Authentication, Writings, and Real Evidence Flashcards
(46 cards)
true or false: a writing or any secondary evidence of its contents will NOT be admitted into evidence without authentication.
TRUE
what is required for a writing to be authenticated? (2 things)
proof that
1) shows the writing is what the proponent claims it is, and
2) is sufficient enough to support a jury finding of genuineness (reasonable juror could conclude that the writing is genuine
true or false: parties may admit the authenticity of a document by the pleadings or by stipulation.
TRUE
in what 5 ways may a writing be properly authenticated by other evidence?
1) opponent’s admission
2) eyewitness testimony
3) handwriting verifications
4) ancient documents
5) reply letter
when is a writing authenticated by an opponent’s admission?
authenticated by evidence that the party against whom its being offered has either admitted its authenticity OR acted upon it as authentic (express or implied admission)
when is a writing authenticated by eyewitness testimony? (2 options)
authenticated by testimony of anyone who saw it executed or heard it acknowledged
**NOTE = testimony can be from anyone (subscribing witness not required unless specified by statute)
when is a writing authenticated by handwriting verification?
authenticated by evidence that the maker’s handwriting is genuine either by:
1) opinion of a lay witness who has prior familiarity with the alleged writer’s handwriting (not for purposes of litigation),
2) opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting, or
3) the jury’s comparison of the writing to samples of the alleged writer’s handwriting
how must an ancient document 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 its authenticity, and
3) was found in a place where such writing would likely be kept
when can a writing be authenticated by reply letter? (reply letter doctrine)
writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author
when are photographs and videos admissible? (authentication, 2 rqmts))
admissible only if:
1) identified by a witness as a portrayal of certain facts relevant to the issue, and
2) verified by the witness as a fair and accurate representation of those facts
true or false: a party MUST call the original photographer or videographer to authenticate a photo or video.
FALSE (a witness familiar with the scene, object, or person is sufficient)
when may a photo or video taken by an unattended camera be admitted? (authentication, 2 rqmts)
admissible if shown that:
1) camera was properly operating at the relevant time, and
2) photo/video was downloaded/developed from film from that camera
true or false: an X-ray can be authenticated by testimony of a witness as to its the fair/accurate representation of certain facts.
FALSE (NOT authenticated like photos/videos are)
when are X-rays admissible? (authentication, 4 rqmts)
admissible if its shown that:
1) the process used is accurate,
2) the machine was working at the time,
3) operator was qualified to operate it, and
4) a custodial chain establishes that the X ray has not been tampered with
in what situation is authentication of a speaker’s identity required?
when a statement is admissible ONLY IF it was said by a particular person (ie – opposing party stmt)
who can authenticate a voice identification?
can be identified/authenticated by anyone who has heard the voice at any time
**NOTE = this includes before litigation AND for the sole purpose of testifying (broader than for handwriting IDs)
how can statements made over the phone be authenticated? (4 ways)
can be authenticated by any party to the call who testifies:
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/their residence, or
4) they called a business and talked with the person answering the phone about matters related to the business
what 8 kinds of writings are considered “self authenticating”? (no need for extrinsic evidence)
1) domestic public documents bearing a seal (and similar foreign public docs)
2) official publications (ie – govt pamphlet)
3) certified copies of public records OR private records on file in a public office
4) newspapers/periodicals
5) trade inscriptions, labels
6) acknowledged (notarized) documents
7) commercial paper and related docs (including signatures thereon), and
8) business records that (1) are certified, (2) noticed to adverse party in writing, and (3) given opportunity for inspection
what is the best evidence rule? (aka – OG 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
AND
secondary evidence of a writing, such as oral testimony, is admissible ONLY if the proponent establishes a satisfactory excuse for the original’s absence
in what 2 situations does the best evidence rule apply?
1) where the writing is a legally operative or dispositive instrument (writing itself creates rights/obligations/etc), OR
2) where the knowledge of a witness concerning a fact results from having read it in the writing
when does the best evidence rule NOT apply? (no need to produce original writing)
when the witness has personal knowledge of the fact to be proved (testimony admissible without proof of the original)
what is an “original” writing?
the writing itself OR any counterpart that is intended by the person executing it to have the same effect as the original
**NOTE = includes the negative of a photo, printout or readable outputs of electronically-stored information
what is a “duplicate” of a writing?
an exact copy of an original made by mechanical means (ie – photocopy, carbon copy – NOT the human hand)
true or false: generally, duplicates are admissible to the same extent of originals.
TRUE (with 2 exceptions)
