Authenticating evidence

This is the first of several posts addressing the admissibility of evidence in court. This post focuses upon the process of authenticating evidence.

There are two Mississippi Rules of Evidence that help answer this question – – Rules 901 and 902.

Let us start with Rule 901 “Requirement of Authentication or Identification.”

Rule 901(a) sets forth a simple test for satisfying the requirement of authenticating evidence. All the proponent must do is “produce evidence sufficient to support a finding that the item is what the proponent claims it is.”

(The Federal Rules of Evidence are substantially the same as Mississippi’s, and at times I will cite federal case law.)

Rule 901(b) then provides ten examples of how evidence may be authenticated. As we look at those, keep in mind that these are only “examples”, and they are not the only methods of authenticating evidence.

First, and perhaps most obviously, under Rule 901(b)(1), evidence may be authenticated through the testimony of a witness who has personal knowledge as to what the evidence is. There are a myriad of examples, such as:

– A witness can identify an email he wrote or received.

– She could identify a contract she signed.

– He could identify his own signature.

– A witness could identify her voice on a recording

Second, under Rule 901(b)(2), a non-expert opinion may be given as to the genuineness of handwriting of another person if the opinion is based on “familiarity with it that was not acquired for the current litigation.”

Thus, a son could authenticate his father’s signature on a will if he was familiar with his father’s signature because of their relationship. He could not, however, undertake to compare signatures on different documents solely for purposes of identifying his father’s signature in the lawsuit.

How familiar must the witness be with the other person’s signature? In Bell v. State , 910 So.2d 640, 644 (Miss. Ct. App. 2005), the owner of a car dealership was permitted to offer an opinion as to the genuineness of a salesman’s signature because he had “seen it on several prior occasions.”

Bell v. State suggests, and federal courts have ruled, that such lay opinion testimony must also meet the requirements of Rule 701, which sets forth the requirements for all lay opinions.

Rule 701 states:

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As noted, the examples in Rule 901(b) are just that – – examples. This is illustrated in  Henderson v. State , 185 So.3d 1038, 1039-40 (Miss. Ct. App. 2015).

In that case, the trial court admitted into evidence a handwritten letter given by Henderson to a cellmate to be delivered to a friend. In the letter, Henderson asked the friend to provide an alibi.

The letter was delivered, but the friend’s mother found it, and it ultimately made its way to the authorities.

At trial, Henderson’s lawyer objected to the introduction of the letter because no witness could authenticate Henderson’s handwriting under Rule 901(b)(2).

The Court of Appeals rejected that argument, explaining that Rule 901(b)(2) is not the only way to authenticate handwriting.

At trial, the cellmate testified that Henderson gave him a letter, and he delivered it to Henderson’s friend. The friend then testified that it was the letter that the cellmate had given him. That was sufficient to authenticate the letter and prove that it had been written by Henderson.

Next, under Rule 901(b)(3), documents may be authenticated by either an expert witness or the trier of fact by comparing it with an authenticated specimen.

From time-to-time, I see lawyers looking for expert witnesses in the field of handwriting. They are certainly useful at times, but you can leave it up to the factfinder where either (i) signatures are so different that it is apparent that the signature at issue is a forgery or (ii) signatures are so unique that it is clear the signature in question is authentic.

The next example stated in Rule 901(b)(4) is broad-ranging. “Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken together with all the circumstances,” are sufficient to authenticate evidence.

Take note of the absence of any reference to a witness testifying about those matters.

In Parkcrest Builders, LLC v. Housing Authority of New Orleans , No: 15-1533. at *9 n. 7 (E.D. La. Dec. 21, 2017), the district court noted that a document may be authenticated by (i) testimony of a witness with knowledge or (ii) through appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

In Progressive Waste Sols. of LA, Inc. v. St. Bernard Par. Gov’t , No. 16-15830 *6 (E.D. La. Dec. 19, 2017), the plaintiff offered certain emails from the defendant. The defendant objected on the grounds that the emails were not properly authenticated.

The district court overruled the objection because:

– the emails were sent from addresses with the domain of the government defendant;

– they purported to be sent from an individual defendant; and

– the emails were sent during the time period and contained information relevant to the case.

Thus, the district court found that the emails “have the appearance, content, patterns, and distinctive characteristics such that they are self-authenticating under Rule 901(b)(4).”

