710.1Requirements, Methods [Rule 901]
- To be admissible, evidence must be authenticated with a sufficient showing that the matter in question is what it purports to be.
- The burden to authenticate is very low – only a prima facie showing is required.
- Rule 901 provides ten examples of ways that evidence may be authenticated (such as through the testimony of a witness with knowledge or based on the content and distinctive characteristics of the evidence itself) but this list of examples is only illustrative, not exclusive, and other methods are possible.
The Basic Rule
Rule 901(a) – Requirement of Authentication or Identification
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.
However, Rule 901 does not require the proponent of the evidence to “conclusively prove” the authentication or identity of the item to be admitted. State v. Crawley, 217 N.C. App. 509 (2011). Instead, the rule only requires the proponent to offer “sufficient evidence” from which a reasonable factfinder could conclude that it is authentic. See, e.g., State v. Wiggins, 334 N.C. 18 (1993) (“It was not error for the trial court to admit the [evidence] if it could reasonably determine that there was sufficient evidence to support a finding that ‘the matter in question is what its proponent claims.’”); State v. Ford, 245 N.C. App. 510 (2016) (“Importantly, the burden to authenticate under Rule 901 is not high—only a prima facie showing is required.”). Accord, State v. DeJesus, 265 N.C. App. 279 (2019) (“The trial court's function is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the [finder of fact] could reasonably find that the evidence is authentic.”) (internal quotation omitted); State v. Mercer, 89 N.C. App. 714 (1988) (“a prima facie showing, by direct or circumstantial evidence, such that a reasonable juror could find in favor of authenticity, is enough”).
Know your burden
A dispute about the authentication of a key piece of evidence can sometimes be one of the most contentious issues in the whole trial. Prosecutors should remember (and remind the judge, if necessary) that the burden for authentication under Rule 901 is quite low. A “prima facie showing” means that the proponent of the evidence only has to make a sufficient showing such that a reasonable finder of fact could conclude that the matter is what the proponent claims it to be. “Once that threshold is met, it is for the factfinder to determine the appropriate weight and credibility that the evidence ought to be given.” State v. DeJesus, 265 N.C. App. 279 (2019).
Authentication under Rule 901 represents a “special aspect of relevancy.” G.S. 8C-901, Official Commentary (noting, as an example, that if “the speaker is not identified” on a phone call then the “telephone conversations may be irrelevant” because it has not been established that the caller has any connection to the case). However, the court may admit a piece of evidence subject to a later showing that establishes its relevancy in the case: “[T]his requirement of showing authenticity 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).” G.S. 8C-901, Official Commentary. For more information about “conditional relevancy” under Rule 104(b), see the related Evidence entry on Preliminary Questions [Rule 104].
Methods of Authentication
Rule 901(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...
G.S. 8C-901(b). The list of examples in Rule 901(b) “draws largely upon the experience embodied in the common law and in statutes to furnish illustrative applications of the general principle set forth in subdivision (a). The examples are not intended as an exclusive enumeration of allowable methods but are meant to guide and suggest, leaving room for growth and development in this area of the law.” G.S. 8C-901, Official Commentary.
Testimony of Witness with Knowledge
“Testimony that a matter is what it is claimed to be.”
G.S. 8C-901(b)(1). Testimony from a witness that he or she recognizes and can identify a particular item of evidence is one of the easiest and most commonly used methods of authentication. This type of authentication covers “a broad spectrum ranging from testimony of a witness who was present at the signing of a document to testimony establishing narcotics as taken from an accused and accounting for custody through the period until trial[.]” G.S. 8C-901, Official Commentary.
See, e.g., State v. Thompson, 254 N.C. App. 220 (2017) (photograph of defendant was properly authenticated by officer’s testimony identifying it); State v. Gray, 234 N.C. App. 197 (2014) (person who received text messages and detective who took pictures of those messages were both persons with knowledge, and their testimony sufficiently authenticated the photographs); State v. Crawley, 217 N.C. App. 509 (2011) (testimony from phone company employee and a detective identifying cell phone records “sufficiently satisfied the ‘witness with knowledge’ standard provided for under Rule 901(b)” and provided “sufficient evidence to show that the records were, as the State claimed, records from Sprint/Nextel, and any question as to the accuracy or reliability of such records is a jury question”); State v. Taylor, 178 N.C. App. 395 (2006) (“Jones and Woods are both witnesses with knowledge of how Nextel sent and received text messages and how these particular text messages were stored and retrieved. This testimony was sufficient to authenticate States Exhibits 87 and 88 as text messages sent to and from the victim's assigned Nextel cellular telephone number on 16 and 17 February 2004.”); see also State v. Biggs, 680 S.E.2d 901 (N.C. App. 2009) (unpublished) (blood sample authenticated by officer who saw nurse withdraw it); State v. Leatherwood, 160 N.C. App. 596 (2003) (unpublished) (“both cardholders testified that they received the statements in the mail, and that they recognized the statements as their own” and “[t]hus, the testimony was sufficient to adequately authenticate the credit card statements pursuant to Rule 901 of the North Carolina Rules of Evidence.”).
