Relevancy and reasons for excluding relevant evidence - Auth...

Learning Outcomes

This article explains how authentication and identification operate within the law of evidence for MBE purposes, including:

• Distinguishing relevance, Rule 403 exclusion, and authentication as separate admissibility hurdles and recognizing when lack of authentication, rather than prejudice, is the correct ground for exclusion on exam questions.
• Identifying when real, documentary, testimonial, and digital items must be authenticated, and applying FRE 901–903 to determine whether a minimal evidentiary foundation has been laid.
• Comparing common methods of authentication—witness with knowledge, distinctive characteristics, chain of custody, reply letter doctrine, handwriting and voice identification, and self-authenticating documents—and selecting the method that best fits a given fact pattern.
• Analyzing voice, recording, and telephone conversation identification issues, including the low standard for voice familiarity and the foundational requirements for accurately recorded audio or video evidence.
• Evaluating the sufficiency of circumstantial evidence to authenticate emails, text messages, and social media posts, and rejecting distractor answers that demand certainty or proof against all possible tampering.
• Spotting frequent threshold mistakes on the MBE, such as treating an unauthenticated document as merely “weak evidence,” overlooking self-authentication, or conflating the Best Evidence Rule with authentication requirements.
• Using a structured, stepwise approach—relevance, authentication, then Rule 403 and other rules—to decide quickly whether disputed evidence should be admitted or excluded.

MBE Syllabus

For the MBE, you are required to understand how authentication and identification interact with relevancy and exclusion, with a focus on the following syllabus points:

• The requirement that evidence be relevant to be admissible
• The circumstances in which relevant evidence is excluded (e.g., unfair prejudice, confusion, waste of time)
• The necessity and methods of authenticating and identifying evidence (FRE 901–903)
• The distinction between real, documentary, and testimonial evidence for authentication purposes
• Special issues in authenticating electronic and digital evidence
• How lack of authentication operates as a separate ground for exclusion

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.

1. Which of the following is required before a document may be admitted into evidence?
   1. The document must be self-authenticating.
   2. The document must be authenticated by evidence sufficient to support a finding that it is what its proponent claims.
   3. The document must be notarized.
   4. The document must be more probative than prejudicial.
2. Which of the following is NOT a valid reason for excluding otherwise relevant evidence?
   1. The evidence is unfairly prejudicial.
   2. The evidence is cumulative.
   3. The evidence is not authenticated.
   4. The evidence is favorable to the opposing party.
3. 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?
   1. Yes, because prior familiarity is sufficient.
   2. No, because only an expert can identify voices.
   3. No, because the witness must have heard the voice in person.
   4. Yes, but only if the recording is self-authenticating.

Introduction

Evidence must be both relevant and properly authenticated or identified to be admitted in court. Think of authentication as a gateway requirement: until an item is shown to be what the proponent claims it is, it cannot logically make any fact in dispute more or less probable.

Key Term: Relevance
Evidence is relevant if it has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence.

Relevance is necessary but not sufficient. Even relevant evidence can be excluded if its probative value is substantially outweighed by dangers such as unfair prejudice or confusion, or by practical concerns such as delay or needless cumulation.

Key Term: Exclusion of Relevant Evidence
A court may exclude relevant evidence under Rule 403 if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Authentication and identification sit one step before this balancing. They answer the threshold question: Is this item what it purports to be? If the answer is “not shown,” the evidence is treated as irrelevant and kept out, regardless of how helpful it would be if genuine.

Key Term: Authentication
The process of producing evidence sufficient to support a finding that an item is what its proponent claims it is.

Key Term: Identification
The process of establishing that a person, voice, or object is the same one involved in the events at issue.

Under FRE 901(a), the authentication burden is modest: the proponent need only offer evidence sufficient to support a finding of authenticity. The judge decides whether that minimal showing has been made; the jury then decides how much weight to give the item.

On the MBE, many evidence questions turn not on relevance or hearsay, but on whether the proper preliminary showing—including authentication or identification—has been laid. Treat “Has it been authenticated?” as one of your first checks whenever the fact pattern involves a document, photo, recording, or digital communication.

Relevance and Exclusion of Evidence

Evidence must clear three distinct hurdles:

• It must be relevant (FRE 401–402).
• It must be competent, which includes being properly authenticated or identified.
• It must survive any Rule 403 or other policy-based exclusions.

