On demand 1h 14s Intermediate

The Best Evidence Rule and Authentication

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The Best Evidence Rule and Authentication

Trials are won and lost on evidence. Even having the best evidence to support your case theme and theory is useless if you can’t get that evidence admitted. In this practical refresher focusing on the Federal Rules of Evidence, attorneys will learn what it takes to authenticate any piece of evidence, best practices for doing so, and get a reminder of the specific types of evidence you must offer at trial under the Best Evidence Rule. This course will provide attorneys new to trial practice the practical application of evidence rules.

Transcript

In this presentation, we're going to discuss authentication and the best evidence rule. Today, we're going to do the following. First, I'm gonna define the best evidence rule for you and help you understand when the rule both does and doesn't actually apply. Second, we're gonna switch gears and talk a little bit about authentication. I'll outline for you the ways in which evidence can be authenticated at trial and I'll review the foundation for authenticating that evidence at trial. Let's get started. The first part of this presentation will address a rule known as the best evidence rule. Before we dive into that in more detail, let's take a step back and talk about all of the different forms that evidence can take at trial because evidence comes in all different formats. Let's imagine that we have a trial arising from a trip and fall. The plaintiff was walking down the sidewalk and tripped and fell and hurt herself. The plaintiff claims that the defendant's failure to repair a crack in the sidewalk is what caused the plaintiff to trip and fall. How could that plaintiff pedestrian convince the jury to find in her favor? How could she convince the jury to find that the defendant property owner was negligent? Well, one thing she might do is present testimonial evidence. She might take the stand at trial and describe for the jury how the trip and fall actually happened, but that isn't the only form of evidence that's available. There are also exhibits that the plaintiff might want to offer. Perhaps the paramedics were called to the scene of the accident after the plaintiff fell, the paramedics spoke to the plaintiff, and then drafted a written report, and in that report, the paramedics wrote down exactly how the plaintiff described the events leading up to her fall. While that report might be offered into evidence and that report is a specific type of evidence known as a writing. There are also other forms of evidence that we'll talk about as we move through this presentation. Let's start by talking about a writing and how the best evidence rule applies to this type of evidence as well as some other types of evidence, not withstanding the fact that it doesn't apply to testimonial evidence. Rule 1001 of the Federal Rules of Evidence defines a writing in the following way. A writing is letters, words, numbers, or their equivalent set down in any form. Another way of defining a writing is any content that's memorialized in any way or form. So the paramedic's report is a writing. What other types of evidence the plaintiff in that trip and fall case use to prove negligence? Well, she might have a recording. Perhaps there was a surveillance camera mounted on a nearby business and that camera recorded the trip and fall as it happened. That video might be offered into evidence and played for the jury, and that video, as an exhibit, is another specific type of evidence known as a recording. Rule 1001 of the Federal Rules of Evidence defines a recording as letters, words, numbers, or their equivalent recorded in any manner. So that definition is very broad and it would encompass video and audio recordings of all different types. What you're listening to right now would meet the definition of a recording under Federal Rule 1001. Well, what other types of evidence might there be? There might be photographs. Maybe the plaintiff pedestrian pulled out her cellphone and took photographs of the sidewalk right after the accident. These photographs show the size, shape, and location of a giant crack. These photographs might be offered into evidence, again, to show the negligence of the defendant property owner. Photographs are yet a third specific type of evidence. Rule 1001 of the Federal Rules of Evidence defines a photograph as a photographic image or it's equivalent stored in any form. So that means that a printed image is a photograph, but also a negative or a digital GIF file is also a photograph under the rule. Why does it matter that evidence can take all of these different forms? Well, one of the reason that it matters is that there is a rule in the Federal Rules of Evidence, Rule 1002, which is known as the best evidence rule that sometimes requires that a litigant like the plaintiff pedestrian offer a writing, recording, or photograph into evidence. We're gonna talk in a little more detail about when the rule is invoked and when it is triggered and whether or not the plaintiff pedestrian in our trip and fall case is actually subject to the best evidence rule. But the rule applies only to writings, recordings, and photographs. So you don't have to consider the best evidence rule when you're trying to decide whether or not testimonial evidence is admissible or not. The best evidence rule is a little bit different than most of the other Federal Rules of Evidence. Most of the other Federal Rules of Evidence help filter in and out what evidence can be admitted at trial. Think about the hearsay rules in rules 801 and 802 as well as the exceptions that follow and some of the nuances in subsequent 800 series rules. Those rules act like a series of nets that filter certain evidence out. You might want to offer into evidence an out of court statement for its truth, but if it is hearsay and it doesn't meet one of the recognized exceptions, it can't come in. Most of the other rules of evidence, including the 800 series hearsay rules, help us decide whether or not a particular piece of evidence can or cannot be admitted at trial. They don't require or mandate that specific evidence be offered. The best evidence rule is different. The best evidence rule dictates that in certain situations, a writing, recording, or photograph has to be admitted at trial. It must be a piece of evidence that is offered in order for that litigant to prevail. So it doesn't really act as a net filtering evidence the way most of the other Federal Rules of Evidence do. There are two requirements to the best evidence rule. First, the writing, recording, and photograph has to be offered into evidence when what a litigant is trying to prove at trial is the contents of that writing, recording, or photograph. There's