Authentication & Identification

Laying the foundation that something is what it purports to be.

Ways of Authentication

• 1. Testimony of a witness with knowledge• 2. Self-authenticating public documents

FRE 901

• To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

• You use a sponsoring witness!

Example: Photo of an accident scene

• Establish personal knowledge of the scene. (doesn’t have to be the photographer).

• Show the photograph to the witness.

• Establish that the photo accurately represents the scene.

• Publish the photo to the jury.

Four Simple Questions

• I am showing you what has been marked as Exhibit "C" for identification. Do you recognize what is shown in this photograph?

• Are you familiar with the scene portrayed in this photograph?

• How are you familiar with the scene portrayed in the photograph?

• Does the scene portrayed in the photograph fairly and accurately represent the scene as you remember it on the date in question?

A Letter• Are you familiar with the

signature of Lillian Jones?• How are you familiar with Mr.

Smith's signature?• Show the witness plaintiff's

Exhibit "D" for identification.• Do you recognize the

signature at the bottom of this letter?

• Whose signature is it?• Move the letter into

evidence.

Diagram• I am showing you what has been

marked as Exhibit "E" for identification. Are you familiar with the area located at 16th Street and 12th Avenue in Dade County, Florida?

• How are you familiar with this area?

• Based on your familiarity with the area, can you tell us whether the scene depicted in this diagram fairly and accurately represents the area as you recall it on the date in question?

The nightmare of email authentication

• Reply doctrine• Content doctrine• Expert testimony

• From: Tom@MegaCorp.com

• To: Gisele@MegaCorp.com

• Re: BigBank• Gisele,• I talked with Bill at

BigBank yesterday. He said that he has been taking kickbacks for recommending us to gov.

Hearsay & documents

• Once you lay the foundation, you may have to get it in past a hearsay objection.

• Business Records is usually the best exception but:

• United States v. Ferber, 966 F. Supp. 90 (D. Mass. 1997) e-mail are not business records.

Chain of Custody• To maintain chain of custody, you must

preserve evidence from the time it is collected to the time it is presented in court. To prove the chain of custody, and ultimately show that the evidence has remained intact, prosecutors generally need service providers who can testify—

• That the evidence offered in court is the same evidence they collected or received.

• To the time and date the evidence was received or transferred to another provider.

• That there was no tampering with the item while it was in custody.