MBE Evidence - Authentication and Expert Testimony

documentary evidence and physical objects

Evidence that is representative or illustrative of an object or situation (e.g. animation of a car crash)

All evidence must be authenticated (i.e. proven “genuine”) before it may be admitted. The proponent must establish that the object is what they are claiming it to be. The final decision as to whether the evidence is authenticated rests with the jury.

FRE 901(a)

Parties have stipulated to the facts regarding its authenticity; or

Party granted a written request for admission

If the evidence is self-authenticating (see FRE 902).

Testimony by a custodian of the records

Testimony by a person who prepared or created the document

E.g. the lab technician who created the report

Testimony by a person who witnessed the signing of the document

Testimony by an expert witness qualified to render an opinion on the issue

E.g. a handwriting expert testifying that the letter was written in the defendant’s unique penmanship

Showing the trier of fact a comparison of the unauthenticated evidence with an authenticated specimen

FRE 901

Evidence that is so self-evident, it requires no extrinsic evidence of authenticity in order to be admitted.

(e.g., notarized document)

FRE 902

Commercial paper;

Certified copies of public records;

Official publications purporting to be issued by a public authority;

Newspapers and periodicals;

Trade inscriptions;

Notarized documents;

Anything that a federal statute declares to be authentic;

Certified records of a regularly conducted activity;

Certified records or data generated/copied from an electronic device or system

FRE 902

Personal knowledge: Testimony of a witness with personal knowledge that the item is what it’s claimed to be;

Distinctive characteristics: by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item (e.g. engraved initials on the gun);

Chain of custody

FRE 901(b)(1) and FRE 904(b)(4)

Proves that the item in court has not been materially altered or tampered with. Every witness who handled the object must testify and state:

When the witness took custody of the evidence and from whom/where;

Precautions taken to preserve the evidence;

That the item was not substituted, nor tampered with while in their custody; and

When the custody of the item was relinquished and to whom (e.g. for fingerprint testing)

Testimony of a witness with personal knowledge that the item is what it’s claimed to be

⚠️ Note: Does not need to be the creator, can be anyone with personal knowledge as to its authenticity

Testimony by anyone who witnessed the scene depicted in the photo and can attest to its accuracy

Testimony of lay person who was familiar with the handwriting before litigation began

E.g. Mother testifies that she recognizes the handwriting as her son’s

Comparison by a qualified expert (can use handwriting specimen written in preparation for trial)

Comparison by trier of fact: jury can compare side-by-side specimens

No, there must be other proof that the person who signed the document is the one who wrote it

Proponent must:

Establish a valid chain of custody;

Show that the machine was working properly;

Show that an accurate process was used; and

The operator of the machine was competent to operate it

Proponent must show:

Recording device was capable of recording the conversation;

Operator of the device was qualified to operate it;

No changes have been made and recording was preserved in the manner shown to the court (i.e. chain of custody);

Recording is authentic and correct;

Identify of the speakers; and

The conversation was made in good faith without inducement

Presumed authentic if:

Document is at least 20 years old;

Document is unsuspicious in its appearance;

Found in a place natural for such a document

FRE 901(b)(8)

By testimony of anyone who is familar with the voice (doesn’t need to be familiar with the voice before litigation began)

Evidence showing the proponent called the number assigned to the person or business, and the person or business identified themselves upon answering

FRE 901(b)(6)

Terms of the writing are being proven (e.g. contents of a will or photo); or

Witness relies on contents of the original during his/her testimony

⚠️ Be careful: The Best Evidence answer on the MBE is usually wrong. Unless it is these 2 scenarios, the original copy is not needed. Also, the Best Evidence Rule only applies to situations where material terms are at issue. Be wary of questions where the terms are not material.

There is no genuine question as to the original’s authenticity (FRE 1003);

All originals are lost or destroyed and not by the proponent acting in bad faith (FRE 1004(a));

Original cannot be obtained by any available judicial process (FRE 1004(b));

Party against whom the original was going to be used had control of the original and failed to produce it at trial (FRE 1004(c)); or

Needed to prove the contents of an official, certified record (FRE 1005)

Only if they are based on first-hand knowledge and:

Rationally based on the witness’s perception;

Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

Not based on scientific, technical, or other specialized knowledge

FRE 701

No

Witness is qualified to be an an expert by knowledge, skill, experience, training, or education;

Witness’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

Testimony is based on sufficient facts or data;

Testimony is the product of reliable principles & methods; and

Expert has reliably applied the principles and methods to the facts of the case

FRE 702

Facts or data that expert has been made aware of or personally observed;

Facts that were presented to the expert at trial (e.g. hypothetical question); or

Facts that experts in the field would rely on to form an opinion;

FRE 703

The judge acts as the gatekeeper

Used to determine whether the expert's methods are scientifically valid. The court weighs:

Whether the method has been tested;

If the method has been subject to peer review and publication;

The error rate of the technique;

The existence of standards controlling the technique's application; and

General acceptance in the relevant scientific community

More Info: Daubert Factors

Yes, but the expert cannot disclose the evidence to the jury unless the court finds that the probative value of disclosure substantially outweighs its prejudicial effect.

FRE 703

Yes, unless the court orders otherwise, an expert may state an opinion — and give the reasons for it — without first testifying to the underlying facts or data.

However, the expert may be required to disclose those facts or data on cross-examination.

FRE 705

No, experts cannot state legal conclusions in their opinions.

(e.g. "he hit the victim with deadly force.")

Yes, but experts cannot give an opinion as to whether D had the requisite mental state for the crime

Yes, court-appointed expert witnesses are allowed. The expert:

Must advise the parties of any findings the expert makes;

May be deposed by any party;

May be called to testify by the court or any party; and

May be cross-examined by any party