Chapter 9 901 Requirement of Authentication or Identification

• Library: Evidence Guide 2003

§901 Requirement of authentication or identification

§902 Self-authentication

§903 Subscribing witness’s testimony unnecessary

§901 Requirement of Authentication or Identification

(a) General provision

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.

(b) Illustrations

By way of illustration only and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge

Testimony that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting

Nonexpert opinion as to the genuineness of handwriting based on familiarity with the handwriting of the person in question.

(3) Comparison by trier of fact or by expert witness

Comparison by the trier of fact or by expert witnesses with specimens that have been authenticated.

(4) Circumstantial identification generally

The identity of one who communicates with another may be established from proven circumstances enabling and supporting an inference of the identity asserted.

(5) Voice identification

Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or

recording, by opinion based on hearing the voice at any

time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations

Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business if (A) in the case of a person, circumstances including self-identification show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public record or report

Evidence that a writing authorized by law to be reported as filed and in fact recorded or filed in a public office or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient document

Evidence that an original document relating to property (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 30 years or more at the time it is offered.

(9) Process or system

Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute

Any method of authentication or identification provided for by act of the General Assembly.

Notes

Subdivision (a)—General provision

This section embodies the principle that documentary evidence must be authenticated before being admitted into evidence. See Cummins v. Dixon, 265 S.W.2d 386, 394–95 (Mo. 1954); Cole v. Bumiller, 549 S.W.2d 95, 97 (Mo. App. E.D. 1976). “The generally accepted rule is to the effect that the mere fact that a letter . . . purports to have been written and signed by the person in question

is insufficient to establish its authenticity and genuineness.” United Factories, Inc. v. Brigham, 117 S.W.2d 662, 665 (Mo. App. E.D. 1938).

Subdivision (b)—Illustrations

Illustration (1)—Testimony of witness with knowledge

A document may be authenticated by testimony of a witness having personal knowledge of its execution. See Jaycox v. Brune, 434 S.W.2d 539, 545 (Mo. 1968). An object that is proffered as direct proof must be identified and adequately authenticated as to its condition. It is “real evidence” in the case though it is at times characterized as “demonstrative evidence.” Its admissibility depends on foundation proof that provides a “reasonable assurance” that the object offered is the object in controversy and that it has not been “altered or substituted.” Scheble v. Mo. Clean Water Comm’n, 734 S.W.2d 541, 555 (Mo. App. E.D. 1987); see also State v. Jones, 877 S.W.2d 156 (Mo. App. E.D. 1994).

Foundation proof may be by showing a chain of custody of the subject matter “with sufficient completeness to render it improbable that the original item has either been exchanged with another or has been contaminated or tampered with.” Storm v. Ford Motor Co., 526 S.W.2d 875, 878 (Mo. App. W.D. 1975) (quoting Charles T. McCormick, McCormick on Evidence § 212, pp. 527–28 (2d ed. 1972)); State v. Nicklasson, 967 S.W.2d 596, 617 (Mo. banc 1998). But the proof need not be positive, and liberal discretion is granted to the trial judge for its receipt. State v. Murray, 630 S.W.2d 577, 581 (Mo. banc 1982). It is only necessary that the chain is sufficiently traced to provide “reasonable assurance that [the object] was the same and in the same condition.” State v. Smith, 222 S.W. 455, 458 (Mo. 1920). It is not required that there has been hand-to-hand custody or that it has been continually watched. State v. Rose, 428 S.W.2d 737, 740 (Mo. 1968). Chain of custody proof is not required where the object has been positively identified. State v. Granberry, 484 S.W.2d 295, 300–01 (Mo. banc 1972). Such direct identification “is not required to be positive, absolute, certain, or wholly unqualified. . . .” State v. Threat, 530 S.W.2d 41, 42 (Mo. App. W.D. 1975); State v. Johnson, 286 S.W.2d 787, 791 (Mo. 1956).

Illustration (2)—Nonexpert opinion on handwriting

One who shows a familiarity with the handwriting of the person in question may express an opinion on that basis as to the genuineness of a disputed writing. Klaus v. Zimmerman, 174 S.W.2d 365, 368 (Mo. App. E.D. 1943).

