Authentication, Writings, and Real Evidence

Question 1

Authentication of Writings and Spoken Statements

Answer 1

generally, a writing or any secondary evidence of its content will not be received in evidence unless writing is authenticated by proof that shows that the writing is what the proponent claims it is. Proof must be sufficient to support a jury finding of genuineness

Question 2

Methods of Authentication

Answer 2

Parties may admit genuineness of document by pleadings or by stipulation. A document can also be authenticated by other evidence

Question 3

Methods of Authentication

Opponent’s Admission

Answer 3

a writing can be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic

Question 4

Methods of Authentication

Eyewitness Testimony

Answer 4

a writing can be authenticated by testimony of anyone who saw it executed or head it acknowledged. Testimony can be from anyone; doesn’t have to be from subscribing witness unless required by statute

Question 5

Methods of Authentication

Handwriting Verifications

Answer 5

a writing can be authenticated by evidence that the maker’s handwriting is genuine. Evidence can be in form of:
- opinion of lay witness who has familiarity with the alleged writer’s handwriting in course of normal affairs (not acquired for purposes of current litigation; along the same lines, a lay witness who does not have familiarity with the handwriting cannot become familiar with it merely for purposes of testifying)
- opinion of expert who has compared writing to samples of alleged writer’s handwriting; or
- fact-finder’s (jury’s) comparison of writing to samples of alleged writer’s handwriting

Question 6

Methods of Authentication

Ancient Documents

Answer 6

a document can be authenticated by evidence that it:
- is at least 20 years old when offered into evidence
- is in a condition that creates no suspicion as to authenticity; and
- was found in a place where such a writing would likely be kept

in contrast to many jurisdictions, Federal Rules applies this to all writings, no just dispositive instruments like deeds and wills

Question 7

Methods of Authentication

Reply Letter Doctrine

Answer 7

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

Question 8

Methods of Authentication

Photographs and Videos

Answer 8

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 not necessary to call photographer to authenticate; a witness familiar with the scene, object, or person is sufficient

Question 9

Methods of Authentication - Photographs and Videos

Unattended Camera - Proper Operation of Camera

Answer 9

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

Question 10

Methods of Authentication

X-Ray Pictures, Electrocardiograms, etc.

Answer 10

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. Custodial chain must be established to assure that X-ray has not been tampered with

Question 11

Compare - Authentication of Oral Statements

Answer 11

when a statement is admissible only if said by a particular person, authentication as to the identity of the speaker is required

Question 12

Authentication of Oral Statements

Voice Identification

Answer 12

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

Question 13

Authentication of Oral Statements

Telephone Conversations

Answer 13

statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
(1) they recognize 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

Question 14

Self-Authenticating Documents

Answer 14

Certain writings “prove themselves.” Extrinsic evidence is not required for:
- domestic public documents bearing a seal, and similar official foreign public documents
- official publications (such as a government pamphlet)
- certified copies of public records or private records on file in a public office
- newspapers and periodicals
- trade inscriptions and labels
- acknowledged (notarized) documents
- commercial paper (including signatures thereon) and related documents
- 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

Question 15

Best Evidence Rule (Original Document Rule)

Answer 15

to prove the content of a writing, recording, or photograph (defined broadly to include videos, X-rays, and any tangible collection of data), 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.

Question 16

Applicability of Best Evidence Rule

Answer 16

the rule applies in 2 principal situations:
- where the writing is a legally operative or dispositive instrument (that is, the writing itself creates rights and obligations) or
- where the knowledge of a witness concerning a fact results from having read it

It does not apply where the witness has personal knowledge of the facts to be proved, even if the fact happens to also be recorded in a writing. Oral testimony of the fact may be given without producing the original writing that recorded the event

Question 17

Best Evidence Rule

“Originals” and Admissibility of “Duplicates”

Answer 17

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

Duplicate: an exact copy of an original made by mechanical means (ex: photocopy or carbon copy)
- duplicates are admissible to the same extent as originals, unless:
(1) the circumstances make it unfair to admit the duplicate
(2) a genuine question is raised about the authenticity of the original

photocopies are duplicates and, thus, are usually treated the same as originals. In contrast, handwritten copies are considered secondary evidence and are admissible only if the original or duplicate is unavailable

