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Evidence > Documentary Evidence > Flashcards

Documentary Evidence Flashcards

1
Q

3 possible barriers to admissibility

DOCUMENTARY EVIDENCE

A
  1. Authentication
  2. Best evidence
  3. Hearsay
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2
Q

general rule

AUTHENTICATION

A
  • Must be authenticated by proof showing that the writing is what the proponent claims it it BEFORE writing or secondary evidence of its content may be received in evidence
  • needs testimonial sponsor to prove writing was made, signed, or adopted by particular relevant person (unless self-authenticating)

RULE 901-903

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3
Q

quantum of proof

AUTHENTICATION

A
  • Requires only enough evidence to support a finding that the matter is what its proponent claims it is
  • Not required the proponent establish its genuineness by a preponderance of the evidence as a condition to admissibility

RULE 901

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4
Q

how many genuineness of a document be admitted?

AUTHENTICATION

A
  1. Through discovery process
  2. Through stipulation at pretrial conference
  3. By failure to deny an allegation in a pleading
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5
Q

What evidence can be used to authenticate?

A

Writing may be authenticated by any evidence that serves to establish its authenticity

RULE 901

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6
Q

FRE methods

AUTHENTICATION

A
  • FRE do not limit methods
  • FRE lists several examples
    1. admission
    2. testimony of eyewitness
    3. handwriting verifications
    4. ancient documents
    5. reply letter doctrine
    6. photographs
    7. x-ray pictures, electrocardiograms, etc.

RULE 901

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7
Q

admission

AUTHENTICATION

A

A writing may be authenticated by evidence

  • that the party against whom the writing is offered
  • has either admitted its authenticity OR
  • acted upon the writing as authentic
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8
Q

testimony of eyewitness

AUTHENTICATION

A

A writing may be authenticated

  • by testimony of one who
  • sees it executed OR
  • hears it acknowledged

RULE 903

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9
Q

handwriting verifications

AUTHENTICATION

A

A writing may also be authenticated

  • by evidence
  • of the genuineness
  • of the handwriting of the maker
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10
Q

handwriting verification by lay witness

AUTHENTICATION

A
  • lay witness
  • who has personal knowledge
  • of the handwriting of the supposed writing
  • may state his opinion as to whether the document is in that person’s handwriting
  • BUT CANNOT become familiar with handwriting merely for the purpose of testifying

NOTE = this is an exception to the general inadmissibility to opinion testimony by lay witnesses

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11
Q

handwriting verification by comparison of writings

AUTHENTICATION

A
  • expert witness OR
  • the trier of fact
  • can determine the genuineness of a writing
  • by comparing the questioned writing
  • with another writing proved to be genuine
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12
Q

ancient documents

AUTHENTICATION

A

Document may be authenticated by evidence that it

  1. Is at least 20 years old
  2. Is in such condition as to be free from suspicion concerning its authenticity AND
  3. Was found in a place where such writing, if authentic, would likely be kept

RULE 901(b)(8)

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13
Q

reply letter doctrine

AUTHENTICATION

A

writing may be authenticated by evidence that

  • it was written
  • in response
  • to a communication
  • sent to the claimed author
  • IF the content of the letter makes it unlikely that it was written by anyone other than the claimed author
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14
Q

photographs

AUTHENTICATION

A

GENERAL RULE = photographs are admissible ONLY IF

  • identified by a witness
  • as a portrayal of certain facts
  • relevant to the issue AND
  • verified by the witness
  • as a correct representation of those facts
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15
Q

x-ray pictures, electrocardiograms, etc.

AUTHENTICATION

A

to authenticate, must show

  1. Process used is accurate
  2. Machine itself was in working order
  3. The operator was qualified to operate it
  4. Custodial chain must be established to forestall danger that the evidence has been substituted or tampered with
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16
Q

handwriting verification methods

AUTHENTICATION

A
  1. opinion of lay witness

2. comparison of writings by expert witness or trier of fact

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17
Q

uses of authentication by comparison

AUTHENTICATION

A
  1. handwriting
  2. fingerprints
  3. blood
  4. hair
  5. clothing fibers
  6. lotsa stuff
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18
Q

who can authenticate photographs?

