Authentication_Best Evidence Flashcards
What are the 3 questions you need to ask for document/photo evidence?
- Has it been authenticated?
- Is it the best-evidence?
- Is there hearsay?
Authentication:
What is it?
What is the standard?
= document is what the proponent purports it to be
Standard: conditional relevancy
- judge finds sufficient evidence from which a jury could conclude that the document is what the proponent purports it to be
What is the purpose of the authentication?
“laying foundation” before introducing into evidence:
- If the relevance of a writing or picture depends on its source or authorship, a showing must be made that the writing is what the proponent claims it to be (genuine)
(Otherwise, irrelevant)
When is a document admissible (based on its authenticity)?
Conditional Relevancy Std:
A document is admissible if ct determines that there is suffiicent evidence from which a reasonable juror could conclude doc is genuine
Self-authenticating documents
(burden on other side to prove forgery)?
Self-Authenticating Documents…
1) Official gov’t publications
2) Certified copies of public OR private records on file in public office
* (e.g. a mtg/deed is a PRIVATE document that is filed in a public office)
3) Newspapers or mags
4) Trade inscriptions and labels
* (e.g. a label on a bottle of water)
5) Notarized (aka “acknowledged”) document
6) Commercial paper
* (promissory note –> signature presumed authentic)
7) Certified business records
* (also admissable under hearsay) Don’t forget about hearsay!!
Authentication:
Photograph
Witness (person w/personal knowledge) of scene depicted may show that picture is
“an accurate and fair representation” of the people/objects portrayed
Authentication:
Scientific Publication/Learned Treatise-
is authentication enough?
NO. must establish that the scientific publication is a reliable text.
Expert can be cross examined re: contents of writing IF foundation laid (reliable text) by:
- direct testimony on cross-ex of expert
- testimony of another expert
- judicial notice
Methods of authentication:
Written Documents for which trying to prove author
NOTE: NY Distinction
Methods…
1) Witness’ personal knowledge (e.g. witness observed X sign the document; can verify the photograph)
2 ) Proof of handwriting by….
- Lay person opinion (e.g. verifies based on familarity w/ handwriting);
- Expert comparison opinion (e.g. handwriting expert);
- OR Jury comparison (e.g. compare document w/ example of X’s handwriting)
3) Ancient document rule: authenticity may be inferred IF the document is… ≥:
- a) age:
- FRE: 20 yrs old
- NY: 30 yrs old
- b) found in a place of natural custoday
- +c) free of suspcion
4) Solicited Reply Doctrine
- Doc was received in response to a prior communication to the alleged author
- (e.g., π mails K offer to D, properly addressed and posted, and later receives an acceptance purportedly signed by X)
5) Proof by circumstantial evidence
* Contains info only proposed author would know
Authenticating a voice:
A. When necessary?
B. How authenticate?
A. Only if identity of speaker is important
B. How authenticate:
- Tape recoridng:
- Identify by any person who heard voice at the time
- Lay person CAN become familiar w/voice in preparation for trial
- Phone call
- Speaker had knowledge of facts only the identified person would know
- Called business & spoke to other person re: that business
- f
Authentication of X-Ray
(CANNOT just have person w/knowledge identify as accurate representation)
- Establish that x-ray is scientifically sound process
- Establish that machine was in working order & operator qualified
- Custodial chain –> eliminate possibility that x-ray was substituted/tampered with
When does the Best Evidence Rule apply?
When a party is seeking to prove the contents of a writing
(2 situations):
- Writing is a legally operative document in the present case
- ex: patent, deed, mtg, divorce decree, writen K
- Witness is testifying to facts that she learned SOLELY from reading about them in a writing
- (no personal knowledge independent of doc)
- ex: surveillance footage w/o witnessing event
- ex: hours ee worked & expenses for boss
When it doesnt:
- W has personal knowledge –> can just testify to the facts
- ex: perjury trial for hearing –> need not bring in transcript; can just have W testify as to what he heard
- ex: W = employee who testifies re: hours worked; no need to bring in timesheets
- Evidence is physical (ex: if dispute over K breach, don’t need to bring in the sold goods; show purchase receipt etc.)
- Pe
Best Evidence Rule:
What is it
Best Evidence Rule:
When applies: “Writing” for which seek to prove its contents
- written material,
- sound recordings,
- X-rays, and
- films
A party who seeks to prove the contents of a writing must EITHER:
- PRODUCE the “original writing”; OR
- provide an ACCEPTABLE EXCUSE for its absence & provide secondary evidence to prove contents
- (like oral testimony or copy)
Best evidence rule
3 exclusions
- Voluminous documents
- can present summary/chart
- BUT MUST be admissible if presented individually, & be available for inspection
- Certified copies of public records
* (want to keep them in public office) - Collateral documents
- Ct determines wriiting is unimportant to merits of the case
- ex: license of expert witness
Best Evidence Rule:
What is an original writing?
NOTE: NY distinction
Original writing is a
- 1) Whatever the parties intended as the original
- 2) Counterpart intended to have the same effec
- 3) negative of film or print;
- 4) print-out of computer data;
- OR 4) Duplicate (mechanical)
- MS: Admissible (to same extent as original) UNLESS it would be UNFAIR (e.g. a fuzzy photocopy) or there is a genuine question as to its AUTHENTICITY
- NY DISTINCTION: photocopies are acceptable only if made in ordinary course of business
- (i.e. not made for only for litigation)
NOTE: an original is NOT a handwritten copy
Best Evidence Rule:
Valid EXCUSE for non-production of original writing (under Best Evidence Rule)?
Excuses for non-production of ORIGINAL:
Burden: preponderance of the evidence
1) lost & can’t be found w/ due diligence;
2) destroyed w/o bad faith;
3) can’t be obtained w/ legal process
* (beyond ct’s subpoena pwr)
NOTE: Secondary evidence would still be necessary if an excuse is est.
