Chapter 11 - § 11.1 • AUTHENTICATION

• Jurisdiction: Colorado

§ 11.1 • AUTHENTICATION

Colorado

➢ Direct Testimony or Circumstantial Evidence. CRE 901(a) provides that the "requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." CRE 901(b) provides a list of 10 categories of evidence that may be used to authenticate a document or physical evidence. The list, which is for "illustration only" and is not exclusive, includes: (1) direct testimony of a witness with knowledge that a matter is what it is claimed to be; (2) non-expert opinion testimony as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation; and (3) evidence of distinctive characteristics of the matter in question that, taken in conjunction with the circumstances, support a finding that the matter is what it is claimed to be.

➢ Sufficiency of Foundation. The requirement of authentication, as a condition precedent to the admissibility of evidence, is satisfied by evidence sufficient to support a finding that the matter in question is what it is claimed to be. "The question of whether a proper foundation has been established is a matter within the sound discretion of the trial court, and its decision will not be disturbed absent clear abuse of discretion." People v. Slusher, 844 P.2d 1222, 1229 (Colo. App. 1992).

➢ Authentication by Direct Testimony. Generally, evidence can be authenticated by direct testimony from a witness "that a matter is what it is claimed to be." CRE 901(b)(1).

➢ Direct Testimony; Seizure of Evidence. Testimony by an investigating officer identifying items seized at the scene of a crime was a sufficient basis to support the admission of the items in evidence. Even if the officer did not mark or identify an item when it was seized, the item is admissible at trial if the officer identifies the exhibit as appearing to be the same or to look like the evidence found at the scene. People v. Beltran, 634 P.2d 1003, 1004 (Colo. App. 1981).

➢ Direct Testimony; Public Records. Documents that were obtained in person from the Washington State Liquor Control Board were properly authenticated by a witness who testified that the documents were accurate copies of the originals that he inspected in the files of the Control Board. People v. Fueston, 717 P.2d 978, 981 (Colo. App. 1985), aff'd in part, rev'd in part, 749 P.2d 952 (Colo. 1988).

➢ Direct Testimony; Bank Records. Testimony by a bank's senior vice president that records were official bank records kept for the bank's use while a loan is active and in connection with a customer's checking account is sufficient authentication to permit the trial court to rule that the documents were admissible. Continental Oil Co. v. Zaring, 563 P.2d 964, 967 (Colo. App. 1977).
➢ Direct Testimony; Mailed Letters. Letters were properly authenticated under CRE 901(b)(1) when sufficient foundation for admission was provided by testimony of a postal inspector who indicated that letters were mailed in response to mailings or telephone calls or personal meetings between the inspector and a witness. Moreover, the postal inspector had knowledge of the witness and his handwriting. People v. Esch, 786 P.2d 462, 465 (Colo. App. 1989).

➢ Direct Testimony; Medical Records. A medical record could not be introduced on its own merit, i.e., without testimony from a witness identifying the record. The record was not admissible because there was not sufficient authentication to meet the requirements of CRE 901. Whether a "proper foundation has been established for the admission of a documentary exhibit is a matter within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of discretion." Pyles-Knutzen v. Board of County Comm'rs of County of Pitkin, 781 P.2d 164, 168 (Colo. App. 1989).

➢ Direct Testimony; Real Evidence. Where prosecutors sought admission of the defendant's cellular telephone in the prosecution of a drug case, an undercover officer's testimony served to authenticate that the phone was the one on which the defendant received the officer's call soliciting drugs. The entire telephone was admitted for inspection by the jury. People v. Buckner, 228 P.3d 245 (Colo. App. 2009).

➢ Authentication of Text Messages. There are two components to the authentication of text messages: "First, a witness with personal knowledge must testify that printouts of text message(s) accurately reflect the content of the message(s). Second, a witness with personal knowledge must provide testimony establishing the identity of the purported sender of the text message(s)." People v. Heisler, 2017 COA 58, ¶ 15. The identity of the purported sender "may be established through a combination of at least two of the following: (1) the phone number was assigned to or associated with the purported sender; (2) the substance of the text message(s) was recognizable as being from the purported sender; (3) the purported sender responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication; or (4) any other corroborative evidence under the circumstances." Id. (internal quotations and citations omitted).
➢ Authentication of Computer Records. "The admissibility of a computer printout is governed by the rules of relevancy, authentication, and hearsay." People v. Huehn, 53 P.3d 733, 736 (Colo. App. 2002). While the authenticity of computer records may be established in accordance with CRE 901(b)(9), by evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result, establishing authenticity under that rule is not mandatory for the admission of computer records. Where records are bank records "reflecting data entered automatically rather than manually," "courts have generally declined to require testimony regarding the functioning and accuracy of the computer process . . . ." Id. at

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