Tangible Evidence Flashcards
What is tangible evidence generally?
Evidence that is not presented in the form of testimony by a witness; it includes both documentary evidence like a written contract or a letter, and physical objects like a weapon, clothing, injury or sound recording.
What is the general rule on authenticating tangible evidence?
ALL tangible evidence must be authenticated. To authenticated an item, the proponent must produce sufficient evidence to support a finding that the thing is what the proponent claims it is. This is a lesser standard than a preponderance of the evidence.
How are physical objects authenticated?
- Personal knowledge
- Distinctive characteristics
- Chain of Custody
- Reproductions and explanatory evidence
- X-Ray images and electrocardiograms
How is tangible evidence authenticated through personal knowledge?
A witness’s testimony of personal knowledge.
EX: The owner of a stolen pocket watch saying: yes, that is my pocket watch that was stolen.
How can tangible evidence be authenticated by its distinctive characteristics?
Testimony as to its distinctive characteristics.
EX: An electronically stored document may be authenticated by its metadata (like its filename, file type, creation date and permissions)
How can tangible evidence be authenticated by chain of custody?
Authentication by chain of custody must be used with respect to a physical object that could easily be tampered with or confused with a similar item. such as a blood sample. The witness testifying must account for the whereabouts of the item from the time it was obtained up until its introduction at the trial.
How can reproductions and explanatory evidence be used to authenticate tangible evidence?
When reproductions like maps, photos, movies or diagrams are intro’d into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object depicts what its proponent claims it does.
The creator must not generally testify, though they can. if they do, they generally authenticate by confirming that the particular reproduction method is accurate.
How are x-rays and other physical representations of things that cannot otherwise be seen (like the inner workings of the human body) authenticated?
these things, unlike other reproductions, cannot be authenticated merely by the testimony of a witness that they are accurate representations of facts. To authenticate them then, it must be:
- shown that an accurate process was used
- that the machine used was working properly,
- that operator was qualified to operate it, AND
- a chain of custody is established
How is documentary evidence generally authenticated?
Documentary evidence is commonly authenticated by stipulation, testimony of an eyewitness, or handwriting verification.
How are ancient documents and data compilations authenticated?
A document or data compilation, including data stored electronically, is considered authenticated if it is:
- At lest 20 years old
- in a condition unlikely to create suspicion as to its authenticity and
- found in a place where it would likely to be if it were authentic.
How are public records authenticated?
A public record may be authenticated by evidence that the document was recorded or filed in a public office as authorized by law or that the document is from the office where the items of that kind are kept.
What is the reply letter doctrine?
The reply letter states that a document may be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.
How can handwriting verification be used to authenticate a writing.
There are two methods by which handwriting may be used to authenticate a writing:
- Comparison: An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine in order to determine the authenticity of the writing in question. (also applies to fibers, fingerprints, and hair)
- non-expert opinion: A lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting. The lay witness must not have become familiar with the handwriting for the purposes of litigation.
Which documents are self-authenticating? (do not require extrinsic evidence of authenticity in order to be admitted)
- Public document bearing a governmental seal and signature of an authorized governmental official or that are not sealed but signed and certified by separate governmental officials.
- Certified copies of public records
- official publications issued by a public authority
- Newspapers and periodicals
- Trade inscriptions (labels affixed in the course of business that indicate ownership)
- Notarized acknowledgment documents
- Commercial paper (including the signature and related documents)
- Any document, signature or other item declared by federal statute to be authentic
- Records of a regularly-conducted activity certified by a custodian of the records. (NOTE: in this case only the proponent must give notice and give an opportunity for inspection so adverse party has a fair opportunity to challenge
Must attesting witnesses authenticate a document?
No, the testimony of a witness who attests or subscribes to a document generally is not required to authenticate a document. However, such testimony may be required by state law, such as to authenticate a will.
When must oral statements be authenticated?
Oral statements may not need to be authenticated as to the ID of the speaker in cases in which the identity is important (such as an opposing party’s statement).
How are voices identified and authenticated?
A voice can be identified by any person who has heard the voice at any time (including one made familiar solely for the purposes of litigation, in contrast to handwriting) It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.
How are telephone conversations authenticated?
A party to a telephone conversation may authenticate statements made during that conversation by testifying that:
- The caller recognized the speaker’s voice
- The speaker knew facts that only a particular person would know.
- The called dialed a number believed to be the speaker’s, and the speaker ID himself when answering; or
- The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone
What is the best evidence rule?
The best evidence rule (also known as the original document rule) requires that the original document (or reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. A “writing” is defined as “letters, words, numbers or their equivalent set down in any form.”
When does the best evidence rule apply?
ONLY when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.
NOTE: this is often a wrong answer choice
ALSO: does NOT require a party to present the most persuasive, nor does it require the presentation of a documentary evidence instead of a witness’ testimony simply because a document is available.
EX: A witness writes down her observations of an accident immediately after it happens. The best evidence rule does not prevent the witness from testifying simply because the writing exists
For the best evidence rule, when are the contents of a document at issue?
The contents of a document are at issue when:
- The document is used as proof of the happening of an event, such as with a photograph of a bank robbery
- The document has a legal effect, such as with a contract or a will; or
- The witness is testifying based on facts learned from the writing (as opposed to personal knowledge), such as with an x-ray image.
For the best evidence rule, what does ‘original’ mean?
An original of a writing or recording includes any counterpart intended to have the same effect as the original by the person who executed or issued it. If the information is stored electronically, any legible printout (or other output readable by sight) that reflects the info accurately is an original. An original of a photograph includes the negative and any print made from it.
What are the exceptions to the Best Evidence Rule?
- Duplicates
- Original Unavailable
- Public Records
- Summaries
- Admission by party
What is the duplicate exception to the best evidence rule?
A duplicate is a counterpart produced by any process or technique that accurately reproduces the original. A duplicate is admissible to the same extent as the original unless:
- There is a genuine question as to the authenticity of the original
- the circumstances make it unfair to admit the duplicates, such as may be the case when only the part of the original is duplicated.
HANDWRITTEN COPIES: Handwritten copies of an original are not duplicates and are only admissible only when the original or duplicate is lost, destroyed, or in the possession of an adversary who fails to produce it.
