Authentication of Evidence
Non-testimonial and documentary evidence must be authenticated before a court may admit it into evidence. Authentication is the term that is used requiring that the evidence sought to be admitted into evidence is what it is actually purported to be.
Authentication reduces the chances of a fraudulent document being admitted into evidence. It is also reduces the risk of mistake. The proponent or the person seeking to introduce the evidence need only show there is a reasonable likelihood that the documentary or non-testimonial evidence is what it purports to be. If the evidence indicates the document at issue is what the proponent claims, the proponent does not have to prove absolutely or conclusively that the evidence is authentic. A trial court has discretion to determine whether the evidence sought to be admitted is authentic. Sometimes the parties agree that the evidence seeking to be admitted is what it is purported to be and the proponent is therefore not required to prove authentication of the document prior to its admission.
Limitations on Authentication of Evidence
Although evidence may be admitted as authentic, the evidence may be excluded for other reasons such as the evidence constituted hearsay or was not relevant. Further, even though evidence may deem authentic and admit it, the trier of fact does not have to accept the evidence as authentic. For example, if a document is admitted as authentic through the testimony of its alleged author, the opposing party may argue that the alleged author is not telling the truth. The trier of fact would remain free to conclude which of the parties it believed was being truthful.
Methods of Authentication
Documents require interpretation to the extent that a witness with personal knowledge must sometimes inform the court and jury whether the information is relevant and reliable. There are numerous methods in which one may authenticate documentary and non-documentary evidence. Some of the types of methods that may be used include:
- Testimony of a witness or author of a document
- Testimony by a non-expert or expert witness
- Public records or documents
- Voice identification
- Handwriting identification
- Distinctive characteristics or markings
- Methods provided by other court rules or applicable statutes
- Forensic analysis
- Circumstantial evidence
- Evidence describing a process or system
Chain of Custody
The authentication of non-documentary items of evidence, such as a murder weapon may occur through chain of custody testimony. The term "chain of custody" refers to the process of how the evidence was found and where it went from there. The evidence must be accounted for from the moment it was taken into custody until it is offered into evidence. Chain of custody testimony is usually taken from witnesses or officers that originally obtained custody of the evidence to others who thereafter had custody of the evidence. For example, an officer could testify that he found a knife on the ground at the scene of the crime and that he took that knife into custody by placing it into a bag and marking it as evidence. Then a clerk could testify that he deposited the evidence into the evidence room where the evidence remained until defendant's trial.
Chain of custody testimony is most often necessary for authentication of non-documentary evidence. Chain of custody testimony also provides foundational evidence for the authentication of documentary evidence.
Self-Authenticating Documents
Proof of authentication of certain documentary evidence is not required if the documents are self-authenticating. Self-authenticating documents are documents that on their face show that they are authentic. Some examples of self-authenticating documents include:
- Domestic public documents with or without a seal
- Foreign public documents
- Certified copies of public records
- Official publications
- Newspapers
- Trade inscriptions
- Certified documents and records
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