See also: CHAIN OF CUSTODY.

1.  Generally

Before an item may be offered into evidence, it must be authenticated, or shown to be genuine.{footnote}Hampton v. Bruno’s, Inc., 646 So.2d 597, 599 (Ala. 1994).{/footnote}  Authentication is the process of establishing to the court’s satisfaction that an offered item of evidence is in fact what it is claimed to be (e.g., a weapon found at the scene, a tax return, or a news article).{footnote}FRE 901(a); Bury v. Marietta Dodge, 692 F.2d 1335 (11th Cir. 1982).{/footnote}  The most common way of authenticating something is simply by showing it to a witness who can identify it.  With some kinds of evidence, even that is not necessary; with others it is not enough.  See Chain of Custody, below, for example.

FRE 901 provides illustrations of how various types of evidence may be authenticated.  These are illustrations only, and other methods of authentication may be allowed.{footnote}E.g., United States v. Hines, 717 F.2d 1481, 1491 (4th Cir. 1983), cert. denied, 467 U.S. 1214, cert. denied, 467 U.S. 1219 (1984); Bury v. Marietta Dodge, 692 F.2d 1335, 1338 (11th Cir. 1982) (per curiam) (certified affidavit by Federal Reserve Board division head sufficient to authenticate letters by staff attorneys); Finance Co. of America v. Bankamerica Corp., 493 F. Supp. 895, 900-01 (D. Md. 1980).{/footnote}

Unless evidence is self-authenticating (see below), the general standard is that an item is authenticated by presenting sufficient evidence to the court that would support a jury’s finding that the item was as claimed.{footnote}See FRE 901; Threadgill v. Armstrong, 928 F.2d 1366, 1375 (3d Cir. 1991) (only prime facie showing required); McQueeney v. Wilmington Trust Co., 779 F.2d 916, 928 (3d Cir. 1985); Baulch v. Johns, 70 F.3d 813 (5th Cir. 1995)(evidence need not be conclusively proven authentic to be admitted).
Buster v. Gale, 866 P.2d 837, 841 (Alaska 1994) (applying Alaska R Evid. 901).{/footnote}  The court may, in its discretion, admit the item subject to later authentication,{footnote}FRE 104(b)? {/footnote} or reverse its previous ruling that evidence had been authenticated. 

The rules of authentication are not intended to take away from the jury’s role as fact-finder.  The court only rules as to the admissibility of the offered evidence–not its authenticity as a matter of fact, which is a jury question.{footnote}Threadgill v. Armstrong, 928 F.2d 1366, 1375 (3d Cir. 1991);  United States v. Jones, 107 F.3d 1147, 1150 (6th Cir. 1997).
State v. Woitkowski, 612 A.2d 1317, 1318 (N.H. 1992){/footnote} Where authenticity is disputed, the jury should be instructed that it may find evidence unauthentic even though the court admitted it.  This is not inconsistent with the general rule that the jury does not decide issues of admissibility.  See JURY QUESTIONS.  Of course, the jury may not consider evidence which is ruled inadmissible due to insufficient authentication, no matter how strongly it disagrees with the court’s ruling.

Authenticating an item of evidence does not necessarily render it admissible.  Where a documents consitutes hearsay, for example, the foundation must be laid for an exception to the hearsay rule.{footnote}Hampton v. Bruno’s, Inc., 646 So.2d 597, 599 (Ala. 1994).{/footnote}

2.  Production in Discovery

It has been held that by producing a document in discovery, the producing party waives the right to object to the admission of the document as to its genuineness or authenticity.{footnote}Alabama Power Co. V. Tatum, 306 So.2d 251 (Ala. 1975){/footnote}

3.  Oral Communications

When an oral out-of-court statement is introduced, the identity of the declarant ordinarily must be established.  This is what is meant by "authenticating" an oral statement.  The exception to this rule is where the identity of the declarant is completely immaterial.  For example, the identity of the person who warns the defendant of a dangerous condition is irrelevant to the issue of whether the defendant had notice of the condition. 

