1. CHAP. 13: AUTHENTICATION
P. JANICKE
2010

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

3. 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.
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Chap Authentication

4. 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
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5. 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
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6. 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
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7. 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
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8. 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
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9. JUDGE IS GATEKEEPER, AS USUAL
JUDGE’S RULING IS NOT BINDING ON THE JURY
JUDGE IS NOT BOUND BY EVIDENCE RULES (EXCEPT PRIVILEGE)
HOWEVER, >>>>>
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Chap Authentication

10. 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
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11. WAYS TO AUTHENTICATE [RULE 901(b)]
TEN ARE LISTED IN THE RULE
LIST IS ILLUSTRATIVE, NOT EXCLUSIVE.
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12. 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)
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13. Chap. 13 -- Authentication
AFFIDAVIT TESTIMONY ON AUTHENTICITY
OFTEN USED IN BENCH TRIALS
IN JURY TRIALS, AFFIDAVITS ARE INADMISSIBLE HEARSAY
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14. 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
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15. 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
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16. Chap. 13 -- Authentication
METHOD #4: DISTINCTIVE CHARACTERISTICS
PROBLEM: POINTING THEM OUT WITHOUT A WITNESS
WORKABLE ONLY IN BENCH TRIALS
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17. 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
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18. 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
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19. 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 ....
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20. 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
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21. 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
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22. Chap. 13 -- Authentication
TRADEMARKS ON GOODS OR PREMISES
INCLUDES CORPORATE LOGOS
DOCUMENTS WITH PRIVATE SIGNATURES, BUT ACKNOWLEDGED BEFORE A NOTARY
BUSINESS RECORDS WITH DECLARATION
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23. 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.
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24. Chap. 13 -- Authentication
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