AUTHENTICATION

A
  • witness who is familiar with the scene or object depicted = suffices
  • generally, not necessary to call the photographer to authenticate
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19
Q

photograph by unattended camera

AUTHENTICATION

A

Admitted upon a showing that

  1. the camera was properly operating at the relevant time AND
  2. the photograph was developed from film obtained from that camera
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20
Q

what is not sufficient to authenticate x-ray pictures, electrocardiograms, etc.?
AUTHENTICATION

A

Cannot be authenticated merely by testimony of witness that it is a correct representation of the facts

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21
Q

proving accuracy of process for x-rays

AUTHENTICATION

A

court will usually take judicial notice of this

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22
Q

FRE for evidence of authenticity

AUTHENTICATION

A

RULE 901

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23
Q

oral statements - use

AUTHENTICATION

A

Authentication as to the identity of the speaker

= necessary where identity of speaker is important

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24
Q

oral statements - methods

AUTHENTICATION

A
  1. Voice identification

2. Telephone conversations

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25
Q

voice identifications

AUTHENTICATION

A

A voice may be identified

  • whether heard firsthand or through a device
  • by the opinion of anyone who
  • has heard the voice at any time
  • even if that person became familiar with a voice after litigation has begun and
  • even if that person became familiar with a voice for the sole purpose of testifying
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26
Q

telephone conversations

AUTHENTICATION

A

Statements made during a telephone conversation may be authenticated

  • by one of the parties to the call
  • who testifies to one of the following
    a. He recognized the other party’s voice OR
    b. The speaker has knowledge of certain facts that only a particular person would have OR
    c. He called X’s phone number and voice answered “this is X” or the like (which authenticates the conversation as being with X or X’s agency) OR
    d. He called X’s business establishment and talked with the person answering the phone about matters relevant (which is sufficient to show person answering phone held a position in the business)
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27
Q

self-authenticating documents - definition

AUTHENTICATION

A

Certain writings are said to
1. prove themselves or
2. be self-identifying on their face
= don’t require extrinsic evidence of authenticity

RULE 902

28
Q

self-authenticating documents - examples

AUTHENTICATION

A
  1. Domestic public documents that are signed and sealed
  2. Foreign public documents signed by a person authorized by the laws of that country
  3. Certified copies of public records
  4. Official publications
  5. Printed materials purporting to be newspapers or periodicals
  6. Trade inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin
  7. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments
  8. Commercial paper, signatures thereon, and documents relating thereto, to the extent provided by general commercial law
  9. Business records certified as such by a custodian or other qualified person IF offering party gives reasonable written notice AND makes record/certification available for inspection so adverse party has fair opp to challenge

RULE 902

29
Q

FRE #s

BEST EVIDENCE RULE

A

RULES 1001-1008

30
Q

rule

BEST EVIDENCE RULE

A

AKA original document rule
- In proving the terms of a writing
- Where the terms are material
= the original writing must be produced

31
Q

when is secondary evidence permitted?

BEST EVIDENCE RULE

A

Secondary evidence of the writing is permitted ONLY AFTER it has been shown

  • that the original is unavailable
  • for some reason
  • other than the serious misconduct of the proponent

RULE 1002

32
Q

rationale

BEST EVIDENCE RULE

A

Reflects belief

  1. that the exact words of a writing, particularly in the case of operative or dispositive instruments such as contracts, deeds, or wills, should be presented to the court
  2. that there is a hazard of inaccuracy in common methods of approximating the contents of a writing
  3. that oral testimony based on memory of the terms of the writing presents greater risk of error than oral testimony concerning other situations
33
Q

applicability

BEST EVIDENCE RULE

A

Applies to 2 classes of situations:

