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49. After hearing the officer's testimony, what standard should the court use in determining whether the items have been properly authenticated?
A defendant has been charged with being a felon in possession of a firearm. He has maintained that he was only an overnight guest in the apartment in which the firearm was recovered. At trial, the prosecution seeks to offer various items of evidence found at the apartment, including mail addressed to the defendant at that apartment, various receipts bearing the defendant's credit card information, and clothing of a size that would fit the defendant. The prosecution wishes to use the testimony of the law enforcement officer who found the items in the apartment during a search to authenticate them.
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A is incorrect. To authenticate the items under FRE 901, the prosecution must produce evidence «sufficient to support a finding» that the items are what the prosecution claims them to be. The court is not required to make a finding that the prosecution has made a «clear and convincing» showing that the items are what the prosecution claims them to be. «Clear and convincing» is too high a standard and would result in keeping relevant evidence from the jury.
B is incorrect. Proof of the chain of custody—what happened to the evidence after it was initially seized from the apartment—is one way of authenticating evidence, but it is not necessary here, since the prosecution has called a witness who will testify that he saw each of the items in the apartment.
D is incorrect. FRE 901 requires proof sufficient to support a finding that the items are what the prosecution claims them to be. Requiring a court to find by the higher «preponderance of the evidence» standard that the items are what the prosecution claims them to be would result in keeping relevant evidence from the jury.