Documentary Evidence

Question 1

Authentication

Answer 1

GR: A writing or any secondary E of its content will not be received in E unless writng 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.

Question 2

Best Evidence Rule

Answer 2

Rule: To prove the terms of a writing, the original writing must be produced if the terms of the writing are material.

1. “Writing” includes any documentary evidence including recordings and photographs.
2. Secondary evidence of the writing is allowed ONLY if the original is unavailable.
3. Unavailabie if:
   
   1. Lost or destroyed
   2. Possessed by a third party outside the jurisdiction
   3. In the possession of the adverse party who fails to produce it
4. Rule usually applies in two common situations:
   
   1. Writing is a legally operative or dispositive instrument
   2. **Knowledge of a W **concerning a fact results from having read it in the document.
5. Where the rule does NOT apply:
   
   1. Where the fact exists independently of the writing
      (e. g. Receipt for a sales transaction in relation to fact that sale occurred)
   2. Writing is of minor importance to the litigated issue (e.g. W can testify that he is 30 years old w/o producing a birth certificate)

Question 3

Specific exceptions to BER

Answer 3

1. Voluminous documents where it would be ridiculous to bring them all into court → contents may be summarized (originals must be made available to other side)
2. Public records → OK if they are certified as correct or testified to as correct
3. Xerox copies → Any “duplicate” which is an exact copy is admissible as original UNLESS there’s some reason to question its accuracy.

Question 4

Parol Evidence Rule

Answer 4

Rule: When an agreement is reduced to writing, no evidence of prior or contemporaneous oral agreements can be introduced to contradict it.

1. Does NOT apply to evidence about:
   
   1. Subsequent modifications
   2. Mistake as to what’s in the contract
   3. The fact that the contract itself is void or voidable
   4. Explanations as to missing or ambiguous terms