I find the use of the phrase “self-authenticating” to be a little off mark. As we will discuss below, Rule 902 of the Mississippi Rules of Evidence is entitled “Self-Authentication” and contains 11 examples. The Rule 901(b)(4) example is not one of them.

Yet, there are some court decisions that use the phrase “self authenticating” in connection with the Rule 901(b)(4) example.

I think it is more accurate to say that when a party seeks to introduce evidence, the court may find it is authenticate based upon its “appearance, contents, substance, internal patterns, or other distinctive characteristics” even when a witness cannot testify as to authenticity.

Rule 901(b)(5) permits a witness to give an opinion as to the identification of a voice, whether heard firsthand or through recording, if that opinion is based upon the witness hearing the voice at any time under circumstances connecting it with the alleged speaker.

Mississippi does not have much case law on Rule 901(b)(5), but the Federal Rule reads the same.

In United States v. Chapman , 690 F.3d 358, 372 (5th Cir. 2012), the Fifth Circuit explained that “[r]ule 901(b)(5) merely requires that the witness have some familiarity with the voice which he identifies.”

Thus, a DEA agent’s hour-long discussion with the defendant was a circumstance connecting the defendant’s voice with the defendant. As a result, the agent could identify the defendant’s voice on a tape.  U.S. v. Norman , 415 F.3d 466, 472 (5th Cir. 2005).

Next, telephone conversations may be authenticated under Rule 901(b)(6) by evidence that a call was made to the number assigned at the time:

– to a particular person if the circumstances, including self-identification, show   the person answering the call to be the one to whom the call was made, and

– to a business, if the call was made to a place of business and the conversation             related to business reasonably transacted over the phone.

In Hogan v. State , 755 So.2d 57 (Miss. Ct. App. 1999), the State introduced a tape of a telephone call between a narcotics agent and the defendant. The agent testified that the tape was authentic.

The defense objected, however, on the grounds that the State failed to offer proof that the phone number the agent called was one assigned to the defendant.

The Court of Appeals rejected this argument, stating that Rule 901(b)(6) was just one example of how to authenticate evidence. “Consequently, the failure to show the phone number for the call is not fatal.”

Though the Court could have stated it more clearly, what it did was allow the agent to identify the defendant’s voice on the tape because he subsequently met her face-to-face and heard her voice. The Court did not mention it, but it permitted the testimony under Rule 901(b)(5) regarding voice recordings.

Rule 901(b)(7) allows public records or reports to be authenticated by evidence that:

– a document was recorded or filed in a public office as authorized by law, or

– a purported public record or statement is from the public office where items of this kind are kept.

The Comment to the Rule explains “[p]roving a record is public and that it is in the custody of a public official is sufficient.”

Note, these records can also be made self-authenticating under Rule 902(1) and (2).

Rule 901(b)(8) addresses authentication of ancient documents or data compilations. There is a three-part test. There must be evidence that the document:

– is in a condition that creates no suspicion about its authenticity,

– was in a place where, if authentic, it would likely be, and

– is at least twenty years when offered.

Note: “Although the Rule requires that the document be free of suspicion, that suspicion goes not to the content of the document, but rather to whether the document is what it purports to be.”  United States v. Kairys , 782 F.2d 1374, 1379 (7th Cir. 1986).

Also note: Effective July 1, 2002, the Mississippi Supreme Court amended Rule 803(16) regarding ancient documents. The amendment changed the Rule 20 year old documents to documents generated before January 1, 1998. Whether this changes Rule 901(b)(8) is unclear.

Rule 901(b)(9) applies to “[e]vidence describing a process or system and showing that it produces an accurate result.”

In Chase v. State , No. 2018-KA-01501-COA, at *15 (Miss. Ct. App. Feb. 18, 2020), the Court applied this Rule to prove that an inmate participated in a particular phone call.

Specifically, an employee of the Sheriff’s Department gave a detailed description of the process used to assign each inmate an identification number for phone calls, how calls were recorded, and how calls could be retrieved from the database.

Finally, we have the always popular “other methods.” Rule 901(b)(10) states that a party may use any method of authentication provided by the Mississippi Supreme Court or the state Constitution.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110

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www.craigpanterlaw.com

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