Black-letter propositions
- 01
Authentication can use witness knowledge, distinctive features, chain of custody, voice or handwriting identification, public records, process evidence, or self-authentication.
- 02
The threshold is evidence sufficient for a reasonable jury, not conclusive proof.
- 03
The original-document rule applies when proving content, not an event independently perceived.
- 04
Duplicates generally suffice absent genuine authenticity question or unfairness; secondary proof is allowed when originals are lost without bad faith, unobtainable, controlled by an opponent after notice, or collateral.
- 05
Civil judicial notice of indisputable adjudicative facts is conclusive; criminal juries may but need not accept it.
- 06
Civil presumptions ordinarily shift production rather than ultimate persuasion.
Use this attack sequence under time
Frame the issue
Identify exhibit and proposition.
Resolve the next checkpoint
Lay one concrete authentication route.
Resolve the next checkpoint
Ask whether content itself must be proved.
Resolve the next checkpoint
Find original, duplicate, or valid excuse.
Finish the conclusion
State effect of notice or presumption.
Common wrong turns
- Authentication does not resolve hearsay.
- A screenshot requires source and integrity evidence.
- Best evidence means original-document doctrine, not strongest possible proof.
Worked example
An eyewitness testifies from memory to a crash she also recorded without offering the video.
The original-document rule does not apply because she proves the event from personal perception rather than the video's contents.
Practice this topic
The best evidence rule step by step
Start by asking what the party is trying to prove. Under Rule 1002 an original writing, recording or photograph is required to prove its content, so a witness who saw a contract cannot describe its terms in place of the document. The rule is not triggered when the fact to be proved exists independently, such as a payment that also happened in cash. Rule 1003 then allows a duplicate unless there is a genuine question about the original's authenticity or admitting the copy would be unfair.
If the original is unavailable, Rule 1004 allows other evidence of the content when the original was lost or destroyed without bad faith, cannot be obtained by judicial process, is in the opponent's possession after notice that it would be needed and was not produced, or concerns a collateral matter. Rule 1006 separately allows a summary or chart of voluminous records, provided the originals were made available for examination. Authentication under Rule 901 is a different hurdle from all of this, so a document can be authentic and still fail the original-document rule.
Authentication and self-authentication
Rule 901(a) requires the proponent to produce evidence sufficient to support a finding that an item is what the proponent claims it is. Rule 901(b) gives examples only, not a complete list, such as testimony of a witness with knowledge, nonexpert opinion about handwriting, comparison with an authenticated specimen and distinctive characteristics. Rule 902 lists items that are self-authenticating, requiring no extrinsic evidence of authenticity, such as domestic public documents that are sealed and signed.
Rule 301 says that in a civil case a presumption puts the burden of producing evidence to rebut it on the party against whom it is directed, and it does not shift the burden of persuasion.
The original-document rules
Rule 1002 requires an original writing, recording or photograph to prove its content unless the rules or a federal statute provide otherwise. Rule 1003 makes a duplicate admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or admitting it would be unfair. Rule 1004 allows other evidence of content when originals are lost or destroyed without bad faith, cannot be obtained by judicial process, are controlled by the opponent who fails to produce them after notice, or are not closely related to a controlling issue. Rule 1006 allows summaries of voluminous materials.
Frequently asked questions
What is the controlling rule for authentication, original documents, notice, and presumptions?+
Documents require sufficient authentication, and an original or acceptable substitute is needed only when a party seeks to prove recorded contents.
How should I analyze authentication, original documents, notice, and presumptions on the bar exam?+
Identify exhibit and proposition. Lay one concrete authentication route. Ask whether content itself must be proved. Find original, duplicate, or valid excuse. State effect of notice or presumption.
What must a proponent show to authenticate evidence?+
Evidence sufficient to support a finding that the item is what the proponent claims it is, under Rule 901(a).
Are the Rule 901(b) examples a complete list?+
No. Rule 901(b) says the examples are only examples and not a complete list.
What does self-authenticating mean?+
The item requires no extrinsic evidence of authenticity to be admitted, such as a domestic public document that is sealed and signed, under Rule 902.
When is a duplicate admissible?+
To the same extent as the original, unless a genuine question is raised about the original's authenticity or the circumstances make it unfair, according to Rule 1003.
When can other evidence of a writing's content be used?+
When all originals are lost or destroyed without bad faith, cannot be obtained by judicial process, are held by an opponent who fails to produce them after notice, or are not closely related to a controlling issue.