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
• The witness recognizes the handwriting or
signature on the document to be that of the
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
• 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
• 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
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