authentication, writings, and real evidence Flashcards
(27 cards)
generally a writing or any secondary evidence of its content will not be received in evidence unless -
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
methods of writing authentication - opponent’s admission
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.
methods of writing authentication - eyewitness testimony
A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged.
methods of writing authentication - handwriting verification
A writing can be authenticated by evidence that the maker’s handwriting is genuine.
- opinion of a lay witness w/ familiarity with the alleged writer’s handwriting
- opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting; or
- The fact-finder’s comparison of the writing to samples of the alleged writer’s handwriting
methods of writing authentication - ancient documents
A document can be authenticated by evidence that it:
1) at least 20 years old when offered into evidence;
2) in acondition that creates no suspicion as to authenticity; and
3) found in a place where such a writing would likely be kept
methods of 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.
methods of writing authentication - photos/videos
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.
witness familiar with the scene, object, or person is sufficient.
*unattended camera - if no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that :
1) camera was properly operating at the relevant time and
2) the photograph or video was downloaded from that camera or developed from film obtained from that camera.
methods of writing authentication - xrays, EKGs, etc
must be shown that:
1) process used is accurate
2) the machine was in working order, and
3) operator was qualified to operate it.
4) custodial chain established to assure that the X-ray has not been tampered with.
methods of oral statement identity authentication - voice identification
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
when authentication as to identity of the speaker is required
if statement is admissible only if said by a particular person (for example, as a statement by an opposing party)
methods of oral statement identity authentication - telephone conversations
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.
self-authentication 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 - generally
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.
main situations when best evidence rule applies
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 in the writing
where best evidence rule does NOT apply
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
what is considered 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.
what is considered a “duplicate”
An exact copy of an original made by mechanical means (for example, a photocopy or carbon copy).
when are duplicates admissible?
admissible to the same extent as originals, unless:
(1) the circumstances make it unfair to admit the duplicate, or
(2) a genuine question is raised about the authenticity of the original.
what can be offered if proponent cannot produce the original writing (or an admissible duplicate)?
may offer ANY type of secondary evidence of its contents (such as handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for the non-production of the original.
excuses for non-production of original
- loss/destruction (unless the proponent lost or destroyed the original in bad faith)
- original cannot be obtained by any available judicial process. (possession of a third party outside the jurisdiction and cannot be obtained despite a reasonable effort)
- original is in the possession of an adversary who, after due notice, fails to produce the original.
exceptions to best evidence rule
- summaries/charts allowed when it would be inconvenient to examine a voluminous collection of records in court
- The rule does not apply to copies of public records that are certified as correct or testified to as correct.
- The rule does not apply where the writing is of minor importance (that is, collateral) to the matter in controversy.
- 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.
what determinations does the court make regarding admissibility?
everything not reserved for the jury
what determinations does the jury make regarding admissibility?
- Whether the 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 is
actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).
