§ 28.02 General Rule: FRE 901(a)

• Jurisdiction: United States

§ 28.02 General Rule: FRE 901(a)

The authentication requirement imposes on the offering party the burden of proving that an item of evidence is genuine—that it is what the proponent says it is. As one court observed: "Ordinarily, documentary evidence possesses no self-authenticating powers. . . . The legal requirement obtaining in normal contexts is that its genuineness be shown independently before it is accepted as proof."⁴

Rule 901(a) is the general provision governing authentication. Rule 901(b) presents examples of traditional methods of authentication. These examples are merely illustrative.⁵ Different methods may be used by themselves or in combination.

Reliability (truthfulness). The authentication rule is not concerned with the truthfulness of assertions in a document, an issue left to the hearsay rule. Thus, an authentic (genuine) document may contain errors and even lies—for example, a newspaper article may contain erroneous information.

[A] Standard of Proof: Prima Facie

Rule 901(a) represents a special application of the conditional relevance doctrine of Rule 104(b).⁶ The trial court does not decide whether the evidence is authentic by a preponderance of evidence, which is the typical standard of proof.⁷ Instead, the court decides only whether sufficient evidence has been introduced to support a finding of authenticity.⁸ In short, only a prima facie showing is required. If sufficient evidence has been adduced, the evidence is admitted, and the jury decides whether the evidence is authentic.

In sum, Rule 901 "does not erect a particularly high hurdle," and that hurdle may be cleared by "circumstantial evidence."⁹ The proponent is not required "to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be."¹⁰ Of course, the opposing party may introduce evidence to dispute authenticity.¹¹

[B] Relationship with Civil Rules

Due to the availability of pretrial discovery procedures, authentication is rarely a significant problem in civil cases.¹² For example, Civil Rule 36(a)(1) provides for requests for admissions as to the genuineness of documents. In addition, pretrial conferences under Civil Rule 16(c)(2) are designed, in part, to obtain admissions and stipulations regarding the authenticity of documents.¹³

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Notes:

^[4] United States v. Sutton, 426 F.2d 1202, 1206 (D.C. Cir. 1969).

^[5] See United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir. 1998) ("The specific...