Modern codes fold materiality and probativeness into the single definition of relevance. Once that threshold is met, Rule 402 says relevant evidence is admissible unless some other rule excludes it.

Authentication is closely linked to relevance. A document that is not shown to be what it is claimed to be has no rational tendency to prove any fact of consequence. For example, an unsigned, unexplained piece of paper purported to be the defendant’s confession is not relevant until someone or something ties it to the defendant.

Rule 403 exclusion is different. Here, the evidence is relevant and properly authenticated, but the court nonetheless keeps it out because its probative value is substantially outweighed by specified dangers, such as:

• Unfair prejudice (e.g., emotionally inflaming photographs that add little to the proof)
• Confusing the issues or misleading the jury
• Undue delay, wasting time, or needlessly cumulative proof

“Prejudicial” is not enough; all incriminating evidence is prejudicial in a colloquial sense. The bar is unfair prejudice—an undue risk that the jury will decide on an improper basis (emotion, stereotype, or prior bad character), not on the evidence’s logical value.

Failure to authenticate, by contrast, is not a Rule 403 issue. If there is no evidence at all that a document, recording, or object is genuine, it is excluded because the proponent has not met the Rule 901 threshold.

Exam focus: A document is not excluded simply because it is favorable to the opposing party. That is never a valid basis for exclusion.

Authentication and Identification

Before real or documentary evidence can be admitted, the proponent must provide a preliminary showing that the item is what it is claimed to be. This does not require certainty; the standard is “enough for a reasonable juror to find authenticity.”

The process has two stages:

• Preliminary decision (judge): Under FRE 104(b), the judge decides whether there is sufficient evidence of authenticity to allow the jury to consider the item.
• Ultimate decision (jury): The jury determines whether the item is in fact genuine and how much weight to give it.

Because the threshold is low, challenges to authenticity often go to weight, not admissibility, once some reasonable basis for authenticity is shown.

Methods of Authentication

FRE 901(b) gives a non-exclusive list of methods. On the MBE, common methods include:

• Testimony of a witness with knowledge
• Distinctive characteristics and circumstances
• Chain of custody for fungible items
• Reply letter doctrine
• Handwriting and voice identification
• Comparison by the trier of fact or an expert
• Public records and ancient documents

Testimony of a Witness with Knowledge

A witness who perceived the item can testify that it is what it is claimed to be:

• A signer recognizes their own signature.
• An eyewitness says, “This is the knife I saw in the defendant’s hand.”
• A participant in a conversation testifies that a recording accurately captures that conversation.

This is often the most straightforward method and appears frequently on the MBE.

Distinctive Characteristics and Circumstances

The contents, appearance, or other features of an item, taken together with the surrounding circumstances, can be enough to authenticate it.

Examples:

• An email includes the sender’s usual signature block, references recent private events, and was sent from the sender’s known address.
• A letter is written on company letterhead, uses internal jargon, and arrives in response to a specific inquiry.

Distinctive characteristics are especially important with digital evidence.

Chain of Custody

Key Term: Chain of Custody
A series of documented or testified-to links showing who had possession of an item of evidence from the time it was seized until trial, used to show that the item has not been substituted or tampered with.

Chain of custody is used primarily for fungible items—objects that are not readily identifiable by unique features, such as:

• Drugs
• Blood samples
• Generic bullets or powder

The proponent typically calls a series of witnesses (officer, lab analyst, evidence clerk) to show continuous control and reasonable safeguards. Minor gaps ordinarily go to the weight of the evidence, not admissibility, once a reasonable chain is shown.

Reply Letter Doctrine

A letter, email, or message can be authenticated as coming from the claimed author if it is sent in response to a prior communication and its contents are consistent with that exchange. The logic is that only the intended addressee is likely to respond in that way.

Handwriting and Voice Identification

Handwriting and voices can be authenticated in several ways:

• Lay witness familiar with the handwriting or voice (so long as familiarity was not acquired for purposes of litigation)
• Expert witness comparing a questioned specimen with authenticated examples
• The trier of fact comparing specimens admitted in evidence

Key Term: Voice Identification
The process of identifying a speaker’s voice based on familiarity acquired at any time, including after the events in dispute, even if the familiarity arises for purposes of the litigation.

