Self-Authentication Generally: Certifications Under The Confrontation Clause; Confrontation Clause Application Summary

Self-Authentication Generally: Authentication of things and identification of people represent a special aspect of relevancy, Fed.R.Evid. 401. To illustrate, a telephone conversation offered to show knowledge on the part of a speaker is not relevant unless the person speaking is sufficiently identified, nor is a purported letter of the defendant relevant unless it is properly shown that the defendant actually wrote the letter. Proof of authenticity or identification may be by either direct or circumstantial evidence. Satisfaction of the requirement of authentication or identification is a matter to be approached in accordance with Fed.R.Evid. 104(b). Accordingly, once the court finds that evidence has been introduced sufficient to permit a reasonable juror to find that the matter in question is what its proponent claims it is, a sufficient foundation for introduction in evidence has been laid, Fed.R.Evid. 104(b). When an item is offered into evidence, the court may permit counsel to conduct a limited cross-examination, referred to as voir dire, on the foundation offered. In reaching its determination, the court must view all the evidence introduced as to authentication or identification, including issues of credibility, most favorably to the proponent. The ultimate decision as to whether a person, document, or item of real or demonstrative evidence is as purported is for the trier of fact. Of course, the party who opposed introduction of the evidence may still offer contradictory evidence before the trier of fact or challenge the credibility of the supporting proof in the same way that he can dispute any other testimony. However, upon consideration of the evidence as a whole, if a sufficient foundation has been laid in support of introduction, contradictory evidence goes to the weight to be assigned by the trier of fact and not to admissibility. Primarily in civil proceedings the time and uncertainty incident to authenticating documents and items of real or demonstrative evidence at trial may often be avoided by the use of procedures available before trial. Authentication may be accomplished through a pleading, by a request to admit, by stipulation, by deposition, by interrogatory, or as a result of an agreement reached at the pretrial conference. Documents and real evidence once properly authenticated must be offered into evidence. Compliance with the requirement of Fed.R.Evid. 901 does not guarantee that the documentary, real, demonstrative or testimonial evidence subsequently offered is admissible, for the offered evidence may still be excluded because of some other bar to admission, such as the rule against hearsay, lack of relevancy, or Fed.R.Evid. 403. Fed.R.Evid. 901(b) provides a list of ten illustrations of authentication or identification conforming to the requirements of the rule. The illustrations are not exclusive but serve only as examples, leaving room for growth and development in this area of the law, Fed.R.Evid. 102. The text of each of the ten illustrations provided in Fed.R.Evid. 901(b), together with commentary was presented in the prior article in this series. Each of the illustrations was treated as a separate rule for the convenience of the reader. While ordinarily the authentication of an item is satisfied by the introduction of evidence, certain kinds of evidence possess on their face indicia of authenticity sufficient alone to support a finding by a reasonable jury that the item is what it purports to be, Fed.R.Evid. 902. Thus, evidence satisfying any one of the fourteen subdivisions of Fed.R.Evid. 902 is self-authenticating; extrinsic evidence as to authentication is not required. The rationale underlying the notion of self-authentication is that the likelihood of fabrication or honest error is so slight in comparison with the time and expense involved in authentication that extrinsic evidence is not required. Evidence of non-authenticity may, of course, be introduced. Although an item of evidence is made self-authenticating by Fed.R.Evid. 902, the contents of the item will still have to meet other requirements such as the rule against hearsay, Fed.R.Evid. 802, and the Original Writing Rule, Fed.R.Evid. 1002, in order to be admitted. Out-of-court statements admitted under Fed.R.Evid. 902 for the purpose of establishing that the exhibit offered into evidence is as purported to be are received in evidence to establish the truth of the matter stated, Fed.R.Evid. 801(a)–(c). Fed.R.Evid. 802 provides in part that hearsay is admissible as provided for in the Federal Rules of Evidence. Fed.R.Evid. 902 thus operates as a hearsay exception on the limited question of authenticity. Fed.R.Evid. 902 does not, however, purport to create a hearsay exception for matters asserted to be true in the self-authenticated exhibit itself. With respect to each of fourteen subdivisions of Fed.R.Evid. 902, the writing itself is self-authenticating when presented in court. A writing is not self-authenticating when a witness in court testifies that a given document she observed out-of-court was, for example, a newspaper. The rational of sufficient indicia of reliability requires actual production in court of the item claimed to be self-authenticating. If the actual item is not produced, authentication should proceed under Fed.R.Evid. 901 rather than Fed.R.Evid. 902. The requirement of actual production of the item under Fed.R.Evid. 902 operates independently of the Original Writing Rule, Fed.R.Evid. 1002. Confrontation Clause Application Summary: Application summary may be located on WestLaw in Graham, Handbook of Federal Evidence, §808.7, supplemented annually.