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An Introduction to the Requirement of Authentication

September 6, 2018

To develop a deep understanding of the practicalities of authentication as quickly as possible, let’s begin with a point of philosophy. Understanding this philosophical premise will enable us to master the challenge of getting it done in court.

The task of authenticating evidence is addressed in Rules 901 to 903 of the Federal Rules of Evidence. The requirement that evidence be authenticated, however, is not in the text of the Rules themselves. So, here is the philosophy,

The requirement of authentication is inherent in the foundational concept of Relevance.

This point of philosophy is essential to understanding how the requirement of authentication works in practice. In 1954, Professor McCormick wrote the following about the requirement of authentication,

One who seeks to introduce evidence of a particular fact, or item of proof, must generally give evidence (or offer assurance that we will do so) of those circumstances which make this fact or item relevant to some issue in the case.

This is from the Advisory Committee’s official “Notes” to Rule 901(a),

Authentication and identification represent a special aspect of relevancy[;] … “an inherent logical necessity” (quoting Wigmore) … in the category of relevancy dependent upon fulfillment of a condition of fact … governed by the procedure set forth in Rule 104(b).

To illustrate this point, let’s consider the plaintiff’s evidentiary burden in an action for breach of a written contract. Let’s be more specific. The plaintiff is a furniture store, and the contract is a sales contract through which the store financed the sale of furniture. The buyer agreed to make monthly payments for five years. The dispute is over interest; the store contends the buyer agreed to pay 8% annual interest on the outstanding principal, but the buyer contends the sale was interest-free. So, to collect interest, the store must prove the obligation to pay interest was one of the terms of the contract. Since everyone agrees it is a written contract, the store must produce the writing itself.

Rule 1002. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

But what writing, or which contract?

This brings up the key question for authentication,

What does the proponent claim this evidence is?

If the store attempted to introduce a contract it made with a different customer, the contract would not be relevant. The trial judge would throw up her hands and say, “What does that have to do with anything?” The store must introduce the contract it made with the defendant.

That’s the answer to the key question

We (the store) claim this document is the contract the buyer/defendant signed!

When the store attempts to do that by introducing a specific writing, how do we know it’s the right one?

Authentication!

A sales contract signed by another customer would have nothing to do with this case; it would infuriate the trial judge because it would not be relevant. The way we know the sales contract offered into evidence is relevant is that it proves (or tends to prove) this buyer agreed to pay interest, and the way we know that is the writing he signed says so.

Authentication establishes relevance!

Here are some examples of how the attorney for our plaintiff could authenticate the sales contract showing (or perhaps not showing) the buyer’s promise to pay 8% interest,

  • Rule 901(b)(1)
    • “I am listed as a witness to the buyer’s signature on this contract. I would not have witnessed this contract if I did not see the buyer sign it, and I recognize my own signature.”
    • “I am not listed as a witness, but I remember this particular contract and I watched the buyer sign it.”
  • Rule 901(b)(2)
    • “I am the buyer’s wife, I am familiar with his signature, and I recognize the signature on this contract as his.”
  • Rule 901(b)(3)
    • “It is my opinion that this signature was placed on this sales contract by the defendant,” testified to by an expert who has been qualified as an expert under Rule 702.
  • Rule 901(b)(4)
    • Proof of distinctive provisions in the contract such as date of execution, account number, buyer’s SSN, amount of principle, listing of furniture purchased, date of and address for delivery, perhaps others.
  • Rule 902(9)
    • The sales contract is an agreement to pay to an identified person a particular amount of money on a set date, and thus it is a “note,” as a result of which it is considered “commercial paper.” The note is signed by the buyer, and pursuant to section 3-308(a) of the UCC (“general commercial law”), “with respect to an instrument, the authenticity of . . . each signature on the instrument is admitted unless specifically denied in the pleadings.”
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