CHAP 13 AUTHENTICATION P JANICKE 2012 AUTHENTICATION A
- Slides: 26
CHAP. 13: AUTHENTICATION P. JANICKE 2012
AUTHENTICATION • A SUBSET OF RELEVANCE • AUTHENTICATION EVIDENCE IS – NEEDED BEFORE DOCUMENTS AND TANGIBLE THINGS ARE RECEIVED IN EVIDENCE – NOT NEEDED FOR TESTIMONY 2012 Chap. 13 -- Authentication 2
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. 2012 Chap. 13 -- Authentication 3
• 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 2012 Chap. 13 -- Authentication 4
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 2012 Chap. 13 -- Authentication 5
• MUST OF COURSE STAY WITHIN THE BOUNDS OF RELEVANCE • IF “A STEERING WHEEL” HAS NO RELEVANCE, AUTHENTICATION ALONE WON’T ALLOW IT IN 2012 Chap. 13 -- Authentication 6
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. 2012 Chap. 13 -- Authentication 7
PROBLEMS/CASES • 13 A • Howard-Arias 2012 Chap. 13 -- Authentication 8
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 2012 Chap. 13 -- Authentication 9
• 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 2012 Chap. 13 -- Authentication 10
JUDGE IS GATEKEEPER, AS USUAL • JUDGE’S RULING IS NOT BINDING ON THE JURY • JUDGE IS NOT BOUND BY EVIDENCE RULES (EXCEPT PRIVILEGE) • HOWEVER, >>>>> 2012 Chap. 13 -- Authentication 11
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 2012 Chap. 13 -- Authentication 12
WAYS TO AUTHENTICATE [RULE 901(b)] • TEN ARE LISTED IN THE RULE • LIST IS ILLUSTRATIVE, NOT EXCLUSIVE. 2012 Chap. 13 -- Authentication 13
• #1: TESTIMONY FROM A LAY WITNESS WITH KNOWLEDGE – THE MOST TRADITIONAL WAY – PROBABLY THE MOST DRAMATIC – DON’T LEAD! (IT RUINS THE DRAMA) 2012 Chap. 13 -- Authentication 14
AFFIDAVIT TESTIMONY ON AUTHENTICITY – OFTEN USED IN BENCH TRIALS – IN JURY TRIALS, AFFIDAVITS ARE INADMISSIBLE HEARSAY 2012 Chap. 13 -- Authentication 15
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 2012 Chap. 13 -- Authentication 16
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 2012 Chap. 13 -- Authentication 17
METHOD #4: DISTINCTIVE CHARACTERISTICS – PROBLEM: POINTING THEM OUT WITHOUT A WITNESS – WORKABLE ONLY IN BENCH TRIALS 2012 Chap. 13 -- Authentication 18
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 2012 Chap. 13 -- Authentication 19
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 2012 Chap. 13 -- Authentication 20
PROBLEMS/CASES • • 13 B 13 D 13 E 13 H 2012 Chap. 13 -- Authentication 21
AUTHENTICITY DOES NOT ASSURE ADMISSIBILITY • AUTHENTICITY IS ONLY ONE PRONG OF ADMISSIBILITY • DOCUMENTS MAY STILL CONTAIN HEARSAY (USUALLY DO) AND BE OBJECTIONABLE ---> – R 901(7): E. G. BIRTH RECORD – IT’S AUTHENTIC, BUT. . 2012 Chap. 13 -- Authentication 22
• 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 (R 803) WILL BE NEEDED 2012 Chap. 13 -- Authentication 23
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 2012 Chap. 13 -- Authentication 24
• TRADEMARKS ON GOODS OR PREMISES – INCLUDES CORPORATE LOGOS • DOCUMENTS WITH PRIVATE SIGNATURES, BUT ACKNOWLEDGED BEFORE A NOTARY • BUSINESS RECORDS WITH DECLARATION 2012 Chap. 13 -- Authentication 25
PROBLEMS/CASES • 13 J 2012 Chap. 13 -- Authentication 26
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