(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier-of-fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard first-hand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations.Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence twenty years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by applicable statute or rules.
Comment
The requirement of identification of physical objects and authentication of documents is not the sole determination of admissibility, it is merely one aspect of the ultimate determination that the object or document is admissible. The initial determination will usually be identification: Is the exhibit offered in evidence the same one the witness saw outside of the courtroom? This may be shown by either identification testimony or chain of custody testimony.
Although the trier-of-fact will ultimately have to determine whether the object is what the proponent claims it is, the trial court must first determine whether the object is admissible. The trial court is not to determine whether it believes the matter in question is what the proponent claims it to be; the extent of the trial court's duty is to determine whether the proponent has presented sufficient evidence from which the trier-of-fact could find that the matter in question is what the proponent claims it to be.[1] This proof need not be conclusive; as long as there is sufficient evidence to support this finding, any evidence to the contrary will go to the weight and not the admissibility of the matter in question.[2]
In ruling on the admissibility of physical objects and documents, the trial court may not utilize the part of Rule 104(a) that provides that the trial court is not bound by the Rules of Evidence in determining the admissibility of evidence. That is because the determination that the trial court must make under Rule 901(a) is whether the party offering the evidence has introduced sufficient evidence for the finders-of-fact to determine that the matter in question is what its proponent claims. This necessarily means that the proponent has introduced sufficient admissible evidence, since it is upon this evidence that the finders-of-fact make their determination. A proponent of physical evidence need not disprove the possibility of tampering or contamination if the party makes a reasonable showing that the item is intact and unaltered.[3]
Even though the proponent establishes that the object is what the proponent claims it is, the proponent must still establish that the object is connected to the litigation, and thus is relevant under Rules 401 and 402. If the object is not relevant, the trial court must exclude it. While a party will normally have to establish identification or authentication prior to showing that the object itself is connected to the litigation (relevancy), the trial court does have the power under Rule 611(a) to require a showing of relevancy before determining identification or authentication.
Rule 103(a)(1) provides that a party must state the specific ground for the objection to the admission of evidence; thus, merely objecting on the basis of "foundation" will not be sufficient.[4] The party must instead indicate how the foundation is lacking, which will enable the party offering the evidence to overcome the shortcoming, if possible.[5]
Paragraph (b) lists 10 specific examples of authentication or identification for different types of evidence. These are merely examples, so a party may rely upon other methods not listed as long as the trial court is satisfied the method meets the requirement of paragraph (a). Depending on the nature of the evidence, a party may be able to use several of the different methods listed in paragraph (b) to authenticate or identify the evidence sought to be introduced in evidence.
Subpart (1) allows for the testimony of a witness with knowledge that the matter is what it is claimed to be.[6] This must be personal knowledge, as required by Rule 602. Examples are a person who witnessed the signing of a document sought to be admitted, or a person who found or saw someone else find a physical object sought to be admitted. A party may establish this condition precedent for the admission of evidence either by chain of custody or identification testimony.[7] The inability of a witness to identify an item positively goes to the weight and not the admissibility of the evidence.[8] For admission of a videotape, the party must present sufficient evidence from which the jurors could determine that the visual portion accurately depicts what happened, and the audio portion accurately reproduces what was said.[9]
Subpart (2) allows for non-expert opinion on handwriting, provided the witness acquired familiarity other than because of the litigation.[10] To identify a signature, the witness does not have to have actually seen the person sign the name; all that is needed is for the witness to have seen documents the witness knows the person signed.[11] Only an expert may testify as a result of familiarity acquired for purposes of the litigation.[12]
Subpart (3) allows for comparison with a specimen.[13] This represents a significant departure from the common-law approach, which required the proponent first to prove to the trial court that the specimen was genuine. Under this subpart, all the proponent need do is make a prima facie showing to authenticate or identify both the specimen and the object in question, with the finder-of-fact then left to determine whether both the specimen and the object are genuine.[14]
Subpart (4) allows for authentication based upon distinctive characteristics,[15] and provides a means of authenticating documents that cannot be authenticated by comparison with a speci-men. These characteristics could be physical, such as the type of paper, the letterhead, the return address, or the postmark, or could be based on the content, such as an indication that only one person would be familiar with the matters contained in the letter, that the letter was in reply to another letter, or that the letter contained certain characteristic misspellings.[16]
Subpart (5) allows for identification of a voice. This differs from authenticating a signature in that a lay witness may identify the voice by comparing it to any other time the witness has heard the voice, which means the witness may subsequently become familiar with the voice for purposes of the litigation. The witness may have heard the voice either firsthand, over the telephone, or from a recording.[17] The recording itself would still have to be authenticated. Expert opinions based upon speech spectrograms are not admissible as evidence in criminal trials.[18]
Subpart (6) allows for identification of a telephone conversation made to a person or business. Telephone calls received from a person or business must be authenticated under Rules 901(a), 901(b)(4), or 901(b)(5). The proponent must establish that the telephone number was assigned to the person or business by the telephone company. The telephone directory would be admissible under Rule 803(17).
Subpart (7) allows for authentication of public records retained in "public custody."[19] Public records include written documents and electronically stored data. A public record held in "private custody" would not be authenticated under this rule. Although a police report might be authenticated under this example, it still would be subject to the limitation contained in Rule 803(8).
Subpart (8) allows for authentication of ancient documents or data compilations. This is a change from the common law, which required a 30-year period, rather than the 20 years required here. This subpart requires that the document be in...
