Authentication of Evidence

Myriad forms of evidence will likely be introduced during a trial. They may include (but certainly are not limited to) any of the following: text messages, photographs, medical records, maps, and police reports. However, there are limits to what evidence will actually be admitted. One of the fundamental requirements for evidence to be admitted is that it first must be properly authenticated. Authentication is often referred to as “laying the foundation” because it is the procedure of demonstrating, step-by-step, that evidence is exactly what the proponent claims it is.

The Federal Rules of Evidence

To properly authenticate an item of evidence, the proponent seeking its admission must demonstrate that the evidence is exactly what the proponent claims it to be (Fed. R. Evid. 901). Authentication is a vital part of any trial proceeding as it ensures a degree of fairness and prevents the admission of evidence that was tampered with or otherwise altered. Proper authentication also allows the opposing party to adequately defend evidence that is admitted and prepare the most effective defense possible.

Although most evidence requires independent authentication, which is often accomplished through testimony, Federal Rule of Evidence 902 provides that some evidence is “self-authenticating,” meaning it can be admitted into evidence without the need for independent proof of its authenticity. The following documents are self-authenticating:

• domestic public documents that are sealed and signed;
• domestic public documents that are not sealed but are signed and certified;
• foreign public documents;
• certified copies of public records;
• official publications;
• newspapers and periodicals;
• trade inscriptions and the like;
• acknowledged documents;
• commercial paper and related documents;
• presumptions under a federal statute;
• certified domestic records of a regularly conducted activity;
• certified foreign records of a regularly conducted activity;
• certified records generated by an electronic process or system; and
• certified data copied from an electronic device, storage medium, or file.

I urge you to check Federal Rule of Evidence 902 and corresponding local and state rules regarding these self-authenticating documents, as they provide more specificity regarding the nuances of the requirements for each type of document. It would also be beneficial to check local, state, and federal cases for additional clarification.

The Federal Rules of Evidence provide some guidance for authenticating evidence that is not self-authenticating, but the rules are clear that the methods offered are not all-encompassing. Below are commonly used ways to authenticate evidence, as explained in Federal Rule of Evidence 901.

• Testimony of a witness with knowledge. The witness must show through testimony that the item is exactly what it purports to be.
• Nonexpert opinion about handwriting. A nonexpert is required to show that the handwriting is genuine based on the nonexpert’s familiarity with the handwriting. However, this familiarity cannot have been acquired for the current litigation.
• Comparison by an expert witness or the trier of fact. The evidence can be authenticated via a comparison with a properly authenticated specimen by an expert witness or trier of fact.
• Distinctive characteristics and the like. The appearance and contents of the item, in conjunction with the totality of the circumstances, can authenticate the evidence.
• Opinion about a voice. Firsthand knowledge, electronic analysis, or any other method can authenticate an opinion identifying a person’s voice.
• Evidence about a telephone conversation. Evidence about a telephone conversation can be authenticated by showing that the call was made to the number assigned at the time to (1) a particular person if circumstances show that the person answering was the one who was called or (2) a particular business if the call was made to the business and the call related to business that could reasonably be transacted over the phone.
• Evidence about a public record. There are two general methods for authenticating a public record. First, the proponent can offer evidence that the document was recorded or filed in a public office authorized by law. Alternatively, the proponent can offer evidence of a statement from the office where similar items of this kind are ordinarily kept.
• Evidence about ancient documents or data compilations. There are three requirements to authenticate ancient documents or data compilations. The proponent must show that the document (1) is in a condition that creates no suspicion about its authenticity; (2) was in a place where, if authentic, it would likely be; and (3) is at least 20 years old when offered as evidence.
• Evidence about a process or system. Generally, authentication requires evidence of a particular process and system and proof that it produces an accurate result.
• Methods provided by a statute or rule. The Federal Rules of Evidence provide a last “catchall” provision that provides for authentication in any manner permitted by statute or rule specifically allowed by the Supreme Court.

Authentication in Practice

Now that we have reviewed evidence that is self-authenticating and common ways to authenticate evidence, you may be wondering how authentication works in everyday practice. To combat the pressure and stresses that arise during a trial, every practitioner should commit to memory a procedure that is both simple and easy to recall. There is no significant benefit to overcomplicating the authentication process. Rather, the sole focus should be to get the item of evidence admitted into evidence, which requires a mere showing that the evidence is what the proponent claims it to be.

