18. Documentary Evidence Flashcards
What is generally required for the admissibility of documentary evidence?
1) Authentication
- Writing/Secondary evidence
- Jury finds sufficient
2) Best evidence rule
- Judge finds sufficient
3) Hearsay exception
- Judge finds sufficient
What is the purpose of authentication?
Proof that the writing is what the proponent claims it to be
How much evidence is required to prove authenticity?
Sufficient to support jury finding of genuineness
- NOT preponderance of evidence
What procedures may determine the authenticity of evidence?
Discovery
Pleadings
- Failure to deny allegation
Stipulation at pre-trial conference
What is required for authentication of written evidence?
Admission
- Party against whom evidence is offered against admits authenticity
Eyewitness testimony
- Saw document execution
- Heard document acknowledgement
Handwriting verification
- Lay witness with personal knowledge (NOT merely familiar for purpose of testifying)
- Expert/Jury can compare samples
Ancient documents
1) At least 20 years old (Dispositive docs > 30 years old)
2) Free from suspicion
3) Found in place where it would likely be kept
4) Before 1998 (hearsay exception)
Reply letter doctrine
- No one else could have written it
Photographs (testifying witness)
1) Identified as portrayal of certain facts relevant to issue
2) Verified as correct representation of those facts
Photographs (NO testifying witness)
1) Camera properly operating at time
2) Photograph developed from camera film
X-ray pictures
1) Accurate process used
2) Machine in working order
3) Operator qualified to operate machine
4) No break in custodial chain
5) NO witness testimony allowed (unlike photographs)
What is required for authentication of oral statements?
Voice identification of speaker (first-hand/device)
1) By any person
2) At any time (unlike handwriting)
3) With/With NO certainty (jury to assess ‘weight’ (NOT admissibility) of identifier’s testimony)
Voice identification of speaker (telephone conversation)
- Recognises voice
- Knows certain facts only particular person would have
- Called particular person + person answered stating his identity
What type of documents do not require authentication?
Public documents (copies)
Official publications
Newspapers/Periodicals
Trade inscriptions
Commercial paper
Business records
1) Certified by custodian
2) Offering party gives reasonable written notice to adverse party + makes availalbe for fair opportunity to challenge them
Document declared authentic by federal law
What is the purpose of the Best Evidence Rule?
Prove material terms of writing/recording/photograph
- NOT existence of document
When is the original required under the Best Evidence Rule?
Legally operative/dispositive document
- Contract/Deed/Will
Witness has knowledge concerning facts from reading the document
When is the original not required under the Best Evidence Rule?
Facts to be proven independently of writing
- Receipts
- Birth/Marriage/Death/Age proof
- Testimony at prior trials
- Admissions/Confessions
Collateral matter as to issue in case
Summaries of voluminous documents
- Can present as charts/summary
- Must be made available for examination/copy
Public records
- Certified as correct
- Testified as correct (by person who compared it to the original)
What is an original under the Best Evidence Rule?
Original evidence (WRP)
- Writing
- Recording
- Photograph
Duplicates/Photocopy
- Exact copy
- UNLESS genuineness questionable
What type of secondary evidence is admissible under Best Evidence Rule?
Handwritten copies
- NOT exact copy (unlike duplicates)
Notes
Oral testimony
NO degree required of best secondary evidence
What is required for secondary evidence to be admissible under Best Evidence Rule?
Satisfactory foundation (valid excuse justifying admissibility)
- Original lost/destroyed (good faith/despite due diligence)
- TP possession outside state + NOT obtainable (otherwise subpoena required)
- Adverse party possession + due notice given for production + failure to produce
Opponent party’s admission
- Written (NOT oral)
- Testimony
- Deposition
Who determines and for what purpose authenticity and best evidence rule?
Authenticity
- Jury must find as sufficient
- Proof of contents’ truth
Best evidence rule
- Judge must find as sufficient
- Proof of contents’ existence
What is the burden of proof standard for authentication?
Whether a reasonable person would believe it is authenticated
- Below preponderance of evidence
