26.2 Authentication & Identification
Key Takeaways
- To authenticate an item, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is (FRE 901(a)); the judge applies this Rule 104(b) standard, and the jury decides whether the item is genuine.
- Common methods include testimony of a witness with knowledge, distinctive characteristics and circumstances (including reply communications), nonexpert handwriting identification based on familiarity not acquired for litigation, expert or jury comparison with authenticated specimens, and a process or system that produces an accurate result (FRE 901(b)).
- A voice may be identified by anyone who has heard it under circumstances connecting it with the speaker, including familiarity acquired for litigation, and a telephone call is authenticated by showing the call was made to the assigned number plus self-identification or, for a business, a conversation about business reasonably conducted by phone (FRE 901(b)(5)–(6)).
- Ancient documents at least 20 years old, in unsuspicious condition and found where they would likely be, are authenticated under FRE 901(b)(8), although the related hearsay exception now covers only documents prepared before January 1, 1998 (FRE 803(16)).
- Self-authenticating items need no extrinsic evidence, including sealed and certified public documents, official publications, newspapers, trade inscriptions, acknowledged documents, commercial paper, and business records or electronic data certified by a qualified person with advance notice (FRE 902).
26.2 Authentication & Identification
Authentication is a threshold showing that an exhibit is what its proponent says it is. It does not establish that the exhibit is true or admissible for other purposes; hearsay, best evidence, and Rule 403 objections may still apply once an item is authenticated.
Authentication (FRE 901 & 902)
Under FRE 901(a), to satisfy the requirement 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. This is a low threshold governed by FRE 104(b) conditional relevance: the judge determines whether a reasonable jury could find the item authentic.
1. Authenticating Tangible Physical Evidence
- Distinctive Characteristics: Testimony of an eyewitness with personal knowledge who identifies the item based on distinctive marks, serial numbers, or scratches ("I know this is the knife because my initials are carved on the handle").
- Chain of Custody: For fungible, non-unique, or easily contaminated evidence (e.g., narcotics, blood samples, chemical powders), the proponent must establish an unbroken chain of custody accounting for the item's continuous safekeeping from seizure to court.
2. Authenticating Documents
- Handwriting Comparison (FRE 901(b)(3)): May be established by: (1) a non-expert with prior familiarity not acquired for trial; (2) a qualified forensic handwriting expert; or (3) the jury comparing the document to an authenticated exemplar.
- Ancient Documents (FRE 901(b)(8)): Authenticated if: (1) it is at least 20 years old; (2) it is in a condition that creates no suspicion about its authenticity; and (3) was found in a place where, if authentic, it would likely be.
- Reply Letter Doctrine (FRE 901(b)(4)): A letter, email, or text is authenticated as having been sent by a particular person if evidence shows it was received in response to a prior communication sent to that person.
- Voice Identification (FRE 901(b)(5)): A voice may be identified by anyone who has heard the voice at any time. Unlike handwriting, familiarity for voice identification CAN be acquired solely for the purpose of trial or litigation.
3. Self-Authenticating Evidence (FRE 902)
Certain documents require no extrinsic evidence of authenticity to be admitted:
- Certified copies of public records (FRE 902(4))
- Official publications issued by public authority (government pamphlets) (FRE 902(5))
- Newspapers and periodicals of general circulation (FRE 902(6))
- Trade inscriptions, signs, tags, or commercial labels (e.g., trademark label on a candy bar) (FRE 902(7))
- Acknowledged / Notarized documents (FRE 902(8))
- Commercial paper, promissory notes, and related signatures (FRE 902(9))
- Certified domestic business records accompanied by a custodian's sworn affidavit complying with FRE 902(11)
- Certified electronic records and data generated by an electronic process or system (FRE 902(13)/(14))
Applying the Authentication Rules
Additional Methods Under Rule 901(b)
- Witness with knowledge (901(b)(1)): A person who signed a contract, took a photograph, or saw a document created may authenticate it.
- Telephone conversations (901(b)(6)): A call is authenticated by evidence that it was made to the number assigned at the time to a particular person or business, plus, for a person, circumstances such as self-identification showing the person answering was the one called, or, for a business, that the conversation related to business reasonably transacted over the telephone.
- Public records (901(b)(7)): Evidence that a document was recorded or filed in a public office as authorized by law, or that a purported public record is from the office where such items are kept.
- Process or system (901(b)(9)): Evidence describing a process or system and showing that it produces an accurate result, as with surveillance recordings, GPS data, or computer-generated logs.
- Methods provided by statute or rule (901(b)(10)).
Electronic Communications
Text messages, e-mails, and social-media posts are usually authenticated through a combination of circumstantial evidence: the sender's phone number or account, distinctive content that only the purported author would likely know, the author's nickname or writing style, replies in an ongoing conversation, and metadata or testimony from the recipient. Records from a service provider are helpful but not required.
Chain of Custody
For fungible items such as drugs, the proponent traces the item's handling from seizure to trial to show it was not altered or substituted. The chain need not be perfect; minor gaps generally go to the weight the jury gives the evidence rather than to admissibility.
Self-Authentication Details (FRE 902)
- Public documents: Domestic public documents that are sealed and signed (902(1)); unsealed domestic public documents signed by an officer and accompanied by a certification under seal from another officer (902(2)); foreign public documents with a proper certification (902(3)); and certified copies of public records (902(4)).
- Certified business records: Domestic (902(11)) and foreign (902(12)) records of a regularly conducted activity that meet the requirements of Rule 803(6), certified by the custodian or another qualified person, with reasonable written notice and access to the record and certification before trial.
- Certified electronic records and data: Records generated by an electronic process or system (902(13)) and data copied from an electronic device, storage medium, or file identified by a process of digital identification such as a hash value (902(14)), each certified by a qualified person with the same notice requirements.
| Item | Typical Authentication |
|---|---|
| Murder weapon with a serial number | Officer who recorded the serial number identifies it |
| Bag of cocaine | Chain of custody |
| Signed letter | Witness familiar with the handwriting, expert comparison, or reply-letter doctrine |
| Recorded voicemail | Anyone who knows the speaker's voice, including familiarity gained for litigation |
| Surveillance video with no eyewitness | Testimony about a reliable recording system (901(b)(9)) |
| Hospital records | Custodian testimony or a Rule 902(11) certification with notice |
| Certified court judgment | Self-authenticating (902(4)) |
In a criminal harassment prosecution, the victim testified that she received a series of threatening text messages from a number she recognized as the defendant's cell phone number. The messages referred in detail to a private argument that only she and the defendant had witnessed, and they were signed with a nickname that only the defendant used. The defendant objected that the messages could not be authenticated without certified records from the wireless carrier showing that he owned the phone. How should the court rule?
In a contract dispute, a contractor's office manager testified that she looked up a lumber supplier's number in the supplier's official business listing, called the number, and was greeted by a person who said, 'Supplier sales department, this is Dan.' She placed an order for lumber, and Dan confirmed the price and delivery date. She had never spoken with Dan before. The supplier objected that the conversation had not been properly authenticated. How should the court rule?