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Other Issues Concerning Evidence - Module 4 of 6

See Also:

Module Four: Other Issues Concerning Evidence

In this module, we’ll first address Article 9 of the Federal Rules of Evidence, which covers the requirements and procedures for authenticating evidence. Next, we’ll discuss Article 10, which sets forth the original writing requirements for evidence and finally, we’ll examine Article 5, which specifies the rules regarding privileges.   

Authentication of Evidence  

One of the most basic rules of introducing evidence at trial is that each piece of non-testimonial evidence must be authenticated before its introduction. Non-testimonial evidence includes tangible items such as documents, photographs, recordings, datasets and even murder weapons. Testimonial evidence, which is evidence presented by a witness on the stand in court, doesn’t have authenticity requirements because the authenticity of a witness’s testimony is sufficiently demonstrated by the witness’s live presence in court under oath.

Rule 901 explains how a proponent of an item of evidence carries the burden of demonstrating that the item “is what the proponent claims it is.”[1] The trial judge determines whether the evidence’s proponent has met the authentication standards. The judge’s decision will not be overturned unless there is abuse of discretion.[2]

Section 901(b) provides a non-exclusive list of how evidence may be authenticated. The first method for authenticating a piece of evidence is to have a witness with first-hand knowledge testify that the object is in fact what the proponent claims it is. For example, in United States v. Blackwell, the prosecution sought to authenticate a photograph of the hotel room where police found the defendant’s gun.[3] To do so, the prosecution called the detective who searched the room as a witness. She demonstrated her first-hand knowledge of the room layout by discussing the room’s layout, the position of a chair, the placement of the air conditioning and the bedding and curtains –– all of which matched up with the photograph introduced. This was sufficient basis to authenticate the picture.

Another method for authentication is for the proponent to identify the item’s appearance, content, substance, or other distinctive characteristics.[4] Evidence of distinctive characteristics may be direct or circumstantial and conclusive proof of authenticity isn’t required.[5] In one case involving mail fraud conviction, the court allowed the government to introduce letters sent by various co-conspirators who allegedly took part in a fraudulent scheme. Postal inspectors had seized the letters and at trial, the government relied on the testimony of one of the inspectors regarding the circumstances of when and where the documents were seized to authenticate the letters. The court allowed this use of circumstantial evidence to authenticate, finding that “conclusive proof of authenticity is not required” and that having an inspector testify as to the circumstances regarding the letter seizure was sufficient.[6]

Establishing a “chain of custody” is also often necessary to authenticate evidence. This is often applicable to criminal prosecutions to establish that introduced evidence is the same material that was picked up at a crime scene. For example, a police officer witness may have to explain each step undertaken to secure evidence, from the crime scene to the courtroom. In United States v. Collado, the government prosecuted a defendant who was alleged to have possessed cocaine with an intent to distribute. During the trial, it introduced a plastic bag containing 30 cocaine baggies that the defendant had allegedly dropped. After his conviction, the defendant appealed and claimed that the government hadn’t properly authenticated the plastic bag. The appeals court disagreed and found authentication proper. The police officer had testified how his fellow officers had picked up the bag after seeing him drop it, then had diligently handled it, marked it, and placed it in a locked evidence room at police headquarters prior to the trial. The prosecution established a proper chain of custody from time of seizure to the trial to show that it hadn’t been tampered with in any way.[7]

There are four steps to the full authentication process. The first step is to mark the evidence, which means that the attorney will tell the judge that she wants to label the evidence as an Exhibit. Marking the evidence allows the court to keep track of, and organize, the exhibits throughout the trial and it makes the exhibits easier to refer to later. The second step is to identify the piece of evidence - where an attorney will tell the judge and jury what the piece of evidence is. The third step is to authenticate it, where the attorney proves that the item really is what she claims it to be. The final step is to offer the piece of evidence to the judge. The attorney presenting it will say something like “Your Honor, we would like to offer Exhibit A in to evidence.” The other side may object at the points, claiming the evidence is inadmissible or not authenticated. The judge then responds by either admitting the evidence or excluding the evidence.

Rule 902 classifies certain items as “self-authenticating”, meaning that these items will require no extrinsic evidence of authenticity prior to admission.[8] These include books and pamphlets issued by pubic authorities, newspapers, periodicals, some foreign public documents and some notarized documents.  