a second requirement for an original rather than a copy and we'll get to that requirement in more detail. Let's start by focusing on the first part of the requirement of the best evidence rule. A writing, recording, or photograph has to be offered when what a litigant is trying to prove at trial is the contents of that writing, recording, or photograph. Let's go back to the trip and fall case with the pedestrian and focus on just the photographs. At trial, is the pedestrian plaintiff, as part of her burden of proof, trying to prove what's in those photographs? No. What is she trying to prove? She's trying to prove that the property owner was negligent because the sidewalk was in dangerous condition at the time she walked across it. Those photographs are circumstantial evidence of the negligence. They are a way that she was able to document the evidence, but at trial, she doesn't have to prove up the contents of those photographs. Let's compare and contrast that with a different type of case. Let's say that we have a criminal prosecution and the defendant has been charged with possession of child pornography. Now is the content of photographs that were recovered from the defendant's computer something that is an issue at trial? Absolutely because only if those photographs contain illegal depictions of underage children engaged in sexual activity, has the defendant committed a crime. If those photographs are of something entirely different, then the defendant possessed something, but that thing that the defendant possessed was not child pornography. So that child exploitation possession of child pornography case is an example of the type of case where the best evidence rule might apply. Remember that the best evidence rule only applies when what the litigant is trying to prove at trial is the contents of that evidence, not where the evidence is simply circumstantial proof of some event that happened. Rule 1002 of the Federal Rules of Evidence gives us the best evidence rule and it tells us what we just discussed, that an original writing, recording, or photograph is required to prove its contents unless the other rules of evidence or a federal statute gives you an exception. Rule 1003 gets to the second part of the requirement that we are going to talk about when we discuss the best evidence rule and that is what counts as an original. Well, the answer is virtually everything counts as an original. Pursuant to Rule 1003 of the Federal Rules of Evidence, a duplicate is admissible to the same extent as the original unless there is some genuine question raised about the authenticity of the original or if there are some circumstances at trial that make it unfair to the opposing litigant to admit the duplicate instead. So when does the best evidence rule apply? Only in limited circumstances. Going back to the trip and fall, was the plaintiff pedestrian trying to prove the contents of the paramedics report, the surveillance video, or the photographs? No. She was just trying to prove how the trip and fall happened. The report, the video, and the photographs were all circumstantial evidence that helped suggest how that trip and fall happened, but ultimately, when the jury deliberates and decides whether there was negligence, the jury does not have to decide what was in that report, video, or photographs. Rather, the jury just has to decide whether or not the sidewalk was in a dangerous condition and whether the defendant was negligent for allowing it to be in that condition. The plaintiff pedestrian in this hypothetical can choose to use the paramedic's report, the surveillance video, or the photograph she took from her iPhone, but she doesn't have to. She can rely exclusively on testimonial evidence because the best evidence rule doesn't apply. Contrasting that with a different case where the best evidence rule applies and where a party must enter a writing, recording, or photograph into evidence, let's think about a breach of contract case. Let's say that a seller and a buyer enter into a written contract for the sale of a house. Among other provisions, the contract includes an easement that allows the seller to continue to farm the land behind the farmhouse. A few years later, the buyer erects a fence and denies the seller the right to farm there. The buyer then sues for breach of contract. The dispute in the case revolves around what the contract says, right? The buyer and the seller here are disagreeing about whether or not the seller is entitled to continue to come on the property. This is very much a dispute about the terms of the contract. The buyer who's now suing and saying that he or she is entitled to all of the proceeds from the farming for the years in which it was farmed is arguing that the contract doesn't include that easement. The seller is going to likely argue as a defense that the contract does include the easement. This case is not about witness testimony. This case is about the content of that contract. It's all about the jury or the fact finder, in this case, interpreting the contract. That's why this is the kind of case where the best evidence rule applies. The purpose of the best evidence rule is that where the writing, recording, or photograph is the substance that the jury has to consider, it makes sense that, in those cases, the jury should have the benefit of having the contract, the writing, or the recording in front of it during deliberations. In this case, as contrasted to the trip and fall, the contract isn't merely circumstantial evidence of something that matters in the case. The contract itself is what matters in the case, and so the best evidence rule applies and that means that if the party who brings the lawsuit, if the buyer brings a lawsuit and only offers testimonial evidence, that buyer shouldn't be able to prevail. In order for the buyer to prevail, the buyer should enter in the contract a recording into evidence, I'm sorry, a writing into evidence and so the opposing party might choose to invoke the best evidence rule if that plaintiff doesn't offer the writing as is required by the rule. Now there are some exceptions to the best evidence rule. There are four exceptions set forth in Federal Rule of Evidence 1004. There's one exception set forth in Rule 1005 and there's some additional exceptions set forth in rules 1006 and 1007. You are not required to offer the original writing, recording, or photograph into evidence under Rule 1004 if someone other than you lost or destroyed all of the originals or if originals exist, but the court's process doesn't enable the court to require their production or if your opponent had the original and failed to produce it despite being notified that it was required for trial or if the writing, recording, or photograph relates to a side issue. All of these four exceptions are set forth in Rule 