CHAP. 13: AUTHENTICATION P. JANICKE 2010

Chap. 13 -- Authentication A SUBSET OF RELEVANCE AUTHENTICATION EVIDENCE IS NEEDED BEFORE DOCUMENTS AND TANGIBLE THINGS ARE RECEIVED IN EVIDENCE NOT NEEDED FOR TESTIMONY 2010 Chap. 13 -- Authentication

MEANING OF AUTHENTICATION PROOF: EVIDENCE THAT THE DOCUMENT (OR PHYSICAL THING) IS WHAT ITS PROPONENT CONTENDS IT IS EXAMPLE: THE STEERING WHEEL FROM THE DEFENDANT’S CAR EXAMPLE: A CHECK WRITTEN AND SIGNED BY D. 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication HAS NOTHING TO DO WITH DOCUMENT BEING TRUTHFUL EXAMPLE – A FORGED CHECK IS “AUTHENTIC” IF THE PROPONENT (LAWYER OFFERING) CONTENDS IT’S A FORGED CHECK EXAMPLE – A COUNTERFEIT BILL, OFFERED BY THE GOVERNMENT IN A COUNTERFEITING CASE, IS “AUTHENTIC” IF THE GOVERNMENT CONTENDS IT IS COUNTERFEIT 2010 Chap. 13 -- Authentication

PROPONENT CONTROLS HOW MUCH FOUNDATION EVIDENCE IS NEEDED SHE CAN DECIDE WHAT HER CONTENTION IS: A STEERING WHEEL FROM A ’99 FORD EXPLORER, vs. THE STEERING WHEEL FROM P’S ’99 FORD EXPLORER AN AXE OF THE ZZZ TYPE, vs. THE MURDER WEAPON 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication MUST OF COURSE STAY WITHIN THE BOUNDS OF RELEVANCE IF “A STEERING WHEEL” HAS NO RELEVANCE, AUTHENTICATION ALONE WON’T ALLOW IT IN 2010 Chap. 13 -- Authentication

TAKING THE AUTHENTICATING WITNESS ON VOIR DIRE TEXAS : VORR DYER REST OF U.S.: VWAHR DEER COURT CONTROLS PER RULE 611 BUT PERMISSION IS OFTEN ASSUMED 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication IT IS GENERALLY IMPROPER TO TAKE THE AUTHENTICATING WITNESS ON VOIR DIRE PRIOR TO TIME WHEN THE DOCUMENT OR OBJECT IS OFFERED IN EVIDENCE WOULD INTERRUPT THE FOUNDATION EVIDENCE OF THE PROPONENT 2010 Chap. 13 -- Authentication

JUDGE IS GATEKEEPER, AS USUAL JUDGE’S RULING IS NOT BINDING ON THE JURY JUDGE IS NOT BOUND BY EVIDENCE RULES (EXCEPT PRIVILEGE) HOWEVER, >>>>> 2010 Chap. 13 -- Authentication

JURY IS ULTIMATE DECIDER OF ALL FACTS (INCLUDING AUTHENTICITY) THEREFORE, MOST LAWYERS ELECT TO USE AN AUTHENTICATION METHOD THAT FOLLOWS THE RULES OF EVIDENCE AND CAN BE INTRODUCED IN JURY’S PRESENCE 2010 Chap. 13 -- Authentication

WAYS TO AUTHENTICATE [RULE 901(b)] TEN ARE LISTED IN THE RULE LIST IS ILLUSTRATIVE, NOT EXCLUSIVE. 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication #1: TESTIMONY FROM A LAY WITNESS WITH KNOWLEDGE THE MOST TRADITIONAL WAY PROBABLY THE MOST DRAMATIC DON’T LEAD! (IT RUINS THE DRAMA) 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication AFFIDAVIT TESTIMONY ON AUTHENTICITY OFTEN USED IN BENCH TRIALS IN JURY TRIALS, AFFIDAVITS ARE INADMISSIBLE HEARSAY 2010 Chap. 13 -- Authentication

PROS AND CONS OF AFFID. PRACTICE PRO: CAN’T BE CROSS-EXAMINED CON: AFFIDAVITS ARE PREPARED OUT OF COURT AND ARE LOADED WITH HEARSAY STATEMENTS OF THE AFFIANT; NORMALLY INADMISSIBLE CON: CAN’T BE SHOWN OR READ TO THE JURY 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication METHOD #3: COMPARISON BY EXPERT WITNESS OR BY JURY COMPARISON TO PREVIOUSLY ADMITTED SPECIMENS WITH JURY, THERE’S NO WAY FOR THEM TO PRE-ANNOUNCE THEIR RULING ON AUTHENTICITY 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication METHOD #4: DISTINCTIVE CHARACTERISTICS PROBLEM: POINTING THEM OUT WITHOUT A WITNESS WORKABLE ONLY IN BENCH TRIALS 2010 Chap. 13 -- Authentication

VOICE AUTHENTICATION METHOD #5 REQUIRES FAMILIARITY BUT IT CAN BE ACQUIRED AFTER THE PHONE CALL IN QUESTION E.G., BY HEARING A PARTY SPEAK IN COURTROOM OR IN A DEPOSITION 2010 Chap. 13 -- Authentication

ALTERNATE VOICE AUTHENTICATION METHOD #6 – FOR PHONE CALLS, TESTIMONY THAT X’S PHONE NUMBER WAS DIALED AND CIRCUMSTANCES SUGGEST X WAS ON THE LINE CAN INCLUDE SELF-IDENTIFICATION SIMILAR PROCEDURE FOR A BUSINESS 2010 Chap. 13 -- Authentication

AUTHENTICITY DOES NOT ASSURE ADMISSIBILITY AUTHENTICITY IS ONLY ONE PRONG OF ADMISSIBILITY DOCUMENTS MAY STILL CONTAIN HEARSAY (USUALLY DO) AND BE OBJECTIONABLE ---> R901(7): E.G. BIRTH RECORD IT’S AUTHENTIC, BUT .... 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication SO FAR, WE KNOW 2 TYPES OF DOCUMENTS THAT ARE NOT HEARSAY DOCUMENTS WRITTEN BY THE OTHER SIDE DOCUMENTS THAT CONSTITUTE AN ELEMENT OF THE CASE (E.G., CONTRACT; LEASE) FOR THESE, AUTHENTICITY IS ALL THAT IS NEEDED FOR OTHER DOCUMENTS, A HEARSAY EXCEPTION (R803) WILL BE NEEDED 2010 Chap. 13 -- Authentication

SELF-AUTHENTICATING DOCUMENTS [RULE 902] PUBLIC DOCUMENTS UNDER SEAL PUBLIC DOCUMENTS NOT UNDER SEAL, BUT WITH SEALED ATTESTATION SHEET ATTACHED GOVERNMENT PUBLICATIONS NEWSPAPERS AND PERIODICALS 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication TRADEMARKS ON GOODS OR PREMISES INCLUDES CORPORATE LOGOS DOCUMENTS WITH PRIVATE SIGNATURES, BUT ACKNOWLEDGED BEFORE A NOTARY BUSINESS RECORDS WITH DECLARATION 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication CHAIN OF CUSTODY A METHOD OF AUTHENTICATING ITEMS THAT COULD HAVE BEEN ALTERED NO HARD-AND-FAST REQUIREMENTS CHAIN WITH BROKEN LINKS SOMETIMES RULED O.K. 2010 Chap. 13 -- Authentication

Chap. 13 -- Authentication 2010 Chap. 13 -- Authentication