Alaska Comm. R. Evid. 901
The Advisory Committee's Notes to Federal Rule 901 describes the process of authentication in the following way:
Authentication and identification represent a special aspect of relevancy. Michael and Adler, Real Proof, 5 Vand. L. Rev. 344, 362 (1952); McCormick §§ 179, 185; Morgan, Basic Problems of Evidence 378 (1962). Thus a telephone conversation may be irrelevant because of an unrelated topic or because the speaker is not identified. The latter aspect is the one here involved.
This requirement of showing authenticity or identity falls in the category of relevancy dependant upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b).
But sometimes authentication is more than a relevancy concern. Alaska Rule 901 recognizes this and the confusion that exists even in common law jurisdictions over whether authentication is a problem involving a question of "competency" which must be resolved by preliminary fact-finding and decision-making by the Trial Judges or whether it involves a question of conditional relevancy. . .In fact, common law jurisdictions, without saying as much, have divided up authentication problems so that some are really problems of relevancy and some involve requirements of preliminary fact-finding and judicial screening to insure a minimal level of reliability and safety.
K. Redden & S. Saltzburg, Federal Rules of Evidence Manual 643-44 (2d ed. 1977).
Thus, Article IX of these rules -- especially Rule 903 -- abandons most special foundation rules altogether, in the belief that today procedures like requests to admit and pretrial conferences afford the means of eliminating much of the need for authentication and identification. Rule 901 takes an intermediate step between common law requirements and the Federal Rule; it follows the Federal Rule in abandoning rigid rules in the introductory language, but it recognizes the wisdom of some common law authentication requirements and provides that courts must be especially careful in handling certain kinds of evidence.
Paragraph (a) requires that before offering evidence of a type not readily identifiable, or susceptible to adulteration, contamination, modification, or tampering, etc., the Government in a criminal case must demonstrate as a matter of reasonable certainty that the evidence is properly identified and untainted. This is similar to the "chain of custody" foundational requirement imposed by the common law. The stringency of the requirement will depend on the degree of susceptibility to change by accident or fraud of the particular piece of evidence, as well as its importance to the Government's case. But in any case Rule 901(a) does not change the well-settled rule. that in setting up a chain of evidence, the prosecution need not call upon every person who had an opportunity to come in contact with the evidence sought to be admitted. Similarly, every conceivable possibility of tampering need not be eliminated. `[T]he presumption of regularity supports the official acts of public officers; and the courts presume that they have properly discharged their official duties.' [ Footnote omitted.]
Wright v. State, 501 P.2d 1360, 1372 (Alaska 1972), quoting Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960). Wright held that where a Federal Bureau of Narcotics chemist identified initials on an envelope in which LSD had been mailed as those of a Bureau secretary and identified the signature on the postal receipt from the envelope as another secretary's and there was no indication of any deviation from the Bureau routine of initialing registered letters and placing them in a particular safe, there was sufficient showing of the whereabouts of the LSD from the time received by the Bureau to the time analyzed by the chemist.
Wester v. State, 528 P.2d 1179 (Alaska 1974), held that the personal testimony of individuals who calibrated a breathalyzer machine and who tested sample ampules was not necessary as a foundational basis for admission of breathalyzer test results, and held that a showing of substantial compliance with the fifteen-minute observation period prior to the administration of the test was a prima facie showing of the authenticity of the test. The court remarked that the defendant could have called the calibrators and test administrators as her own witnesses if she had reason to suspect impropriety.
These cases illustrate that Rule 901(a) does not hold the Government to an onerous standard of proof, but merely to the same reasonable requirement that it is used to fulfilling. See also Lee v. State, 511 P.2d 1076 (Alaska 1973); Selman v. State, 411 P.2d 217 (Alaska 1966).
Including paragraph (a) in Rule 901 insures that real evidence is reliable, burdens prosecutors and police only slightly, and avoids the need to create additional prophylactic constitutional rules to protect criminal defendants.
Paragraph (b) of Rule 901 allows the court discretion to require a greater degree of proof for authentication or identification of evidence not readily identifiable or of a kind particularly susceptible to adulteration, contamination, modification, tampering, etc. Leeway is provided for courts to deal with situations in which evidence is introduced sufficient to support a finding that the matter in question is what its proponent claims, but is nonetheless 1) suspect, 2) of great importance to the case or 3) not easily attacked by the adversary because the proponent of the evidence has control over means of establishing or attacking its authenticity, and/or introduction of the suspect evidence may threaten a fair trial even if subsequent evidence is offered on the issue of weight. In addition to satisfying the threshold authentication and identification inquiry, additional proof may aid the court in ruling on the relevance of the evidence under Rule 403.
Federal Rule 901 has a subdivision (b) which presents examples of ways in which evidence can be authenticated. Since these examples are for purposes of illustration and are really not an addition to the Rule itself, they are included in this Comment rather than in the text of Alaska Rule 901. These are only illustrative; they are not intended to limit the ways in which evidence might be authenticated. Following each example is a brief explanation.
Example
Explanation
Example (1). contemplates a broad spectrum ranging from testimony of a witness who was present at the signing of a document to testimony establishing narcotics as taken from an accused and accounting for custody through the period until trial, including laboratory analysis.
Example
Explanation
Example (2). states conventional doctrine as to lay identification of handwriting, which recognizes that a sufficient familiarity with the handwriting of another person may be acquired by seeing him write, by exchanging correspondence, or by other means, to afford a basis for identifying it on subsequent occasions. McCormick (2d. ed.) § 221. See also California Evidence Code § 1416. Testimony based upon familiarity acquired for purposes of the litigation is reserved to the expert under the example which follows.