1004. There's also an exception in Rule 1005 when the original is a public record. Now obviously, it's very difficult to get the government to give you the one and only original copy. They're not gonna hand over the Declaration of Independence or even a police report in its original form. And so where the writing, recording, or photograph is a public record, a certified copy is sufficient instead of the original. There's an additional exception as I mentioned in Rule 1006. Sometimes the original writing, recording, or photograph is voluminous. Where that's true, where the original is very lengthy, the court can allow a summary to be entered and that summary would still meet the best evidence rule. However, if the court requires it, the court can order that the originals be produced and where a summary is going to be offered, the opposing party has the right to see the original. So the opposing party does not have to rely on your representation that the summary is correct, but the summary itself can be what's offered into evidence and that's helpful because otherwise the jury would have to parse through extremely voluminous and long records where a chart or a graph or a summary might be easier for the jury to reach their deliberation. There's one final exception in Rule 1007. Even where the best evidence rule would otherwise apply, you don't have to offer the original writing, recording, or photograph where the opposing party has admitted to the contents of that writing, recording, or photograph. So going back to the breach of contract example, there, the plaintiff and the defendant dispute what the contract says, but if the two of them agreed upon what the contract said and one party was trying to get out of the contract on the basis of it being unconscionable instead of disagreeing about the terms of that contract, that might be an exception under Rule 1007. So the big picture takeaway from our discussion of the best evidence rule should be as follows: it only applies to writings, recordings, and photographs. It only kicks in and applies where you as the litigant are trying to prove the contents of that writing, recording, or photograph. If you are trying to prove its contents, then you have to offer an original of the writing, recording, or photograph in unless an exception applies. There are numerous exceptions and copies count as originals. So although the best evidence rule seems a bit onerous, it doesn't apply in a wide variety of different cases. It applies in relatively limited context and even when it does apply, a copy is sufficient. Keep this in mind next time you're litigating a case because the best evidence rule is not well understood by practitioners and can be a very powerful tool if you understand it well. It can be used against your opponent to prevent your opponent from meeting his or her burden of proof if they don't offer a writing, recording, or photograph where they should and it helps you prepare your case when you have the burden of proof to know when you can't rely exclusively on testimonial evidence. Now let's move on to talking about authentication. I have on the slide a little image of a yam and the yam says, "I yam what I yam" and that's all that authentication is. It's a very low bar. You're just proving that if something is, according to you, a yam that it is indeed actually a yam. You're only proving that evidence is what you say it is. Authentication is the requirement that before a lawyer uses or relies upon a piece of evidence, the lawyer has to give some assurance that the evidence is what the lawyer claims it is. In really broad, general terms, as we discussed at the outset of this presentation, there are really two kinds of evidence. There's testimonial evidence, oral testimony that we get live from witnesses on the witness stand at trial and everything else including writings, photographs, and recordings. Authentication is a requirement that the court has to run through before admitting evidence that is non-testimonial evidence. As part of that foundation, the lawyer who's offering that writing, recording, photograph, or other non-testimonial piece of evidence just has to establish that it is what the lawyer says it is. So in the case of a yam, if I'm holding a yam and I purport this to be a yam, all I have to prove is that this starchy vegetable I have is a yam. I don't have to prove it's a tasty yam or the biggest yam or better than a carrot. All I have to do is prove that if I say it's a yam, yep, it is indeed a yam. It's a very easy hurdle to overcome. Why do we authenticate evidence? Well, in order to properly evaluate evidence that's presented at trial, the fact finder often needs to understand and be convinced that a piece of evidence is what it purports to be. A bullet is only helpful in an attempted homicide case if it's the one recovered from the crime scene. If it's totally unrelated to the shooting at issue, who cares? It doesn't help the fact finder decide anything that matters in the homicide case. If we have a photograph, the fact finder needs to know is this the photograph of where the trip and fall actually happened? Is it from the day of the fall or is it from three years prior in a different state? It's only relevant, it only helps the fact finder decide something that is material in the case if it's contemporaneous and of the sidewalk where the trip and fall happened. If the jury has a letter admitting to the crime, the jury needs to understand and be convinced that it's the defendant who wrote this letter and not a capable forgery. If it's just a forgery, it doesn't really go to the defendant's state of mind and it's not relevant. In many cases, authenticity is handled through stipulation or by agreement of the parties long before trial, but you can't always count on that. So you have to be ready to prove up authentication for any piece of evidence other than testimony that you seek to offer. And moreover, even if you have a stipulation or an agreement or you don't foresee that there's gonna be a challenge by opposing counsel, it can really answer a lot of the jury's questions as fact finder when you lay that foundation and authenticate an exhibit. It helps really bolster and build up the jury's belief in the piece of evidence that you're offering. So knowing what it takes to authenticate a particular piece of evidence is really useful even if you don't have to. Let's take a look at Federal Rule of Evidence 901. The rule tells us that, in general, to satisfy the requirement of authenticating or identifying a piece of evidence, the proponent, the party who's offering it, has to produce evidence sufficient to support a finding that the evidence is what the proponent claims it is. In this standard, focus on the word sufficient. A lawyer doesn't have to prove conclusively that an item is authentic. A lawyer simply has to