chap. 13: authentication p. janicke 2014. chap. 13 -- authentication2 authentication a subset of...

CHAP. 13:AUTHENTICATION

P. JANICKE

2014

2014 Chap. 13 -- Authentication 2

AUTHENTICATION

• A SUBSET OF RELEVANCE

• AUTHENTICATION EVIDENCE IS

– NEEDED BEFORE DOCUMENTS AND TANGIBLE THINGS ARE RECEIVED IN EVIDENCE

– NOT NEEDED FOR TESTIMONY


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.


• 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


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


STILL NEED RELEVANCE

• MUST OF COURSE STAY WITHIN THE BOUNDS OF RELEVANCE

• IF “A STEERING WHEEL” HAS NO RELEVANCE, AUTHENTICATION ALONE WON’T ALLOW IT IN


CHAIN OF CUSTODY

• ONE METHOD OF AUTHENTICATING ITEMS THAT COULD HAVE BEEN ALTERED

• NO HARD-AND-FAST REQUIREMENTS

• CHAIN WITH BROKEN LINKS SOMETIMES RULED O.K.


TAKING THE AUTHENTICATING WITNESS ON VOIR DIRE

• TEXAS : “VORR DYER”

• REST OF U.S.: “VWAHR DEER”

• COURT PERMISSION NEEDED PER RULE 611– BUT PERMISSION IS OFTEN ASSUMED


• 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 UNDULY INTERRUPT THE

FOUNDATION EVIDENCE OF THE PROPONENT

– BUT UPON THE OFFER, VOIR DIRE IS NORMAL

PURPOSES OF VOIR DIRE

• TO DEFEAT THE FOUNDATION AND KEEP THE ITEM OUT OF EVIDENCE

• IF THE ITEM COMES IN, TO WEAKEN ITS IMPACT



AUTHENTICATION

• JUDGE IS GATEKEEPER, AS USUAL

• JUDGE’S RULING IS NOT BINDING ON THE JURY

• JUDGE IS NOT BOUND BY EVIDENCE RULES (EXCEPT PRIVILEGE)


JURY IS THE ULTIMATE DECIDER OF ALL FACTS

(INCLUDING AUTHENTICITY)

• THEREFORE, MOST LAWYERS CHOOSE AN AUTHENTICATION METHOD THAT FOLLOWS THE RULES OF EVIDENCE AND CAN BE INTRODUCED IN JURY’S PRESENCE


WAYS TO AUTHENTICATE[RULE 901(b)]

• TEN ARE LISTED IN THE RULE

• LIST IS ILLUSTRATIVE, NOT EXCLUSIVE


• #1: TESTIMONY FROM A LAY WITNESS WITH KNOWLEDGE

– THE MOST TRADITIONAL WAY

– PROBABLY THE MOST DRAMATIC

– DON’T LEAD! (IT RUINS THE DRAMA)


AFFIDAVIT TESTIMONY ON AUTHENTICITY

– OFTEN USED IN BENCH TRIALS

– IN JURY TRIALS, AFFIDAVITS ARE USUALLY INADMISSIBLE HEARSAY


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 TO THE JURY


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 (LEFT IN THE AIR)


METHOD #4: DISTINCTIVE CHARACTERISTICS

– PROBLEM: POINTING THEM OUT WITHOUT A WITNESS

–WORKABLE ONLY IN BENCH TRIALS


VOICE AUTHENTICATIONMETHOD #5

• REQUIRES FAMILIARITY

• BUT IT CAN BE ACQUIRED AFTER A PHONE CALL IN QUESTION

• E.G., BY HEARING A PARTY SPEAK IN COURTROOM OR IN A DEPOSITION


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

• 13E



AUTHENTICITY DOES NOT ASSURE ADMISSIBILITY

• AUTHENTICITY IS ONLY ONE PRONG OF ADMISSIBILITY

• DOCUMENTS MAY STILL CONTAIN HEARSAY (USUALLY DO) AND ARE OBJECTIONABLE --->– R901(7): E.G. BIRTH RECORD– IT’S AUTHENTIC, BUT ....


• 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


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


• TRADEMARKS ON GOODS OR PREMISES– INCLUDES CORPORATE LOGOS

• DOCUMENTS WITH PRIVATE SIGNATURES, BUT ACKNOWLEDGED BEFORE A NOTARY

• BUSINESS RECORDS WITH DECLARATION


PROBLEMS/CASES

• 13J

chap. 13: authentication p. janicke 2014. chap. 13 -- authentication2 authentication a subset of...

Documents