Authentication, Writings, and Real Evidence Flashcards
What are the 3 issues to be on alert for in any Evidence question regarding a writing?
(1) Authentication
(2) The best evidence rule
(3) Hearsay
What is the general rule regarding admissibility of writings or secondary evidence of a writing’s contents?
A writing or any evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine).
Writing authentication: opponent’s admission
A writing can be authenticated by evidence that the party against whom the writing is offered has either admitted its authenticity or acted upon it as authentic.
Writing authentication: eyewitness testimony
A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it does not have to be from a subscribing witness unless required by statute.
Writing authentication: handwriting verification
A writing can be authenticated by evidence that the maker’s is genuine. This evidence may be in the form of:
(1) The opinion of a lay witness (nonexpert) who has familiarity with the alleged writer’s handwriting in the course of normal affairs (i.e., not acquired for purposes of the current litigation);
(2) The opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting; or
(3) The fact-finder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting
HYPO: During plaintiff’s case-in-chief, Witness testifies that, in her opinion, the document was written by X because she is familiar with X’s handwriting. X advises the judge that he intends to testify during the defense that the document is a forgery and argues that the judge cannot admit the document into evidence until the judge is personally convinced that the document was written by X. Good argument?
No. X may argue that the document is a forgery, but the evidence is admissible based on Witness’s testimony that she is familiar with X’s handwriting. The judge need not be convinced that X wrote the document. The proper standard is whether there is sufficient evidence from which a reasonable juror could be convinced that the document is genuine, which is met here.
Writing authentication: ancient document rule
A document can be authenticated by evidence that it:
(1) Is at least 20 years old when offered into evidence;
(2) Is in a condition that creates no suspicion as to authenticity; and
(3) Was found in a place where such a writing would likely be kept
Note that while documents may be authenticated if they are at least 20 years old, the related hearsay exception for ancient documents will only apply if the document was prepared before 1998.
Writing authentication: reply letter doctrine
A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author.
Writing authentication: photographs and videos
Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph or video; a witness familiar with the scene, object, or person is sufficient.
HYPO: Alice testifies that she observed the auto accident that occurred at the intersection of Hickory and Elm Streets on July 1, 2021. She is shown a photograph and asked whether it is a fair and accurate portrayal of the Hickory and Elm intersection as she remembers is on July 1, 2021. “Objection: No foundation that Alice was the photographer.” What ruling?
Overruled. Alice does not need to be the photographer to authenticate the photograph. She need only be familiar with the scene.
Writing authentication: unattended camera
If a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera.
Writing authentication: X-ray pictures, electrocardiograms, etc.
Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.
What is the general rule for authentication of oral statements?
When a statement is admissible only if said by a particular person (for example, as a statement by an opposing party), authentication as to the identity of the speaker is required.
Oral statements: voice identification
A voice can 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.
Oral statements: telephone conversations
Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
(1) They recognized the other party’s voice;
(2) The speaker had knowledge of certain facts that only a particular person would have;
(3) They called a particular person’s number and a voice answered as that person or that person’s residence; or
(4) they called a business and talked with the person answering the phone about matters relevant to the business
What are the different kinds of self-authenticating documents?
(1) Domestic public documents bearing a seal, and similar foreign public documents;
(2) Official publications (such as a government pamphlet);
(3) Certified copies of public records or private records on file in a public office;
(4) Newspapers and periodicals;
(5) Trade inscriptions and labels;
(6) Acknowledged (notarized) documents;
(7) Commercial paper (including signatures thereon) and related documents; and
(8) Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection
What is the “best evidence rule”?
(More accurately called the “original document rule”)
To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence.
HYPO: Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a written purchase order. In his suit for breach of contract, Bubba takes the stand and testifies, “I didn’t get what I ordered. The purchase order called for 3-inch jumbo shrimp, and they delivered 1-inch mini-shrimp.” Which of the following would be a valid objection to Bubba’s testimony?
(1) The actual shrimp are the best evidence of what was delivered.
(2) The purchase order is the best evidence of what the contract required.
(2) is a valid objection. Bubba is testifying to the contents of the contract, but the facts do not indicate that he has produced the original purchase order in evidence. Because the terms of the purchase order are material to the disposition of the case, it must be produced, or else Bubba may not testify to the contents of the purchase order unless he has a satisfactory excuse for not producing the original purchase order.
When does the best evidence rule apply?
The rule applies in 2 principal situations:
(1) Where the writing is a legally operative or dispositive instrument (that is, the writing itself creates rights and obligations); or
(2) Where the knowledge of a witness concerning a fact results from having read it in the writing
HYPO: Barney the Burglar is charged with breaking into a warehouse. No one witnessed the break-in, but it was captured on film by an unmanned surveillance camera. Officer Sipowicz testifies that he watched the film and it clearly shows Barney the Burglar. Objectionable?
Yes, on two grounds. First, there is nothing in the facts to indicate that the surveillance video has been produced in evidence, which is required for Sipowicz to testify as to its contents. Second, there is nothing in the facts to indicate that the prosecution has shown that the camera was properly operating at the relevant time or that the video was downloaded from the camera.
True or false: even if the witness has personal knowledge of the fact to be proved, if the fact happens to be recorded in a writing, the original writing must be produced to satisfy the best evidence rule.
False. Oral testimony of the fact may be given without producing the original writing that recorded the event so long as the witness has personal knowledge of the fact to be proved independent of the writing.
HYPO: Alger Hiss is charged with committing perjury during his testimony at a congressional hearing. At trial, a congressional aide offers to testify to what Hiss said during the hearing.
True or false: the aide’s testimony is improper because the transcript is the best evidence of what Hiss said.
False. The aide has personal knowledge of what Hiss said because she was present at the time of Hiss’s testimony.
HYPO: Worker sues Boss for nonpayment of wages and failure to reimburse for expenses.
(1) Without producing any documents, Worker testifies, “I worked 100 hours and my expenses were $1,000.” Boss objects: “best evidence rule. Produce the time sheets and expense receipts.” Results?
(2) Without producing any documents, Boss testifies: “Worker’s time sheets show she worked only 80 hours, and the receipts show only $500 in expenses.” Result?
(1) Overruled. The best evidence rule does not apply here. Timesheets are not legally operative documents, and Worker is testifying to facts that he has personal knowledge of independent of the timesheets.
(2) Best evidence rule objection would be sustained. Boss only knows of these facts because he saw them in the writing, so he has to produce the time sheets and expense reports.
In the context of writings, what constitutes an “original”?
The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original. This includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information.
