AuthorGordon P. Cleary
§500 In General
§510 Writings: Private
§520 Writings: Business
§530 Writings: Official
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-
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
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.
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.
The following are basic foundational elements to
authenticate a private writing:
The witness observed the execution of the
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
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
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
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
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 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

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