|
RULE 901
REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.
(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods Provided by Statute or Rule. Any method of authentication or identification provided by statute or by other rules promulgated by the Supreme Court.
Note:
In considering the rules in Article IX, it is important to remember that these rules relate to how a party authenticates evidence to show it is what the party claims. Even when evidence is properly authenticated, it must still be admissible under the other rules of evidence. See State v. Jeffcoat, 279 S.C. 167, 303 S.E.2d 855 (1983).
With the exception of subsection (b)(10) which is discussed below, this rule is identical to the federal rule.
Subsection (a) is consistent with South Carolina law which requires authentication as a condition precedent to admissibility. See State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987). As noted in the Advisory Committee's Notes to the Federal Rules, the requirement of showing authentication 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 Rule 104(b).
Subsection (b) contains illustrations of how evidence may be authenticated. These illustrations are consistent with the prior case law indicating that evidence in support of authentication can be direct or circumstantial. Winburn v. Minnesota Mutual Life Ins. Co., 261 S.C. 568, 201 S.E.2d 372 (1973); State v. Wilson, 246 S.C. 580, 145 S.E.2d 20 (1965).
Subsection (b)(1) is in accord with the prior law in this state. Williams v. Milling-Nelson Motors, Inc., 209 S.C. 407, 40 S.E.2d 633 (1946); Brazeale v. Piedmont Mfg. Co., 184 S.C. 471, 193 S.E. 99 (1937).
Subsection (b)(2) is generally consistent with state law State v. Jeffcoat, 279 S.C. 167, 303 S.E.2d 855 (1983) (signature on check identified by signator's bookkeeper); Weaver v. Whilden, 33 S.C. 190, 11 S.E. 686 (1890) (no error in refusing to allow nonexpert witness who was unfamiliar with handwriting to testify as to genuineness of signature). There does not appear to be any South Carolina law that states that the familiarity cannot have been acquired for the purposes of litigation.
Subsection (b)(3) is in accord with the prior case law in South Carolina. Pee Dee Production Credit Ass'n v. Joye, 284 S.C. 371, 326 S.E.2d 650 (1984); Benedict, Hall & Co. v. Flanigan, 18 S.C. 506 (1883); Boman v. Plunkett, 13 S.C.L. (2 McCord) 518 (1823) (comparison by jury was permitted in aid of doubtful proof). South Carolina has also recognized that nonexperts can make such comparisons. State v. Ezekial, 33 S.C. 115, 11 S.E. 635 (1890); Benedict, Hall & Co. v. Flanigan, 18 S.C. 506 (1883).
Subsection (b)(4) is consistent with prior law. Kershaw, Cty. Bd. of Educ. v. U.S. Gypsum, 302 S.C. 390, 396 S.E.2d 369 (1990); IKT Company Inc. v. Hardwick, 274 S.C. 413, 265 S.E.2d 510 (1980); State v. Hightower, 221 S.C. 91, 69 S.E.2d 363 (1952). A common form of authentication permissible under this subsection is the reply doctrine which provides that once a letter, telegram, or telephone call is shown to have been mailed, sent, or made, a letter, telegram or telephone call shown by its contents to be in reply is authenticated without more. Graham, Handbook of Federal Evidence, ยง 901.4 (2nd ed. 1986). This appears to be the law in South Carolina. Leesville Mfg. Co. v. Morgan Wood & Iron Works, 75 S.C. 342, 55 S.E. 768 (1906) (reply letter is presumed genuine).
Subsection (b)(5) is consistent with the law in South Carolina. State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980) (identification of defendant's voice as that of armed robber was admissible in criminal prosecution where circumstances demonstrate reliability of evidence); State v. Plyler, 275 S.C. 291, 270 S.E.2d 126 (1980) (sufficient testimony as to recognition of the voice warrants its admission); State v. Vice, 259 S.C. 30, 190 S.E.2d 510 (1972) (voice identification permissible; further, jury can compare recorded telephone call and defendant's voice, recorded prior to trial, for purposes of comparison); State v. Porter, 251 S.C. 393, 162 S.E.2d 843 (1968) (identification of party with whom witness talked need not be known at time of conversation, but is sufficient if knowledge enabling witness to identify other party is later obtained), cert. denied, 393 U.S. 1079, 89 S.Ct. 859, 21 L.Ed.2d 773 (1969); State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950); State v. Smith, 307 S.C. 376, 415 S.E.2d 409 (Ct.App.1992) (dispatcher allowed to identify voice of anonymous caller as that of defendant, even though no prior voice identification training).
Subsection (b)(6) is in accord with the prior law in this State. Fielding Home for Funerals v. Pub. Sav. Life Ins. Co., 271 S.C. 117, 245 S.E.2d 238 (1978) (business); State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950); Gilliland & Gaffney v. Southern Ry., 85 S.C. 26, 67 S.E. 20 (1910) (business).
Section (b)(7) is consistent with South Carolina law. State v. Pearson, 223 S.C. 377, 76 S.E.2d 151 (1953); Ex parte Steen, 59 S.C. 220, 37 S.E. 829 (1901). As to the authentication of police fingerprint records, see State v. Rich, 293 S.C. 172, 359 S.E.2d 281 (1987).
Subsection (b)(8) is in accord with prior case law with the exception that the prior cases required 30 years before a document was classified as ancient rather than 20 years as required by this subsection. See Atlantic Coast Line Ry. v. Searson, 137 S.C. 468, 135 S.E. 567 (1926); Polson v. Ingram, 22 S.C. 541 (1885); Thompson v. Brannon, 14 S.C. 542 (1881); Johnson v. Pritchard, 302 S.C. 437, 395 S.E.2d 191 (Ct. App. 1990). See also, Rule 803(16), which also reduces the minimum period for receipt of "ancient" records under the hearsay rule.
Subsection (b)(9) appears to be in accord with South Carolina law. See State v. Hester, 137 S.C. 145, 134 S.E.2d 885 (1926).
Subsection (b)(10) is the federal rule modified to make the language applicable to South Carolina statutes and rules. An example of such a rule is Rule 44, SCRCP, which deals with the authentication of official records.