Las Vegas Personal Injury Attorney
Las Vegas Personal Injury Attorney About Us Personal Injury Family Law Community Outreach Contact Us
Call Our Offices Now View Our Testimonials Visit Our Personal Injury Blog

Authentication of Physical Evidence

I wrote this short blog/article primarily for my, Eric Roy, and my staff's benefit. These rules I speak about here are those as governed and dictated by the Federal Rules of Evidence. Most states adopt the Federal Rules of Evidence in full or in part. Generally speaking, before an item of evidence can be admitted into Evidence that item of evidence must first be authenticated. This simply means that whatever this item of physical evidence is, it must be proven to be what the proponent of that evidence alleges it to be. So if a proponent of evidence wishes to have that item of evidence, say a written document, admitted into evidence then the proponent must first provide sufficient evidence that this document is the same document that the proponent says it is. By way of another example, if a proponent of a photograph wishes to introduce a photograph into evidence then he needs to first provide the court with some evidentiary showing that the photograph on hand accurately depicts the location or events of which was photograph purports to show.

This authentication process often requires two steps. The first step requires the judge to determine whether the proponent has submitted sufficient evidences for a jury to make a finding that the item of evidence is genuine or accurate. This first step is considered to be a question of law, and as such the judge can make this decision. If the judge finds that there is sufficient evidence for the jury to make such a finding and the opposition decides to put on contrary evidence demonstrating that the item of evidence is not genuine or accurate then a question of fact is presented. The jury is then handed over this factual question so as to determine whether the item of evidence is what it purports to be. Hence, the two step process.

This process of authentication is conducted by way of either direct examination or cross examination. The proponent lawyer uses the witness under examination to authenticate whatever item of physical evidence he or she wishes to move into evidence. As a practical matter, you should refer to your item of evidence as "plaintiff's proposed exhibit one", for example, prior to it being admitted. After the item has been admitted it becomes just "exhibit one". The first step in this process is to mark your exhibit. You can mark your proposed exhibit before trial or during trial, depending on the custom of the court. After your exhibit is marked, by the clerk of court, it should be shown to the opposing counsel and then brought to the witness on the stand for inspection. As a matter of formality, it is always good to ask the court for permission to approach the witness for the purpose of handing the proposed exhibit to the witness. Once the witness has this item of evidence in hand he or she can then inspect it. The examining attorney then voir dire's the witness as to the authenticity of this exhibit. After the witness has laid a sufficient foundation for the item of evidence the introducing attorney can "offer" the proposed exhibit for identification into evidence. The trial judge will then admit or deny the admission of this evidence. After the judge admits an item of evidence, trial counsel can request that the evidence be "published" to the jury. Essentially, the item of evidence can be given to the jurors for inspection. If the evidence is a letter then this letter can be read aloud to the jurors so that they can hear of the letter's contents, in addition to reading the letter themselves. Alternatively, the letter or item of evidence can be displayed on a flat screen monitor. This act of handing or displaying the evidence to the jurors is known as "publishing" the evidence to the jury. After publishing the evidence, be sure to give the admitted item of evidence to the court reporter or bailiff. The court reporter can hold the evidence until such time as the evidence is used again in trial. Remember that the same evidence may go back with the jurors into deliberations at the conclusion of trial.

If you have the opportunity and budget to do so then you should try to get your evidence up on flat screen TV for the jury to view. If your plan is to do this then you will need to know the process of introducing evidence in this manner. The procedure is the same as with tangible evidence except that you will hand your flash drive or whatever else you use to store the information to the clerk for marking. You will then ask the clerk/technologist to display the evidence to opposing counsel. You then ask the court if you can display the image to the witness for the purpose of authenticating the evidence. If the court then allows or receives your proposed exhibit into evidence you can then request that your exhibit be published for the jury.

Before a document can be introduced to the jury it needs to be authenticated as does any other item of evidence. In addition to the foundational element of authentication, the document will also need to overcome best evidence and hearsay objections. Thus, if you are offering written evidence be cognizant of the fact that you will need to contend with more than simply authentication. There are a few ways in which a document can be authenticated. If you are lucky enough as to have a witness who observed the execution of the writing then you can authenticate the writing through this witness's testimony of such. The witness will simply need to testify that he or she did in fact witness execution of the document. The witness needs to be prepared to testify as to where and when the observation of this execution took place along with who else may have been present at this written execution.

If you aren't so lucky as to have a witness who was present when the document was executed perhaps you will be lucky enough to have a witness who is familiar with the author's handwriting. If you do have this type of witness you can establish authentication by first demonstrating to the court that your witness is familiar with the author's penmanship. Thus, counsel needs to question the witness as to the various circumstances in which the witness has observed the author's penmanship on prior occasion. Here you are proving that the witness is in fact familiar with the author's handwriting and you are providing testimony to support why the witness is familiar with the handwriting. After you have done this you simply need to have your witness testify that he or she recognizes the handwriting on the document which is presently a proposed exhibit. Once your witness has given you this testimony you may ask the court that the document be admitted into evidence. If the judge allows your document to be received by the court then you need to take the final step of either handing your document to the jurors or having your witness or yourself read the contents of the documents to the jurors. Request permission of the court to do this before doing so. Your choice here as to your manner of publishing may be dependent on the length of the document. This is one of the few instances in which lay witnesses can provide opinion testimony, which is typically reserved for experts.

Alternatively, you can use an expert witness to authenticate a writing. However, you will first need to authenticate other writings which you will have your expert compare to the writing in question. So first you will authenticate the sample documents. To achieve this goal you will need a witness who saw the plaintiff or defendant execute one or more prior documents, which are your sample documents. This witness can thereby authenticate those, sample, documents. The judge will issue a ruling as to whether to admit or deny the sample documents. After this task is complete you can have your expert conduct a comparison of your exhibit vs the sample document. Your expert will not only need to conclude that the two documents are from the same or different author, your expert will also need to testify as to the basis for making this determination.

What seems to be coming up at every trial these days is social media images and social media written content. There are two different authentication issues to be aware of when dealing with social media. The first issue that you need to overcome is that of demonstrating that you proposed exhibit is an authentic printout from the social media site it purports to be from. The second authentication issue is that of proving that the social media page or social media posting is attributable to the particular individual you allege it is from. To prove the first of these, that the exhibit in court is an authentic printout, it is sufficient for a witness to testify that he or she personally printed the exhibit and that such witness remembers the printout and that the exhibit is of that same printout. The second method would come into play if this witness did not do the actual printing of the document but notwithstanding that the witness does remember visiting the social media page, reading the contents of that page, and that the witness currently remembers those contents today. After you prove that your exhibit is a genuine printout from the social media page it purports to be from you can then go on to show that the printout is attributable to the person who you indicate it is in fact attributable to. To do this, you could have an expert testify as to what was recovered from the individual's computer hard drive and how the information from the hard drive compares to the information on the individual's social media page. Alternatively, you may be able to authenticate by demonstrating that the name on the social media page matches up to the name used by the individual you attribute the page to. This evidence combined with such other evidence such as photographs of the same individual on the social medial site along with some personal information on the profile page which correctly connects the page with the individual in question. Finally, you may need a showing that the individual never gave out his or her social media password and thus it is unlikely that anyone else could access the social media web page.

To get a better understanding of this material I suggest you read the Federal Rules of Evidence directly. Alternatively, read Edward Imwinkelried, (2012) Evidentiary Foundations which is an excellent read on the subject matter and the source of the majority of my own information on the subject.

Categories: Personal Injury