e. Self-authentication
While authenticating witnesses generally must be called for evidence offered under FRE 901(b), FRE 902 dispenses with that requirement.
Like FRE 901, FRE 902 addresses only whether or not evidence is sufficiently authenticated to be admissible. At trial, the opponent may introduce evidence contesting authenticity, and the trier of fact makes the ultimate determination.
i) Exclusive category.
ii) Justification
The requirement of authentication can be met by the appearance of a doc. together with past experience which suggests that such docs usually are what they appear to be.
iii) Presumption of authenticity
1) No extrinsic evidence required: such as an authenticating witness.
2) The opposing party may introduce evidence attacking the authenticity before the jury (FRE 104 (e)).
Thursday, March 24, 2011
Intro to the Federal Rules of Evidence - 27
d. Some examples of methods of authentication (FRE 901(b))
FRE 901(b) lists examples that relate for the most part to documents, with some attention given to voice recognition and computer printouts.
i) Admissions
ii) Testimony of eyewitness
iii) Handwriting verifications
1) Non-expert opinion (FRE 901(b)(2))
2) Comparison of writings (FRE 901(b)(3))
iv) Voice identification (FRE 901(b)(5))
The most common identification of a speaker.
v) Process or system (FRE 901(b)(9))
For example, tape recordings are authenticated most commonly under FRE 901(b)(9). It is generally sufficient to establish the identity of a speaker and to show that the device was capable of making a true recording and was in goo order, the operator was qualified to operate it and did so properly, no changes were made in the recording, and the tape was properly preserved.
vi) Photographs, videotapes
Although photographs are most commonly authenticated under FRE 901(b)(1) by testimony of a witness with knowledge, they can also be authenticated under FRE 901(b)(9) by showing the process by which they were made. Use of the latter provision is generally required for photographs offered under the silent witness doctrine.
EXAMPLE 1
Q (LAWYER): Mr. Smith, did you see the robbery that happened in the parking lot on the northeast corner of Main and Elm Streets on June 1, 2005 at 8:00 in the evening?
A: I sure did. I was right in my attendant booth.
Q: Do you remember how the lot looked at the time?
A: Sure.
Have the exhibit marked, show it to the opposing counsel, ask permission to approach the witness, and show the exhibit to the witness.
Q: I’m showing you what was just marked State’s Exhibit No. 2. Take a look at it for a moment. [Witness looks at it.] Does that diagram fairly and accurately show the layout of the parking lot as it looked on June 1, 2005?
A: Yes.
Q: Would using this diagram help you in explaining what you saw, heard, and did when the robbery happened?
A: I sure would.
LAWYER: Your honor, we offer State’s Exhibit No.2.
OPPOSING LAWYER: No objection, your honor.
JUDGE: State’s Exhibit No. 2 is admitted.
EXAMPLE 2
Q (LAWYER): Dr. Williams, you’re the doctor who treated Jane Curtis?
A: Yes.
Q: You did the surgery on her lower left leg?
A: Yes.
Q: As part of your treatment of Ms. Curtis, did you have x-rays taken?
A: Yes, both before and after the surgery.
Have the exhibit marked, show it to opposing counsel, ask permission to approach the witness, and show the exhibits to the witness.
Q: Dr. Williams, I’m handing you six x-rays marked Plaintiff’s Group Exhibit No. 6A through 6F. please examine them for a moment. [Doctor looks at x-rays.] Do you recognize them?
A: Yes, I do.
Q: What do you recognize them to be?
A: These are the x-rays I had taken of Ms. Curtis the day I performed the surgery on her lower left leg. 6A through 6C are the x-rays before the surgery and 6D through 6F are the postsurgery x-rays.
Q: How is it you know that these are in fact the x-rays of Ms. Curtis taken on June 1, 2005?
A: I examined her. I know the condition of her leg and what fractures she had. I did the surgery and I know the pins and screws I used to repair the fractures.
Q: Was the x-ray machine in proper working order?
A: Yes.
Q: Do Exhibits 6A through 6C fairly and accurately show the condition of Ms. Curtis’s leg before the surgery?
A: Yes.
Q: Do Exhibits 6D through 6F fairly and accurately show the condition of Ms. Curtis’s leg after the surgery?
A: Yes.
LAWYER: Your honor, Plaintiff offers Group Exhibit 6A through 6F in evidence.
OPPOSING LAWYER: No objection, your honor.
JUDGE: Plaintiff’s Group Exhibit 6A through 6F is admitted. Continue with your examination.
Once the x-rays are in evidence, they can be displayed to the jury and the doctor can explain what the x-rays show.