provide sufficient evidence that the jury could come to the conclusion, if it wished, that the item is what the lawyer says it is. And keep in mind that this can be a double edged sword. Sufficient also means that even if an item is adequately authenticated or identified, that doesn't end the discussion. The other lawyer can still argue that the item is a fake or a forgery and the fact finder can come to that conclusion. So while authentication is a low bar, there is some requirement that you're able to convince and have enough evidence to convince a fact finder that that piece of evidence is what you purport it to be. Otherwise, it's simply not admissible. And then once it is admitted, it's up to the fact finder to ultimately decide whether it does believe that that evidence is what you say it is and whether or not the fact finder is going to put any weight on that evidence in coming to its deliberation. Now what Rule 901 does is give us a series of methods of how we might authenticate evidence at trial. There's no formula or requirement for exactly how authentication is done. Instead, my suggestion to you is to focus on what you're trying to use an item of evidence for and that often suggests to you the best way to authenticate it. The rule 901 methods include calling a witness with knowledge to testify about the piece of evidence you're trying to authenticate, having a non-expert opinion on handwriting to indicate that the handwriting belongs to the person you purport it to belong to, having a comparison by an expert of pieces of real evidence, distinctive characteristics of a piece of evidence, an opinion about a voice that's heard on a recording, evidence about things like public records, ancient documents, or data compilations to suggest that they are what they indeed are purported to be, as well as other methods that are specified by a statute or a rule. For example, let's say that you wanted to use a photograph to show what the sidewalk looked at the time of the plaintiff's trip and fall. That photograph can be authenticated by calling any witness who can testify from personal knowledge that that photograph is a fair and accurate representation of what the sidewalk looked like at the time of the fall. Now that could be the plaintiff who actually took the photograph. She could probably authenticate it, but it doesn't have to be her. It doesn't have to be the person who took the photograph. Somebody who worked at the business where the sidewalk was located and saw it every day and indeed saw it moments before the trip and fall could also probably authenticate that evidence even knowing nothing about how the photograph was taken. This might or might not be enough to convince the jury, but it's enough to provide sufficient evidence showing that the photograph is what you claim it to be, the way the sidewalk looked at the time of the fall. So as previously noted, there are numerous ways to authenticate evidence. The most common and the simplest, and so the one that you'll see most often is a witness testifying about the thing or about things that can describe the thing, whatever the piece of evidence is. But direct evidence is not required. Circumstantial evidence either alone or in conjunction with direct evidence is admissible for Rule 901 authentication purposes. So what you'll do most commonly is call someone to the stand and ask them the following questions in order to authenticate a piece of evidence. The first three questions are dowhah. They start with the letters dowhah. Dowhah. Do you know what this is? What is it? And how do you know? Those three questions help the witness use their testimony to explain that this piece of evidence, this thing is what you say this thing is. And then you'll likely ask some additional questions. For a photograph, is this a fair and accurate copy of whatever it's alleged to depict? Is this a fair and accurate depiction of the sidewalk at the time of the fall? Is this a fair and accurate copy of what the crime scene looked like prior to evidence being collected? If it's a document, the question you typically ask is whether it's in the same or substantially the same condition. So is this medical record in the same or substantially the same condition as when you entered the patient's lab work results into it? Is this report of a director's board meeting in the same or substantially the same condition as when the scrivener signed off on it? And for a piece of real evidence, you'll ask questions about the chain of custody. Was this bullet collected at the scene? Was it then bagged and numbered? Was it taken directly from the scene in that bag with that number to the police department? Was it then logged and kept in the police custody in a way that can be tracked given its number? And then was it taken out of police custody and brought here to trial and is it still in this bag that has the same number associated with it? Those are all ways that you can convince the jury, through the testimony of a witness with knowledge, that this exhibit is what you purport it to be. So Federal Rule 903 tells us that subscribing witnesses testimony is necessary to authenticate a writing only when it's required by substantive law, only if it's required by the law of the jurisdiction that governs its validity. So while a witness with knowledge is a very common way to authenticate exhibits, it's not required. You can do it in a variety of other ways. And the 900 series rules in the Federal Rules of Evidence are only illustrative. They're not exclusive. They're just suggestions of how you can authenticate evidence. The only time that you have to have a witness with knowledge is when underlying law requires that that be the form of authentication. It's a pretty narrow set of circumstances where that happens. But Federal Rule of Evidence 903 does say that if underlying substantive law requires the testimony of a witness with knowledge that underlying substantive law would apply in federal court. Rule 902 also gives us a list of documents that are self-authenticating as long as you can prove that they fit one of these categories, you do not have to have a witness with knowledge to answer the dowhah questions and those additional questions based on the type of evidence. So what kinds of documents are self-authenticating? Domestic public documents as long as they have a seal and attestation. Domestic public documents, even if they don't have a seal, but if they're signed by someone in his or her official capacity. Foreign public documents, certified copies of public records, and that's the most frequently used of all the Rule 902 categories, official publications, newspapers and magazines, trade inscriptions, notarized, acknowledged documents, commercial papers that have been signed, documents where there's a presumption created by law, certified domestic