The first step to authenticating any item of evidence sought to be admitted in a trial is to show the witness that item and ask the witness to identify the evidence. This can be as simple as asking the witness, “Do you recognize this exhibit?” You must steer the witness toward the ultimate goal of providing that the evidence is exactly what you purport it to be. The next questions to ask the witness are “What is this exhibit?” and “Are you familiar with its contents?” It is then important to demonstrate through the witness’s testimony that the witness previously had an opportunity to review the evidence and that the evidence is now in the same or substantially similar condition as it was when the witness originally reviewed it. This can be accomplished by asking the witness, “Have you had an opportunity to review this evidence?” and “Was this evidence in the same or substantially similar condition when you initially observed it?” Finally, it is important to ask the witness if there are any material alterations to the evidence. This is a general framework for authenticating evidence and can vary depending on the evidence that you are seeking to admit.

This framework is applicable for authenticating both the traditional forms of evidence, such as documents and photographs, as well as electronic evidence. As we move into a more digitalized world, the use of electronic evidence is becoming increasingly more common during trials.

Text messages, photographs, videos, and phone calls and telephonic recordings are frequently introduced across all practice areas. Below, I discuss the authentication of these commonly used items of evidence in today’s practice.

Text Messages

In my practice as a family and matrimonial attorney, I regularly use text messages during both matrimonial and domestic violence trials. In the realm of domestic violence trials, text messages provide a “snapshot” of communication, which can be highly effective in demonstrating that one party has committed an act of domestic violence. As a result, it is imperative that the text messages are properly authenticated so that they can be admitted into evidence. Fortunately, the procedure for authenticating text messages is not overly complex. There are, however, exceptions to this general proposition.

The first step in authenticating text messages is to show the witness the text messages and have the witness identify them. The witness must then identify the sender and recipient of the text messages as well as the date and time that the text messages were purportedly sent. The witness must also confirm that the text messages are in similar condition at the time of trial as when they were sent or received; the witness needs to assure the court that the text messages were not significantly altered in any way.

Photographs

Photographs are also commonly introduced at trial, especially in the areas of criminal and civil litigation. Whether photographs are used to prove innocence or guilt or to assist in the determination of damages, photographs are an invaluable resource for a trial practitioner. Under the Federal Rules of Evidence, proper authentication requires a showing that chances are remote either that a photograph is not an accurate depiction of the scene photographed or that the photograph portrays a scene that is substantially different from the scene pertinent to the issues at trial (United States v. Stearns, 550 F.2d 1167 (9th Cir. 1977)).

Photographs that may be introduced at trial are not solely limited to pictures taken by a phone or camera; rather, they also include photographic prints taken from films. In United States v. Richardson, 562 F.2d 476 (7th Cir. 1977), the Seventh Circuit held that a complete chain of custody was not required to authenticate surveillance photographs in a robbery trial. Specifically, the court noted that the testimony of an eyewitness to the robbery stating that the photographs in question fairly and accurately depicted the robbery was sufficient to authenticate them (id.).

Videos

Videos are commonly used in trials throughout a wide variety of practice areas. Videos can be extremely persuasive evidence in a trial because they often capture significantly more than can be seen in a document. They have a component of reality and can play into human emotions. Further, videos can demonstrate how someone acted at a particular time and provide insight into that person’s emotions. It can be very persuasive and powerful to have all these elements included in one singular piece of evidence rather than through several separate items of evidence.

The general method for authenticating videos is somewhat similar to authenticating text messages. First, you must have the witness identify the evidence (video) that you are seeking to admit. You then should ask the witness when the video was taken, including questions that demonstrate the date and time of the events that the video captures. Next, you should ask the witness if he or she had an opportunity to review the video before the date of the proceeding and if the video is in the same or substantially similar condition as it was at the time the video was recorded. Finally, it is imperative to show through witness testimony that no material alterations were made to the video.

Phone Calls and Telephonic Recordings

Federal Rule of Evidence 901(b)(6) provides some guidance regarding the authentication of phone calls and telephonic recordings. Federal Rule of Evidence 901(b)(5) provides some additional guidance, as voice identification is often a prerequisite for authenticating phone calls and telephonic recordings. Issues that arise in authenticating phone calls and telephonic recordings include but are not limited to the identification of the caller and the determination of the caller’s particular phone number used. I would recommend checking your state and/or federal cases regarding these matters.

Preparation Is Key

I hope this article provided some valuable insight into authentication. I suggest that you create your own framework for authentication in advance of trial. I also recommend that you familiarize yourself with your local state and/or Federal Rules of Evidence and have a copy of these rulebooks with you at counsel table during trial in order to most effectively advocate for your client.