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Evidence Chapter 11 Physical Evidence Outline

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This is an extract of our Evidence Chapter 11 Physical Evidence document, which we sell as part of our Evidence Outlines collection written by the top tier of Harvard Law School students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

Chapter 11. Physical Evidence 1

A. Authentication 1

B. The Best Evidence Rule 7

1. Scope and Purpose 8

2. Exceptions 9

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 11. Physical Evidence


  • Physical evidence is subject to many of the same rules as testimony: documents inadmissible if they contain hearsay; guns inadmissible if they serve only to demonstrate defendant’s violent character. But also two other rules: authentication and best evidence.

    • All physical evidence must be authenticated: party offering evidence must provide sufficient evidence to allow the factfinder to conclude the evidence is genuine.

      • This is form of conditional relevance,

    • Certain physical evidence and certain forms of testimony may be rendered inadmissible by the best evidence rule.

      • This rule has a narrow scope. It requires only that a party seeking to prove the content of a document introduce the original—and even that requirement has significant exceptions.

      • If the content of the document is in the factfinder’s chain of inferences (not at the beginning or end of chain), then the BER applies.

  • “Real evidence”: items that allegedly played some role in or were generated by the events in dispute.

  • “Demonstrative evidence”: items generated by lawyers (charts, diagrams, photographs) to clarify their point or make it more vivid.

    • Demonstrative evidence is not subject to requirement of authentication of BER.

  • Difference between introducing an exhibit and merely marking it: exhibits must be marked for identification even if they are never introduced into evidence but, for example, are only used for refreshing recollection of forgetful witness.

    • Exhibit merely marked but not introduced cannot be relied upon by jury.

A. Authentication

FRE 901. Authenticating or Identifying Evidence

  • (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

  • (b) Examples. The following are examples only--not a complete list--of evidence that satisfies the requirement:

    • (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

    • (2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

    • (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

    • (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

    • (5) Opinion About a Voice. An opinion identifying a person's voice--whether heard firsthand or through mechanical or electronic transmission or recording--based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

    • (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

      • (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

      • (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

    • (7) Evidence About Public Records. Evidence that:

      • (A) a document was recorded or filed in a public office as authorized by law; or

      • (B) a purported public record or statement is from the office where items of this kind are kept.

    • (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

      • (A) is in a condition that creates no suspicion about its authenticity;

      • (B) was in a place where, if authentic, it would likely be; and

      • (C) is at least 20 years old when offered.

    • (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

    • (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

FRE 902. Evidence That Is Self-Authenticating

  • The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

    • (1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

      • (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

      • (B) a signature purporting to be an execution or attestation.

    • (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

      • (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

      • (B) another public officer who has a seal and official duties within that same entity certifies under seal--or its equivalent--that the signer has the official capacity and that the signature is genuine.

    • (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester--or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document's authenticity and accuracy, the court may, for good cause, either:

      • (A) order that it be treated as presumptively authentic without final certification; or

      • (B) allow it to be evidenced by an attested summary with or without final certification.

    • (4) Certified Copies of Public Records. A copy of an official record--or a copy of a document that was recorded or filed in a public office as authorized by law--if the copy is certified as correct by:

      • (A) the custodian or another person authorized to make the certification; or

      • (B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.

    • (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

    • (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

    • (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

    • (8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

    • (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

    • (10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.

    • (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record--and must make the record and certification available for inspection--so that the party has a fair opportunity to challenge them.

    • (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

    • (13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

    • (14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

FRE 903. Subscribing Witness’s Testimony

  • A subscribing witness's testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

Advisory Committee Note to FRE 901

  • The requirement of showing authenticity or identity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in FRE 104(b).

United States v. Long, 857 F.2d 436 (8th Cir. 1988)


  • D tried for participating in check forging scheme. D called his fiancée, W.

    • On direct exam, W mentioned a contract D signed with leader of scheme, which she said led her and D to believe they were participating in a legitimate business.

    • On cross-exam, P questioned W extensively about contract.

    • On re-direct, W identified an exhibit as the contract of employment she saw.

    • P objected as hearsay, and TC sustained.

  • D argues the exhibit was not offered for its truth but to show W’s state of mind, as the best evidence of agreement about which W testified, or as response to P’s cross-examination implying it was a recent fabrication.

  • P argues TC did not abuse its discretion because document had not been properly authenticated.

Opinion (Heaney):

  • For the purpose of rehabilitating W’s testimony, the contract was sufficiently authenticated.

    • To authenticate a document, the proponent need only prove a rational basis for the claim that the document is what the proponent asserts it to be. This may be done with circumstantial evidence.

    • The question of authenticity is not whether it was an authentic contract between D and leader, but only whether it reasonably could have been what W saw at the airport. D did not have to prove the contract’s reliability and accuracy.

  • The error, however, was harmless.

    • Other evidence strongly indicated D had not unwittingly entered the scheme.

    • Real proof may have an outsized impact because jury might lose sight that its probative force rests on a witness’s credibility, but this problem is confronted under FRE 403.

Bruther v. General Electric Co., 818 F. Supp. 1238 (S.D. Ind. 1993)


  • P was electrocuted by a lightbulb allegedly manufactured by D.

  • D moves for summary judgment on ground that lightbulb can’t be authenticated. FRE 901(a) requires authentication.

    • Bulb lacks identifying marks. There was a gap in the chain of custody: the bulb presented at trial was found in a storage locker, and W says it was probably the bulb since few others had access, no other brand had been used, and they wouldn’t otherwise keep broken bulbs if this weren’t the one involved in the accident.

Opinion (Barker):

  • Evidence in record is sufficient within the meaning of FRE 901 to support a finding that the bulb in question is the bulb that caused the plaintiff’s injuries, and that the bulb was manufactured by D.

    • Holding is limited to the issue whether P has met threshold burden of producing enough evidence to support his allegations; the determination whether the bulb was in fact what P claims it is must be made by the jury when it acts as finder of fact.

    • P’s own statement can be evidence for jury to consider.

  • Gaps in chain of custody go to weight of evidence, not its admissibility.

United States v. Zhyltsou, 769 F.3d 125 (2d Cir. 2014)



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