Authentication, Best Evidence and Judicial Notice: every key term you need (+ practice quiz)
25 flashcard terms for Evidence Topic 8, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
The foundational showing that an item of evidence is what its proponent claims it to be. Under FRE 901(a) it is a condition precedent to admissibility, satisfied by evidence sufficient to support a finding of genuineness.
Prima facie standard of FRE 901(a)
The proponent need only produce evidence sufficient to support a finding that the item is genuine. The judge does not decide authenticity; the jury weighs it once the low threshold is cleared.
Conditional relevance under FRE 104(b)
Authentication is treated as a preliminary question of conditional fact. The judge admits the item if a reasonable juror could find it genuine, leaving the ultimate credibility question to the jury.
Witness with knowledge
The FRE 901(b)(1) illustration allowing a witness with personal knowledge to testify that an item is what it is claimed to be, such as a signer identifying a contract or an owner identifying a stolen watch.
Lay opinion on handwriting
Under FRE 901(b)(2) a nonexpert familiar with a person's handwriting may identify it, but the familiarity must not have been acquired for the current litigation.
Comparison by expert or trier of fact
FRE 901(b)(3) permits an expert witness or the jury itself to compare the disputed item with a specimen that has already been authenticated, commonly used for handwriting and typewriting exemplars.
Distinctive characteristics
FRE 901(b)(4) authenticates by appearance, contents, substance, internal patterns or other distinctive features taken with the circumstances, including the reply letter doctrine and knowledge only the purported author would hold.
Reply letter doctrine
A writing may be authenticated as the response of the addressee where it arrives in due course, refers to the earlier communication, and reflects contents that only the recipient would know.
Voice identification
Under FRE 901(b)(5) any person who has heard the voice at any time, including after litigation began, may identify it whether heard firsthand or through a recording or transmission.
Telephone conversation authentication
FRE 901(b)(6) permits authentication of an outgoing call by showing the number was assigned to the person or business and that the circumstances, including self identification or business context, confirm the speaker.
Public records authentication
FRE 901(b)(7) allows a document to be authenticated by evidence that it was recorded or filed in a public office as authorized by law, or that it came from the office where such items are kept.
Ancient documents rule
Under FRE 901(b)(8) a document at least 20 years old is authenticated if it is in a condition creating no suspicion about authenticity and was found in a place where it would likely be kept.
Process or system evidence
FRE 901(b)(9) authenticates output by showing the process or system produces an accurate result, the standard route for computer generated records, radar readings and forensic instrument printouts.
Silent witness theory
A photograph or video may be admitted without a sponsoring eyewitness by proving the reliability of the recording process, including camera operation, custody of the medium and absence of tampering.
Pictorial testimony theory
The traditional route for photographs and video, where a witness with personal knowledge of the scene testifies that the image fairly and accurately depicts what the witness observed.
Chain of custody
The tracing of possession of fungible or alterable evidence from seizure to trial. Gaps ordinarily go to weight rather than admissibility so long as the item is shown to be in substantially unchanged condition.
Authenticating social media posts
Screen name alone is insufficient because accounts can be hacked or borrowed. Courts require distinctive content, account ownership proof, device forensics, or admissions linking the profile to the purported author.
Authenticating text messages and emails
Proof typically combines subscriber or account records with distinctive contents, reply patterns, signature blocks, or testimony from a participant to the exchange under FRE 901(b)(1) and FRE 901(b)(4).
Self authenticating evidence
Categories listed in FRE 902 that require no extrinsic authentication foundation, including certified public records, official publications, newspapers, trade inscriptions, notarized documents and commercial paper.
Trade inscriptions
Under FRE 902(7) labels, tags or signs affixed in the course of business and indicating origin, ownership or control are self authenticating, which is how brand markings prove manufacturer identity.
Certified business records under FRE 902(11)
Domestic records of a regularly conducted activity may be self authenticated by a written certification of the custodian, with advance written notice and a fair opportunity for the opponent to inspect.
Certified electronic data under FRE 902(13) and 902(14)
Records generated by an electronic process and data copied from a device or storage medium may be certified by a qualified person, using hash value verification, so no live foundation witness is needed.
Best evidence rule
Codified at FRE 1002, it requires the original writing, recording or photograph when a party seeks to prove its contents, including when a witness testifies to what a document says.
Duplicate under FRE 1003
A counterpart produced by a mechanical, photographic, chemical or electronic process that accurately reproduces the original. It is admissible to the same extent unless authenticity is genuinely disputed or use would be unfair.
Judicial notice of adjudicative facts
Under FRE 201 a court may accept a fact not subject to reasonable dispute because it is generally known locally or can be accurately determined from sources whose accuracy cannot reasonably be questioned.