CHAP. 13: AUTHENTICATION P. JANICKE 2012

Chap Authentication2 AUTHENTICATION A SUBSET OF RELEVANCE AUTHENTICATION EVIDENCE IS –NEEDED BEFORE DOCUMENTS AND TANGIBLE THINGS ARE RECEIVED IN EVIDENCE –NOT NEEDED FOR TESTIMONY

2012Chap Authentication3 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.

2012Chap Authentication4 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

2012Chap Authentication5 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

2012Chap Authentication6 MUST OF COURSE STAY WITHIN THE BOUNDS OF RELEVANCE IF “A STEERING WHEEL” HAS NO RELEVANCE, AUTHENTICATION ALONE WON’T ALLOW IT IN

2012Chap Authentication7 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.

PROBLEMS/CASES 13A Howard-Arias 2012Chap Authentication8

2012Chap Authentication9 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

2012Chap Authentication10 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

2012Chap Authentication11 JUDGE IS GATEKEEPER, AS USUAL JUDGE’S RULING IS NOT BINDING ON THE JURY JUDGE IS NOT BOUND BY EVIDENCE RULES (EXCEPT PRIVILEGE) HOWEVER, >>>>>

2012Chap Authentication12 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

2012Chap Authentication13 WAYS TO AUTHENTICATE [RULE 901(b)] TEN ARE LISTED IN THE RULE LIST IS ILLUSTRATIVE, NOT EXCLUSIVE.

2012Chap Authentication14 #1: TESTIMONY FROM A LAY WITNESS WITH KNOWLEDGE –THE MOST TRADITIONAL WAY –PROBABLY THE MOST DRAMATIC –DON’T LEAD! (IT RUINS THE DRAMA)

2012Chap Authentication15 AFFIDAVIT TESTIMONY ON AUTHENTICITY –OFTEN USED IN BENCH TRIALS –IN JURY TRIALS, AFFIDAVITS ARE INADMISSIBLE HEARSAY

2012Chap Authentication16 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

2012Chap Authentication17 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

2012Chap Authentication18 METHOD #4: DISTINCTIVE CHARACTERISTICS –PROBLEM: POINTING THEM OUT WITHOUT A WITNESS –WORKABLE ONLY IN BENCH TRIALS

2012Chap Authentication19 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

2012Chap Authentication20 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

PROBLEMS/CASES 13B 13D 13E 13H 2012Chap Authentication21

2012Chap Authentication22 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....

2012Chap Authentication23 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

2012Chap Authentication24 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

2012Chap Authentication25 TRADEMARKS ON GOODS OR PREMISES –INCLUDES CORPORATE LOGOS DOCUMENTS WITH PRIVATE SIGNATURES, BUT ACKNOWLEDGED BEFORE A NOTARY BUSINESS RECORDS WITH DECLARATION

2012Chap Authentication26 PROBLEMS/CASES 13J