Authentication of Writings

Question 1

What 3 potential issues are likely when a writing is at issue?

Answer 1

(1) authentication
(2) best evidence
(3) hearsay

Question 2

In what ways may a WRITING be authenticated? What are the rule for each method?

Answer 2

(1) witness’s personal Knowledge (observation of writing/signing)
(2) proof of Handwriting (layperson, expert comparison, or jury comparison)
(3) Circumstantial (appearance, contents, distinctive characteristics, etc.)
(4) Ancient documents (≥20 years old, facially free of suspicion, and found in a place of natural custody)
(5) Solicited reply (evidence that document was received in response to prior communication to alleged author)
(mnemonic: SHACK)

Question 3

List the self-authenticating documents

Answer 3

(1) Official publications
(2) certified copies of public Records on file in public office
(3) Newspapers or periodicals
(4) trade inscriptions and Labels
(5) Acknowledged document (notarized with author)
(6) commercial Paper)
(mnemonic: LA PORN)

Question 4

How is a photograph authenticated?

Answer 4

Witness testimony on personal knowledge that the photo is a fair and accurate representation of what it portrays

Question 5

What is the best evidence rule?

Answer 5

A party seeking to prove the contents of a writing must either:
•produce the original writing, or
• provide an acceptable excuse for its absence

Question 6

When there is an excuse for the original under the best evidence rule, how may the contents of a writing be proven?

Answer 6

by secondary evidence: oral testimony or a copy

Question 7

What other forms count as writings under the best evidence rule?

Answer 7

sound recordings, x-rays, and films

Question 8

When are the two most common situations when the best evidence rule arises?

Answer 8

(1) legally operative documents, or

(2) witness testifies to facts she learned solely from reading about them in a writing

Question 9

What is an original writing for the best evidence rule?

Answer 9

ORIGINAL (any of the following):
• whatever the parties intended to be the original
• any negative of film or print from it
• computer print-out
DUPLICATE:
• any counterpart produced by any mechanical means that accurately reproduced the original

A handwritten copy is neither an original or a duplicate

Question 10

When is a duplicate admissible under the best evidence rule?

Answer 10

to same extent as original, unless it would be unfair, or genuine question is raised as to authenticity of original

Question 11

Under the best evidence rule, what are allowable excuses for non-production of the original?

Answer 11

(1) lost or cannot be found with due diligence
(2) destroyed without bad faith
(3) cannot be obtained with legal process

Question 12

What are the “escapes” from the best evidence rule?

Answer 12

• voluminous documents can be presented through a summary or chart of the originals would be admissible and are available for inspection
• certified copies of public records
• collateral documents