FRE 901(b) lists examples that relate for the most part to documents, with some attention given to voice recognition and computer printouts.
i) Admissions
ii) Testimony of eyewitness
iii) Handwriting verifications
1) Non-expert opinion (FRE 901(b)(2))
2) Comparison of writings (FRE 901(b)(3))
iv) Voice identification (FRE 901(b)(5))
The most common identification of a speaker.
v) Process or system (FRE 901(b)(9))
For example, tape recordings are authenticated most commonly under FRE 901(b)(9). It is generally sufficient to establish the identity of a speaker and to show that the device was capable of making a true recording and was in goo order, the operator was qualified to operate it and did so properly, no changes were made in the recording, and the tape was properly preserved.
vi) Photographs, videotapes
Although photographs are most commonly authenticated under FRE 901(b)(1) by testimony of a witness with knowledge, they can also be authenticated under FRE 901(b)(9) by showing the process by which they were made. Use of the latter provision is generally required for photographs offered under the silent witness doctrine.
EXAMPLE 1
Q (LAWYER): Mr. Smith, did you see the robbery that happened in the parking lot on the northeast corner of Main and Elm Streets on June 1, 2005 at 8:00 in the evening?
A: I sure did. I was right in my attendant booth.
Q: Do you remember how the lot looked at the time?
A: Sure.
Have the exhibit marked, show it to the opposing counsel, ask permission to approach the witness, and show the exhibit to the witness.
Q: I’m showing you what was just marked State’s Exhibit No. 2. Take a look at it for a moment. [Witness looks at it.] Does that diagram fairly and accurately show the layout of the parking lot as it looked on June 1, 2005?
A: Yes.
Q: Would using this diagram help you in explaining what you saw, heard, and did when the robbery happened?
A: I sure would.
LAWYER: Your honor, we offer State’s Exhibit No.2.
OPPOSING LAWYER: No objection, your honor.
JUDGE: State’s Exhibit No. 2 is admitted.
EXAMPLE 2
Q (LAWYER): Dr. Williams, you’re the doctor who treated Jane Curtis?
A: Yes.
Q: You did the surgery on her lower left leg?
A: Yes.
Q: As part of your treatment of Ms. Curtis, did you have x-rays taken?
A: Yes, both before and after the surgery.
Have the exhibit marked, show it to opposing counsel, ask permission to approach the witness, and show the exhibits to the witness.
Q: Dr. Williams, I’m handing you six x-rays marked Plaintiff’s Group Exhibit No. 6A through 6F. please examine them for a moment. [Doctor looks at x-rays.] Do you recognize them?
A: Yes, I do.
Q: What do you recognize them to be?
A: These are the x-rays I had taken of Ms. Curtis the day I performed the surgery on her lower left leg. 6A through 6C are the x-rays before the surgery and 6D through 6F are the postsurgery x-rays.
Q: How is it you know that these are in fact the x-rays of Ms. Curtis taken on June 1, 2005?
A: I examined her. I know the condition of her leg and what fractures she had. I did the surgery and I know the pins and screws I used to repair the fractures.
Q: Was the x-ray machine in proper working order?
A: Yes.
Q: Do Exhibits 6A through 6C fairly and accurately show the condition of Ms. Curtis’s leg before the surgery?
A: Yes.
Q: Do Exhibits 6D through 6F fairly and accurately show the condition of Ms. Curtis’s leg after the surgery?
A: Yes.
LAWYER: Your honor, Plaintiff offers Group Exhibit 6A through 6F in evidence.
OPPOSING LAWYER: No objection, your honor.
JUDGE: Plaintiff’s Group Exhibit 6A through 6F is admitted. Continue with your examination.
Once the x-rays are in evidence, they can be displayed to the jury and the doctor can explain what the x-rays show.
Intro to the Federal Rules of Evidence - 26
b. Demonstrative evidence
The evidence is authenticated by a sponsoring witness who can testify that it fairly represents some aspect of the case.
c. Standard of proof – reasonable jury/ prima facie standard (FRE 901(a))
The requirement or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a find that the matter in question is what its proponent claims
Even if the authentication requirement is met, the opposing party can challenge the authenticity of the evidence. And a jury is free to measure the value of the evidence.
The evidence is authenticated by a sponsoring witness who can testify that it fairly represents some aspect of the case.
c. Standard of proof – reasonable jury/ prima facie standard (FRE 901(a))
The requirement or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a find that the matter in question is what its proponent claims
Even if the authentication requirement is met, the opposing party can challenge the authenticity of the evidence. And a jury is free to measure the value of the evidence.
Intro to the Federal Rules of Evidence - 25
2. Methods of authentication
a. Real evidence
i) Readily or uniquely identifiable
if the item has a unique, one-of-a-kind characteristic, this method can be used. The sponsoring witness merely testifies that the object he originally saw has a specific unique character, and that the item shown to him in court bears that same unique identifier.
Example: D is charged with stabbing V to death. W is a police officer who inspected the crime scene shortly after the killing occurred. After W testifies about beginning the inspection of the crime scene, the following testimony would authenticate the knife as the murder weapon.
PROSECUTOR: What did you do during the inspection?
WITNESS: I looked for any evidence of what had killed the deceased.
PROSECUTOR: what did you find?
WITNESS: I found a knife next to the body, which was a pearl-handled switchblade about ten inches long, coated with a sticky red substance.
PROSECUTOR: what did you do then?