business records, and certified foreign business records. So if you have a document that's self-authenticating, you don't need to go through any additional hurdles. You can just rely on Rule 902. Let's go through some examples. Federal Rule of Evidence 901 says that you can authenticate a document using the testimony of a witness with knowledge. So a typewritten letter can be authenticated by the person who typed it. That's just another example of the firsthand knowledge rule. Witnesses can authenticate a document if they wrote it, but they can also authenticate a document if they saw it being written or signed. A witness can authenticate a confession if that witness heard the confession being given and it isn't necessary that the party whose document or confession is at issue be the one to authenticate it. It's just somebody who has sufficient knowledge to say, "Yep, that is what the lawyer says it is." Federal Rule of Evidence 901 also says that you can authenticate a piece of evidence through testimony of a witness who has familiarity. So even if the witness didn't see this particular document being written, a handwritten letter can be authenticated by anybody who recognizes the handwriting, not necessarily just the writer, but somebody who received it or somebody who had nothing to do with this particular letter but knows the handwriting from some other context. Witnesses with familiarity can authenticate the handwriting. It can be a witness who's seen the handwriting before, a witness who's never seen the handwriting before, but watched the author write this particular document or it can be the author of the document. All that matters is that the familiarity with the handwriting had to have been acquired before and separate and apart from the litigation. So you can't have a lay witness become familiar with handwriting just so that they can authenticate a handwritten letter at trial. But no matter how that lay witness has prior familiarity with the handwriting, that's sufficient to authenticate the handwritten letter at trial. Federal Rule of Evidence 901 allows for authentication using comparison by an expert. So a firearms examiner might compare a bullet that's found at the crime scene to other .38 caliber bullets to conclude that the bullet from the crime scene also was of .38 caliber. A handwriting expert who doesn't know the author of the handwritten letter might get some exemplars from that author and through his or her training and expertise be able to authenticate the handwritten letter as belonging to the author. Federal Rule of Evidence 901 simply allows a comparison of known exemplars to the document to be authenticated or to the piece of real evidence or to the photograph being authenticated. Now, in order for this to make sense, the exemplars also have to be authenticated. If you're gonna match somebody's handwriting in a letter to some samples that are given, you do have to prove that the samples that were given for comparison purposes are from the same alleged author. And that's why in a criminal case, the defendant can be required or compelled to give a handwriting exemplar. And that doesn't violate the Fifth Amendment because sometimes it's required to have those exemplars in order to authentic a piece of writing. Federal Rule of Evidence 901 allows evidence to be authenticated through distinctive characteristics. Something that is only on a particular item and wouldn't be found on other items out in the world. So for example, if you're trying to prove that a shirt belonged to the defendant, if it has the defendant's monogram on the sleeve, that might help authenticate this shirt as not just being any shirt out there in the universe or the world, but the defendant's shirt. There's all kinds of examples of things that are distinctive. A letter that has information substantively in it that is only known to the alleged author. That's an example. Language pattern. Somebody who uses a particular term, particular slang, a particular writing style. A postmark showing where a letter came from. A letterhead with somebody's name and address on it. Sometimes the location of where a piece of evidence is found helps to create distinctive characteristics. If this letter with handwriting on it was found sitting in the defendant's bedroom table, that suggests that it was more likely to have been written by the defendant. A reply to a letter that acknowledges its contents might be a distinctive characteristic that shows the sender and recipient and therefore, helps narrow this email or document or letter down to a particular one. And all of these are ways that you can authenticate something through distinctive characteristics. Federal Rule of Evidence 901 allows for identification through voice identification. So if you listen to a voicemail and you say to yourself, "Hey, I know that voice. That's my Aunt Joan", that's a way that you can authenticate a recording. The same thing is true if the contents of the recording help to suggest where it's from. If somebody picks up the phone and says, "ABC Employment Agency", that can be used to authenticate that voice call as being by representative of ABC Employment Agency and not a representative of some other business or company. Federal Rule of Evidence 901 allows for authentication of telephone conversations. So a witness might testify that he received a business card for ABC Employment Company and that business card had a phone number on it and the phone number was 555-5555. And then the witness called that exact number, 555-5555, and when it went through, the person who answered that phone picked it up and said, "ABC Employment Company" and started talking about the business of ABC Employment Company. That kind of evidence could be used to authenticate a telephone phone conversation. Federal Rule of Evidence 901 allows for the authentication of a public record essentially by showing where it came from. So if you can show a chain of command that shows that this document that you have at trial, this exhibit was received from government custody and hasn't been tampered with since, then it can usually be authenticated as a public record. Keep in mind though, that you might not have to jump through this hurdle at all because as we discussed before under Federal Rule of Evidence 902, some public records are self authenticating. You don't have to call a witness with knowledge or authenticate through any other means. Also keep in mind that it's pretty rare for a government entity to give you an original of a public record. So most of the time you're getting a certified copy and certified copies can be authenticated by having an appropriate certification with them. So here's a practice tip. In discovery, when you're requesting records from a public entity, at that point, you should include a certification that would allow them