Evidence: Real and Documentary Evidence

Question 1

A writing may be authenticated by evidence _________.

Answer 1

1. Evidence that the party against whom the writing is offered has acted upon the writing as authentic.
2. Evidence that the party against whom the writing is offered has either admitted its authenticity or acted upon the writing.
3. Circumstantial evidence

Question 2

Evidence Requirement for Authentication of Real Evidence

Answer 2

To support a finding that the matter is what its proponent claims it is.

**not required to establish its genuineness by a preponderance of the evidence.

Question 3

Original Evidence

Answer 3

Real evidence that has some connection with the transaction that is in question at the trial.

Question 4

Real Evidence Types

Answer 4

1. Original
2. Circumstantial
3. Demonstrative

Question 5

Circumstantial Evidence

Answer 5

Facts about the object are proved as a basis for an inference that other facts are true.

Question 6

Demonstrative Evidence

Answer 6

Real evidence that is prepared, such as sketches or models to be shown to the trier of fact.

Question 7

Authentication of Evidence

Answer 7

An object must first be identified as being what the proponent claims it to be.

Question 8

Common Authentication of Real Evidence

Answer 8

Recognition testimony

By establishing a chain of custody

Question 9

Contents of voluminous writings

Answer 9

May be presented in the form of a summary

Question 10

When is Secondary evidence of a writing permitted?

Answer 10

Only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent.

Question 11

Three Questions of Preliminary Fact for the Jury

Answer 11

1. Whether the original ever existed;
2. Whether the writing, recording, or photograph produced at trial is an original;
   AND
3. Whether the evidence offered correctly reflects the contents of the original.

Question 12

Oral Statements that are to be introduced at trial must be authenticated IF

Answer 12

The ID of the speaker is important.

Question 13

Under the ________, if an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and constitutes the only evidence of it.

Answer 13

Parol Evidence Rule

Question 14

Essence of the Parol Evidence Rule

Answer 14

If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and hence constitutes the only evidence of it.

All prior or contemporaneous negotiations or agreements are merged into the written agreement.

Not admissible to add to, detract from, or alter the agreement as written.

Question 15

Essence of the Best Evidence Rule

Answer 15

In proving the terms of a writing (recording, photo, xray), where the terms are material, the original writing must be produced.

Secondary evidence of the writing is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent.

Question 16

What if the condition of the object is significant?

Answer 16

The condition must be shown to be substantially the same at trial.

Question 17

What if the evidence is of a type that is likely to be confused or can be easily tampered with?

Answer 17

The proponent of the object must show that it has been held in a substantially unbroken chain of possession but does not need to negate all possibilities of substitution or tampering.

Question 18

What falls within the best evidence rule?

Answer 18

Only to negotiations or agreements made prior to, or at the time of, the execution of the written contract.

Essential repositories of the facts recorded

 - Written contracts
 - Deeds
 - Wills 
 - Judgments
 - Divorce

• *Not Birth, Marriage, and Death
• *Not apply to Subsequent modifications of the written contract.

Question 19

Under the best evidence rule an “original” means not only the writing or recording itself, but also a _________ intended by the person executing it to have the same effect as an original.

Answer 19

Counterpart

Question 20

What is an “original” writing?

Answer 20

The writing or recording itself or any counterpart intended by the person executing it to have the same effect as an original.

Question 21

What is a “duplicate?”

Answer 21

An exact copy of an original.

Admissible the same as originals in federal courts.

Question 22

What are the exceptions to admissibility of a duplicate?

Answer 22

1. A genuine question is raised about the original’s authenticity;
   OR
2. Under the circumstances, it would be unfair to admit the duplicate in place of the original.

Question 23

If helpful, in what cases may the jury review the scene?

Answer 23

Civil and Criminal

Question 24

When are negotiations or agreements are inadmissible to vary the terms of the writing?

Answer 24

If they are made prior to or contemporaneous with the writing.

Question 25

A document that is _______ does not require extrinsic evidence of authenticity as a condition to admissibility.

Answer 25

Self-authenticating

Question 26

The best evidence rule does not apply where _________.

Answer 26

The fact to be proved has an existence independent of a writing.

Question 27

For the most part, the Best Evidence Rule applies to two classes of situations.

Answer 27

1. Where the writing is legally operative or dispositive instrument such as a contract, deEd, will, or divorce decree;
   OR
2. Where the knowledge of a witness concerning a fact results from having read it in the document.