Depends on the type
Ordinarily, items of evidence that are distinctive or unique can be authenticated under Rule 901(b)(1) with two or three simple questions. E.g., “Mrs. Witness, do you recognize state’s exhibit #5?” (“Yes, that’s my wedding ring that was stolen during the robbery.”) “How do you recognize it?” (“Well, I wore that ring every day for 12 years. I recognize the pattern of the diamonds and the braided band, and it’s engraved with our initials and wedding date.”). The ring has now been authenticated.
If the evidence is not unique (e.g., fungible evidence such as drugs) or if there are additional foundational requirements particular to that type of evidence (e.g., photos or videos offered as substantive evidence), further authentication may be required. For more information, see the appropriate “Types of Evidence” entries in the next section, beginning with Real Evidence: Fungible.
Nonexpert Opinion on Handwriting
“Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.”
G.S. 8C-901(b)(2). This rule “specifically recognizes that a non-expert may offer an opinion as to the genuineness of handwriting if that witness has acquired familiarity with the handwriting at issue prior to the court action.” State v. Wiggins, 334 N.C. 18 (1993). See, e.g., State v. Alston, 341 N.C. 198 (1995) (letter from murder victim was sufficiently authenticated by testimony from victim's mother that she was familiar with her daughter's handwriting and signature, and the letter at issue was written in her daughter's handwriting and bore her signature); see also State v. Woody, 124 N.C. App. 296 (1996) (prior statement written by victim was authenticated by officer who took the statement and recognized her handwriting, along with other circumstantial evidence).
Comparison by Trier or Expert Witness
“Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.”
G.S. 8C-901(b)(3). This method of authentication allows the proponent of evidence containing handwriting or a signature to ask the trier of fact to compare an authenticated sample (e.g., a self-authenticating document written or signed by the defendant) to another sample purportedly written by the same person (e.g., an incriminating or threatening letter sent to the victim). See, e.g., State v. Ferguson, 145 N.C. App. 302 (2001) (in prosecution for murder and robbery, the state sufficiently authenticated defendant’s signature on copy of a motel registration card by also offering the signature on defendant's authenticated student identification card to the jury for comparison); see also G.S. 8C-901, Official Commentary (“Precedent supports the acceptance of visual comparison as sufficiently satisfying preliminary authentication requirements for admission in evidence”); State v. Skipper, 200 N.C. App. 618 (2009) (unpublished) (“the jury could properly compare the signatures on the pawn ticket and the Adult Rights form and conclude that both belonged to the defendant, allowing an inference that defendant constructively possessed the TV when it was pawned at Pawn USA on 7 October 2004”).
However, before allowing the second writing into evidence, the trial court must make a preliminary determination “that there is enough similarity between the genuine handwriting and the disputed handwriting, such that the jury could reasonably infer that the disputed handwriting is also genuine.” State v. Owen, 130 N.C. App. 505 (1998). See, e.g., State v. McCoy, 234 N.C. App. 268 (2014) (sufficient similarity existed between known sample of defendant's signature on self-authenticating affidavit and disputed signature on pawn shop ticket: both signatures reflected defendant's first name, middle initial followed by a period, and last name, both signatures contained a zigzag line underscoring one of the letters, all of the letters were formed in essentially the same way, and the signatures were nearly identical).
The jury (or the judge, when acting as the trier of fact) is competent to compare two samples and decide whether they were written by the same person. See State v. LeDuc, 306 N.C. 62 (1982) (fact finder may compare a known sample of a person's handwriting with handwriting on a contested document and thereby determine whether the handwriting is the same on both without the aid of competent lay or expert testimony), overruled in part on other grounds by State v. Childress, 321 N.C. 226 (1987). For more information about offering either lay or expert opinion testimony on handwriting, see the related Expert Testimony entry on Handwriting Analysis.