to not only get through any hearsay exceptions and meet the requirements in the 803 exception for public records in 803 , but you also wanna probably include a certification that ensures that you can prove that this public record meets the Federal Rule of Evidence 902. If you have that certification and you've requested it in discovery and disclosed it to the opposing party, you shouldn't have any objection or any difficulty when you then go to offer that public record at trial and you shouldn't need to authenticate it through any other means. The fact that you have that certification should be sufficient under Federal Rule of Evidence 902. But if for some reason you don't have that certification, you can use Federal Rule of Evidence 901 instead. Federal Rule of Evidence 901 provides for the authentication of ancient documents. So as an example, you might be able to prove that the holy grail tablet is indeed what you say it is, namely, the ancient holy grail tablet because it was found undisturbed by Indiana Jones in an ancient crypt in Italy, which is where we'd expect the holy grail to be found. In order to use this exception, the proponent of the evidence has to show a couple different things. First, that the document's appearance or the evidence's appearance is not suspicious in some way. This doesn't look fake. It doesn't have some attributes that suggest it's not from the right time period. It appears at least from its outward appearance to be non-suspicious. It has to have been found in a place that would be natural for that document. So if we find the holy grail sitting in the front of a McDonald's restaurant, that is not where you expect the holy grail to be so that's probably not where we would say is a place natural for that type of evidence. And in order to use this exception, you have to prove that what you are trying to offer is actually an ancient document. And as defined by the Federal Rules of Evidence, that just means something that was created after January 1st, 1998. So it doesn't take much for something to be ancient, at least as defined by the Federal Rules of Evidence. Federal Rule of Evidence 901 allows you to authenticate a piece of evidence through a process or a system. So if you have the output or printout of a reliable computerized system, that's sufficient to authenticate the results that have been printed as being correct and actually the results of that system. So this can sometimes require some expert testimony because in order to show that you have a reliable system, you might have to prove some extrinsic or other or additional evidence to prove how that system actually functions. You can use this exception in Federal Rule of Evidence 901 for a variety of different things. For sound recordings, for x-rays, for surveillance photos, those can all be authenticated by showing that they are the process of a reliable system. So let's say for example, you wanna offer the results of a breathalyzer test into evidence at trial and you wanna show that that was indeed the blood alcohol content level of the person who was administered the breathalyzer test. You probably would have to call somebody who's an expert in breathalyzer machinery to talk about how these systems function, how a sample is taken, and you would have to provide some evidence that the breathalyzer machine that was actually used to take the sample that you are now purporting to show the defendant's blood alcohol content level was functional and working properly at the time the test was administered. If you can show all of that, then you can use the process or system of the breathalyzer test to authenticate the test results under Federal Rule of Evidence 901 . Authentication does not solve all the problems that you might have at trial. The evidence that you use to authenticate an item itself also has to be admissible. If your authentication evidence, for example, is inadmissible hearsay, then your authentication evidence is not coming in and you're going to have to find another way to authenticate whatever that underlying exhibit is. If you can't get in the testimony that you need from a witness with knowledge or you can't get in the fact that a system is reliable or functional, well, then you don't have the evidence sufficient to show your underlying exhibit is what you claim it is and therefore, your underlying exhibit is not authenticated and that underlying exhibit is not admissible. And so keep in mind that anything you're planning to use to authenticate a piece of evidence has to, itself, be admissible. At trial, pursuant to Rule 104 of the Federal Rules of Evidence, a judge can only consider admissible evidence in order to decide whether or not the rule for authenticity has been met. Remember that only a prima facie showing of genuineness is required and it's the jury who's ultimately gonna decide whether to credit that piece of evidence or not. But it is still your obligation when you are putting a piece of evidence into trial to authenticate it. You have to have sufficient proof that is actually admissible evidence that a reasonable juror could find that this exhibit is what you purport it to be. So what are the steps that you should take any time that you need to offer an exhibit for anything that is not testimonial evidence to make sure that you cover all of the steps that are necessary to authenticate a piece of evidence. The first thing you wanna do is mark the exhibit for identification, and some of this will depend a little bit on how things are handled in your particular jurisdiction or particular courtroom. You may have pre-marked all of the exhibits. You may have separate exhibits for each side and some joint exhibits, or you may have pre-marked all the exhibits as joint exhibits or alternatively, in your jurisdiction, nothing may have been pre-marked and you may need to physically go up to the court staff and have an exhibit marked with an identification sticker each time you go to offer it into evidence. Whatever the process is, the first step for laying the foundation is to mark that exhibit for identification purposes and until the exhibit is entered into evidence, you should only refer to it as that name. You shouldn't describe it, read from it, let a witness read from it, allude to the contents because remember, you might not get over the hurdle of showing that this is what you say it is and it might not be admitted. Until it's admitted, you can't use it, you can't display it to the jury, have any of its contents read, and you shouldn't be alluding to what the exhibit is. So let's say for example, I have a handwritten letter. If I mark it for identification purposes as plaintiff's exhibit one, I should call it what's been marked as plaintiff's Exhibit one for identification purposes until it's admitted into evidence. Then I have the choice to call it a handwritten