Authentication
| Jurisdiction | Colorado,United States |
| Citation | Vol. 25 No. 9 Pg. 55 |
| Pages | 55 |
| Publication year | 1996 |
1996, September, Pg. 55. Authentication
Before any tangible item can be admitted into evidence, the item must be properly authenticated or identified; that is, the proponent of the evidence must make a sufficient showing to support a finding that the item is what the proponent claims.(fn1) Rule 901 of the Colorado Rules of Evidence ("C.R.E.") sets forth a nonexclusive list for authenticating documents and tangible objects. In addition, C.R.E. 902 and Colorado statutory law identify a variety of items that are deemed to be self-authenticating.(fn2) This article first discusses the methods for authentication or identification described in C.R.E. 901, then discusses those categories of documents and things that are self-authenticating under C.R.E. 902 and other applicable law.
C.R.E. 901 begins by stating the general rule that authentication is a condition precedent to authentication.(fn3) The rule then sets forth a number of examples of proper authentication, noting that the examples are not intended to be exhaustive.(fn4)
The most basic and commonly used procedure to authenticate a document or item is the testimony of a witness with personal knowledge regarding that document or item. For example, in a civil case involving an alleged breach of contract, one party to the contract can authenticate it by examining it in court and verifying that it is either the original or an exact copy of the written contract entered into with the opposing party. Similarly, in a criminal case, a police officer might testify that a knife that the prosecution seeks to have admitted into evidence is the same knife that the police officer confiscated from the defendant.
Where a party seeks to authenticate an item through the testimony of a witness, the court must make a preliminary determination as to whether there is prima facie evidence to support a finding that the item in question is what its proponent claims.(fn5) It is not necessary, however, that the identification or authenticity of the item be shown beyond a reasonable doubt. Moreover, circumstantial evidence alone may be used to establish the authenticity of an item.(fn6)
Authentication of a document through witness testimony is generally straightforward. A witness's testimony that he has the original document before him in court, or that he inspected the original document and obtained an exact copy from a state agency or other relevant source, is sufficient authentication.(fn7)
Authentication of physical evidence through witness testimony can be more complex. Generally, a court can admit physical evidence only if the court is satisfied that there is a reasonable probability that the physical evidence has not been changed in any important respect from its original condition. An exception to this general rule exists, however, if the facts surrounding the item's discovery make it probable that the item is what it purports to be, even though a chain of custody cannot be established.(fn8)
If handwriting is in dispute, lay witnesses are permitted to opine as to the genuineness of that handwriting as long as they are familiar with it and as long as the witness's familiarity was not acquired solely for the purposes of litigation.(fn9) In addition, if there is a genuine writing available for comparison, professional handwriting experts are not necessary. Rather, lay witnesses can establish the necessary foundation to support the admission of the handwriting samples at issue.(fn10) As a preliminary matter, however, the court needs to determine whether the writing introduced for comparison with the disputed writing is genuine.(fn11)
An item also may be authenticated or identified by having the trier of fact or an expert witness compare the item with specimens that have already been authenticated.(fn12) For example, handwriting samples,(fn13) photographs(fn14) and fingerprints(fn15) can be authenticated through an expert witness's comparison of the handwriting, photograph or fingerprints with a specimen that has already been authenticated.
Distinctive characteristics of an item, such as appearance, contents, substance or internal patterns, when taken in conjunction with the circumstances surrounding the item, also may be used for authentication or identification. If an item's characteristics and the surrounding circumstances support the proposition that the item is what the proponent claims it to
For example, a witness could authenticate or identify a particular firearm by testifying about a distinctive manufacturer's insignia regarding that firearm. This would be sufficient authentication even if there is a break in the chain of evidence regarding that firearm.(fn17) Similarly, if there is something peculiar about the contents of a writing, such that only the defendant could have authored it, such evidence can be utilized to establish that the writing was authored by the defendant.(fn18)
Identification of a voice heard either first-hand or on a recording may be made by a lay witness who has heard the voice and who is able to connect the voice with the alleged speaker.(fn19) Notably, it is sufficient if the witness identifying the voice bases his or her testimony solely on having heard the voice after the conversation or...
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