Authentication
Before a piece of non-testimonial evidence, such as a document, a photograph, or a physical object, can be admitted, the side offering it has to authenticate it, which simply
20. Authentication
Parties lay the foundation for non-testimonial evidence by authenticating the evidence.
- The standard for authentication is quite low. The proponent needs only to “produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a).
- Testimony by a “witness with knowledge” that the “item is what it is claimed to be” is a common method of authentication. Fed. R. Evid. 901(a)(1).
- Pointing to the “distinctive characteristics of the item” is another common means of authentication. Fed. R. Evid. 901(a)(4).
- An opponent may dispute the authenticity of evidence that has been admitted. Authentication simply gets evidence in the door; opponents may still challenge the veracity or weight of the evidence.
- The Nevada FLE does not test the other means of authentication described in Fed. R. Evid. 901.
- Nor does the exam test knowledge of the types of evidence that are self- authenticating under Rule 902.
To authenticate non-testimonial evidence, the proponent need only produce evidence sufficient to support a finding that the item is what it is claimed to be. That is a prima facie, sufficiency threshold, and the standard is low.
Before a piece of non-testimonial evidence, such as a document, a photograph, or a physical object, can be admitted, the side offering it has to authenticate it, which simply means producing enough evidence to show the item is what that side claims it is. The thing students must internalize is how low that standard is. The proponent does not have to prove the item is genuine, and does not have to establish its authenticity by a preponderance or beyond any doubt. The proponent only has to produce evidence sufficient to support a finding that the item is what the proponent claims it is. That is a prima facie, sufficiency threshold, and the judge's only job is to decide whether a reasonable jury could find the item is what it is claimed to be.
- 1A witness with knowledge can testify that the item is what it is claimed to be, for example a person who says she recognizes the signature or took the photograph.
- 2The proponent can point to the distinctive characteristics of the item itself, such as a unique mark, a logo, or contents only the genuine source would know.
Either one, standing alone, can carry the low burden.
Authentication only gets the evidence in the door. Once the item is admitted, the opponent is still free to dispute its authenticity, attack its veracity, and argue about its weight. Those challenges go to the jury, not to the threshold question, so a genuine dispute about whether the item is real does not defeat authentication as long as the proponent has produced sufficient supporting evidence.
"Could a reasonable jury find it's what they say it is?"
Authentication is a low, prima facie bar: produce evidence sufficient to support A finding that the item is what the proponent claims, not proof that it is genuine.
Two tested keys: a witness with knowledge who says the item is what it's claimed to be, or the distinctive characteristics of the item.
The classic trap inflates the standard (must prove genuine, must establish beyond dispute, must rule out tampering) or says the opponent's dispute bars admission.
Eliminate.
A dispute goes to weight for the jury, not to the threshold.
A party offers a handwritten letter and calls a witness who testifies that she has corresponded with the supposed author for years, knows his handwriting well, and recognizes the handwriting and signature on this letter as his. The opposing party objects that the letter has not been authenticated, arguing that the proponent has not proven the letter is genuinely the author's and that the signature could have been forged.
The letter is authenticated; the objection fails, and the forgery argument goes to weight for the jury, not to admissibility. Flipped variation: if the witness had no familiarity with the author's handwriting and could point to no distinctive characteristic of the letter, and the only basis offered was that the letter looked official, the proponent would not have produced evidence sufficient to support a finding that the letter is what it is claimed to be, and authentication would fail.
An option raises the authentication bar above sufficiency: it says the proponent must prove the item is genuine, must establish authenticity by a preponderance, or treats a generic official appearance as automatically enough.
Authentication requires only evidence sufficient to support a finding that the item is what the proponent claims. The judge screens for sufficiency; whether the item is truly genuine is a weight question for the jury.An option demands more than sufficiency: the proponent must establish authenticity beyond dispute, rule out tampering or forgery, or conclusively prove the item is real.
The standard is a prima facie sufficiency showing. Tampering, forgery, and genuineness are disputes about weight for the jury, not threshold requirements.An option says the opponent's dispute about whether the item is genuine bars admission, or that admitting an item conclusively settles its authenticity.
Authentication only gets evidence in the door. Once a sufficient showing is made, the opponent's dispute goes to weight for the jury, and admission does not conclusively establish genuineness.An option adds a requirement that does not exist: an expert, independent corroboration, an eyewitness to a writing's creation, or a presumption that a party's document is what the party claims.
A witness with knowledge or the item's distinctive characteristics can carry the low burden alone. No expert, no corroboration, and no presumption is required.a stem that offers a document, photograph, recording, or physical object and an objection that it has not been authenticated, or that asks whether the item may be admitted.
The instant you see an authentication objection to a non-testimonial item, run the sufficiency checklist: has the proponent produced evidence sufficient to support a finding that the item is what it is claimed to be, either through a witness with knowledge who says so or through the item's distinctive characteristics?
If yes, the item comes in.
If an option raises the bar to proving the item genuine, demands proof beyond dispute or the elimination of tampering, requires an expert or corroboration, or lets the opponent's dispute bar admission, it is wrong.
Remember that a dispute about authenticity goes to weight for the jury, not to the threshold.
A party offers a typed business letter at trial and calls an office assistant who testifies that she prepared the letter, recognizes it, and that it is the letter she typed and mailed. The opposing party objects that the letter has not been authenticated, arguing that the proponent has not proven the letter is genuine and that a typed letter could easily have been altered after it was sent.
Should the court overrule the objection and admit the letter?
A party offers a recovered note to prove it was written by a particular sender. No witness saw the note written. The proponent points out that the note is on the sender's distinctive personalized stationery bearing his monogram and that it describes a private conversation only the sender and the recipient could have known about. The opposing party objects that, because no witness can testify to having seen the note written, it cannot be authenticated.
Is the note properly authenticated for admission?
A party offers a photograph to show the condition of an intersection, and a witness who was present testifies that the photograph fairly and accurately depicts the intersection as it looked that day. The opposing party vigorously disputes that the photograph is genuine, contending it may have been taken at a different location, and argues that this genuine dispute about authenticity means the photograph must be excluded.
How should the court rule on the authentication objection?
A party offers a signed contract, and a witness with knowledge testifies that the signature is the other party's. The court admits the contract over objection. Later, the opposing party asks the court to instruct the jury that, because the contract was admitted, its authenticity is now conclusively established and may not be questioned.
Should the court give that instruction?
A party offers a printed page it claims is a record from a particular company. The only support the proponent offers is that the page looks official and bears a generic heading. No witness with knowledge testifies that the page is what it is claimed to be, and the proponent points to no distinctive characteristic tying the page to that company. The opposing party objects that the page has not been authenticated.
Has the proponent sufficiently authenticated the page?