27-901. Rule 901. Requirement of authentication or identification; general provision; illustrations and examples; enumerated.

(1) 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.

(2) 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:

(a) Testimony that a matter is what it is claimed to be;

(b) Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation;

(c) Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated;

(d) Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances;

(e) Identification of a voice, whether heard first-hand 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;

(f) 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 (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) 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;

(g) 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;

(h) Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence thirty years or more at the time it is offered;

(i) Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result; and

(j) Any method of authentication or identification provided by act of the Legislature or by other rules adopted by the Supreme Court which are not in conflict with laws governing such matters.

Source

Annotations

1. Authentication generally

2. Particular cases

3. Miscellaneous

1. Authentication generally

This section requires authentication or identification of evidence sufficient to support a finding that a matter is what the proponent claims as a condition precedent for admission. But authentication or identification under this section is not a high hurdle. A proponent is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. If the evidence is sufficient to support a finding that the evidence is what it purports to be, the rule is satisfied. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

This section does not impose a particularly high hurdle. If foundation is laid for the business records exception, then the authentication requirements of this section are also met. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity; if the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of the authentication rule. State v. Taylor, 282 Neb. 297, 803 N.W.2d 746 (2011).

A proponent may authenticate a document under subsection (2)(a) of this section by the testimony of someone with personal knowledge that it is what it is claimed to be, such as a person familiar with its contents. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

This section does not impose a high hurdle for authentication or identification. A proponent of evidence is not required to conclusively prove the genuineness of the evidence or to rule out all possibilities inconsistent with authenticity. If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of subsection (1) of this section. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Under subsection (2)(d) of this section, a proponent may authenticate a document by circumstantial evidence, or its "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Unlike its counterpart in the Federal Rules of Evidence, section 27-104 requires a court to first determine whether evidence is admissible under the hearsay rules before considering whether it is properly authenticated. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

A document is properly authenticated by evidence sufficient to support a finding that the matter in question is what its proponent claims. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

A document may be authenticated under subsection (2)(a) of this section by testimony by one with personal knowledge that it is what it is claimed to be, such as a person familiar with its contents. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

A showing of specific authorship is not always necessary to authenticate a document. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

Proper authentication may be attained by evidence of appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, sufficient to support a finding that the matter in question is what it is claimed to be. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

The authentication requirement does not demand that the proponent of a piece of evidence conclusively demonstrate the genuineness of his or her article, but only that he or she make a showing sufficient to support a finding that the matter in question is what its proponent claims. State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

Even if direct, eyewitness testimony is absent, the contents of photographic evidence itself, together with such circumstantial or indirect evidence as bears upon the issue, may serve to explain and authenticate the evidence sufficiently to justify its admission pursuant to this section. State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).

This section incorporates two traditional models of authenticating photographic evidence: the illustrative or "pictorial testimony" model, and the "silent witness" model. Under the illustrative model, a photograph, motion picture, videotape, or other recording is viewed merely as a graphic portrayal of oral testimony and is admissible only when a witness testifies that it is a correct and accurate representation of facts that the witness personally observed. Under the "silent witness" theory of admission, photographic evidence may draw its verification not from any witness who has actually viewed the scene portrayed, but from other evidence which supports the reliability of the photographic product. State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).

If the proponent's showing is sufficient to support a finding that the evidence is what it purports to be, the proponent has satisfied the requirement of this section. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

This section does not impose a high hurdle for authentication or identification. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

A document is authenticated when evidence is presented that is sufficient to support a finding that the matter in question is what its proponent claims. State v. Taylor, 12 Neb. App. 58, 666 N.W.2d 753 (2003).

Requirements of "authentication" are governed by this section. A document is authenticated when evidence is presented that is sufficient to support a finding that the matter in question is what its proponent claims. State v. Miller, 11 Neb. App. 404, 651 N.W.2d 594 (2002).

2. Particular cases

The identity of a participant in a telephone conversation may be established by circumstantial evidence, such as the circumstances preceding or following the telephone conversation. State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017).

The proponent of the text messages is not required to conclusively prove who authored the messages; the possibility of an alteration or misuse by another generally goes to weight, not admissibility. State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).

Pursuant to subsection (1) of this section, the possibility of an alteration or misuse by another of an e-mail address generally goes to weight, not admissibility. State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011).

In a trial for attempted murder, assault, and other crimes, the defendant's cousin was qualified to identify the defendant's handwriting in a notebook with information about types of guns where the cousin was familiar with the defendant's handwriting from the years they were friends and went to school together. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

A husband's familiarity with his wife's handwriting, acquired during the course of the marriage, satisfies the foundational requirements of this section. State v. Tyma, 264 Neb. 712, 651 N.W.2d 582 (2002).

Note found on defendant at time of arrest, which defendant identifies as "a note I wrote," may be admitted under subsection (2) of this section, which provides that an item of evidence may be authenticated or identified by testimony that a matter is what it is claimed to be. State v. Patman, 227 Neb. 206, 416 N.W.2d 582 (1987).

The purpose of this section is to require that evidence must be sufficient to support a finding that the matter in question is what its proponent claims. Making certain that the defendants uttered the exact words used in the assaults was not critical in ensuring that the voices the victim heard when the assaults took place were those of the defendants. State v. Ferris, 212 Neb. 835, 326 N.W.2d 185 (1982).

Where evidence showed that the defendant used his cell phone during the month of the murder; that in the period prior to the murder, there was contact between the cell phone attributed to the defendant and the telephone numbers of various family members and the defendant's girlfriend; that there was no evidence to suggest that anyone other than the defendant was using the cell phone in question at the time of the murder; that the content of the text messages and sequence of subsequent call contacts between the cell phone attributed to the defendant and the victim's cell phone were consistent with the timeline established for the murder; and that all outgoing contacts by the cell phone attributed to the defendant ceased just shortly before the murder occurred, the trial court did not abuse its discretion in overruling the defendant's objections with respect to his authorship of the text messages attributed to him. State v. Wynne, 24 Neb. App. 377, 887 N.W.2d 515 (2016).

3. Miscellaneous

A court must determine whether there is sufficient foundation evidence for the admission of physical evidence on a case-by-case basis. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated. We review a trial court's ruling on authentication for abuse of discretion. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

The plain language of this section is directory rather than mandatory. State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).

In order to establish evidence's sufficient probative force to prove an earlier conviction for the purpose of sentence enhancement, the evidence must, with some trustworthiness, reflect a court's act of rendering judgment. State v. Linn, 248 Neb. 809, 539 N.W.2d 435 (1995).