Under FRE 901(b)(5), any witness who has heard the voice at any time—before or after the relevant events—may identify it. There is no requirement that the witness heard the voice in person; hearing it over the telephone or on recordings suffices.

Self-Authenticating Evidence

Some items “prove themselves” and require no extrinsic evidence of authenticity under FRE 902.

Key Term: Self-Authenticating Evidence
A category of documents and records that are deemed authentic on their face and may be admitted without extrinsic proof of genuineness, subject to challenge by the opposing party.

Common examples tested on the MBE include:

• Certified copies of public records
• Official publications issued by public authority
• Newspapers and periodicals
• Trade inscriptions, labels, or tags indicating origin or ownership
• Acknowledged (notarized) documents
• Certain commercial paper and related documents
• Certified business records (when the rule’s affidavit requirements are met)

Self-authentication removes the need to call a sponsoring witness, but the opponent can still offer evidence contesting genuineness.

Authentication of Real Evidence

Key Term: Real Evidence
A tangible item that was directly involved in the events in dispute, such as the weapon used, the clothing worn, or the defective product itself.

Real evidence is authenticated by showing that it is the same object and, if relevant, in substantially the same condition as at the time of the events.

Two main methods:

• Recognition testimony: A witness says, “I recognize this gun as the one I took from the defendant,” often supported by markings or tags.
• Chain of custody: For items that are fungible or easily altered (e.g., powder claimed to be heroin), a chain of custody is generally required.

If the prosecution offers a bag of white powder as “the cocaine seized from the defendant,” but calls no witness who can link this specific bag to the seizure, the item has not been authenticated and must be excluded.

Authentication of Documentary Evidence

Key Term: Documentary Evidence
Evidence in the form of writings or recorded media, including contracts, letters, emails, photographs, and audio or video recordings.

Documents are authenticated whenever the proponent produces sufficient evidence that they are what they purport to be. Common methods include:

• Testimony from a witness who saw the document executed or signed
• Proof of the signer’s handwriting
• Comparison with an authenticated specimen by an expert or the jury
• Evidence that the document was found where such a document would normally be kept (e.g., deeds in a county registry, corporate minutes in company files)
• Ancient document criteria (20 years old, from a proper place, and free from suspicion)

Key Term: Best Evidence Rule
The rule that when a party seeks to prove the contents of a writing, recording, or photograph, the original (or a permissible duplicate) must be produced, unless a valid excuse for its absence is shown.

Authentication and the Best Evidence Rule are distinct:

• Authentication asks, “Is this the document it is claimed to be?”
• The Best Evidence Rule asks, “If you are proving the contents of a writing or recording, have you produced the original or an acceptable substitute?”

The MBE often tests both requirements in the same question.

Identification of Voices and Recordings

Voices and recordings raise both identification and technical accuracy issues.

For voices:

• Any witness who has heard the voice at any time may identify it.
• Familiarity with the voice may be acquired before or after the events, and even for the purpose of testifying.

For audio or video recordings, courts typically require a preliminary showing that:

• The recording device was capable of taking the recording
• The operator was competent
• The recording is a fair and accurate representation
• The recording has not been altered or tampered with

Telephone conversations are commonly authenticated by:

• Calling a number assigned to a particular person or business and having the person or an employee answer in a way that indicates identity, or
• The content of the conversation, combined with circumstances, showing it was the claimed speaker.

Authentication of Digital Evidence

Key Term: Digital Evidence
Evidence in electronic form, such as emails, text messages, social media posts, and files stored on computers or mobile devices.

Digital evidence raises special concerns about fabrication and hacking. FRE 901 does not require proof beyond all doubt that a message originated from a particular account, but there must be enough circumstantial or direct evidence to support a finding of authenticity. Methods include:

• Testimony from a person who received or sent the message
• The email address, username, or phone number associated with the known user
• The content referencing facts only the purported author would know
• Patterns of communication consistent with prior authenticated messages
• Metadata (e.g., timestamps, IP addresses) tying the message to a device or account controlled by the person

On the MBE, an incorrect answer often says that digital evidence is inadmissible “because anyone could have posted it.” That overstates the standard. The real question is whether there is sufficient evidence from which a reasonable juror could find authenticity.

