Countersign Evidence Made Easy

Countersign evidence

in this lesson we're moving past our discussion of witnesses and testimonial evidence into our discussion of tangible evidence or evidence that the jury can hold in their hands right and anytime we're thinking about tangible evidence we have to start with authentication under rules 901 through 902 of the Federal Rules of Evidence so anytime though that I talked about authentication I like to start with a very simple example to kind of illustrate how this all plays out so imagine that you own a pawn shop or any type of antique store that deals and collectibles and let's say one day you're at your shop and a guy comes in holding a guitar and he approaches you and he tells you that he has a guitar that was played by Jimi Hendrix and he wants to sell it to you for a quarter of a million dollars based on the fact that Jimi Hendrix played this guitar makes it extremely valuable right it's a very rare guitar he tells you it's worth a quarter of a million dollars that's what he's willing to sell it to you for so what are you going to do before you immediately pull out your checkbook or your credit card and start to write this guy a check for a quarter of a million dollars what are you going to want to do with that guitar obviously right you want to authenticate it you want to verify that this guitar is what this guy who came into your shop claims it to be that it was indeed played by Jimi Hendrix before you shell out a quarter of a million dollars you are going to want to authenticate that guitar to make sure that it is what this guy who came into your shop claims it to be so how might you do that well a great way would be if somebody who knew Jimi Hendrix came in somebody with personal knowledge a friend of Jimi Hendrix a bandmate a manager someone who really knew Jimi Hendrix Wow could come in and say hey look yeah I was there that is definitely the guitar I saw Jimi Hendrix playing that guitar I have firsthand personal knowledge I witnessed it right we have an eyewitness well that would be great right that would be one way that would be very strong evidence that this guitar is what this guy claims it to be it is indeed a Jimi Hendrix guitar wait how else could we authenticate it well maybe we have a distinctive characteristic on the guitar right there's some scratch in a specific location or mark on the guitar that Jimi Hendrix wrote in a memoir was on this guitar right Jimi Hendrix said somewhere that this particular guitar had a scratch on the back side on the you know whatever right and there's a very particular mark in this guitar has that same mark that Jimi Hendrix described right we have a distinctive characteristic well that could be strong evidence that this guitar is what the guy who came into the shop claims it to be right or we could even have an expert come in some sort of guitar expert that could look at it he knows Jimi Hendrix guitars he could analyze it and really help us figure out the authenticity of the guitar whether or not it is what this guy who came into the shop claims it to be whether or not it's a Jimi Hendrix guitar right all of these would be ways that we could go about authenticating whether or not this guitar is with the guy who came to the shop claims it to be whether or not it's a Jimi Hendrix guitar right and so what we have here is the same rules apply in a court of law right anytime a person comes into court and wants to present tangible evidence right we want to authenticate that tangible evidence we want to make sure that that evidence is what the proponent claims it to be right and so how do we determine this well we have rules 901 through 902 of the Federal Rules of Evidence right and this is what all of this is on the board different ways to authenticate and a piece of evidence but the idea here is right we want to anytime somebody comes into court with some sort of physical evidence or some tangible evidence whether that's a photograph a videotape telephone conversations of physical objects some sort of documentary evidence it can move the will a trust a deed or some sort of contract a ladder of facts whatever it is where they come in home holding something some sort of tangible evidence well we always want to make sure that this evidence is what the proponent of this evidence claims it to be right before we admit it and let the jury consider this right we need to make sure it is what this guy remember in our guitar example we want to make sure before we shell out a quarter of a million dollars we want to make sure that this guitar is what this guide it to be same thing applies in a courtroom right before we're going to introduce evidence we want to make sure it is with the proponent claims it to be and that's what this whole process of authentication is now important to recognize at the top right authentication is a low standard of proof right to prove that something is which you claim it to be it's even lower than a preponderance of the evidence standard right so long as it can support a jury finding right which is lower than a preponderance of the evidence that's going to be sufficient and sometimes authentication can just be one sentence right we have a witness who says yeah that is it right boom we've authenticated it right it can be that simple can be one line of testimony from an eyewitness you can say yeah that's the contract I was there that is the contract right so sometimes authentication can be very easy can be one line right it's