Illustration (3)—Comparison by trier of fact or by expert witness

Section 490.640, RSMo 2000, provides:

Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted . . . as evidence of the genuineness or otherwise of the writing in dispute.

For an instance of expert testimony of comparison to an exemplar, see In re Estate of Fedina, 491 S.W.2d 552, 559 (Mo. 1973). The same statute has been applied to permit submission of the papers determined to be genuine and the disputed writing to the jury for its comparison uses without any expert or other comparison testimony. Weber v. Strobel, 194 S.W. 272, 274 (Mo. 1917); Hemonas v. Orphan, 191 S.W.2d 352, 361 (Mo. App. W.D. 1945).

The exemplar must be genuine; the authentication may be made by testimony of one who witnessed the signing of the exemplar. In re Marriage of Schulz, 583 S.W.2d 735, 745 (Mo. App. E.D. 1979). Where the exemplar is presented by the party alleging authenticity of the disputed writing, the exemplar must have been made before the controversy arose. Johnson v. Crown Fin. Corp., 222 S.W.2d 525, 529–30 (Mo. App. E.D. 1949).

An expert may identify a bite mark as having been made by a particular person by comparison of the preserved evidence of the bite mark to physical reproductions of the subject’s dentures. State v. Kleypas, 602 S.W.2d 863, 867–70 (Mo. App. S.D. 1980).

Illustration (4)—Circumstantial identification generally

The identity of one who communicates with another is a fact question that may be established from proven circumstances that enable and support an inference of the identity asserted. A writing shown to constitute a reply to a letter is admissible without other proof of genuineness. State v. Swigert, 852 S.W.2d 158, 163–64 (Mo. App. W.D. 1993).

The identity of one who placed a telephone call may be established by circumstantial evidence showing the caller to have been the one to whom the call is sought to be attributed. State v. Steele, 445 S.W.2d 636, 638–39 (Mo. 1969); State v. Gragg, 606 S.W.2d 252, 254 (Mo. App. S.D. 1980).

Illustration (5)—Voice identification

Identification of the speaker is required for receipt of evidence of an oral communication. State v. Spica, 389 S.W.2d 35, 44 (Mo. 1965). Identification may be made by one familiar with the voice of the speaker. State v. Smith, 498 S.W.2d 595, 598–99 (Mo. App. S.D. 1973). Familiarity

may be acquired after the disputed conversations in issue. State v. Moiser, 738 S.W.2d 549, 553–54 (Mo. App. E.D. 1987).

Illustration (6)—Telephone conversations

This rule applies to identification of one to whom a telephone call was placed. It does not address the potential issue as to that person’s authority to speak for another. See §803(25)(C), supra. In the instance of a call to a particular person, subphrase (A) circumstances may justify an inference that the respondent is the person to whom the number was assigned. Circumstantial proof has been deemed sufficient to identify one who made the call as shown by the cases noted in Illustration (4) above. It should be an easier inference that a respondent whose conversation is consistent with the purported identity is the person to whom the call was placed.

There is case authority for circumstantial identification of a business respondent where the conversation related to business reasonably transacted over the telephone. Mattan v. Hoover, 166 S.W.2d 557, 567 (Mo. 1942); Barrickman v. Nat’l Utils. Co., 191 S.W.2d 265, 267–68 (Mo. App. E.D. 1945).

Illustration (7)—Public record or report

Proof that a document is a public record kept in accordance with a duty to do so and that it is what it purports to be is sufficient authentication to support its admission. Phillips v. Bd. of Adjustment,Bellefontaine Neighbors, 308 S.W.2d 765, 768 (Mo. App. E.D. 1958); see also Cole v. Bumiller, 549 S.W.2d 95, 97 (Mo. App. E.D. 1976). But the genuineness of the record need not be proved where it is a record of the same court. Arata v. Monsanto Chem. Co., 351 S.W.2d 717, 721 (Mo. 1961). Authentication of public records may be in accordance with...