§ 4.01 AUTHENTICATION IN GENERAL

• Jurisdiction: North Carolina

§ 4.01 AUTHENTICATION IN GENERAL

[1] INTRODUCTION

This chapter deals with the authentication of evidence. The common law generally requires that the proponent of evidence prove the evidence's authenticity as a condition to the admission of the evidence. To authenticate an item of evidence, the proponent must present proof that the article is what the proponent claims that it is. Federal Rule of Evidence 901(a) states: "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce sufficient evidence to support a finding that the item is what the proponent claims it is." Thus, if the proponent claims that the decedent signed a letter, the proponent must prove that the document is a genuine letter signed by the decedent. If the proponent offers a photograph of an intersection, the proponent must show that the photograph accurately depicts the intersection. Or if the prosecutor alleges that a pistol is the accused's pistol, the prosecutor must present evidence tracing the pistol to the accused's possession.

In addition to stating the requirement for authentication, Federal Rule of Evidence 901(a) outlines the procedure for determining the evidence's authenticity. Rule 901(a) prescribes the same procedure as Rule 104(b). It is the conditional relevance procedure described in § 2.05[1]. The test is whether the proponent has presented sufficient evidence to support a rational jury finding that the letter is genuine or the photograph is accurate. The issue of the rational sufficiency of the foundational evidence is in the nature of a question of law. The trial judge looks only to the proponent's evidence and asks that question of law. Of course, the opponent may have controverting evidence. For example, although the proponent has a lay witness prepared to identify a friend's handwriting on a letter, the opponent may have an expert questioned document examiner ready to testify that the letter is a forgery. In this circumstance, the trial judge would admit the letter, and the opponent would later present his or her controverting evidence to the jury. The trial judge would instruct the jurors that they must finally decide by a preponderance of the evidence whether the letter is genuine. Thus, as is generally true under Rule 104(b), there is a two-step procedure; the judge initially plays a limited, screening role, and the jury then makes the final decision on the question of fact.

[2] AUTHENTICATION IN TRADITIONAL COURTROOMS

What are the mechanics of presenting physical or documentary evidence in a traditional courtroom? As a matter of legal ethics, until the proponent is ready to use the evidence, the proponent should keep the evidence out of the sight of the jury. In many courts today, the trial judge permits or encourages attorneys to premark exhibits before the trial in open court begins.¹ Otherwise, when the proponent wants to use the evidence, the proponent should first request that the item be marked for identification. Many jurisdictions insist that the proponent ask only that "this" be marked for identification. To make the record of trial clearer to the appellate court, some trial judges permit the proponent to use a short...