Contents of Writings, Recordings, and Photographs

For certain types of evidence, there is an additional requirement that the evidence presented in court be the original document. Otherwise known as the “best evidence rule,” the rule applies to recordings, photographs and writings such as documents, contracts, and datasets.[9]

There are several justifications for preferring the production of the original. First, the rule helps prevent fraud because it allows parties to examine the original document for defects, changes or alterations. Second, secondary evidence, such as transcripts or copies, is susceptible to human and mechanical error, so the rule enhances the probability of accuracy and decreases the chance of fraud or “mis-transmission” of critical facts.[10]

While counter-intuitive based on the name, the “original documents” rule does not exclude duplicates. In fact, Rule 1003 allows duplicates “unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.”[11] The rule was never meant to apply to photocopies, copied audio and video files and comparable replicas. Rather, it applies to summaries, written transcripts of audio and other representations of a document that fundamentally differ from the original. 

There are several exceptions to the best evidence rule. For example, no original is required if all originals have been lost or destroyed in the absence of bad faith. Second, no original is required when the original is “beyond any available judicial process,” meaning that the original can’t be brought to court because it is unavailable and unreachable.[12] Third, a summary of the original document may be admissible in the case of voluminous material which cannot conveniently be produced in court.[13] In one case, an edited audio tape two hours long was admitted to summarize an original tape recording that was 20 hours long.[14]

The rule also won’t be applied where common sense indicates the need for an exception. For example, courts have expressed preference for original tape recordings rather than transcripts of tape recordings.[15] However, when a recording is in a language other than English, a court may permit the proponent to admit a reliable English translation of transcribed conversations. In the 2003 case, United States v. Morales-Madera, the government placed a wiretap on the defendant’s phones when investigating his role in a massive drug conspiracy. The government compiled a total of 52 tapes. He objected to the government’s introduction of English translations of Spanish transcripts, but the court allowed them. It reasoned that the “practice of admitting reliable English transcripts in evidence is entirely consistent with the best evidence rule. The rationale behind the best evidence rule -- that the recording itself is a more reliable, complete, and accurate source of information as to its contents and meaning than anyone's description of it -- is not undercut when the original recording is played to the jury and the undisputedly accurate English transcript is admitted in evidence.”[16] 


Article 5 of the Federal Rules of Evidence explains the general rule on privileges. The rules provide courts with flexible standards, requiring courts to apply privileges on a case-by-case basis. Under Rule 501, the common law establishes recognized privileges and the federal courts will interpret these privileges in “light of reason and experience.”[17] Furthering this flexibility, the Supreme Court has stated that Rule 501 allows federal courts to “continue the evolutionary development of testimonial privileges”[18] and courts may establish new privileges in response to changing conditions.[19]

If the information contained in an item of evidence is “privileged,” regardless of whether it’s testimonial or documentary, the evidence is not admissible. A privilege permits a person to refuse to disclose and/or prohibits others from disclosing, certain confidential information in a judicial proceeding. To be privileged, a communication must have been made in confidence. Moreover, a privilege is personal to the holder and it generally can only be asserted by the holder, though occasionally, the person with whom private information is shared may assert the privilege on the holder’s behalf. For example, an attorney can assert the attorney-client privilege on behalf of a client if the client is deceased.[20]

When privileged information is introduced, the person holding the privilege must invoke the privilege and show that it applies to the situation at hand. If the holder does not invoke the privilege or if he divulges the privileged information intentionally to third parties, he’s waived the privilege. Still, it is not nullified simply because someone overheard the conversation, so long as the privilege holder took reasonable steps to protect the communications. [21]

Finally, a privilege protects only communications, which can be verbal or non-verbal, including nodding ‘yes’ or ‘no’, giving a thumbs-up and shaking one’s head in agreement. A famous case that draws the line between communications and non-communications is Upjohn Co. v. United States.[22] Here, the attorney for a large corporation sent questionnaires to the corporation’s employees in response to allegations regarding payments to foreign officials. Soon after, the Internal Revenue Service began an investigation of the tax consequences of these payments and requested the lists of employees, both current and former, who had submitted answers to the questionnaires and the questionnaires themselves. Upjohn’s attorney objected to both requests and claimed that this information was protected by attorney-client privilege. The court agreed that the answers to the questionnaires were protected by the privilege because these were statements made to the company’s attorney and were made in confidence. However, the court determined that the list of employees who received the questionnaires was not a “communication” and so was not protected by any privilege. 

Legally-Recognized Privileges

There are many common law privileges, including attorney-client, clergy-penitent and the privilege against self-incrimination under the Fifth Amendment.

