§ 26.07 Key Points

• Jurisdiction: United States

§ 26.07 Key Points

Real evidence (e.g., murder weapon) must be identified as a prerequisite to admissibility. The term "real evidence" is used to describe tangible evidence that is historically connected with a case, as distinguished from evidence, such as a model, which is merely illustrative. The latter is often called demonstrative evidence, although there is no agreed-upon terminology in this area.

Real Evidence

Condition of object. Sometimes more than mere identification is involved. The condition of an object may also be important. Before physical objects are admissible, the offering party must establish that they are in "substantially the same condition" as at the time of the crime or accident.

Identification. There are two principal methods of identifying real evidence: (1) establishing that the evidence is "readily identifiable" and (2) establishing a "chain of custody."

Chain of custody. The "links" in the chain of custody are t hose persons who had physical custody of the object. Persons who had access to, but not possession of, the evidence are not links. Most courts hold that "the fact of a missing link does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be."

Standard of proof. Rule 901(a) requires only that the offering party introduce "evidence sufficient to support a finding that the item is what its proponent claims"—i.e., a "prima facie" showing of authenticity.

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