Question 18

Best Evidence Rule

Admissibility of Secondary Evidence of Contents

Answer 18

if proponent cannot produce original writing (or an admissible duplicate) in court, they may offer secondary evidence of its contents if a satisfactory explanation is given for non-production of original

Question 19

Best Evidence Rule: Admissibility of Secondary Evidence of Contents

Excuses for Non-Production of Original

Answer 19

valid excuses include:
- loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith
- the original cannot be obtained by any available judicial process. (usually means that it is in possession of a third party outside the jurisdiction and cannot be obtained despite reasonable effort)
- original is in possession of an adversary who, after due notice, fails to produce the original

Question 20

Best Evidence Rule: Admissibility of Secondary Evidence of Contents

No Degrees of Secondary Evidence

Answer 20

if there is a valid excuse, Federal Rule permit party to prove contents of writing by any type of secondary evidence (such as handwritten copies, notes, oral testimony, etc.) one type of secondary evidence is not perferred over the other

Question 21

Best Evidence Rule Exceptions

Summaries of Voluminous Records

Answer 21

when it would be inconvenient to examine a voluminous collection of records in court, proponent may present contents in the form of a chart or summary. However, must make originals or duplicates available for inspection or copying, and court may order proponent to produce records in court

Question 22

Best Evidence Rule Exceptions

Certified Public Records

Answer 22

rule does not apply to copies of public records that are certified as correct or testified to as correct (want to keep public records in place they are kept to avoid losing them in the process of moving them in and out of court proceedings)

Question 23

Best Evidence Rule Exceptions

Writing is Collateral to Litigated Issue

Answer 23

rule doesn’t apply where writing is of minor importance to matter in controversy

Question 24

Best Evidence Rule Exception

Testimony or Written Admission of Opponent

Answer 24

where opponent (party against whom the writing is being offered) has given testimony, a deposition, or written admission about writing’s contents, proponent may use this evidence and need not give an excuse for non-production of original

Question 25

Best Evidence Rule

Functions of Court and Jury

Answer 25

Ordinarily, it is for court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to contents of original. However, Federal Rules reserve following questions of preliminary fact for jury:
- whether original ever existed
- whether writing produced at trial is an original
- whether evidence offered correctly reflects contents of original

Question 26

Real Evidence

Answer 26

actual physical evidence addressed directly to the trier of fact. May be direct, circumstantial, original, or prepared (demonstrative)

Question 27

Real Evidence

General Conditions of Admissibility

Answer 27

must be relevant and meet following requirements:
- authentication: the object must be identified as what the proponent claims it to be either by:
(1) testimony of a witness that they recognize the object as what the proponent claims it is; or
(2) evidence that the object has been held in a substantially unbroken chain of possession
- condition of object: if the condition of the object is significant, it must be shown to be in substantially the same condition at trial

Question 28

Particular Types of Real Evidence

Answer 28

There are particular types of real evidence that are often admissible, but they are still subject to Rule 403 discretion. These include:
- reproductions and explanatory real evidence
- maps, charts, models, etc.
- demonstrations
- exhibition of injuries
- jury view of the scene

Question 29

Types of Real Evidence

Reproductions and Explanatory Real Evidence

Answer 29

relevant photographs, diagrams, maps, or other reproductions are generally admissible. Items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (not given to jury during deliberations)

Question 30

Types of Real Evidence

Maps, Charts, Models, Etc.

Answer 30

Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted

Question 31

Types of Real Evidence

Demonstrations

Answer 31

the court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that ar esubstantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where demonstrations would unduly dramatize the injury

Question 32

Types of Real Evidence

Exhibition of Injuries

Answer 32

exhibition of injuries in a personal injury or criminal case is generally permitted, but remember that court has discretion to excude this for unfair prejudice (rule 403)

Question 33

Types of Real Evidence

Jury View of the Scene

Answer 33

trial court has discretion to permit the jury to view places at issue in the case. The need for the view and changes in the condition of the premises following the event at issue in the case are relevant considerations here.