Wednesday, January 5, 2011
Federal Rule of Evidence 901(b)(3) allows for authentication by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated." But do judges actually allow for such authentication in practice? In Jackson v. Denno, 378 U.S. 368 (1964), the Supreme Court disapproved of a procedure under which questionable confessions were submitted to jurors to determine their voluntariness. If jurors found confessions to be voluntary, they would be admitted, and the jurors could use the confessions as evidence of guilt. If jurors found confessions to be involuntary, they would be excluded, and judges would tell jurors not to use the confessions as evidence of guilt. According to the Court, the problem was that in this latter case, jurors couldn't be trusted to completely ignore the involuntary confessions and could use them to find defendants guilty in close cases (and this same logic eventually led to the creation of the Bruton doctrine).
This being the case, how can courts allow jurors to determine authenticity under Rule 901(b)(3)? If there's an incriminatory writing allegedly written by the defendant, wouldn't submitting the disputed writing to the jury create the same problem raised above? I posed this question a while ago on the Evidence Professor Listserv, and one response was that courts don't actually allow for authentication via jury comparison under Rule 901(b)(3). Instead, in practice, what typically happens is that before a judge submits a disputed writing to jurors, the judge first finds that reasonable jurors could find that the defendant or other party wrote the disputed writing by a preponderance of the evidence -- establishing authenticity -- and the jurors then decide what weight to give to the evidence. And indeed, most cases appear to have reached this exact conclusion. That was not the case, though, with the recent opinion of the Eleventh Circuit in United States v. Ramentol, 2010 WL 5373885 (11th Cir. 2010).
In Ramentol, Aurora Ramentol, Jacqueline Perez-Castillo, Lizabeth Perez, and Erick Clavijo appealed their convictions on one count each of wire fraud, resulting from their participation in a mortgage fraud scheme. To prove that the appellants committed these crimes, the prosecution needed to prove that each of the appellants signed closing documents submitted into evidence. To establish that the appellants signed these documents, the prosecution merely submitted known writings by each of the appellants along with the closing documents for the jurors to compare under Federal Rule of Evidence 901(b)(3).
After the appellants were convicted, they appealed, claiming, inter alia, that this method of authentication was improper. The Eleventh Circuit disagreed, finding that
Federal Rule of Evidence 901(b)(3) provides that a document may be authenticated through comparison by the trier of fact with specimens which themselves have been authenticated. This Court has previously held, consistent with that rule, that a jury is entitled to make a comparison between a known, genuine signature of a defendant, and a signature on a challenged document purporting to be that of the defendant, to decide whether the defendant signed the document.
As support for this conclusion, the court cited to, inter alia, United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), which held that
It was undisputed that the genuine signature of Cashio appeared on other documents that were in evidence. Without more, the jury was entitled to make a comparison of the handwriting of Cashio known to be genuine with the signature appearing on the returns and decide whether Cashio had signed the returns.