not necessarily like our guitar example where you might want to before you shell out a quarter of a million dollars or your burden of proof as the shop owner might be extremely high in a courtroom it's actually a pretty low standard of proof right as long as there's enough proof to support a jury finding that's going to be sufficient for authentication under rules 901 through 902 of the Federal Rules of Evidence so just want to make sure we're all clear on that the burden here you don't have to prove something is what the proponent claims it to be with certainty or even with any reasonable certainty or even by a preponderance of the evidence just has to support a jury finding which is usually a pretty low threshold it's an easy standard to meet most of the time but let's get into it let's get into rule 901 and talk about how we would go about authenticating different pieces of tangible evidence so I think the best way to think about authentication is actually to think about it as categories of different types of tangible evidence we could go line by line through 1901 but I found it's actually better rather than just looking at the statute to try to just categorize different pieces of tangible evidence and show how we apply 9:01 to these different pieces of evidence okay so we can start with photographs and video tapes right as is very common especially in trials and modern time right we're almost always going to have photographs and video tapes being introduced any time we have a photograph or videotape coming in what are we going to want to do right well number one we know our first gateway issue always as we discussed in the very beginning of this evidence course is going to be relevant so you'd always still apply even with tangible evidence you still start with your relevance analysis you do 401 is the evidence probative and material and then from there right once you've gone through your 401 analysis with tangible evidence you're gonna jump to 901 and authenticate the evidence can we authenticate this evidence is this evidence what the proponent of the evidence claims it to be is this the Jimi Hendrix guitar or not right and so for photographs and videotapes how do we authenticate evidence under 9:01 well here we say that we do need a witness with first-hand knowledge remember we talked about this rule 602 first-hand knowledge requirement right so we need a witness with first-hand knowledge to establish that the photo is an accurate and faithful representation of the scene or object depicted so if we have a videotape or a photograph we need somebody who is at the scene being depicted to say that yes this is accurate I was there this is what it looked like right if we have that then we have authentication of a photograph or videotape very easy right now the problem here with photographs and video tapes can be when we have a situation where no witness was actually at the scene to come for word and testify right we don't have a witness with first-hand knowledge think about a surveillance state board ATM camera that takes photos of patrons using an ATM we might not have a witness at the scene who can come with first-hand knowledge and tell us that this is a dis photo or this video is an accurate and faithful representation of the scene or object depicted right because it's a surveillance tape no one was there right so that's why we call this the Silent Witness theory and in law school you probably read several cases on this but the answer is easy right this is codified under Rule 901 B 9 which is going to basically say that if we can show that the process or system used to produce the video or photograph is accurate that will authenticate it so if we have a surveillance tape or even an x-ray right x-rays is another common example of this right no witness can testify to the scene depicted at an x-ray right human eyes can't perceive what an x-ray image is right so we can't have a witness testify that an x-ray with first-hand knowledge that an x-ray right is accurately depicting the scene or object of the image right because the human eye basically cannot see that so what do you do right silent witness series would apply to surveillance tapes or ATM photographs or we don't have a witness with verse and knowledge these have to show that the process or system used to produce the image or video is accurate and again this is rule 901 b9 right so here with an x-ray you just need a technician or whoever to come in and say yeah look the process and system we use to take this x-ray was accurate and reliable boom right now we've authenticated the x-ray okay and that's the Silent Witness theory so photographs if we have a witness with first-hand knowledge you can come and say this is the scene I was there what's being depicted in this photo is an accurate representation of the scene that's great if it's a situation like an x-ray or surveillance tape and we don't have a witness with first-hand knowledge that's fine silent witness theory we go to rule I know one benign which is going to say if we can show that the process or system used to produce the image photo or video was accurate that's fine so that's how we handle photographs and videotapes okay next we have oral statements right and usually these are sound recordings of world statements in one way or another thank you so much for watching this video preview of our legal education accelerator program or leap for short if you would like 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