§901 Authenticating or Identifying Evidence

• Library: Evidence Restated Deskbook (2021 Ed.)

§901 Authenticating or Identifying Evidence

A. In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

B. Examples. The following are examples only, not a complete list of evidence that satisfies the requirement:

1. Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

2. Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

3. Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact. But a party cannot use for comparison purposes examples of the party's handwriting that were made after the controversy arose.

4. Circumstantial evidence. Evidence from which the trier of fact reasonably could infer the matter is what it is claimed to be.

5. Opinion About a Voice. An opinion identifying a person's voice whether heard firsthand or through mechanical or electronic transmission or recording based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

6. Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

a. a particular person if circumstances, including self-identification, show that the person answering was the one called; or

b. a particular business, if the call was made to a business, and the call related to business reasonably transacted over the telephone.

7. Evidence About Public Records. When a statute does not exist eliminating the requirement of authentication and no manner of authentication is prescribed by statute, the records may be authenticated by a foundation showing that the documents are what they are purported to be, such as by the testimony of the official who prepared them who testifies that they are public records written in accordance with official duties.

8. Evidence About Ancient Documents. Evidence that a document relating to property (a) is in a condition that creates no suspicion about its authenticity; (b) was in a place where, if authentic, it would likely be; and (c) is at least 30 years old when offered.

9. Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

10. Methods Provided by Statute or Rule. Any method of authentication or identification allowed by an act of the General Assembly or by Supreme Court of Missouri Rule promulgated by the Court under article V, § 5, of the Missouri Constitution.

Notes

A. General provision

Authenticity is not assumed but must be established

This section embodies the principle that nontestimonial evidence, such as a private document, public record or report, or tangible thing, must be authenticated before being admitted and that its authenticity is not assumed but must be established by proof that it is what it is purported to be. SeeAsset Acceptance v. Lodge, 325 S.W.3d 525, 528 (Mo. App. E.D. 2010); Saunders v. Bowersox, 179 S.W.3d 288, 292 (Mo. App. S.D. 2005); Ozark Appraisal Serv., Inc. v. Neale, 67 S.W.3d 759, 766 (Mo. App. S.D. 2002).

Accordingly, "[e]ven if a document purports to have been written and signed by the person to whom it is attributed, that fact, standing alone, is insufficient to establish its authenticity and genuineness." The proponent must establish by proof that it was, in fact, authored by that person, such as by providing lay or expert testimony as to handwriting or circumstantial evidence sufficient to warrant that inference. State v. Cravens, 132 S.W.3d 919, 929–30 (Mo. App. S.D. 2004).

The determination of whether a sufficient foundation has been laid as to authenticity is within the broad discretion of the trial court. Lodge, 325 S.W.3d at 528; Estate of West v. Moffatt, 32 S.W.3d 648, 653 (Mo. App. W.D. 2000); State v. Smith, 330 S.W.3d 548, 557 (Mo. App. S.D. 2010); State v. Minner, 256 S.W.3d 92, 97 (Mo. banc 2008). An abuse of discretion will be found only when it is clearly against the logic of the circumstances or it appears arbitrary and unreasonable. Smith, 330 S.W.3d at 552; State v. Miller, 208 S.W.3d 284, 287 (Mo. App. W.D. 2006).

Real evidence

The foundation required for authenticating real evidence—i.e., an object that played an actual and direct part in the transaction giving rise to the trial, see 2 John W. Strong et al., McCormick on Evidence § 212 (5^th ed. 1999); State v. Rehberg, 919 S.W.2d 543, 551 (Mo. App. W.D. 1995); Jackson ex rel. Jackson v. Jackson, 875 S.W.2d 590, 592 (Mo. App. E.D. 1994)—varies according to what the exhibit is purported to be.

Criminal cases. It is generally said that, for a physical exhibit to be admitted as real evidence, foundation testimony must provide a reasonable assurance that the exhibit sought to be introduced is the same article and is in the same condition as when received by the State. State v. Smith, 330 S.W.3d 548, 557 (Mo. App. S.D. 2010); State v. Strughold, 973 S.W.2d 876, 886 (Mo. App. E.D. 1998).