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 her identification and how much weight to give the note.

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. A sponsoring witness with knowledge of what the photo purports to depict is enough.

Worked Example 1.3

In a drug case, the government offers a bag of white powder as the cocaine seized from the defendant. An officer testifies that he seized a bag of powder, placed an evidence tag on it, and put it in a sealed locker. A lab technician testifies that she received a sealed bag with the same tag number from the evidence custodian, tested it, and returned it. The defense argues that another officer had temporary access to the locker and the chain of custody is broken.

Answer:
The government has provided a reasonable chain of custody. The possibility that someone had access to the locker goes to the weight, not the admissibility, of the evidence. The judge should admit the bag; the defense can argue tampering to the jury.

Worked Example 1.4

The plaintiff in a defamation suit seeks to introduce a screenshot of a social media post from an account in the defendant’s name. The screenshot shows the defendant’s photograph, references a recent private argument between the parties, and uses phrases the defendant commonly uses. No one saw the defendant type the post.

Answer:
The combination of the account name, profile photo, distinctive language, and reference to a private dispute is sufficient circumstantial evidence to authenticate the screenshot as a post from the defendant’s account. The jury will decide whether the defendant actually authored it.

Worked Example 1.5

At trial, the prosecution offers a recording of a phone call between an undercover officer and the defendant. The officer testifies that he dialed the defendant’s cell number, which he had used many times, and that he recognizes the defendant’s voice on the recording. The defense objects that the officer only became familiar with the voice during the investigation.

Answer:
The officer’s testimony is sufficient to authenticate the recording and identify the voice. Under FRE 901, familiarity with a voice can be acquired at any time, including during the investigation, and may be used for identification.

Worked Example 1.6

In a contract case, the plaintiff offers a photocopy of the signed contract. She testifies that she saw the defendant sign the original and that the original was destroyed in a flood. The defendant objects that the copy has not been authenticated and that the original is required.

Answer:
The plaintiff’s testimony authenticates the copy as an accurate representation of the signed contract. Because the original was destroyed without bad faith, the Best Evidence Rule allows secondary evidence of its contents. The copy is admissible.

Exam Warning

On the MBE, do not assume that a document, photograph, or recording is admissible just because it is relevant and appears important. If the fact pattern shows no sponsoring witness, no chain of custody, and no other authenticating circumstances, the correct answer is often that the necessary preliminary showing is lacking and the evidence must be excluded.

Revision Tip

When a question asks about the admissibility of a document, recording, or digital communication:

• Ask first: Has the proponent offered some evidence that the item is what it is claimed to be?
• Then ask: Does any rule such as hearsay, Best Evidence, or Rule 403 nonetheless exclude it?

Working through those steps in order will prevent you from overlooking authentication issues.

Key Point Checklist

This article has covered the following key knowledge points:

• Authentication and identification are threshold requirements separate from hearsay and Rule 403.
• Under FRE 901, the proponent must introduce evidence sufficient to support a finding of authenticity; the jury makes the ultimate decision.
• Failure to authenticate means the evidence is treated as not relevant and is excluded, even if it would otherwise be highly probative.
• Methods of authentication include witness testimony, distinctive characteristics, chain of custody, expert or jury comparison, and reply communications.
• Some evidence is self-authenticating under FRE 902 and needs no sponsoring witness, though its genuineness can still be challenged.
• Real evidence may require either recognition testimony or a chain of custody, especially for fungible items like drugs or blood.
• Documentary evidence may require both authentication and compliance with the Best Evidence Rule when its contents are at issue.
• Voices can be identified by any witness familiar with the voice, including familiarity acquired during the investigation; recordings need a preliminary evidentiary showing accuracy and integrity.
• Digital evidence is authenticated primarily through circumstantial evidence and metadata; the standard is “sufficient to support a finding,” not certainty.
• Even authenticated evidence remains subject to exclusion under Rule 403 if its probative value is substantially outweighed by specified dangers.

Key Terms and Concepts

• Relevance
• Exclusion of Relevant Evidence
• Authentication
• Identification
• Chain of Custody
• Self-Authenticating Evidence
• Real Evidence
• Documentary Evidence
• Best Evidence Rule
• Voice Identification
• Digital Evidence