Authentication

• Author: Gordon P. Cleary
• Pages: 263-348

5-1

5. AUTHENTICATION

Writings

§500 In General

§510 Writings: Private

§520 Writings: Business

§530 Writings: Official

§500 AUTHENTICATION 5-2

InGeneral

Under common law, to admit a writing into evi-

dence, you must prove that the writing is authentic.

Authenticity is the threshold condition to admissibili-

ty. The authentication requirement seems relatively

simple. All you must do is present proof that the writ-

ing is what you claim it is. In practice, however, there

are many pitfalls to presenting such proof.

Federal Rule of Evidence 901(a) deals generally

with the requirement of authenticity. The rule states:

“The requirement of authentication or identification

precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in ques-

tion is what its proponent claims.”

Both common law and Federal Rules also set forth

procedures by which a court determines whether a writ-

ing is authentic. Under the Federal Rules, the test is

whether the proponent of the evidence can present

enough evidence to support a finding by the jury that the

document to be admitted is genuine or accurate.

The trial judge, in determining whether this bur-

den has been met, looks only to the proponent’s evi-

dence. The trial judge then determines as a matter of

law whether the jury could rationally find the evi-

dence to be genuine or accurate.

Although the opponent of the evidence may sub-

mit either documentary or testimonial evidence to

controvert the proponent’s writing, that evidence

does not preclude the trial judge from admitting the

evidence. Rather, the trial judge admits the evidence

subject to whatever proof the opponent can present to

controvert that evidence. The trial judge then instructs

the jurors that it is their decision whether the evi-

dence is genuine.

To authenticate a writing at trial, the following

is done:

• Request that the writing be marked for identi-

fication.

• Show the marked exhibit to opposing counsel.

• Hand the exhibit to the witness.

• Ask the witness to identify the exhibit. (Here

the foundation for the particular item of evi-

dence is laid.)

• Once the foundation has been laid, you should

move that the writing be admitted as a full

exhibit.

• Once the writing is received as an exhibit in

full, you may either (a) ask the court’s permis-

sion to read all or part of the writing to the

jury, or (b) ask the court’s permission to hand

the writing to the jurors for their inspection.

WritingsPrivate

Whenever a document is to be admitted into evi-

dence, there are three conditions which must be satis-

fied: (1) authentication, (2) hearsay, and (3) best evi-

dence (original documents rule).

To understand this trilogy, note first that for a

document to be admitted into evidence, it must be

authenticated. Second, if you intend to use the con-

tents of the document as substantive evidence, you

must show that the document is either not hearsay or

falls within some hearsay exception. Third, if the

actual terms of the document are in issue in the case,

you will have to comply with the best evidence or

original document rule.

Elements

The following are basic foundational elements to

authenticate a private writing:

• The witness observed the execution of the

document;

• When and where the witness observed the exe-

cution of the document;

• The document was executed;

• The witness recognizes the exhibit presented

for identification as the document that was

executed;

• If the terms of the document are at issue, you

must lay a foundation that the document is the

original, or you must show that the requirements

of the original document rule, or best evidence

rule, have been satisfied. See F. R.E. 1002-05.

If you intend to offer the document as substantive

evidence, you must show that the document is either

not hearsay or falls within some recognized hearsay

exception.

The method mentioned above is only one way

to authenticate a private writing.

Alternate Method: Lay Witness

A private writing may also be authenticated through

the testimony of a non-expert witness who is familiar

with the author’s handwriting or signature. Usually,

when laying this foundation, the proponent demon-

strates that the witness had opportunities in the past to

5-3 WRITINGS §510

observe the author writing or signing documents; i.e.,

the witness can recognize that handwriting or signa-

ture and will testify to the same. In this manner, even

if the witness did not see the particular document written

or signed by the particular individual, if the witness is

sufficiently familiar with that person’s handwriting or

signature, the witness may authenticate the document.

See F.R.E. 901(b)(2). The Federal Rule recognizes

non-expert opinion on handwriting and provides,

“non-expert opinion as to the genuineness of handwrit-

ing, based on familiarity not acquired for purposes of

the litigation” is a method of authentication. Id.

The foundation for this method of authentication

is as follows:

• The witness has observed the author ’s hand-

writing or signature previously;

• The witness has a sufficient basis or familiari-

ty with the author’s handwriting, which has

not been acquired for purposes of the litiga-

tion, to testify as to the genuineness of the

handwriting;

• The witness recognizes the handwriting or

signature on the document to be that of the

author.

Alternate Method: Expert Witness

Another method of authentication is to have an

expert compare the questioned document with previ-

ously authenticated samples of handwriting. Federal

Rules of Evidence 901(b)(3) allows for such a com-

parison and provides that “comparison by... expert

witnesses with specimens which have been authenti-

cated,” is a method of authentication of a document.

To have an expert authenticate handwriting by

comparing it to an authenticated exemplar, the trial

judge must first rule on the authenticity of the exemplar.

The witness is then given an opportunity to compare the

questioned document with the authenticated exemplar.

The elements for this foundation are as follows:

• The trial judge accepts the exemplar as authentic;

• The expert is qualified to give opinion evi-

dence as a questioned document examiner;

• The expert witness compares the questioned

document with the authenticated exemplar;

• The expert witness testifies that he has an

opinion on whether the exemplar and the

questioned document are authored by the

same individual;

• The expert witness details the basis for his

opinion, based upon the similarities between

the exemplar and the questioned document;

• The expert witness testifies that the same indi-

vidual who authored the exemplar authored

the questioned document.

Alternate Method: Reply Letter Doctrine

Another way to authenticate a private writing is

by the “reply letter doctrine.” The doctrine is very

simple. If a witness signs and sends a letter to an indi-

vidual, and the witness later receives a letter from the

individual which, by content and circumstances, indi-

cates it is a reply to the first letter, the reply letter is

authenticated. This fact pattern is known as the “reply

letter doctrine,” and courts accept this fact pattern as

one which creates circumstantial evidence, through an

inference, that the reply letter is authentic.

The foundation for the “reply letter doctrine” is

as follows:

• The witness prepared a letter, which the wit-

ness identifies and authenticates as a letter to

the author of the reply letter.

• The witness placed the letter in an envelope

which was properly addressed to the author of

the reply letter and stamped. The envelope

was then put in the mail.

• The witness received a letter purportedly signed

or written by the author of the reply letter.

• The witness identifies the exhibit as the sec-

ond letter he received from the author.

• The author’s letter referred to the witness’

letter or was in some way responsive to the

witness’ letter.

EMail

E-Mail Replies

Private writings also include e-mails. Therefore,

the principle underlying the reply letter doctrine can

apply equally to e-mails. If a witness sends an e-mail

to an individual, presume that the individual will

receive the e-mail, unless the e-mail system notes a

problem in receipt. Actually, many e-mail systems

have forwarding histories that can record when and

whether e-mails were, in fact, received.

Additionally, if an e-mail response is made to the

first e-mail, this fact pattern can be known as the “reply

e-mail doctrine.” Courts have accepted this fact pattern

in the “reply letter doctrine” as one creating circumstan-

tial evidence through at least an inference that the letter

is authentic. Courts should also accept this fact pattern