Example
Explanation
Example (3). The history of common law restrictions upon the technique of proving or disproving the genuineness of a disputed specimen of handwriting through comparison with a genuine specimen, by either the testimony of expert witnesses or direct viewing by the triers themselves, is detailed in 7 Wigmore §§ 1991-1994. In breaking away, the English Common Law Procedure Act of 1854, 17 and 18 Vict., c. 125, § 27, cautiously allowed expert or trier to use exemplars "proved to the satisfaction of the judge to be genuine" for purposes of comparison. The language found its way into numerous statutes in this country e.g., California Evidence Code §§ 1417, 1418. While explainable as a measure of prudence in the process of breaking with precedent in the handwriting situation, the reservation to the judge of the question of the genuineness of exemplars and the imposition of an unusually high standard of persuasion are at variance with the general treatment of relevancy which depends upon fulfillment of a condition of fact. Rule 104(b). No similar attitude is found in other comparison situations, e.g., ballistics comparison by jury, as in Evans v. Commonwealth, 19 S.W.2d 1091 (Ky. 1929), or by experts, Annot., 26 A.L.R.2d 892, and no reason appears for its continued existence in handwriting cases. Consequently Example (3) sets no higher standard for handwriting specimens and treats all comparison situations alike, to be governed by Rule 104(b). This approach is consistent with 28 U.S.C. § 1731: "The admitted or proved handwriting of any person shall be admissible, for purposes of comparison, to determine genuineness of other handwriting attributed to such person."
Example
Explanation
Example (4). The characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety. Thus a document or telephone conversation may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him; Globe Automatic Sprinkler Co. v. Braniff, 214 P. 127 (Okla. 1923); California Evidence Code § 1421. Similarly, a letter may be authenticated by content and circumstances indicating it was in reply to a duly authenticated one. McCormick § 225, California Evidence Code § 1420. Language patterns may indicate authenticity or its opposite. Magnuson v. State, 203 N.W. 749 (Wis. 1924); Arens and Meadow, Psycholinguistics and the Confession Dilemma, 56 Colum. L. Rev. 19 (1956).
Example
Explanation
Example (5). Since aural voice identification is not a subject of expert testimony, the requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification, in this respect resembling visual identification of a person rather than identification of handwriting. If voiceprints are deemed admissible at some future time, consideration will have to be given to limiting to experts voice comparisons made solely for purposes of litigation. Compare Examples 2 and 3, supra.
Example
Explanation
Example (6). The cases are in agreement that a mere assertion of his identity by a person talking on the telephone is not sufficient evidence of the authenticity of the conversation and that additional evidence of his identity is required. The additional evidence need not fall in any set pattern. Thus the content of his statements or the reply technique, under Example (4), supra, or voice identification under Example (5), may furnish the necessary foundation. Outgoing calls made by the witness involve additional factors bearing upon authenticity. The calling of a number assigned by the telephone company reasonably supports the assumption that the listing is correct and that the number is the one reached. If the number is that of a place of business, the mass of authority allows an ensuing conversation if it relates to business reasonably transacted over the telephone, on the theory that the maintenance of the telephone connection is an invitation to do business without further identification. Matton v. Hoover Co., 166 S.W.2d 557 (Mo. 1942); City of Pawhuska v. Crutchfield, 293 P. 1095 (Okla. 1930); Zurich General Acc. & Liability Ins. Co. v. Baum, 165 S.E. 518 (Va. 1932). Otherwise, some additional circumstances of identification of the speaker is required. The authorities divide on the question whether the self-identifying statement of the person answering suffices. Example (6) answers in the affirmative on the assumption that usual conduct respecting telephone calls furnishes adequate assurances of regularity, bearing in mind that the entire matter is open to exploration before the trier of fact. See generally McCormick (2d. ed.) § 226; 7 Wigmore § 2155; Annot., 71 A.L.R. 5; Annot., 105 A.L.R. 326.
Example
Explanation
Example (7). Public records are regularly authenticated by proof of custody, without more. McCormick (2d. ed.) § 224; 7 Wigmore §§ 2158, 2159. The example extends the principle to include data stored in computers and by similar methods, of which increasing use in the public records area may be expected. See, California Evidence Code §§ 1532, 1600.
Example
Explanation
Example (8). The familiar ancient document rule of the common law is extended to include data stored electronically or by other similar means. Since the importance of appearance diminishes in this situation, the importance of custody or place where found increases correspondingly. This expansion is necessary in view of the widespread use of methods of storing data in forms other than conventional written records.
Any time period selected is bound to be arbitrary. The common law period of 30 years is here reduced to 20 years, with some shift of emphasis from the probable unavailability of witnesses to the unlikeliness of a still viable fraud after the lapse of time. The shorter period is specified in the English Evidence Act of 1938, 1 & 2 Geo. 6, c. 28, and in Oregon R.S. 1963, § 41.360(34). See also the numerous statutes prescribing periods of less than 30 years in the case of recorded documents. 7 Wigmore § 2143. See also Reporter's Comment accompanying Rule 803(16).
Example
Explanation
Example (9). If the accuracy of a result is dependent upon the process or system which produces it, the process or system must be shown to be reliable. Judicial notice under Rule 201 may be sufficient to authenticate a process or system. Expert testimony under Rule 703 may be sufficient. Judicial precedents will establish that some processes or systems are acceptable.
Example
Explanation
Example (10). Other methods of authentication found in statutes or rules are also valid. See, e.g., Alaska R. Civ. P. 30(f) (depositions); Alaska R. Civ. P. 75(b) (transcript of evidence); AS 21.06.070 (certificates of insurance director); AS 34.15.300 (record of conveyance). Rules of court and administrative rules also can provide for ways of authenticating evidence.
Alaska Comm. R. Evid. 901