Authenticating ‘Things’ in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials

Abstract

This article explores the true nature of authentication of tangible evidence in English law and kindred jurisdictions. It first identifies general principles governing the respective roles of judge and jury in the authentication of tangible evidence embedded within the case law of England and Wales. Those principles are then compared and contrasted to the rules governing authentication of evidence under the US Federal Rules of Evidence. Finally, general principles of authentication in English law are examined in relation to the authentication of forensic science evidence; film, video, photographs and sound recordings; private documents; computer output; and recorded confessions.

STOP, You’re on Camera: The Evidentiary Admissibility and Probative Value of Digital Records in Europe

“…As to the authenticity and reliability of evidence, the English law does not statutorily address the issue and courts have usually referred to it briefly (Pattenden 2009). Nonetheless, it is arguable that courts will not admit evidence whose authenticity and reliability are questionable unless there is a legal presumption of authenticity or an agreement to this effect, especially given the strong link between relevance and authenticity (Ibid).…”

“…The difficulty associated with proving the authenticity and reliability of digital records does not mean courts will exclude them at the outset. In England, for instance, digital records have been admitted "as evidence that speaks for itself" (Pattenden 2009). Equally important, securing the authenticity and reliability of digital records is technologically feasible as the research in this field illustrates (Kuntze et al 2012).…”