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In this lesson, you will learn ways to authenticate evidence, the kinds of evidence that require authentication, and ideas for authenticating each type of evidence you may present in court.
Authenticating evidence
- CONDITION PRECEDENT – Laying a foundation for evidence is a required for the admissibility of that evidence.
- THE BEST EVIDENCE RULE – The “best evidence” rule holds original copies of documents or things that are superior to all reproductions.
Transcript
Authentication is a condition precedent to admissibility of evidence. That is, your evidence won\’t be admissible if it has not been authenticated.
How do you do that? How do you go about authenticating your evidence?
Well, a person introducing evidence in court must be able to establish a chain of custody to ensure that the evidence has not been tampered with or altered and that the identity and integrity of the evidence remains intact. This would authenticate the evidence in court to make it admissible.
In short, your evidence must be sufficient to support a finding by the court that the item is what you say it is.
For example, an attorney can lay the foundation for a sculpture by asking questions at trial of the person who actually made the sculpture.
And unless the other side objects or the judge bars it, that evidence would likely be admitted in court.
Authentication is also based on the \”best evidence\” rule. And that holds that original copies of documents or things are always superior to any reproduction or copy of it.
For instance, a party trying to prove that a signature on a contract as their opponent\’s signature would have to produce the original contract as an exhibit.
If some copy is offered in place of the original contract, the \”best evidence\” rule requires that the absence of the original be adequately explained. And if that party were unable to explain the absence of the original, the copy would not be authenticated and would thus be inadmissible in court.
Now in practice, the parties can agree beforehand on the authenticity of various pieces of evidence. That\’s called a \”stipulation\” or an agreement to accept an item as authentic.
So you want to look for that at the pre-trial conference. Look for the opportunity to compare various items of evidence and decide which ones would be authenticated beforehand and which ones would be brought to the attention of the court.
Let\’s talk briefly about some ways evidence can be authenticated.
A witness with knowledge about a particular piece of evidence might testify that the item is what it\’s claimed to be.
A non-expert might provide her opinion as to whether a piece of handwriting is genuine based on some familiarity with it before the litigation began.
Evidence can be authenticated by viewing its attributes or its appearance, its contents, the substance or any other distinctive characteristics.
For instance, the names of persons creating an electronic record, its date of creation, even its unique content might serve to distinguish that record from any other record and could thus be authenticating.
An opinion identifying a person\’s voice might be authenticating based on a comparison between the alleged speaker and some spoken evidence or an audio recording of that voice.
Evidence about public records is generally self authenticating. That is, it doesn\’t need additional authentication.
If a document has been filed or recorded in a public office, like a tax assessor, public records office, even court documents. Those are public records that are self-authenticated. So no other authentication is needed there.
To authenticate evidence describing a process or a system, you might show that the process or system produces some accurate reproducible result.
So for instance, if you wanted to show that a certain model of Xerox copier had been used to reproduce a particular document, you could compare the document\’s markings to a known copy that had been made from that copier.
To authenticate evidence gained from a telephone conversation, you might show evidence that the call was placed to a number assigned at that time to a specific person.
If you are making a call to a business, you might show that the call related to that business\’s operations. That itself could be authenticating, if, again, the number were assigned to that business at the time.
These are just some common ways of authenticating your evidence. As you are collecting your evidence, whether outside discovery or inside, you want to think about the ways that evidence would be authenticated.