Authenticating Evidence Under FRE 901 in Counterfeiting Trials

Authenticating Evidence in Counterfeiting Trials: What You Need to Know

Counterfeiting cases often rely heavily on documentary evidence to establish that an item is fake. But before any evidence can be admitted in court, it must be properly authenticated under Rule 901 of the Federal Rules of Evidence (FRE). This simple rule causes major headaches for lawyers dealing with counterfeits.
So how do you authenticate evidence in a counterfeiting case? What standards apply? And what are some common authentication methods used for items like fake luxury goods, currency, or documents? This article breaks it down.

Why Authentication Matters

Authentication is crucial in any trial, but especially with counterfeits. The whole case hinges on proving an item is not real. So if key evidence is excluded for lack of authentication, the consequences can be dire.
As one court put it, “If the evidence is not admitted, there will be no proof the items were counterfeit. If there is no such proof, there is no case.”1

What Does FRE 901 Require?

Under FRE 901(a), to authenticate an item of evidence “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”2

This is called the “prima facie” standard. The evidence doesn’t have to be rock solid at this stage–just enough so that a reasonable jury could find the item to be authentic. If that threshold is met, any remaining questions go to the evidence’s weight rather than admissibility.
So Rule 901 sets a pretty low bar. But in counterfeiting cases, even meeting this minimum standard can be tricky when dealing with fake luxury goods, currency, documents, or other items whose authenticity is disputed.

Common Authentication Methods

Fortunately, FRE 901(b) provides examples of evidence that satisfies the prima facie standard. Some methods commonly used in counterfeiting trials include:
– Witness Testimony. Having a witness with personal knowledge testify that an item is what it’s claimed to be. This is especially common with investigators who personally examined suspected counterfeits.3

– Expert Opinion. Getting an expert’s opinion that an item fits the profile of a counterfeit. For example, an art expert testifies why a painting is fake or customs inspector explains flaws revealing luggage is counterfeit.4

– Comparison to Authentic Examples. Comparing the item to one known to be genuine. Such as comparing a suspect Rolex to a certified authentic Rolex to highlight differences.5

– Trade Inscriptions, Logos, etc. Showing that identifying marks like a branded logo, trademark, serial number, or quality certificates differ from genuine versions.
– Circumstantial Evidence. Offering other facts and circumstances allowing a reasonable inference that the item is fake. Such as suspicious behavior by a defendant in selling counterfeit goods.
Prosecutors often use a combination of these methods to build the strongest authentication case possible. But the precise approach depends on the specifics of each counterfeiting case and items involved.

Common Authentication Pitfalls

While FRE 901 sets a low threshold, lawyers still manage to trip over authentication issues in counterfeiting cases. Some common pitfalls include:
– No Witness to Testify. Failing to designate a witness who can testify from personal knowledge why an item is counterfeit. Leaving prosecutors unable to meet even the prima facie standard.
– Unqualified Expert. Using an expert who lacks proper qualifications to determine authenticity issues in a given case. For complex counterfeits, detailed expertise is often needed.
– Insufficient Comparison. When using comparison to authenticate, failing to compare to adequate genuine examples, or not highlighting enough key differences. Leaving doubt whether differences are due to counterfeiting or normal product variations.
– Weak Circumstantial Evidence. Offering circumstantial evidence about counterfeiting that is too speculative, conclusory, or disconnected from the actual items at issue. Failing to tell a cohesive story.
Lawyers who sidestep these pitfalls can confidently admit evidence and focus on proving their case. Those who stumble may end up with key exhibits excluded and no counterfeiting charges at all.

Developing an Authentication Strategy

The authentication rules are technical, but basically just require common sense. The key is developing an authentication strategy tailored to the specific items and witnesses involved.
By identifying detailed evidence about why an item is fake, and witnesses who can explain it, lawyers can readily meet the flexible prima facie standard. But this takes forethought and care, not something thrown together at the last minute.
Questions to consider include:

• – What exactly about this item shows it’s counterfeit?
• – Who has examined it personally and can testify about those signs of fakery?
• – What expertise is needed to spot those attributes of counterfeiting?
• – What genuine item can we compare it to in order to highlight key differences?
• – Is there other evidence allowing an inference of counterfeiting?

Carefully developing an authentication strategy around these issues is the best way to ensure critical evidence gets admitted.
Of course, admitting evidence is still only half the battle. Lawyers must still convince the jury that an item truly is counterfeit rather than genuine. But developing a rock-solid authentication foundation makes the rest of their case much smoother.

The Bottom Line

Authentication issues can easily derail counterfeiting cases when not handled properly. While meeting the flexible FRE 901 standard should be straightforward, prosecutors still manage to trip over these hurdles.
By understanding what Rule 901 requires, using common authentication methods for counterfeits, and avoiding pitfalls, lawyers can assure critical evidence gets admitted. Building an authentication strategy tailored to the specific case is key.
Compared to proving substantive elements of counterfeiting charges, authentication is a relatively simple affair. But counterintuitively, it often causes the most headaches at trial. Careful attention to authentication from the start helps avoid disaster later.
So while authenticating evidence can be a pain, it’s an unavoidable step in any counterfeiting prosecution. Don’t let it ruin an otherwise solid case!
References:
1
United States v. Hassan, 742 F.3d 104 (4th Cir. 2014)
2
Fed. R. Evid. 901
3
Galves, Fred. “Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance.” Harvard Journal of Law & Technology 13, no. 2 (2000): 161-302
4
“Four Ways to Authenticate Copies of Webpages and Other ESI Before Trial,” ABA Section of Litigation Consumer Litigation Newsletter (July 31, 2019)
5
Imwinkelried, Edward J. Evidentiary Foundations. LexisNexis, 9th ed., 2015
“Four Ways to Authenticate Copies of Webpages and Other ESI Before Trial,” ABA Section of Litigation Consumer Litigation Newsletter (July 31, 2019)
United States v. Hassan, 742 F.3d 104 (4th Cir. 2014)
Galves, Fred. “Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance.” Harvard Journal of Law & Technology 13, no. 2 (2000): 161-302