Until 2008, the Federal Rules of Evidence did not specify any privileges, but merely applied privilege rules under the Constitution, common law, or state or federal law. There were proposals to specify religious privileges, government privileges, privileges for trade secrets and others, but these were not enacted.[23] In 2008, however, Rule 502 codified the attorney-client privilege in the Federal Rules of Evidence.[24]

Scholars have written that the notion behind a lawyer’s loyalty to the client was deeply-rooted in Roman law and that this idea may have influenced the English tradition.[25] The Supreme Court noted that this privilege encourages “full and frank communication” between attorneys and clients. This open communication leads to sound legal advice, well-informed clients, and appropriate representation –– all of which help promote the integrity of the justice system. This privilege applies to communications between an attorney and any client or prospective client who seeks legal advice in a private setting.[26] This privilege extends to all non-lawyer agents working on the attorney’s behalf, including paralegals, law clerks, investigators and secretaries.[27] This privilege applies indefinitely, even after the client’s death.

Although not codified, many other privileges exist, including spousal privileges.[28] The privilege of spousal immunity, when invoked, prevents the prosecution from calling as a witness the spouse of a defendant in a criminal case. Additionally, a married person can’t be compelled to testify against her spouse in any criminal proceeding regardless of whether her spouse is the defendant. The privilege is available only during marriage and doesn’t survive the marriage’s dissolution by death or divorce.[29]  Another privilege protects confidential marital communications, and it is available in both civil and criminal proceedings.[30] For it to apply, the couple must be married when the communication is made. Any form of expression or conduct is protected by the privilege if a spouse makes the communication in reliance of intimacy, meaning that she intends that the communication not be disclosed to others. Unlike the first spousal privilege, the privilege for confidential marital communications survives divorce and marriage dissolution.[31] 

Other privileges include the doctor-patient privilege, which belongs to the patient and protects confidential communications between a patient and her doctor. Though no such privilege existed at common law, the first state to enact a physician-patient privilege was New York in 1828 and many states have followed suit.[32] This applies to physicians as well as psychologists and other health practitioners. In most states, for a patient to successfully claim the privilege, he must establish: 

·         a professional relationship exists;

·         the confidential communications were made while the physician attends to the patient in her course of treatment; and

·         the information is necessary for the patient’s treatment.[33]

 Since there’s no uniform approach to this privilege, some state legislatures have diluted its scope, providing that the privilege won’t apply in certain proceedings and situations. In California, for instance, the privilege is inapplicable in criminal proceedings.[34] In Arkansas, there is no privilege to medical records communications made to a doctor in any proceeding where the patient puts her physical condition at issue, such as in a personal injury suit.[35]

Other privileges vary from state to state and may be applied by legislative fiat or by court recognition. Some of these include counselor-victim privilege, informant identity privilege and the privilege to refuse to disclose a person’s vote.[36]


In our fifth module, we’ll learn about the rules of evidence addressing witnesses and witness testimony.


[1] See Fed. R. Evid. 901;United States v. Hernandez-Herrera, 952 F.2d 342, 343 (10th Cir. 1991).

[2] United States v. Blackwell, 694 F. 2d 1325, 1330 (D.C. 1982).

[4] Id. at 901(b)(4).

[10] United States v. Diaz-Lopez, 625 F.3d 1198, 1201 (9th Cir. 2010).

[14] United States v. Gorel, 622 F.2d 100, 105-06 (5th Cir. 1979)

[15] McBeth v. Nissan Motor Corp. U.S.A., 921 F. Supp. 1473, 1480 (S.C. Dist. 1996).

[16] United States v. Morales-Madera, 352 F.3d 1, 9 (1st Cir. 2003).

[17] Fed. R. Evid. 501.

[18] Trammel v. United States, 445 U.S. 40, 47 (1980).

[19]  Jaffee v. Redmond, 518 U.S. 1, 8-9 (1996).

[20] Edward Imwinkelreid, “The Alienability of Evidentiary Privileges:Of Property and Evidence, Burden and Benefit, Hearsay and Privilege”, 80 St. John's L. Rev. 497, 499 (2006).

[21] Rebecca Bolin, “Risky Mail: Concerns in Confidential Attorney-Client Email”, 81 U. Cin. L. Rev. 601, 606 (2012).

[22] Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981).

[23] Proposed Amendments to Uniform Rules of Evidence, National Conference of Commissioners on Uniform State Laws (1999)

[30] Margaret F. Brinig & Linda A. Schwartzstein, Spousal Privileges, in Testimonial Privileges 332 (Scott N. Stone & Ronald S. Liebman eds., 1983); Spousal Privilege, Can My Spouse Testify Against Me At My Criminal Trial?, Halscott Megaro, (May 8, 2018), https://www.appealslawgroup.com/can-my-spouse-testify-against-me-at-my-criminal-trial/.

[31] United States v. Pensinger, 549 F.2d 1150, 1152 (8th Cir. 1977).