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  • Writer's pictureTommy Sangchompuphen

Merriam-Webster's Word of the Year: "Authentic"

Merriam-Webster’s Word of the Year for 2023 is "authentic." It means "not false or imitation," "true to one's own personality, spirit, or character, " and "worthy of acceptance or belief as conforming to or based on fact," among other definitions.

In legal terms, evidence is considered "authentic" if it is what it claims to be. The Federal Rules of Evidence (particularly FRE 901) provide guidance on what constitutes authentic evidence and how it can be authenticated. Under FRE 901(a), “[t]o 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.” The proof must be sufficient to support a jury finding of genuineness (meaning, a reasonable juror could conclude that the object is what the proponent claims it to be).

Here are some examples of how particular pieces of evidence can be authenticated.

Documents and Signatures

  • Handwritten Letters: A handwriting expert could testify that the handwriting matches that of the alleged author. Federal Rule of Evidence 901(b)(3) allows for authentication through comparison by an expert witness or the trier of fact.

  • Official Documents: A birth certificate can be authenticated by showing it came from a public office where such records are kept. Federal Rule of Evidence 901(b)(7) addresses public records, and Federal Rule of Evidence 902(4) covers certified copies of public records.

  • Contract with Signatures: Authentication might involve a witness testifying that they saw the parties sign the document. Federal Rule of Evidence 901(b)(1) allows for testimony by a witness with knowledge to authenticate a matter.

Digital Evidence

  • Emails: Authenticating an email might involve testimony or digital records showing it came from the alleged sender's email address. Federal Rule of Evidence 901(b)(4) provides for authentication through distinctive characteristics, including circumstantial evidence.

  • Text Messages: Authentication could involve testimony from the recipient, along with phone records linking the message to the sender's phone number. Similar to emails, authentication can be through Federal Rule of Evidence 901(b)(1) and 901(b)(4).

Photographs and Videos

  • Surveillance Videos: A person familiar with the surveillance system could testify that the video accurately represents what was recorded. Federal Rule of Evidence 901(b)(1) applies, needing testimony from a knowledgeable witness.

  • Photographic Evidence: A witness might authenticate a photograph by testifying that it accurately depicts a scene they observed. Federal Rule of Evidence 901(b)(1) again applies, requiring a witness to testify that the photo accurately depicts what they saw.

Physical Objects

  • Weapon in a Criminal Case: A police officer might authenticate a weapon by testifying they recovered it from the crime scene. Federal Rule of Evidence 901(b)(1) allows authentication through testimony of a witness with knowledge.

  • Damaged Property in a Civil Case: A party or witness could authenticate a piece of damaged property by testifying about their familiarity with the item and the damage it sustained. As with the weapon, Rule 901(b)(1) applies for testimony by someone who can identify the item and its condition.

  • Voice Recordings: A party familiar with the speaker's voice could testify that the voice in the recording matches that of the alleged speaker. Federal Rule of Evidence 901(b)(5) addresses voice identification by opinion based upon hearing the voice at any time.

Expert Testimony

  • Forensic Analysis: In cases involving forensic evidence (like DNA or fingerprints), an expert can authenticate the evidence by explaining the methods used to analyze it and their conclusions. Federal Rule of Evidence 702 is relevant for expert testimony, which can help authenticate evidence through scientific, technical, or specialized knowledge.

The issue of authentication appeared on the July 2020 Multistate Essay Exam (Question 1). The question tested the concept of authentication primarily through a scenario involving a handwritten letter purportedly written by an unavailable truck driver. Examiners were looking for answers that demonstrated an understanding of the rules and methods for authenticating such a document.

It's important to note, too, that issues of authentication often intertwine with the best evidence rule and hearsay issues because they are fundamentally connected in the process of presenting evidence in court.

First, authentication establishes the genuineness of evidence, but it's just the first step.

Second, the best evidence rule then comes into play, especially for documents and recordings, to ensure that the most accurate and complete form of evidence is presented.

Third, hearsay issues arise because evidence often contains out-of-court statements, which must be examined for admissibility based on various exceptions and exclusions under hearsay rules.

Thus, handling an item of evidence in court typically involves navigating these interconnected legal concepts.


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