letter if I'd like to. So the first step is always to mark for identification purposes. The next step is to show the exhibit to opposing counsel. And you want to do that without having to be prompted because you don't want opposing counsel to have a reason to object and break up the flow of the admission of evidence. If opposing counsel doesn't know what it is that you've marked, they don't know whether or not it's something that's objectionable and so they have the right to see what this exhibit is prior to its admission into evidence. So the second step is to show your exhibit to opposing counsel. I generally will narrate this for the record so that if there's an appeal, there's no question that this step of the authentication process was followed. So I'll say, "For the record, showing opposing counsel what I've marked for identification as plaintiff's exhibit one." I'll then ask to approach the witness. Now again, there's some regional variance and judge by judge variance here. If the judge has given all the parties the right to move freely about the well without asking to approach the witness, then you don't need to ask again. However, I will always narrate this for the record, again, so that it's quite clear that before I was questioning the witness about this exhibit, the witness did have an opportunity to review it and look at it. So I'll say, "Your Honor, permission to approach the witness with what I've marked marked for identification purposes as plaintiff's exhibit one." Or if I don't need to ask for permission, I'll just say approaching the witness with what's been marked for identification purposes as plaintiff's exhibit one. Then I'll actually show the witness and give the witness an opportunity to review and wait until the witness looks up. There's no point in jumping right into the questioning before the witnesses had an opportunity to review the exhibit because you need the witness to answer based on personal knowledge. And if the witness hasn't looked at the exhibit and assured themselves that they have that personal knowledge, they're not gonna be able to properly answer your questions. So it behooves you to give the witness an opportunity to actually review the document. Then it's time for your dowhah questions. Do you know what this is, what is it, and how do you know? And you have to listen to the answer and make sure that the witness is essentially telling you that if you think this thing is a yam, the witness is saying, yeah, that's a yam. So I'll say to the witness, "Do you know what this is?" And the witness might say, "Yes". Then I'll ask, "What is it?" The witness might say, "It's a handwritten letter." After that answer, I'll ask, "How do you know?" And the witness might say something like, "Because I'm the one who wrote the letter and I recognize my own handwriting and my signature, and moreover, the letter talks about events that only I was aware of." In asking those three questions, I have essentially proven that this exhibit, which I've marked for identification purposes as plaintiff's exhibit one, is what I'm going to say it is, which is a handwritten letter by the witness. If you don't get necessary answers to these questions to show that the exhibit is what you think it is, you need to keep questioning and ask additional questions until you elicit that information or you need to find another way to authenticate that exhibit beyond it being authenticated through a witness with personal knowledge. Once I've done that questioning, I move on to any additional foundation that's necessary. I might have to ask certain questions based upon the type of evidence that it is. If it's physical evidence or a writing, I'll ask questions to establish that's in the same or substantially the same condition as when it was created or when it was collected. If it's a photograph, I'll ask whether it fairly depicts something that's material and of issue in the case. So notice that the question for photographs is not is this a fair and accurate photograph? I mean, frankly, who cares? What's on at issue in the trial is not the photography or cinematography skills of the person who took the photo. What matters is whether the photo fairly and accurately depicts something that will help the jury decide a material issue in the case. So does this photograph fairly and accurately depict the scene of the crime after the shooting? That matters. Not whether or not it's a great photograph, well framed, and well lit, but whether or not it's circumstantial evidence of something that matters, namely, perhaps the position of the body or where the bullets fell or the trajectory of where the shooter must have been standing given where the bullets went. That's what matters. Not whether it's a good photograph. So for photographs, your question is always does it fairly and accurately depict? And then I have a little blank on the slide because it has to fairly and accurately depict something that matters in the case, and you're not going to know what matters in the case until you know the substance of the case. And so you're gonna need to tailor that question based upon what you know to be material issues in the case. If it's real evidence, I'll ask questions about the chain of custody and we went through those earlier, whether this was collected in such a way as to assure the fact finder that it is what it purports to be, and also to assure the fact finder that it hasn't been violated or falsified or tampered with in some material way. Oftentimes, I'll ask additional foundation questions when I'm anticipating a particular objection. If I know that I'm likely to get an objection based on relevance, I'll ask some additional questions to link this exhibit to something that is material or that matters in the case. The most common objection that you wanna preempt and address is an objection based on hearsay, that this is an out of court statement being used for its truth. And so as part of laying the foundation, you want to think to yourself, is this actually definitionally hearsay? Is it actually an out of court statement being offered for its truth? If not, you wanna elicit some testimony to make that clear if necessary. If it meets an exception to the hearsay rule, an exception in 803 , 803 , or sorry, 803, 804, or 807, then you want to ask all of the elements of that hearsay exception to make sure that it's met. So if it's an excited utterance, for example, you need to elicit some testimony and get some foundation to establish that there was a startling event and that the statement that you are offering now as an exhibit was brought about while under the stress the declarant was feeling from that stressful event. So you wanna think ahead to any objections that you're likely to get and some objections can be addressed without eliciting testimony. For example, if something is