  1. Where the writing is a legally operative or dispositive instrument
  2. Where the knowledge of a witness concerning a fact results from having read it in the document
34
Q

examples where the writing a legally operative or dispositive instrument
BEST EVIDENCE RULE

A

contract, deed, will, or divorce decree

35
Q

can a witness testify about the content of a written deed without producing original deed?
BEST EVIDENCE RULE

A

NO, witness may not testify about the content of a written deed
UNLESS sufficient reason is given for not producing the original deed

36
Q

may a witness who memorized mileage recorded on car sticker for certain date testify as to mileage without producing car sticker?
BEST EVIDENCE RULE

A

NO, witness
- who memorized mileage recorded on car sticker for a certain date, and
- who had no other source of knowledge on this significant litigated issue
MAY NOT testify as to the mileage
WITHOUT establishing a reason for the unavailability of the writing

37
Q

nonapplicability/modification of

BEST EVIDENCE RULE

A

Rule doesn’t apply in 4 classes of situations:

  1. Fact to be proved exists independently of any writing
  2. Writing is collateral to litigated issue
  3. Summaries of voluminous records
  4. Public records
38
Q

fact to be proved exists independently of any writing

BEST EVIDENCE RULE

A

= best evidence rule does not apply when fact to be proved has an existence independent of any writing, such as:
1. all events that happen to have been memorialized by documents
2. writings that the substantive law does not regard as essential repositories of the facts recorded
= oral testimony may be given w/o production of OR explanation for absence of original writings

39
Q

does BEST EVIDENCE RULE apply:
witness may testify orally that he paid for goods received without producing the receipt that was given
?

A

NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply

40
Q

does BEST EVIDENCE RULE apply:
admissions or confessions of a party may be testified to orally by anyone who heard them, even though the admissions or confessions were later reduced to writing
?

A

NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply

41
Q

does BEST EVIDENCE RULE apply:
fact such as birth, marriage, age, and death may be proved orally, although certificates evidencing these facts are in existence
?

A

NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply

However, since a divorce is effective only by a judicial decree, the best evidence rule requires that the fact of divorce be proved by the decree itself

42
Q

does BEST EVIDENCE RULE apply:
testimony heard at a prior trial may be testified to in another case without production of the stenographic transcript of the prior testimony
?

A

NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply

One who heard the prior testimony can repeat it

43
Q

writing is collateral to litigated issue

BEST EVIDENCE RULE

A

= best evidence rule does not apply to writings of minor importance to the matter in controversy

RULE 1004(d)

44
Q

does BEST EVIDENCE RULE apply:
an expert witness testifying on the value of a car is allowed to establish his status as a car dealer without production of his dealer’s license
?

A

NO, writing is collateral to litigated issue = best evidence rule doesn’t apply

45
Q

writing is collateral to litigated issue - factors

BEST EVIDENCE RULE

A

Test of “collateralness” =

  1. Centrality of the writing to the major issues of a litigation
  2. Complexity of the relevant features of the writing
  3. Existence of a genuine dispute as to the contents of the writing
46
Q

summaries of voluminous records

BEST EVIDENCE RULE

A

= best evidence rule does not apply when it would be inconvenient to examine a voluminous collection of writings, recordings, or photographs in court, the proponent may present their contents in the form of a chart, summary, or calculation

BUT requires

  1. originals or duplicates must be made available for examination and copying
  2. and the judge may order them to be produced in court

RULE 1006

47
Q

public records

BEST EVIDENCE RULE

A

= best evidence rule is modified so that a proponent may offer into evidence a copy of an official record or a copy of a document that has been recorded and filed

BUT requires such a copy to be either

  1. certified as correct by custodian of the document or other authorized person OR
  2. testified to be correct by a person who compared it to the original