Distinctive Characteristics and the Like
“Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”
G.S. 8C-901(b)(4). A “great variety” of potential authentication techniques are possible based on the appearance, contents, substance, internal patterns, or other distinctive characteristics of the evidence itself. G.S. 8C-901, Official Commentary. For example, a document or phone call “may be shown to have emanated from a particular person by virtue of its disclosing knowledge of facts known peculiarly to him,” or based on the use of distinctive “language patterns” (e.g., nicknames or slang used by the purported author) or “contents and circumstances indicating it was in reply to a duly authenticated one.” Id.
In other words, the characteristics and features of the evidence itself, when considered in conjunction with the facts and circumstances of the case, may be all that is necessary to sufficiently establish that the item is what the proponent contends it is. See, e.g., State v. Ford, 245 N.C. App. 510 (2016) (images and statements taken from a social media page were authenticated as being from the defendant based on the match between the account name and the defendant’s nickname, along with photos and videos on the page depicting the defendant and his dog, which together with the facts of the case were sufficient “to show that the website was what it was purported to be—defendant's webpage”); State v. Young, 186 N.C. App. 343 (2007) (jail letters sufficiently authenticated based on use of nicknames, return address, and contents showing knowledge of the crime, handwriting, slang terms, and subsequent phone calls that discussed the letters); State v. Taylor, 178 N.C. App. 395 (2006) (text messages were authenticated as being written by the victim based on circumstantial evidence that corresponded to facts in the case: the messages stated “that the person would be driving a 1998 Contour, and the sender self-identified himself twice as ‘Sean,’ the victim's first name”); State v. Reed, 153 N.C. App. 462 (2002) (business card advertising defendant's residence as a liquor house was sufficiently authenticated and admitted into evidence as an admission of the defendant, based on distinctive characteristics and circumstantial evidence: (i) card was one of many found in a box in defendant's bedroom; (ii) it contained defendant's name, address, and telephone number; and (iii) defendant was the sole occupant of the house in which the card was found).
“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.”
G.S. 8C-901(b)(5). In much the same way that a lay witness may testify to the “visual identification of a person,” Rule 901(b)(5) states that a voice may be authenticated and identified based on the opinion testimony of any person who is familiar with the speaker’s voice, and the “requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification.” G.S. 8C-901(b)(5), Official Commentary. See State v. Stager, 329 N.C. 278 (1991) (testimony of victim’s parents, sister, and a high school colleague who all recognized victim’s voice sufficiently authenticated it as being her voice on a tape recording).
Additionally, Rule 901(b)(5) states that the authenticating witness’s identification of the speaker’s voice may be based on hearing the voice either in person (“firsthand”) or through an electronic transmission or recording. G.S. 8C-901(b)(5). See, e.g., State v. Mobley, 206 N.C. App. 285 (2010) (witness' testimony as to the identity of the declarant based on personal knowledge is all that is required to authenticate a voice on a tape recording); State v. Mullen, 98 N.C. App. 472 (1990) (officer’s testimony that he recognized defendant’s voice on a radio transmission was proper, even though officer had previously only heard the defendant speak in person, where officer had known defendant for several years and spoken to him on a number of prior occasions, and officer recognized distinctive characteristics of defendant’s tone, timbre, and speech patterns). See also State v. Kamtsiklis, 94 N.C. App. 250 (1989) (where defendant challenged the poor quality and audibility of tape recordings, witness’s testimony that he was nevertheless able to recognize defendant’s voice because “you don’t forget the voice of a person who tells you they are going to kill you” was admissible).
“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
G.S. 8C-901(b)(6) (reformatted for clarity). This rule addresses authentication of outgoing calls (i.e., calls placed to the assigned telephone number of a person or business), on the grounds that “the calling of a number assigned by the telephone company reasonably supports the assumption that the listing is correct and that the number is the one reached.” G.S. 8C-901(b)(6), Official Commentary.
When a call is placed to the phone number of a person, “circumstances, including self-identification” can sufficiently establish that the person answering is, in fact, the person who was called. G.S. 8C-901(b)(6)(A). Authenticating the recipient of a phone call based on the number dialed and self-identification by the person who answers is based on “the assumption that usual conduct respecting telephone calls furnish adequate assurances of regularity” (i.e., people typically do not pretend to be someone else when answering their own phone), although the matter remains “open to exploration” by the trier of fact if warranted. G.S. 8C-901(b)(6)(A), Official Commentary. Similarly, when the call is to a business, the fact that the resulting conversation “related to business reasonably transacted over the telephone” sufficiently authenticates the identity of the business as the recipient of the call “on the theory that the maintenance of the telephone connection is an invitation to do business without further identification.” G.S. 8C-901(b)(6)(B), Official Commentary.
