Authentication, self-authenticating documents, and the original-writing rule

Black-letter propositions

1. 01

   To authenticate an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

2. 02

   Testimony of a witness with knowledge that an item is what it is claimed to be is one way to authenticate it, and a nonexpert may give an opinion that handwriting is genuine if familiar with it in a way not acquired for the litigation.

3. 03

   An item may be authenticated by comparison with an authenticated specimen by an expert or the trier of fact, or by its appearance, contents, substance, internal patterns or other distinctive characteristics taken together with all the circumstances.

4. 04

   A voice may be identified by an opinion based on hearing the voice at any time under circumstances that connect it with the alleged speaker, and a telephone call is authenticated by evidence that it was made to the number assigned to a particular person, if circumstances such as self-identification show the person answering was the one called, or to a business if the call related to business reasonably transacted by telephone.

5. 05

   A public record can be authenticated by evidence that a document was recorded or filed in a public office as authorized by law or that the purported record is from the office where such items are kept, and a document or data compilation can be authenticated as an ancient document if it is in a condition creating no suspicion, was in a place where it would likely be if authentic, and is at least 20 years old when offered.

6. 06

   A process or system can be authenticated by evidence describing it and showing that it produces an accurate result.

7. 07

   Domestic public documents that are sealed and signed, certified copies of public records, official publications, and newspapers and periodicals are self-authenticating, and require no extrinsic evidence of authenticity to be admitted.

8. 08

   An original writing, recording or photograph is required in order to prove its content unless the rules or a federal statute provide otherwise.

9. 09

   An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it, and for electronically stored information an original includes any printout readable by sight if it accurately reflects the information.

10. 10

    A duplicate is 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 to admit the duplicate.

11. 11

    Other evidence of the content of a writing, recording or photograph is admissible if all the originals are lost or destroyed and not by the proponent in bad faith, if an original cannot be obtained by judicial process, if the party against whom the original would be offered controlled it, was on notice, and failed to produce it, or if the item is not closely related to a controlling issue.

12. 12

    The court may admit a summary, chart or calculation offered to prove the content of voluminous admissible writings, recordings or photographs that cannot be conveniently examined in court, and the proponent must make the underlying originals or duplicates available to other parties at a reasonable time and place.

Use this attack sequence under time

Common wrong turns

• Authentication requires only evidence sufficient to support a finding, not proof beyond doubt.
• The original-writing rule applies when proving the content of a writing, not when a witness testifies from personal knowledge about an event that a writing also recorded.
• A duplicate is usually as good as the original, unless authenticity is genuinely questioned or admission would be unfair.

Worked example

A witness testifies that she recognizes the defendant's voice on a recorded call because she heard him speak at a meeting last year. The defendant objects that she has not been qualified as a voice expert.

Practice this topic

Authentication under Rule 901

Federal Rule of Evidence 901(a) requires the proponent to produce evidence sufficient to support a finding that the item is what the proponent claims it is. Rule 901(b) gives a nonexclusive list of examples, including testimony of a witness with knowledge, a nonexpert's opinion about handwriting based on familiarity not acquired for the litigation, comparison with an authenticated specimen, and distinctive characteristics of the item taken together with all the circumstances.

Rule 901(b) also lists opinion about a voice based on hearing it at any time under circumstances connecting it with the alleged speaker, evidence about a telephone conversation showing a call to the number assigned to a particular person or to a business on business reasonably transacted by phone, evidence about public records, ancient documents that are at least 20 years old and in a condition creating no suspicion, and evidence describing a process or system that produces an accurate result.

Self-authenticating evidence

Rule 902 lists items that are self-authenticating and require no extrinsic evidence of authenticity to be admitted, including domestic public documents that are sealed and signed, domestic public documents that are unsealed but signed and certified under seal, certified copies of public records, official publications, and newspapers and periodicals.

Rule 902(3) covers foreign public documents signed or attested by a person authorized by a foreign country's law, accompanied by a final certification of the genuineness of the signature and official position, and it allows the court for good cause, after all parties have had a reasonable opportunity to investigate, to treat the document as presumptively authentic or to allow an attested summary.

The original-writing rule

Rule 1002 requires an original writing, recording or photograph to prove its content unless the rules or a federal statute provide otherwise. Rule 1001(d) defines an original as the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it, and for electronically stored information, any printout or other output readable by sight if it accurately reflects the information.

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 admission would be unfair. Rule 1004 allows other evidence of content if all originals are lost or destroyed without bad faith by the proponent, if an original cannot be obtained by judicial process, if the opponent had control and notice and did not produce it, or if the item is not closely related to a controlling issue. Rule 1006 allows a summary, chart or calculation of voluminous materials, with the originals or duplicates available to other parties.

Frequently asked questions