In the majority of cases, the witness testifying to an oral statement was present and saw who made the statement, and authenticating the statement is a simple matter of having the person who heard the statement testify as to who made it.  Where the speaker was not seen, the identity of the speaker may be more difficult to establish.  See SPECTOGRAPHIC VOICE ANALYSIS; TELEPHONE CONVERSATIONS; TAPE RECORDINGS; VOICE IDENTIFICATION.

4.  Self-authenticating Documents

Certain categories of documents are taken as authentic on their face, and  require no independent evidence of authenticity.  Other parties, however, are still free to introduce evidence proving that the documents are not authentic. While Wigmore and the common law disfavor the doctrine of self-authentication, it has been adopted by the federal rules.{footnote}United States v. Mangan, 575 F.2d 32, 42 (2d Cir. 1978); Weinstein & 901(b)(4)[01] at 901-47.  Cf. VII Wigmore § 2148.{/footnote} 

For discussions of various documents considered self-authenticating, see the separate entries in this Encyclopedia: OFFICIAL RECORDS AND REPORTS–Authentication: Documents under Seal; NOTARIZED DOCUMENTS; CERTIFIED COPIES; COMMERCIAL PAPER; PROMISSORY NOTES; NEWSPAPERS; PERIODICALS; TRADE INSCRIPTIONS.

5.  Presumption of Genuineness

6. Physical Objects and the Chain of Custody Requirement

An offering party may usually authenticate an object by simply having a witness identify it.  This foundation is sufficient where the item possesses unique identying characterists (e.g., a contract) and there is no reasonable concern about possible physical deterioration or tampering.  {footnote}United States v. Abreau, 952 F.2d 1458, 1467 (1st Cir. 1992); United States v. Hernandez-Herrera, 952 F.2d 342, 344 (10th Cir. 1991) (where "documents are uniquely identifiable and relatively resistant to change, the establishment of a chain of custody is not necessary").
State v. Woitkowski, 612 A.2d 1317, 1318 (N.H. 1992) (hold-up note in defendant’s handwriting, with his fingerprints, identified by two witnesses as note found at the scene of the crime admissible regardless of any breaks in chain of custody;  “where authentication is based on unique identification, chain of custody, at best, is relegated to a jury issue.”)
See also State v. Richey, 595 N.E.2d 915 (Ohio 1992) (no chain of custody required for samples of carpet recovered from scene of fire); State v. Watson, 684 P.2d 39, 40 (Utah 1984) (noting no  chain of custody  needed to show there had been no tampering with evidence because defendant’s unique hat and vest were identified by a witness).
E. Cleary, Mccormick On Evidence § 212 at 667 (3d ed. 1984); M. Graham, Federal Practice & Procedure: Evidence § 6822, at 854 n.6 (interim ed. 1992).{/footnote}  Some types of physical evidence, on the other hand, have no unique identifying characteristics or by their nature are susceptible to tampering or natural deterioration. For these items of real evidence, a chain of custody must be established. See CHAIN OF CUSTODY.

7.  Appeal

Whether evidence has been properly authenticated is left to the sound discretion of the trial court.{footnote}Gates v. Rivera, 993 F.2d 697 (9th Cir. 1993); United States v. Munoz, 16 F.3d 1116, 1120 (11^th Cir. 1994).
Demby v. State, 1997 Del. LEXIS 232.{/footnote}  A trial court’s ruling will not be reversed absen an abuse of discretion.{footnote}U.S. v. Stelmokas, 100 F.3d 302, 312 (3d Cir. 1996).

State v. Lee, 593 A.2d 235, 237 (N.H. 1991).
See also United States v. Munoz, 16 F.3d 1116, 1120-21 (11^th Cir. 1994) (district court’s ruling “should ‘not be disturbed on appeal absent a showing that there is no competent evidence in the record to support it.’", quoting United States v. Caldwell, 776 F.2d 989, 1001 (11th Cir.1985).

{/footnote}

Bibliography

Saltzburg, Standards of Proof and Preliminary Questions of Fact, 27 Stan. L. Rev. 271 (1975)