4 - Tangible Evidence

Question 1

What is tangible evidence? What does it include? (2)

Answer 1

Tangible evidence is evidence that is not testimonial in nature, and includes both documentary evidence and real evidence.

Question 2

What is real evidence? When is it admissible?

Answer 2

Real evidence is evidence in the form of a physical object (e.g., a gun, torn clothing, an injured foot, a sound recording). Real evidence is admissible as long as its value is not outweighed by the danger of unfair prejudice.

Question 3

All tangible evidence must be …? FRE?

Answer 3

All tangible evidence must be authenticated (i.e., there must be sufficient evidence to support a finding that the thing is what its proponent claims it is) before it can be admitted into evidence. Fed. R. Evid. 901(a).

Question 4

What is authentication?

Answer 4

There must be sufficient evidence to support a finding that the thing is what its proponent claims it is.

Question 5

How may real evidence be authenticated? (3)

Answer 5

By testimony of personal knowledge showing familiarity with the object, by distinctive markings or characteristics, or by chain of custody.

Question 6

What about “chain of custody” and authentication?

Answer 6

Authentication by chain of custody must be used with respect to evidence 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 the trial.

Question 7

What are reproductions? (4) How can they be authenticated? Must there be personal testimony from the creator?

Answer 7

When reproductions (e.g., photographs, diagrams, maps, movies) are used to illustrate testimony, they may be authenticated by testimony of a witness with personal knowledge that the object accurately depicts what it its proponent claims it does. It is generally not necessary to call the person who created the reproduction to authenticate it.

Question 8

How can x-rays be authenticated? (4)

Answer 8

X-ray pictures cannot be authenticated by the testimony of a witness that it is an accurate depiction of the facts. To authenticate an x-ray picture it must be shown that an accurate process was used, the machine used was working properly, and the operator of the machine was qualified to operate it. The chain of custody of the x-ray picture must also be established.

Question 9

What standard must documents be authenticated by?

Answer 9

Most documents must be authenticated by sufficient proof to support a jury finding that the document is genuine. (This is a standard below preponderance of the evidence.)

Question 10

What are common methods of authentication of documentary evidence? (3)

Answer 10

Common methods of authentication include stipulation by the opposing party, testimony of an eyewitness, and handwriting verification.

Question 11

What is an ancient document, and what does it take for it to be authentic (3)? FRE?

Answer 11

A document or data compilation, including data stored electronically, that is (i) at least 20 years old, (ii) in a condition unlikely to create suspicion as to its authenticity, and {iii) was found in a place where it would likely be if it were authentic, is considered to be authentic. Fed. R. Evid. 901(b)(8).

Question 12

What is the reply letter doctrine?

Answer 12

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.

Question 13

What are the two methods by which handwriting verification may be used to authenticate a writing?

Answer 13

Comparison and non-expert opinion

Question 14

What about comparison and handwriting verification? FRE?

Answer 14

An expert witness or the trier of fact (i.e., the jury) 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. Fed. R. Evid. 901(b)(3).

Question 15

What about lay witness testimony and handwriting verification? Except? FRE?

Answer 15

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. Fed. R. Evid. 901(b)(2).

Question 16

What about expert witness testimony and handwriting verification?

Answer 16

Expert testimony is also not required to authenticate a signature, unless it was acquired for the purpose of the litigation.

Question 17

What are eight types of self-authenticating documents? FRE?

Answer 17

Federal Rule 902 sets forth several types of documents that do not require proof of authenticity. These include:

i) Public documents bearing a government seal or signature of an authorized government official;
ii) Certified copies of public records;
iii) Official publications issued by a public authority, newspapers, and periodicals;
iv) Trade inscriptions (e.g., labels affixed in the course of business that indicate ownership);
v) Notarized or otherwise acknowledged documents; vi) Commercial paper (including the signature thereon, and related documents);
vii) Any document declared by Congress to be authentic; and
viii) Records of a regularly conducted activity (e.g., a business) certified by a custodian of the records.

Question 18

Does a witness attesting to or describing a document have to authenticate it? Except? FRE?

Answer 18

A witness who attests or subscribes to a document is generally not required to authenticate a document. However, authentication may be required by state law (such as to authenticate a will). Fed. R. Evid. 903.

Question 19

When may oral statements need to be authenticated?

Answer 19

Oral statements may need to be authenticated as to the identity of the speaker in cases when that identity is important (e.g., admission by a party-opponent).

Question 20

Who can identify a voice? FRE?

Answer 20

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 the rule for handwriting verification). It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording. Fed. R. Evid. 901(b)(5).

Question 21

How may a party to a telephone conversation authenticate statements made during that conversation? (4) FRE?

Answer 21

i) The caller recognized the speaker’s voice;
ii) The speaker knew facts that only a particular person would know;
iii) The caller dialed a number believed to be the speaker’s and the speaker identified himself upon answering; or
iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.

Fed. R. Evid. 901(b)(4)-(6).

Question 22

What does the “best evidence rule” refer to? When does it apply? (2)

Answer 22

The Best Evidence Rule refers to the general requirement of Federal Rules 1001-1008 that the original document (or a reliable duplicate) must be used to prove the contents of a writing, recording, or photograph (including electronic documents, x-rays, and videos). The rule applies only when the contents of the document are at issue or a witness is relying on the document when testifying.

