Writings and Physical Evidence

Question 1

Authentication

Answer 1

Every item of non-testimonial evidence must be authenticated.

MUST AUTHENTICATE WHEN THE IDENTITY OF THE SPEAKER IS IMPORTANT

Proving what the proponent of that evidence claims it to be

Question 2

Burden of Proof for Authentication

Answer 2

Sufficient to sustain a finding of genuineness – very low

Question 3

Admission

Answer 3

Method of authentication. Party against whom it is offered admits its authenticity or acted upon it as authentic

Question 4

Eyewitness Testimony

Answer 4

Testimony by one who sees the writing executed, hears it said, etc.

Question 5

Handwriting Verifications

Answer 5

Handwriting may be authenticated by:

(1) opinion by a nonexpert with PERSONAL KNOWLEDGE of the alleged writer’s handwriting
(2) opinion by an expert who has COMPARED the writing to samples of the maker’s handwriting
(3) comparison by the TRIER OF FACT

Question 6

Ancient Documents

Answer 6

Authenticated if:

(1) at least 20 years old
(2) does not on its face present any irregularities (erasures); and
(3) is found in a place where such a writing would likely be kept

CA: 30 years

Question 7

Reply Letter Doctrine

Answer 7

writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author

Question 8

Photographs

Answer 8

May be authenticated if a witness with PERSONAL KNOWLEDGE testifies that the content of the photograph is the same as they saw (must have been present when pic was taken)

Unattended Camera: if photograph taken when no person was present or took the photo, may be admitted if shown that camera was properly operating at the relevant time and that the photo was developed from film obtained in that camera

Question 9

Voice

Answer 9

voice may be identified by the opinion of anyone who has heard the voice at ANY TIME, including after litigation has begun and for the sole purpose of testifying

Question 10

Telephone Conversation

Answer 10

authenticated by one of the parties to the call who testifies that:

(1) he recognized the other party’s voice
(2) speaker had knowledge of certain facts that only a particular person would have;
(3) he called a particular person’s number and the voice answered as that person; or
(4) he called a business and talked with the person asnwering the phone about matters relevant to the business

Question 11

Self authenticating writings

Answer 11

(1) certified copies of public documents bearing a seal (deeds)
(2) acknowledged documents (docs where original signature is attested before a notary,
(3) official publications (government pamphlets);
(4) newspapers, periodicals
(5) commercial paper and related documents
(6) certified business records
(7) certified copies of public records
(8) trade inscriptions (tag or label that purports to have been attached in course of business and indicate control, origin, or ownership)

CA: do not include business records and trade inscriptions

Question 12

Best Evidence Rule

Answer 12

Applies ONLY if evidence is offered to prove the CONTENTS/TERMS of the writing. usually comes up when the writing is legally operative or if showing the knowledge of a witness concerning a fact results from having read the document

Includes documents, videos, photos, xrays, audio recordings, computer disks, or any tangible collection of data. “LETTERS, WORDS, NUMBERS, or their equivalent, SET DOWN IN ANY FORM”

THE RULE:
Must produce the ORIGINAL (computer printouts and certified copies of public documents are considered originals) or a DUPLICATE (copy of original produced by same impression that produced teh original or by a machine)
Exception: when there is genuine question as to authenticity of original, duplicate may not be used

Testimony regarding contents of writing may be admissible only where original is lost or destroyed, unless bad faith by proponent of testimony

Question 13

Summary of Voluminous records

Answer 13

exception to best evidence rule. When inconvenient to examine a voluminous collection of writings in court, party can present the contents in the form of a chart or witness summary

Question 14

Fact exists independent of writing

Answer 14

exception to best evidence rule. When the fact to be proved exists independent of any writing, oral testimony may be given without the original writing

Question 15

Functions of Court & Jury with best evidence rule

Answer 15

Court determines whether admissible
Jury decides
(1) whether original ever existed
(2) whether the evidence is an original; and
(3) whether the evidence offered correctly reflects the contents of the original

Question 16

Secondary Evidence Rule

Answer 16

Name for best evidence rule in California.
Applies to Criminal AND civil cases

CA: admits duplicates and other WRITTEN evidence of contents of original, like handwritten notes

Question 17

Authentication of nonunique items

Answer 17

If evidence is a type that is likely to be confused or can easily be tampered with, must present CHAIN OF CUSTODY

must show that object has been held in a substantially unbroken chain of possession

NOTE: not necessary to negate all possibilities of tampering, rather, just need to show adherence to some system of identification and custody

Question 18

Authentication of unique items

Answer 18

Witness must testify that she recognizes the object as what the proponent claims it to be