Learning Outcomes
After reading this article, you will be able to identify when evidence must be authenticated or identified, explain the relevance of authentication and identification, recognize the main reasons relevant evidence may be excluded, and apply the Federal Rules of Evidence to MBE-style questions involving these issues.
MBE Syllabus
For MBE, you are required to understand the principles governing the admissibility of evidence, including how authentication and identification relate to relevance and exclusion. This article focuses your revision on:
- The requirement that evidence be relevant to be admissible.
- The necessity and methods of authenticating and identifying evidence.
- The main reasons relevant evidence may be excluded (e.g., prejudice, confusion, waste of time).
- The Federal Rules of Evidence on authentication, identification, and related objections.
- The distinction between authentication of real, documentary, and testimonial evidence.
- Common exam pitfalls in authentication and identification questions.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is required before a document may be admitted into evidence?
- The document must be self-authenticating.
- The document must be authenticated by evidence sufficient to support a finding that it is what its proponent claims.
- The document must be notarized.
- The document must be more probative than prejudicial.
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Which of the following is NOT a valid reason for excluding otherwise relevant evidence?
- The evidence is unfairly prejudicial.
- The evidence is cumulative.
- The evidence is not authenticated.
- The evidence is favorable to the opposing party.
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A witness testifies that she recognizes the defendant’s voice on a recording because she spoke with him on the phone several times before trial. Is this sufficient for identification?
- Yes, because prior familiarity is sufficient.
- No, because only an expert can identify voices.
- No, because the witness must have heard the voice in person.
- Yes, but only if the recording is self-authenticating.
Introduction
Evidence must be both relevant and properly authenticated or identified to be admissible in court. Even relevant evidence may be excluded for specific reasons, such as unfair prejudice or confusion. Authentication and identification are threshold requirements that ensure the evidence is what it purports to be. The Federal Rules of Evidence set out how and when these requirements must be met, and the main grounds for excluding otherwise relevant evidence.
Key Term: Relevance Evidence is relevant if it tends to make a fact of consequence more or less probable than it would be without the evidence.
Relevance and Exclusion of Evidence
Evidence must be relevant to be admissible. However, even relevant evidence may be excluded if its probative value is substantially outweighed by dangers such as unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Key Term: Exclusion of Relevant Evidence The court may exclude relevant evidence if its probative value is substantially outweighed by the risk of unfair prejudice, confusion, or other specified dangers.
Authentication and Identification
Before evidence—especially real or documentary evidence—can be admitted, it must be authenticated or identified. This means the proponent must produce evidence sufficient to support a finding that the item is what they claim it is.
Key Term: Authentication The process of showing that an item of evidence is what its proponent claims it to be.
Key Term: Identification The process of establishing that a person or thing is the same as the one involved in the events at issue.
Methods of Authentication
- Testimony of a witness with knowledge: A witness familiar with the item or signature may testify that it is genuine.
- Distinctive characteristics: The item’s appearance, contents, or features may be distinctive enough to authenticate it.
- Chain of custody: For items that could be easily altered (e.g., drugs), a chain of custody may be required to show the item has not been tampered with.
- Reply letter doctrine: A letter can be authenticated by evidence it was written in response to another letter.
- Handwriting or voice identification: A lay or expert witness familiar with the handwriting or voice (before or for the purpose of litigation) may identify it.
Self-Authenticating Evidence
Some items are self-authenticating and require no extrinsic evidence of authenticity. These include:
- Certified public records
- Official publications
- Newspapers and periodicals
- Trade inscriptions (labels, tags)
- Acknowledged documents (notarized)
- Commercial paper
Authentication of Real Evidence
Real evidence (physical objects) must be authenticated by testimony or evidence showing it is the actual item involved in the case. This may be done by recognition testimony or by establishing a chain of custody.
Authentication of Documentary Evidence
Documents must be authenticated before admission unless they are self-authenticating. This can be done by:
- Testimony of a witness who saw the document executed or signed
- Comparison by an expert or the trier of fact with a specimen known to be genuine
- Testimony of a witness familiar with the handwriting
Identification of Voices and Recordings
A voice may be identified by any person who has heard the voice at any time, including for the purpose of litigation. Recordings may be authenticated by testimony that the recording device was working properly and that the recording is a fair and accurate representation.
Authentication of Digital Evidence
Digital evidence (emails, texts, social media posts) must be authenticated by evidence such as:
- Testimony of a person with knowledge
- Metadata or distinctive characteristics
- Circumstantial evidence linking the evidence to a person
Worked Example 1.1
A prosecutor seeks to admit a handwritten note allegedly written by the defendant. A witness testifies that she has seen the defendant write many times and recognizes the handwriting as his.
Answer: The witness’s testimony is sufficient to authenticate the note as the defendant’s handwriting. The jury will decide whether to believe the identification.
Worked Example 1.2
A party offers a photograph of a crime scene. The photographer is unavailable, but a police officer familiar with the scene testifies that the photo accurately depicts the location as it appeared on the relevant date.
Answer: The officer’s testimony is sufficient to authenticate the photograph, even though he did not take it.
Exam Warning
On the MBE, do not assume that a document is admissible just because it is relevant. If the document is not authenticated, or if proper groundwork is not laid, it must be excluded—even if no one objects.
Revision Tip
If a question asks about the admissibility of a document or recording, always check first whether authentication or identification is required and whether it has been satisfied.
Key Point Checklist
This article has covered the following key knowledge points:
- Evidence must be relevant to be admissible, but even relevant evidence may be excluded for specific reasons.
- Authentication and identification are threshold requirements for admitting real and documentary evidence.
- The proponent must produce evidence sufficient to support a finding that the item is what it claims to be.
- Methods of authentication include witness testimony, distinctive characteristics, chain of custody, and expert comparison.
- Some evidence is self-authenticating and requires no extrinsic proof.
- Digital evidence must also be authenticated, usually by circumstantial evidence or metadata.
- Failure to authenticate or identify evidence is a valid ground for exclusion, even if the evidence is relevant.
Key Terms and Concepts
- Relevance
- Exclusion of Relevant Evidence
- Authentication
- Identification