non-hearsay because it's an admission of a party opponent, you don't really need any testimony. You just need to say to the judge, "Hey, this is the defendant's statement. I'm the plaintiff. This is a statement by a party opponent. It's definitionally excluded from hearsay." But if it is not something that the judge can decide without any additional evidence, you might wanna elicit whatever testimony you think is necessary to lay that foundation and prove that you are not subject to the likely objection by the other side. There's really no harm in trying to rebut an objection before it happens because all of these questions that you're asking as you lay the foundation properly are helping bolster this exhibit to the jury. It's suggesting to the jury that this is an important piece of evidence that they should consider, and it's helping take their view of not just whether or not you've met your sufficiency burden, but whether or not you've actually convinced the fact finder that this is what you say it is and that they should rely upon it. So laying this additional foundation, for example, a foundation for a business record, even if opposing counsel doesn't end up objecting that this document is hearsay, you've nonetheless bolstered the document by showing that it was part of the ordinary course of business, transmitted by a person with knowledge, relied upon by the business, kept contemporaneously. All of these things that you would question the witness on to lay the foundation are just additional reasons why this is a really reliable piece of evidence that the jury should put some weight in. So try to plan and think in advance of whatever foundation you think you might need and craft some questions to make sure that you can get any answers from the witness that you need to lay that foundation. At that point, once that's done, you wanna offer the exhibit into evidence. So once you finish with your foundational questions, you say, "Your Honor, I offer what's been marked for identification purposes as plaintiff one into evidence." At this point, opposing counsel would have the opportunity to object, and at that point there may be some back and forth or sidebar or even additional questioning that's necessary. Once the document is admitted into evidence, it sheds its original name, no longer is exhibit one for identification purposes. Now it's just plaintiff's exhibit one, and now you can do something with it and you should do something with it. You should make a point that will resonate with the jury, and often that requires publishing the exhibit, putting it up on a screen through a projector so that the jury can see it, having a witness read from the exhibit, something to make it clear what this thing is that prior to now has just been given this generic name, plaintiff's exhibit one. Now you wanna make it real. You want the jury or the fact finder to understand why this thing matters. This foundation can be used for all different types of evidence other than testimonial evidence. And if you follow this rigorously and it becomes muscle memory, it will make it incredibly easy for you to get any type of writing, recording, photograph or similar type of evidence in a trial without having to stop and think about rule 901 or 902 because you'll just be able to quickly tick through the boxes of what's required by 901 using a witness with knowledge and lay the foundation using this eight-step process. I would suggest to you that if you have a trial binder, you print this out and keep a copy of it in your trial binder. That way if you ever have a problem, you can just pull it out, refresh yourself, and go right back to offering exhibits without any difficulty. Remember that this foundation that we've just talked about is not required for every piece of evidence that you might offer at trial. Some evidence is self authenticating. Rule 902 lists a category of items of evidence that are in and of themselves authenticated. They are self authenticating, and that means they require no extrinsic evidence of authenticity in order to be admitted. If you can show that something you have as an exhibit meets any of the categories in Rule 902, then you don't have to take additional steps to authenticate that evidence. But think about this in advance of trial because proving that something meets a 902 category might require some other extrinsic evidence. So even if you don't need a witness with knowledge to get the exhibit in, if you are proving something that is self-authenticating because it is a newspaper or periodical, you might need some extrinsic evidence to prove that this thing is indeed a newspaper or periodical. It doesn't have to take the forum of a witness with knowledge, but you do have to have some other evidence to show that you fall into the Rule 902 categories. And remember, as we discussed before, that other evidence that you're using to show that Rule 902 is indeed applicable, that other evidence also has to be admissible. One last caveat, be careful. Rules 901 and 902 of the Federal Rules of Evidence solve a lot of authentication problems, and the list of ways to authenticate a piece of evidence is only illustrative. So if you come up with some other creative way, as long as you're showing that this exhibit is what you purport it to be, that meets the requirements in the Federal Rules of Evidence. You do not have to follow one of the illustrative examples that is set forth in the rule. So between rules 901 and 902, that is gonna make it very, very easy for you to authenticate most pieces of evidence. You have a list of suggestions of how you might do it, and you're free to use other ways to do it that you can come up with. And if you can prove something meets a Rule of Evidence 902 category, that alone means that it's authenticated and you don't have to go any further. So again, authentication is a pretty low bar. You have to be prepared to meet it, but it is pretty easy to meet. But as I said, be careful. Just because you can authenticate a piece of evidence does not solve all of the other evidentiary problems for admission of that piece of evidence. In order for a piece of evidence to be admissible at trial, you have to show that it makes it through all of the nets that all of the different rules of evidence set. The net having to do with relevance that filters out some evidence, including Rule 403's balancing test. The net set forth by the 800 series of rules on evidence, including arguing whether or not you can meet one of the exceptions to the rule against hearsay. Authentication is just one of many hurdles that you need to go through for each piece of evidence that you seek to offer at trial. Thank you so much for watching.

Presenter(s)

VF
Veronica Finkelstein
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

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