WITNESS: in the case of a comparatively inexpensive object like this one, I mark it for identification by scratching my initials and the date into the handle.
PROSECUTOR: I show you People’s Exhibit No. 1 for identification. What is it?
WITNESS: It’s the knife I found.
PROSECUTOR: How can you tell that that’s what it is?
WITNESS: As I said, I marked my initials and the date on the handle. They’re right there.
PROSECUTOR: Has the Exhibit changed since you found it?
WITNESS: No, it seems to be in the same condition I found it.
PROSECUTOR: Your honor, I now offer People’s Exhibit No. 1 for identification into evidence as People’s Exhibit No. 1.
COURT: It will be received.
ii) Chain of custody
This method is used when one of the elements for ready identifiability is absent.
A key reason for the elaborate chain-of-custody method is to prevent tampering with evidence.
a. Real evidence
i) Readily or uniquely identifiable
if the item has a unique, one-of-a-kind characteristic, this method can be used. The sponsoring witness merely testifies that the object he originally saw has a specific unique character, and that the item shown to him in court bears that same unique identifier.
Example: D is charged with stabbing V to death. W is a police officer who inspected the crime scene shortly after the killing occurred. After W testifies about beginning the inspection of the crime scene, the following testimony would authenticate the knife as the murder weapon.
PROSECUTOR: What did you do during the inspection?
WITNESS: I looked for any evidence of what had killed the deceased.
PROSECUTOR: what did you find?
WITNESS: I found a knife next to the body, which was a pearl-handled switchblade about ten inches long, coated with a sticky red substance.
PROSECUTOR: what did you do then?
WITNESS: in the case of a comparatively inexpensive object like this one, I mark it for identification by scratching my initials and the date into the handle.
PROSECUTOR: I show you People’s Exhibit No. 1 for identification. What is it?
WITNESS: It’s the knife I found.
PROSECUTOR: How can you tell that that’s what it is?
WITNESS: As I said, I marked my initials and the date on the handle. They’re right there.
PROSECUTOR: Has the Exhibit changed since you found it?
WITNESS: No, it seems to be in the same condition I found it.
PROSECUTOR: Your honor, I now offer People’s Exhibit No. 1 for identification into evidence as People’s Exhibit No. 1.
COURT: It will be received.
ii) Chain of custody
This method is used when one of the elements for ready identifiability is absent.
A key reason for the elaborate chain-of-custody method is to prevent tampering with evidence.
Intro to the Federal Rules of Evidence - 24
B. AUTHENTICATION
1. Authentication
All real and demonstrative evidence must be authenticated before it is admitted. That is, it must be shown to be genuine. This means that the object must be established to be what its proponent claims it to be (FRE 901(a)).
a. Real evidence
It the object is real evidence, authentication usually means showing that the object is the object that was involved in the underlying event.
For example, the actual knife used in the stabbing; a contract signed by P & D; a tape recording a conversation in which D tried to bribe a public official .
b. Demonstrative evidence
If the evidence is demonstrative, authentication usually means showing that the object fairly represents or illustrates what it is claimed to represent or illustrate.
For example, proof that a diagram offered in evidence really shows the position of the parties and witnesses at the time of the murder.
1. Authentication
All real and demonstrative evidence must be authenticated before it is admitted. That is, it must be shown to be genuine. This means that the object must be established to be what its proponent claims it to be (FRE 901(a)).
a. Real evidence
It the object is real evidence, authentication usually means showing that the object is the object that was involved in the underlying event.
For example, the actual knife used in the stabbing; a contract signed by P & D; a tape recording a conversation in which D tried to bribe a public official .
b. Demonstrative evidence
If the evidence is demonstrative, authentication usually means showing that the object fairly represents or illustrates what it is claimed to represent or illustrate.
For example, proof that a diagram offered in evidence really shows the position of the parties and witnesses at the time of the murder.
Intro to the Federal Rules of Evidence - 23
IV. REAL AND DEMONSTRATIVE EVIDENCE
A. REAL EVIDENCE V. DEMONSTRATIVE EVIDENCE
1. Real evidence
Real evidence is a tangible object that played some actual role in the matter that gave rise to the litigation. For example, a knife used in a fatal stabbing.
2. Demonstrative evidence
Demonstrative evidence is tangible evidence that merely illustrates a matter of importance in the litigation. For example, maps, diagrams, models, summaries and other materials created especially for the litigation.
3. Significance of distinction
The foundation requirements needed to authenticate the two types of evidence are different.
A. REAL EVIDENCE V. DEMONSTRATIVE EVIDENCE
1. Real evidence
Real evidence is a tangible object that played some actual role in the matter that gave rise to the litigation. For example, a knife used in a fatal stabbing.
2. Demonstrative evidence
Demonstrative evidence is tangible evidence that merely illustrates a matter of importance in the litigation. For example, maps, diagrams, models, summaries and other materials created especially for the litigation.
3. Significance of distinction
The foundation requirements needed to authenticate the two types of evidence are different.
Subscribe to:
Comments (Atom)