Establishing the identity of the person or business receiving the phone call only authenticates the source of the statements. The substance of whatever the recipient said during the call may still be hearsay that must fall within a hearsay exception to be admissible. See, e.g., State v. Head, 79 N.C. App. 1 (1986) (after detective testified that she had called 13 hospitals looking for anyone matching description of alleged murder victim whose body was never found, prosecutor’s question asking the detective what she heard or learned from those calls was soliciting impermissible hearsay testimony).
By contrast, when the phone call at issue is an incoming call (e.g., where the testifying witness received a phone call from a person claiming to be the defendant), the rationale for presuming the person’s identity no longer applies; therefore, self-identification by the caller “is not sufficient evidence of the authenticity of the conversation" and "additional evidence of his identity is required.” G.S. 8C-901(b)(6), Official Commentary. See, e.g., State v. Jones, 137 N.C. App. 221 (2000) (state failed to properly authenticate calls where witnesses who testified did not recognize caller's voice and simply accepted caller's self-identification).
The identity of the person placing an incoming phone call may be authenticated by other means under Rule 901, such as “the content of his statements or the reply technique, under [Rule 901(b)(4)], or voice identification, under [Rule 901(b)(5)].” G.S. 8C-901(b)(6), Official Commentary. See, e.g., State v. Cox, 344 N.C. 184 (1996) (identification of defendant as person talking with murder victim on telephone prior to murder was sufficiently authenticated by quick succession of calls and nature of conversation, as well as witness's familiarity with defendant's attempts to contact victim and breakdown of their relationship and victim’s daughter identifying defendant as the caller); State v. Mobley, 206 N.C. App. 285 (2010) (circumstantial evidence authenticated caller's identity in recorded jail call where it was made to the same number as defendant's subsequent calls, featured a voice similar to defendant's on other calls, undercover officer who interacted with defendant recognized defendant’s voice, caller identified himself as defendant, and the substance of the call concerned events that were substantially similar to the circumstances of defendant's arrest).
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.”
G.S. 8C-901(b)(7). In general, all that is required to authenticate a public record (e.g., tax records, medical examiner’s report, or DMV records) is a showing that the document: (i) came from the appropriate office; and (ii) is the type of document regularly created and kept by that office. “Public records are regularly authenticated by proof of custody, without more. […] The example extends the principle to include data stored in computers and similar methods, of which increasing use in the public records area may be expected.” G.S. 8C-901(b)(7), Official Commentary (internal citations omitted). See, e.g., State v. Oxendine, 112 N.C. App. 731 (1993) (testimony from records custodian that tax records at issue were generated and stored by the tax department was sufficient to authenticate them); State v. Johnson, 25 N.C. App. 630 (1975) (official notice and record of revocation of defendant's driving privilege and attached certificate required by statute to prove that notice had been mailed to motorist were admissible, even though the certificate was only initialed by employee of the Department of Transportation and did not contain his full signature or notarization); accord, State v. Wilson, 313 N.C. 516 (1985); State v. Miller, 288 N.C. 582 (1975); State v. Letterlough, 6 N.C. App. 36 (1969).
For more information about what types of evidence qualify as public records (that is, “a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office”), see the related Evidence entry on Hearsay Exceptions: Public Records [Rule 803(8)].
For more information about public records that are deemed self-authenticating, see the related Evidence entry on Self-authentication [Rule 902].
Ancient Documents or Data Compilations
“Evidence that a document or data compilation, in any form,
G.S. 8C-901(b)(8) (reformatted for clarity). Rule 901(b)(8) recognizes that as long as there is no “suspicion” regarding the authenticity of a document or other record that has been in been in existence for more than 20 years, the evidence can be authenticated simply by the fact it was found in a place where, if it were authentic, it would likely be found. See, e.g., Rowan County Bd. of Educ. v. U.S. Gypsum Co., 103 N.C. App. 288 (1991) (holding that lab reports and other records found in company’s files were admissible under Rule 901(b)(8) where “no suspicion concerning the authenticity of those documents is raised by their condition or internal consistency; their archival locations were logical for authentic documents; and they had been in existence for more than twenty years”). See also United States v. Habteyes, 356 F. Supp. 3d 573 (E.D. Va. 2018) (applying comparable Federal Rule of Evidence 901(b)(8) and holding that an old ledger containing names and other information about co-conspirators, found in a place where it would likely be if genuine, was authenticated and admissible as an ancient document).
