Authentication, Writings, and Real Evidence Flashcards
(18 cards)
Authentication of Writings and Spoken Statements
As a general rule, a writing or any secondary 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).
Methods of Authentication
Parties may admit the genuineness of a document by the pleadings or by stipulation. A document can also be authenticated by other evidence, and the following are examples of proper authentication.
* Opponent’s admission
* Eyewitness testimony of someone with knowledge
* Lay opinion on handwriting (if lay witness has pre-existng knowledge)
* Expert opinion on handwriting
* Jury comparison of handwriting
Ancient Documents (Authentication)
Document can be authenticated if:
* At least 20 years old;
* In nonsuspicious condition; and
* 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
Reply Letter Doctrine (Authentication)
Document can be authenticated by evidence it was written in response to communication sent to alleged author
Photographs & Videos (Authentication)
- Must be identified by witness as fair and accurate representation of facts depicted
- Generally, photographer need not testify
Unattended Camera (Authentication)
Photographs/video admissible if camera was properly operating and photograph/video came from that camera
X-rays, Electrocardiograms, Etc. (Authentication)
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.
* A custodial chain must be established to assure that the X-ray has not been tampered with.
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.
Voice Identifications:
* Voice can be identified by any person who has heard the voice at any time
Telephone Conversations (can be authenticated by any party to the call):
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.
Self-Authenticating Documents
- 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; and
- 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
Best Evidence Rule
To prove content of writing, recording, or photograph, the original must be produced if terms are material
* Secondary evidence admissible onoy if proponent has good excuse for not producing original
When Best Evidence Rule Applies
- Where writing is legally operative or dispositive; or
- Where witness’s knowledge results from having seen the writing
The rule does not apply where the witness has personal knowledge of the fact 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
“Originals & Admissibility of “Duplicates” (Best Evidence Rule)
Original: Writing itself, or any counterpart intended to have same effect as an orignal
* This includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information.
Duplicate: Exact copy made by mechanical means
* Ex: Photocopy or carbon copy
Duplicates are admissible to same extent as original, unless:
* Circumstances make it unfair to admit duplicate; or
* Genuine issue raised as to authenticity of original
Admissibility of Secondary Evidence of Contents (Best Evidence Rule)
Secondary Evidence Admissible when:
* Original lost or destroyed (unless proponent destroyed in bad faith)
* Original cannot be obtained
* Original in possession of adversary who fails to produce it
No Degrees of Secondary Evidence:
* If there is a valid excuse, the Federal Rules permit a party to prove the contents of a writing by any type of secondary evidence (such as handwritten copies, notes, oral testimony, etc.).
* One type of secondary evidence is not preferred over the other.
Exceptions to Best Evidence Rule
a. Summaries of Voluminous Records
* When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary.
* Proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.
b. Certified Public Records
* The rule does not apply to copies of public records that are certified as correct or testified to as correct.
c. Collateral Writings
* The rule does not apply where the writing is of minor importance (that is, collateral) to the matter in controversy.
d. Testimony or Written Admission of Opponent
* Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original.
Functions of Court & Jury (Best Evidence Rule)
Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original.
Federal Rules reserve the following questions of preliminary fact for the jury:
* Whether original ever existed;
* Whether a writing produced at trial is an original; and
* Whether the evidence offered correctly reflects the contents of the original
Real Evidence Definition
Actual physical evidence addressed directly to the trier of fact.
* Real evidence may be direct, circumstantial, original, or prepared (demonstrative).
Real Evidence (General Conditions of Admissibility)
a. Authentication: The object must be identified as what the proponent claims it to be, either by:
* Testimony of a witness that they recognize the object as what the proponent claims it is (for example, witness testifies that a gun is the one found at the crime scene); or
* Evidence that the object has been held in a substantially unbroken chain of possession (for example, blood taken for blood-alcohol test)
The same standard of proof you’ve seen before applies to real evidence—the proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the object is what the proponent claims it to be).
b. Condition of Object
* If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.
Types of Real Evidence (5 Types)
a. Reproductions and Explanatory Real Evidence
* 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 (meaning, they are not given to the jury during its deliberations).
b. Maps, Charts, Models, Etc.
* 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.
c. Demonstrations
* The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury.
d. Exhibition of Injuries
* Exhibition of injuries in a personal injury or criminal case is generally permitted, but remember that the court has discretion to exclude this evidence for unfair prejudice.
e. Jury View of the Scene
* The 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 events at issue in the case are relevant considerations here.
