(8) Evidence: Physical and Documentary Evidence Flashcards
General Rule:
Authentication
All evidence must be authenticated before being admitted into evidence. A party must prove that the item is actually what it purports it to be.
Rule & Sub Rules:
Physical Evidence Rule
Authentication
Physical evidence may be authenticated through (a) witness testimony; or (b) by evidence that shows it has been held in a substantially unbroken chain of custody.
Acceptable witness testimony includes testimony of personal knowledge of the object, or testimony of its distinctive characteristics.
(b)The witness must account for the evidence from the time it was obtained up until its introduction at trial – this is used for items that can easily be confused such as blood samples.
Voice Recordings
Authentication
Voice recordings may be authenticated by anyone who has (1) heard the person speak (either first hand or electronically); AND (2) identified the recorded person as the speaker.
General Rule
Documentary Evidence
Authentication
Commonly authenticated by testimony of an eyewitness or handwriting verification.
Ancient Documents and Data Compilations Rule
Authentication - Documentary Evidence
A document or data compilation including electronically stored data is considered authentic if it is at least (1) 20 years old; (2) in a condition unlikely to create suspicion as to its authenticity; AND (3) found in a place where it would likely be if it were authentic.
Public Records
Authentication - Documentary Evidence
Are authenticated by evidence that the document was recorded or filed in a public office as authorized by law or if from the office where items of that kind are kept.
Handwriting Verification
Authentication - Documentary Evidence
2 methods are used to authenticate handwriting:
(1) Comparison – An expert witness or the trier of fact may compare the writing in question with another writing proven genuine (this method is also used to authenticate fingerprints, hair, cloth); AND
(2) Non-expert Opinion – a lay witness with personal knowledge of the authors handwriting may testify if it is the persons handwriting.
Best Evidence Rule (FRE)/Secondary Evidence Rule (CA)
A party must provide the original document or reliable duplicate when a witness testifies to the contents of a writing OR testifies to knowledge gained solely from a writing.
FRE vs CA:
Handwritten Duplicates Rule
Best Evidence Rule (FRE)/Secondary Evidence Rule (CA)
Under the FRE handwritten duplicates are NOT admissible (unless the original is lost, destroyed, or the person in possession fails to produce it)
In CA handwritten duplicates are admissible.
Completeness Rule
When a party introduces part of a writing or recorded statement the adverse party may compel the introduction of the omitted portion of the writing or statement if in fairness it should be considered or it clarifies the admitted portion. The rule does not require the adverse party to immediately compel the evidence as they may choose to compel during subsequent cross-examination.
