the P sought to testify that the receipt had specific words written on it, then her testimony would properly be characterized as w/in the scope of the original writing rule, and its requirement of an original, a copy, or an excuse would have to be met.

Inscribed Chattels

e. Dealing w/ "inscribed chattels" such as the machine or the building, courts will assess the benefit to be obtained from applying the rule (in terms of protection from fraud or mistake).

Ancient Documents

i. "ancient" documents are defined as documents or data compilations 20 years old or older at the time they are offered, that are found in a place where they would likely be if they were authentic and in a condition that does not create suspicion about their authenticity ii. Satisfying the criteria in the example is adequate compliance w/ the authentication rule

Voices in Telephone Conversations

i. A witness may authenticate a voice by testifying about familiarity w/ it if the witness has a reasonable basis for recognizing and identifying the speaker ii. That type of familiarity may be obtained in circumstances that provided a connection b/w that voice and the identity of the person whose voice the witness testifies that it was iii. For phone calls, other methods of authentication also outlined in the rule when there is testimony that a call was made to a number assigned by the telephone company to a person or business 1. If a call was made to a business, it can be authenticated w/ testimony that the conversation was about business reasonably transacted by phone 2. For other phone calls, authentication is permitted by testimony that the person who answered the call was the person who was called.

Definition of "original"

i. According to Rule 1001, an original of a document or recording is the document or recording itself or any "counterpart" meant to be an original by the parties who created the first version of the document or recording. 1. Example: if parties to a contract prepare two copies of the agreement and sign each copy, each of the signed contracts is an "original." 2. The rule defines the original of a photograph as the negative and any print made from the negative 3. Any output form a computer that is readable by sight is defined as an original.

Public Records

i. Authentication can be provided by evidence that the writing or data compilation came from the office where items of that type are kept ii. The proponent of the evidence may have to produce a witness who knows and can testify about the source of the exhibit iii. This applies to documents required or authorized to be recorded or filed in a public office, or any other records or "data compilation" form a public office

Self-Authentication

i. For a specific class of documents called "self-authenticating," litigants may satisfy the authentication requirement simply by presenting the documents themselves ii. These documents are described in Rule 902 as exceptions to the ordinary requirement of "extrinsic evidence of authenticity in order to be admitted." iii. They include certain certified documents, where the certification takes the place of a witness who could state where the document had been found and establish that it is legitimate, and other items such as newspapers and "trade inscriptions" where the chance of forgery or mistake is remote.

Definition and use of "duplicate" writings and recordings

i. Rule 1001 defines a duplicate as a "counterpart" produced at the same time as the original or produced through other processes such as photocopying ii. Under Rule 1003, duplicates are admissible to the same extent as originals unless there is a genuine question about the authenticity of the original or there are circumstances that would make the use of a duplicate unfair 1. Example: if a reasonable claim of forgery were made, a court would require production of the original document so that experts could evaluate it.

Handwriting

i. Rule 901 provides examples concerning the identification of handwriting. ii. If a party claims that a document was written by a particular person, the authentication rule requires that evidence be introduced adequate to support a finding that the document really was written by that individual. iii. Laypersons who are familiar w/ someone's handwriting may testify that handwriting on a document offered into evidence is by that person 1. Example: Someone identifying his spouse's handwriting iv. An expert on handwriting analysis may testify that a document was written by a particular person if the expert can base that opinion on samples of the person's handwriting that are themselves authenticated 1. Those examples would have to have been authenticated in some way other than by the handwriting expert who uses them for comparison

Rule 901(b): Authentication Examples

i. Rule 901(b) provides examples of methods parties may use to satisfy the authentication requirement. ii. The first illustration makes it plain that parties are entitled to use a wide variety of methods to supply the necessary information. It states: 1. (b) The following are examples only - not a complete list - of evidence that satisfies the requirement: a. (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be iii. This type of testimony could be as simple as a witness saying that he knows the person he talked to on a certain day was the D b/c he has known the D for many years and is always able to recognize him

Rule 1006: Summaries to prove content

i. Sometimes materials covered by the original writing rule are so voluminous that it would be inconvenient to use them in court. ii. Rule 1006 authorizes the use of summaries: 1. The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Excuses for non-production of original or duplicate

i. The fairly weak requirements of the original writing rule are revoked entirely by Rule 1004 in a variety of circumstances so that a witness is allowed to testify about the contents of documents w/o the production of an original or a duplicate. ii. These circumstances are: 1. (1) When the original has been lost or destroyed by someone other than the proponent of the testimony; 2. (2) When the original cannot be obtained through judicial procedures; 3. (3) when the opponent has control of the original and has failed to produce it despite notice that there would be testimony about it; and 4. (4) when the writing, recording, or photograph is "not closely related to a controlling issue."

Distinctive Characteristics

i. The uniqueness of an object or an object's appearance, along w/ the circumstances of how it was found, can provide adequate evidence to satisfy the authentication requirement 1. Example: under a doctrine known as "reply doctrine," if a party introduces evidence that a communication was made to another party, that evidence is treated as adequate authentication of another communication that seems to have been a reply to the first communication.

Process or System

i. Where an item of evidence has been produced w/ a process or system, such as a computer system or a scientific device, testimony describing the process or system can serve to authenticate the evidence. 1. Example: a computer-generated listing of info could be authenticated w/ testimony about the way in which data were assembled and the program used to organize and extract the data.

"chain of custody" testimony

iv. It could be a more complex "chain of custody" testimony in which various witnesses state that some object was the same object obtained from another person by stating how, at what tie, and from whom each one obtained the item v. In a criminal case involving a claim that a substance possessed by the D was an illegal drug, a witness (usually a police officer) will testify about taking the substance form the D, sealing it in a container, and marking it. That witness will state what he did next w/ the substance. Then, another witness will describe having obtained the marked container from the first witness and will say what he did w/ it. 1. In this way, a number of witnesses will provide a basis for a jury conclusion that testimony the last witness in the chain may give, such as a report of a chemical analysis of the substance, is really testimony about the actual substance that was taken from the D.

Self-authentication categories and policy

1. Self-authentication is controlled by Rule 902. 2. Differs from Rule 901 b/c that rule sets up general requirement of authentication and provides a non-exclusive list of possible ways of satisfying it 3. However, Rule 902 sets out limited definitions of the types of documents that qualify for self-authentication. These are: a. A domestic public document bearing seal of a governmental entity b. A domestic public document not bearing a seal but containing a signature of an official and accompanied by a document under seal attesting to the official's signature; c. Certain foreign public documents bearing certified signatures; d. Certified copies of public records, official publications, newspapers and periodicals, trade inscriptions, acknowledged documents, commercial paper and related documents, certified domestic records of a regularly conducted activity, and certified foreign records of a regularly conducted activity e. Also w/in the rule's definitions are documents or other items declared by federal statutes to be prima facie genuine or authentic. 4. Example: if a party wished to introduce a package allegedly marketed by a D for the purpose of establishing what types of directions for use the D had provided in the product's labeling, the package would be self-authenticating under "trade inscriptions." a. If self-authentication were not allowed, the proponent would be required to introduce testimony from a witness w/ knowledge about the way in which the label's words got on the package and about how the manufacturer and the package were linked b. Self-authentication saves the proponent those stems c. Protection against phony exhibits is still available since the party against which a self-authenticating item is introduced is free to introduce evidence casting doubt on its legitimacy.