Rule 901(b)(8) applies to documents and data compilations “in any form,” which includes “data stored electronically or by other similar means.” G.S. 8C-901(b)(8), Official Commentary. The inclusion of computer records is a necessary expansion of the common law rule governing ancient documents “in view of the widespread use of methods of storing data in forms other than conventional written records.” Id. However, since the physical “condition” of computer records will usually not be subject to inspection or evaluation in the same way that traditional paper records would be, “the importance of custody or place where found increases correspondingly.” Id.
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.”
G.S. 8C-901(b)(9). Rule 901(b)(9) is “designed for situations in which the accuracy of a result is dependent upon a process or system which produces it.” G.S. 8C-901(b)(9), Official Commentary. “X-rays afford a familiar instance” of when this type of authentication could be used, along with more recent developments such as computer processes or systems. Id.
Under Rule 901(b)(9), the results of a process or system can be authenticated by evidence that shows the process or system itself is reliable and accurate (e.g., testimony of a witness who is familiar with the process or system and knows that it works). See, e.g., State v. Snead, 368 N.C. 811 (2016) (“Recordings such as a tape from an automatic surveillance camera can be authenticated as the accurate product of an automated process under Rule 901(b)(9)” (internal quotation omitted); accord, State v. Fleming, 247 N.C. App. 812 (2016); State v. Ross, 249 N.C. App. 672 (2016). For further discussion regarding authentication and foundation for photos and videos, see the related Evidence entry on Common Types of Evidence: Photos and Videos.
Alternatively, if the “process or system” at issue is so routine or commonplace that it could be deemed generally known and not reasonably subject to dispute, the judge may simply take judicial notice of that fact for authentication purposes. See G.S. 8C-901(b)(9), Official Commentary (noting that the rule “does not, of course, foreclose taking judicial notice of the accuracy of the process or system”). For further discussion about proper subjects of judicial notice, see the related Evidence entry on Judicial Notice [Rule 201].
Methods Provided by Statute
“Any method of authentication or identification provided by statute.”
G.S. 8C-901(b)(10). The final provision of Rule 901 “makes clear that methods of authentication provided by the Rules of Civil Procedure or other statutes are not intended to be superseded.” G.S. 8C-901(b)(10), Official Commentary. See generally State v. Lindsey, 798 S.E.2d 811 (N.C. App. 2017) (unpublished) (noting that Rule 901(b)(10) expressly allows statutes such as the one at issue in this drug case, which provided a “method to establish chain of custody through a self-authenticating written statement”). Thus, if another rule or statute provides a specific method for authenticating a particular item of evidence, compliance with that statute is deemed sufficient to satisfy the authentication requirements of Rule 901. For reference, several of the most common statutes that modify the authentication requirements for certain types of evidence in criminal cases are listed and briefly summarized below:
- Rule 45(c), N.C. Rules of Civil Procedure: certified copies of hospital medical records requested under subpoena duces tecum are admissible when accompanied by affidavit of authenticity.
- G.S. 8-44.1: setting forth authentication requirements and procedures for admissibility of hospital medical records.
- G.S. 15A-611: lab analysis report admissible at probable cause hearing without testimony to authenticate the report.
- G.S. 20-139.1(b4): court must take judicial notice of preventive maintenance records for breath-testing instruments.
Additionally, there are a number of “notice and demand” statutes that allow the state to introduce certain types of documents (e.g., chain of custody forms or forensic analysis reports) without the need for live testimony by the author, as long as the specified criteria are met:
- G.S. 8-58.20(a)-(f): laboratory report of a written forensic analysis is admissible if the state gives specified notice to defendant and defendant fails to timely object.
- G.S. 8-58.20(g): chain of custody statement for evidence subject to forensic analysis is admissible if the state gives specified notice to defendant and defendant fails to timely object.
- G.S. 20-139.1(c1): chemical analysis of blood or urine is admissible if the state gives specified notice to defendant and defendant fails to timely object.
- G.S. 20-139.1(c3): chain of custody statement for tested blood or urine is admissible if the state gives specified notice to defendant and defendant fails to timely object.
- G.S. 20-139.1(e1), (e2): chemical analyst’s affidavit may be used (in district court) without further authentication if the state gives specified notice to defendant and defendant fails to timely object.
- G.S. 90-95(g): certified chemical analysis report of controlled substance may be used without further authentication if the state gives specified notice to defendant and defendant fails to timely object.
- G.S. 90-95(g1): chain of custody statement in controlled substance cases may be used without further authentication if the state gives specified notice to defendant and defendant fails to timely object.