Question 23

When are the contents of a document at issue? (3) FRE?

Answer 23

The contents of a document are at issue when:

i) The document is used as proof of the happening of an event, such as a photograph of a bank robbery);
ii) The document has a legal effect, such as a contract or a will; or
iii) The witness is testifying based on facts learned from the writing (as opposed to personal knowledge), such as an x-ray.

Fed. R. Evid. 1001, 1002.

Question 24

What does the original of a writing or recording include? (3) FRE?

Answer 24

any copy intended to have the same effect as an original by the person executing or issuing it. If the data is stored on a computer, any legible printout that reflects the data accurately is an original. An original of a photograph includes the negative and any print made from it. Fed. R. Evid. 1001(3).

Question 25

What are the five exceptions to the best evidence rule?

Answer 25

1. Duplicates
2. Original unavailable
3. Public records
4. Summaries
5. Admission by party

Question 26

What qualifies under the duplicate exception to the best evidence rule? FRE? Unless? (2) FRE?

Answer 26

A duplicate is a counterpart produced by any technique that accurately produces the original. Fed. R. Evid. 1001(4).
A duplicate is admissible to the same extent as an original unless:
i) There is a genuine question as to the authenticity of the original; or
ii) It would be unfair under the circumstances to admit the duplicate in lieu of the original (such as when only part of the original is duplicated).
Fed. R. Evid. 1003

Question 27

When are handwritten copies of an original admissible?

Answer 27

Handwritten copies of an original are not duplicates and are admissible only when the original or duplicate is lost, destroyed, or in the possession of an adversary who fails to produce it.

Question 28

When does the original qualify as unavailable under the best evidence rule exception? (5) FRE?

Answer 28

The original is not required, and other evidence of its contents is admissible if:

i) The original has been lost or destroyed, unless done by the proponent in bad faith;
ii) The original cannot be obtained by any available judicial process or procedure; iii) The party against whom the document is offered was in possession of the original and was notified that the original was required at the hearing, but did not produce it; or
iv) The document relates to a collateral matter. Fed. R. Evid. 1004.

Question 29

How may the contents of a public record be proved? (3) FRE?

Answer 29

The contents of public records may be proved by a certified copy, or by a copy plus the testimony of a person who compared the copy with the original. If a copy that complies with one of the foregoing cannot be obtained through reasonable diligence, the contents may be proved by other evidence. Fed. R. Evid. 1005.

Question 30

What about summaries and the best evidence rule? (2) FRE?

Answer 30

The contents of voluminous writings, recordings, or photographs may be presented in the form of a chart, summary, or calculation, if such contents cannot be conveniently examined in court. The originals or duplicates must be available for examination and copying by other parties. Fed. R. Evid. 1006.

Question 31

What about “admission by party” and the best evidence rule? FRE? Unless?

Answer 31

The original document need not be produced if the party against whom the document is offered admits, either at trial or during discovery (e.g., in a deposition), to the contents of the document. Fed. R. Evid. 1007.
If a party against whom a document is offered admits to the contents of the document in an out-of-court statement, the best evidence rule applies.

Question 32

What is the general parole evidence rule? What assumption is it based on?

Answer 32

The parol evidence rule operates to exclude evidence that, if introduced, would change the terms of a written agreement. The rule is based on the assumption that a written contract represents the complete agreement between the parties.

Question 33

What is integration? What if a written agreement is in complete integration?

Answer 33

If a written agreement is a complete integration (i.e., contains all of the terms to which the parties agreed), then the parol evidence rule is in effect, and no extrinsic evidence may be introduced.

Question 34

What is partial integration? What extrinsic evidence may be admitted?

Answer 34

A contract that contains some, but not all, of the terms to which the parties agreed is a partial integration. In this case, extrinsic evidence that adds to the writing may be admitted. Evidence that contradicts the writing may not be admitted.

Question 35

What are the four exceptions to the parole evidence rule?

Answer 35

Extrinsic evidence can always be admitted for the following purposes:

i) To clarify an ambiguity in the terms of the writing;
ii) To prove trade custom or course of dealings;
iii) To show fraud, duress, mistake, or illegal purpose on the part of one or both parties; or
iv) To show that consideration has (or has not) been paid.

Question 36

What kind of evidence does the parole evidence rule apply to?

Answer 36

Only evidence of prior or contemporaneous negotiations is subject to the parol evidence rule. In other words, evidence of negotiations conducted after the execution of the written contract is not prohibited by the parol evidence rule and may be offered to prove subsequent modifications of the agreement.

Question 37

What about demonstrative and experimental evidence? (4)

Answer 37

A court may allow demonstrations and experiments to be performed in the courtroom. This may include exhibition of injuries In a personal injury or criminal case. A court has discretion to exclude evidence of personal injuries, if the demonstration of such severe injuries would result in unfair prejudice. A court may also exclude a demonstration that cannot be effectively cross-examined. Science experiments are permitted, but also may be excluded if they will result in undue waste of time or confusion of the issues.