GREGORY CHANDLER ON AUTHENTICATION OF REAL EVIDENCE

GREGORY CHANDLER, ESQ. 


One of the general requirements of introducing real evidence, including writings, at a trial is that the evidence must be authenticated.  Authentication means that the trial attorney must establish that the real evidence is what it is supposed to be.  Trial attorneys often call this process the laying of a foundation.  In laying a foundation, the trial attorney presents evidence that establishes the evidence as what it is supposed to be.  The authentication of real evidence is expressed in Federal Rule of Evidence 901.   

Federal Rule of Evidence 901(a) reads:


"In general.  To satisfy the requirements of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." 


Rule 901 provides that the proponent must provide evidence sufficient to support a finding that the proffered material is what the proponent says it is.  Under Rule 901, the question of authenticity is generally considered one of conditional relevance--a document or other piece of evidence is not relevant unless it is what the proponent purports it to be. 

As a question of conditional relevance, the admissibility standard appears to be the same as provided by Federal Rule of Evidence 104(b):  Has the proponent offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is?

This is a liberal standard favorable to admitting the evidence.  The drafters of the Federal Rules of Evidence apparently believed that the authenticity should generally be a jury question, subject to the limitation that there is no reason to bother the jury with evidence that clearly is not what the proponent claims it to be.  However, there is no clear showing that Congress adopted a unitary approach to authentication that would deprive the trial judge of the traditional power to scrutinize possibly unreliable or fabricated evidence. 


GREGORY CHANDLER, Attorney at Law