§ 28.05 COMPARISON BY TRIER OR EXPERT: FRE 901(B)(3)

• Jurisdiction: North Carolina

§ 28.05. COMPARISON BY TRIER OR EXPERT: FRE 901(b)(3)

A document may be authenticated by comparison with known specimens of a writing — by either the trier of fact²⁰ or an expert witness.²¹

Double authentication. The handwriting exemplars (i.e., "known" documents) that are used for comparative purposes must themselves be authenticated. In other words, the rule raises a "double authentication" problem. The common lawtradition placed the responsibility for determining the authenticity of the known exemplars upon the trial court. Rule 901 changes this approach, treating authentication of exemplars the same as authentication of the questioned document. The trial court decides only whether there is sufficient evidence to support a jury finding of the exemplar's authenticity. The jury decides whether the exemplars are, in fact, authentic.²²

Criminal cases. Compelling an accused to provide handwriting exemplars does not violate the privilege against self-incrimination, which is limited to testimonial, not real, evidence.²³

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Notes:

^[20] See United States v. Spano, 421 F.3d 599, 604-05 (7th Cir. 2005) ("The jury was shown handwriting exemplars — that is, signatures of Bonnie LaGiglio known to be genuine — and asked to compare them with the signatures in her name on the checks and on other documents of Plaza Partners. No handwriting expert testified about the genuineness of the contested signa tures. . . . [N]o rule of evidence makes a jury incompetent to determine the genuineness of a signature by comparing it to a signature known to be genuine.").

^[21] See also supra § 24.05 (discussing qualifications of experts); § 24.11 (discussing handwriting expertise).

^[22] Fed. R. Evid. 901 advisory committee's note ("While explainable as a measure of prudence in the process of breaking with precedent in the handwriting situation, the reservation to the judge of the question of the genuineness of exemplars and the imposition of an unusually high standard of persuasion are at variance with the general treatment of relevancy which depends upon fulfillment of a condition of fact. Rule 104(b). No similar attitude is found in other comparison situations, e.g., ballistics comparison by jury, or by experts, and no reason...