Documentary Evidence: Intro and Authentication Flashcards
What is “documentary evidence”?
“documentary evidence” = evidence in the form of documents. Includes photographs, X-rays, printed emails
What issues arise with regards to “documentary evidence”?
- Authentication
- Self-Authenticating Documents
- Best Evidence rule
What is the GENERAL RULE with regards to authentication of documentary evidence?
What is the CA rule?
- writing must be authenticated by PROOF that shows the writing is what the proponent claims it to be
- the proof must be SUFFICIENT to support a jury finding of genuineness
CA RULE –> SAME
What are some examples of proper authentication (6)?
- Pleadings or stipulation
- admissions
- eye witness testimony
- handwriting verification
- ancient documents
- reply letter doctrine
What is the rule re: authentication by admission?
A writing may be authenticated by evidence that the party against whom it is offered has either:
- ADMITTED its authenticity; OR
- ACTED UPON IT as authentic
What is the rule re: authentication by eye witness testimony?
A writing may be authenticated by testimony of:
- One who SEES it executed; or
- HEARS it acknowledged
NOTE –> they need not be a subscribing witness
What is the rule re: authentication by handwriting verification?
May be authenticated by:
- NON-expert with personal knowledge of writer’s handwriting; OR
- EXPERT who has compared writing to other known samples
- to TRIER OF FACT by comparison of samples
What is the rule w regards to authentication of “ancient documents” (3)
WHAT is the CA distinction?
Doc may be authenticated by evidence that:
- it’s AT LEAST 20 years old*; AND
- it is in such CONDITION as to be free from suspicion as to authenticity; AND
- was FOUND in such place where such a writing is LIKELY to be kept
NOTE –> don’t confuse w ancient documents hearsay rule
*CA DISTINCTION –> must be 30 years old
What is the rule re: authentication via “Reply Letter Doctrine”?
“reply letter doctrine” - provides that a writing may be authenticated by evidence that it was written in response to a communication sent to claimed author
What is the rule w regards to authentication of photographs?
In general –> photos must be verified by witness as a correct representation.
NOTE –> if no person can authenticate, it can be shown that camera was properly operating and photo was developed from camera
NOTE –> witness need not be photographer, just witness familiar w the scene
What is the rule w regards to authentication of X-rays, electrocardiograms etc ?
- CANNOT be authenticated by witness stating it’s an accurate representation
- INSTEAD –> must be shown that:
1. process used is accurate,
2. machine was in working order
3. operator knew how to operate it
4. custodial chain must be established to show it was not tampered with
What is the GENERAL rule w/ regards to authentication of ORAL STATEMENTS?
When a statement is admissible ONLY if made by a particular person, authentication as to the IDENTITY of speaker is required
EXAMPLE –> an admission
With regards to authentication of ORAL statements, who may make a voice ID?
A 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 identifying the voice
With regards to authentication of ORAL statements, what is the rule w regards to identifying a voice in a telephone conversation?
Authentication of voice may be done by -
Any party to the call who testifies that:
- he RECOGNIZED other party’s voice; OR
- speaker had KNOWLEDGE of facts only a particular person would have known; OR
- he called a PARTICULAR NUMBER and that voice answered; OR
- he called a BUSINESS and talked to person who answered re matters relevant to the business
What is the rule re: “self-authenticating documents”?
Certain records are self-authentication
Result –> they do NOT require extrinsic evidence for authentication.
