Tangible Evidence Flashcards
(41 cards)
What is required to authenticate an item of evidence?
Evidence sufficient to support a finding that the item is what the proponent claims it is
Fed. R. Evid. 901(a) states that all tangible evidence must be authenticated.
What is the ‘Pictorial Communication’ Theory?
A witness with firsthand knowledge may authenticate a photograph or video by establishing it as an accurate representation of the scene or object depicted
The witness can simply say, ‘I was there. This photo accurately depicts what it looked like.’
What is the ‘Silent Witness’ Theory?
Evidence describing a process or system that shows it produces an accurate result may authenticate photographs or videos without a witness
Examples include X-rays or surveillance tapes.
What is required to authenticate oral statements made by a particular person?
Authentication as to the identity of the speaker is required
This is especially important for admissions by a party opponent under FRE 801(d)(2).
How can a person’s voice be authenticated?
By an opinion identifying the voice based on hearing it under circumstances connecting it with the alleged speaker
Fed. R. Evid. 901(b)(5).
What factors can be used to authenticate a statement?
Contents, substance, internal patterns, or distinctive characteristics of the statements
Fed. R. Evid. 901(b)(4).
What is required to authenticate a telephone conversation?
Evidence that a call was made to the number assigned to a particular person or business
Fed. R. Evid. 901(b)(6).
What are the methods to authenticate physical objects?
Testimony from a witness with personal knowledge or expert witness explaining distinctive characteristics of the item
Fed. R. Evid. 901(b)(1) and 901(b)(4).
What must be established for physical objects that could be easily tampered with?
The chain of custody must be established (e.g. blood samples)
This requires a witness to account for the whereabouts of the item from collection to trial.
authentication of a handwritten document:
- A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation; OR
- A comparison with an authenticated specimen by an expert witness or the trier of fact.
This is based on Fed. R. Evid. 901(b)(2).
What characteristics can be used to authenticate a document?
Appearance, contents, substance, internal patterns, or other distinctive characteristics of the document
This is based on Fed. R. Evid. 901(b)(4).
What does the Reply Letter Doctrine state?
A document may be authenticated by evidence that it was written in response to a communication sent to the claimed author
This relates to the concept of a “reply letter.”
What may public records be authenticated by?
Evidence that:
* A document was recorded or filed in a public office as authorized by law; OR
* A purported public record or statement is from the office where items of this kind are kept
Fed. R. Evid. 901(b)(7)
What are the three conditions for authenticating ‘ancient documents or data compilations’?
- Is in a condition that creates no suspicion about its authenticity
- Was in a place where, if authentic, it would likely be; AND
- Is at least 20 years old when offered
Fed. R. Evid. 901(b)(8)
What are self-authenticating documents according to FRE 902?
Items of evidence that require no extrinsic evidence of authenticity in order to be admitted
Includes specific categories of documents (e.g. signed & sealed or signed & certified domestic public documents)
What characterizes domestic public documents that are self-authenticating?
A document that bears:
* A seal purporting to be that of the United States or certain territories
* A signature purporting to be an execution or attestation
This includes seals from various governmental entities
list of self-authenticating docs
Foreign Public Documents
Certified Copies of Public Records
Official Publications
Newspapers and Periodicals
Trade Inscriptions and the Like
Acknowledged Documents
Commercial Paper and Related Documents
Presumptions Under a Federal Statute
Certified Domestic Records of a Regularly Conducted Activity
Certified Foreign Records of a Regularly Conducted Activity
Certified Records Generated by an Electronic Process or System
Certified Data Copied from an Electronic Device, Storage Medium, or File
“original” w/ regard to the best evidence rule
- An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.
“duplicate” w/ regard to the best evidence rule
- A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.
Fed. R. Evid. 1001.
What does the Best Evidence Rule (FRE 1002) require to prove content?
An original writing, recording, or photograph
Unless federal rules of evidence or a federal statute provides otherwise.
When is a writing, recording, or photograph offered to prove its content?
When:
* The event to be proved is a written transaction (e.g., contracts, wills, deeds, etc.)
* A party chooses to introduce a writing or recording to prove a fact; OR
* A witness’s knowledge is derived solely from reading a document or viewing a photograph or video.
Fill in the blank: An original writing, recording, or photograph is required to prove its content unless _______.
[federal rules of evidence or a federal statute provides otherwise]
True or False: A witness can rely on their memory to prove the content of a document instead of the original document.
False