But foundation testimony as to condition may be dispensed with if the significance of the object offered is merely that it was used in the crime. Thus, when the condition of the object, such as a gun used in the commission of a robbery or a screwdriver used in the commission of a burglary, is irrelevant, all that is required is a foundation that provides the court with "a reasonable assurance that the exhibit . . . is the same article . . . as when received by the state." Smith, 330 S.W.3d at 558.

The foundation does not require unequivocal proof. Less than an absolute identification of real evidence goes to the weight of the evidence and not its admissibility. All that is required is a prima facie showing of identity and connection with the case so that a juror could find it to be the gun or screwdriver without speculation. Moreover, the fact that the object was found a considerable length of time after the crime occurred or that it was handled by a third person does not preclude admissibility; these matters go to the probative force of the object and not to its admissibility. Id. (citing 16 C.J.S. Evidence § 1225 (1918)).

In matters involving the admission of evidence, an appellate court "review[s] for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial." Smith, 330 S.W.3d at 557 (citation omitted); State v. Miller, 208 S.W.3d 284, 287 (Mo. App. W.D. 2006).

In regard to whether less than certain testimony is acceptable, see the following:

· "Appeared" to be the weapon.State v. Chambers, 550 S.W.2d 846 (Mo. App. W.D. 1977) (testimony from a victim that the exhibit "appeared" to be "the same kind of weapon" that the defendant used to shoot him and from witnesses that "it was similar to the weapon" and "it appeared" to be "the same weapon" that they observed the defendant carrying shortly after the assault was committed was sufficient to authenticate the exhibit as the weapon that the defendant used and the weapon observed in the defendant's possession after the assault—the fact that a witness qualifies identification goes to weight, not admissibility).

· It "resembled" and it "appeared" to be cigar box. State v. Threat, 530 S.W.2d 41, 42 (Mo. App. W.D. 1975) (testimony of a police officer that the cigar box shown to him at trial "resembled" the box that he recovered from the defendant and that "it appeared" to be the same box was sufficient to show its connection to the defendant and the crime, even though he could not positively identify it as the same box).

· It "looked like" bolt cutter and large screwdriver. State v. Shipman, 568 S.W.2d 947, 953–54 (Mo. App. S.D. 1978) (testimony that an exhibit "looks like" an object previously seen is sufficient to permit the exhibit's introduction into evidence).

But if the exhibit is purported to be in the same condition as it was when the crime was committed, the foundation must also provide reasonable assurance that it is in that same condition. Smith, 330 S.W.3d at 557. But see, e.g., State v. Malone, 694 S.W.2d 723, 727 (Mo. banc 1985) (chain of custody testimony was not needed if the testimony provided that the bullet offered was in substantially the same condition as when it was removed from the victim's brain); State v. Gasaway, 720 S.W.2d 3, 5 (Mo. App. W.D. 1986) (chain of custody is unnecessary when exhibits were identified as being recovered from the scene of the crime and were in substantially the same condition at trial as they were on the night that they were recovered).

Civil cases. The foundation normally required in civil cases for the introduction of an object is that (1) the object was involved in the incident; and (2) the object's condition is substantially unchanged. Henson ex rel. Lincoln v. Bd. of Educ. of Wash. Sch. Dist., 948 S.W.2d 202, 208 (Mo. App. E.D. 1997); Danbury v. Jackson Cty., 990 S.W.2d 160, 164 (Mo. App. W.D. 1999).

Demonstrative evidence

The admission of demonstrative evidence—i.e., evidence that did not play an actual and direct part in the transaction giving rise to the trial—is within the sound discretion of the court. SeeState v. Rehberg, 919 S.W.2d 543, 551 (Mo. App. W.D. 1995); State v. Silvey, 894 S.W.2d 662, 667–68 (Mo. banc 1995). A trial court abuses its discretion in regard to the admission of demonstrative evidence when its determination is clearly against the logic of circumstances and is so unreasonable as to indicate a lack of careful consideration. State v. Freeman, 269 S.W.3d 422, 426 (Mo. banc 2008).

To be admissible, this evidence must:

· be relevant;

· be a fair representation of what it is demonstrating; and

· not be inflammatory...