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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Rules of Evidence Series - Rule 901

Montgomery County Criminal Defense Attorney - Rules of Evidence Series - Rule 901

Brian Foley is a Board Certified Criminal Defense Attorney in Montgomery County, Texas.

Rule 901 of the Texas Rules of Evidence is maybe the most important rule because it is the rule governing how you admit evidence into a trial in the first place. Its a mechanics rule. You have to have a witness answer questions about the Authenticity of the evidence and identifying for the record what the evidence is.

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.

In English that means that you have to prove it is what you say it is. As coach Dennis Green once famously said,

"They are who we thought they were." Well if the evidence "is what you say it is." Then you have properly authenticated it under Rule 901.

One of the most famous examples is that you don't need to have the photographer present in court to authenticate a photograph. Anyone who saw the crime scene and can say the photo looks like it did at the time of the crime can authenticate the photo.

Section (b) of the rule lists examples of how to properly authenticate.

  1. Testimony of a witness with knowledge.

  2. Handwriting - There are legitimate handwriting experts that may testify if they are qualified but did you know that a regular witness may authenticate something as the handwriting of a particular person if they are familiar with someone's handwriting and didn't become familiar with it just because there was a legal case pending.

  3. Comparison by an expert or the jury - The jury is also allowed to look at two samples of handwriting or signature and determine that they are the same.

  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. You can testify that you recognize someone's voice no matter how you came to know the sound of their voice. It could be just from listening to jail calls during the pendency of a case.

  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 statute or other rule prescribed under statutory authority.


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