RULE 1005

48
Q

public records - purpose

BEST EVIDENCE RULE

A

= to prevent the loss or absence of public documents due to litigation

49
Q

writings and recordings - definition

BEST EVIDENCE RULE

A

= letters, words, numbers, or their equivalent set down in any form

RULE 1001

50
Q

photograph - definition

BEST EVIDENCE RULE

A

= a photographic image or its equivalent stored in any form

RULE 1001

51
Q

original of writings and recordings - definition

BEST EVIDENCE RULE

A

= the writing or recording itself or any counterpart intended by the person executing it to have the same effect as an original

52
Q

original of photograph - definition

BEST EVIDENCE RULE

A

= includes the negative or any print from it

53
Q

original of computer-stored - definition

BEST EVIDENCE RULE

A

= includes the negative or any print from it

54
Q

duplicate - definition

BEST EVIDENCE RULE

A

= counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original

AKA an exact copy of an original made by mechanical means

RULE 1001(e)

55
Q

duplicate - admissibility

BEST EVIDENCE RULE

A

Admissible to the same extent as originals UNLESS

  1. A genuine question is raised about the original’s authenticity or
  2. Under the circumstances, it would be unfair to admit the duplicate in place of the original

RULE 1003

56
Q

duplicate - rationale

BEST EVIDENCE RULE

A

Rationale for relaxed standard:
By definition, these documents are exact copies = their introduction into evidence is objectionable only if some question existed as to genuineness of original

57
Q

secondary evidence of contents - admissibility

BEST EVIDENCE RULE

A

If the proponent cannot produce the original writing or recording in court,

  • he may offer secondary evidence of its contents in the form of
    1. copies OR
    2. notes OR
    3. oral testimony about the contents of the original
  • IF a satisfactory explanation is given for the nonproduction of the original
58
Q

copies - definition

BEST EVIDENCE RULE

A

includes handwritten copies

= not be considered duplicates because they are not exact copies

59
Q

secondary evidence of contents - valid excuse

BEST EVIDENCE RULE

A

Valid excuse justifying the admissibility of secondary evidence would include

  1. Loss or destruction of original
  2. Original outside jurisdiction or unobtainable
  3. Original in possession of adversary who after notice fails to produce
60
Q

secondary evidence of contents - sufficient proof

BEST EVIDENCE RULE

A

A proponent

  • may prove the contents of a writing, recording, or photograph
  • through
    1. testimony OR
    2. deposition OR
    3. written admission
  • of the party against whom it is offered
  • and need not account for the nonproduction of the original

RULE 1007

61
Q

secondary evidence of contents - insufficient proof

BEST EVIDENCE RULE

A

Generally held that contents of a writing/photograph/etc. = cannot be proved simply by
- out-of-court
- oral admissions
- of the party
- against whom such evidence is offered
UNLESS of course the original is otherwise accounted for, duh

62
Q

original outside jurisdiction - foundational requirements

BEST EVIDENCE RULE

A

Not within jurisdiction = some reasonable effort or request to 3P for product must be shown to admit secondary evidence

= must show original is

  1. In possession of 3P
  2. Outside the jurisdiction AND
  3. Unobtainable
63
Q

original in possession of adversary who after notice fails to produce - foundational requirements
BEST EVIDENCE RULE

A
  1. Showing of his custody
  2. Service of timely notice to produce (unless pleadings give notice)
  3. Failure to produce it in court
    = justifies admissibility of secondary evidence
64
Q 
original unobtainable (within jurisdiction) - requirement
BEST EVIDENCE RULE
A

Within jurisdiction = must be subpoenaed

65
Q

secondary evidence of contents - functions of court

BEST EVIDENCE RULE

A

Ordinarily, for court to make

  • determinations of fact
  • that determine admissibility
  • of duplicates, other copies, and oral testimony
  • as to contents of an original
66
Q

secondary evidence of contents - functions of jury

BEST EVIDENCE RULE

A

3 Qs of preliminary fact for jury:

  1. Whether original ever existed
  2. Whether a writing, recording, or photography at trial is an original AND
  3. Whether the evidence offered correctly reflects the contents of the original

RULE 1008

Evidence (10 decks)

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