Authentication & Best Evidence

Question 1

What are the 6 self-authenticating documents (i.e. no need to est. foundation)?

Answer 1

1) Official gov’t publications
2) Certified copies of public OR private records on file in public office (e.g. a mtg/deed is a PRIVATE document that is filed in a public office)
3) Newspapers or mags
4) Trade inscriptions and labels (e.g. a label on a bottle of water)
5) Notarized (aka “acknowledged”) document 6) Commercial paper (i.e. the signatures are deemed genuine)

Question 2

What are the 5 methods ofauthentication? NOTE: NY Distinction

Answer 2

1) Witness’ personal knowledge (e.g. witness observed X sign the document; can verify the photograph)
2) Proof of handwriting by: (i) Lay person opinion (e.g. verifies based on familarity w/ handwriting - can’t be familiar only for trial); (ii) Expert comparison opinion (e.g. handwriting expert); OR (iii) Jury comparison (e.g. compare document w/ example of X’s handwriting)
3) Proof by Circumstantial Evidence
4) Ancient document rule: authenticity may be inferred IF the document is (i) ≥ 20 yrs old [NY DISTINCTION: document must be ≥ 30 yrs old]; (ii) facially free of suspicion; AND (iii) found in natural place
5) Solicited Reply Doctrine: doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author (e.g., π mails K offer to ∆, properly addressed and posted, and later receives an acceptance purportedly signed by X)

Question 3

What are the3 questions you need to ask for written evidence?

Answer 3

1. Has it been authenticated?
2. Is it the best-evidence?
3. Is there hearsay?

Question 4

What is the standard for a document to be admissible (based on its authenticity)?

Answer 4

The Conditional Relevancy Std:A document is admissible if ct determines that there is suffiicent evidence from which a reasonable juror could conclude doc is genuine

Question 5

What is the purpose of the authentication?

Answer 5

If the relevance of a writing or picture depends on its source or authorship, a showing must be made that the writing is authentic (genuine) This process is “laying foundation”

Question 6

What is the Best Evidence Rule?

Answer 6

Best Evidence Rule: A party who seeks to prove the contents of a writing must EITHER: (i) PRODUCE the “original writing”; OR (ii) provide an ACCEPTABLE EXCUSE for its absence (and provide secondary testimony like oral testimony or copy)

Note: “Writing” includes sound recordings, X-rays, and films

Question 7

When does the Best Evidence Rule apply?

Answer 7

When a party is seeking to prove the contents of a writing in TWO situations…

1) the writing is a legally operative document in the present case (e.g. patent, deed, mtg, divorce decree, writen K)
2) witness is testifying to facts that she learned SOLELY from reading about them in a writing (BUT, not when witness has PERSONAL KNOWLEDGE independent of doc)

Question 8

What is an original writing? NOTE: NY distinction

Answer 8

Original writing is a

1) Writing or its counterpart;
2) Negative of film or print;
3) Print-out of computer data; OR
4) Duplicates: photocopy (mechanical)

Duplicates: Photocopies are admissible (to same extent as original) UNLESS it would be UNFAIR(e.g. a fuzzy photocopy) or there is a genuine question as to its AUTHENTICITY

NY DISTINCTION: photocopies are acceptable BUT only if the copies were made in ordinary course of business (i.e. not made for only for litigation)

NOTE: handwritten copy is not original OR duplicate

Question 9

What counts as a valid EXCUSE for non-production of original writing (under Best Evidence Rule)?

Answer 9

Excuses for non-production of ORIGINAL:

1) lost & can’t be found w/ due diligence;
2) destroyed w/o bad faith;
3) can’t be obtained w/ legal process (beyond ct’s subpoena pwr)

NOTE: Secondary evidence would still be necessary if an excuse is est. The ct has to be PERSUADED by a perponderance of the evidence that an excuse has been est.

Question 10

When does the Best Evidence Rule NOT apply?

Answer 10

BER does NOT apply when…

1) Witness with personal knowledge testifies to a fact that exists independently of the writing that records the fact
2) Voluminous records can be presented viasummary or chart; PROVIDED orignal records would be admissible and are available for inspection
2) Certified copies of public records
3) Collateral docs (i.e. docs not important for case) can be proven by secondary evidence

Question 11

How do you authenticate photographs?

Answer 11

Witness testifies on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed.