Authentication Flashcards
What 3 things should be remembered if you see a writing?
(1) Authentication
(2) Best Evidence Rule
(3) Hearsay
Rule of authentication
Any writing or secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that it is what the proponent claims it is
What is the standard of proof for authenticating a writing?
Proof is sufficient to support a jury finding of genuineness (reasonable person)
How can a document be authenticated?
Opponent admission, eyewitness testimony, handwriting verifications (person with familiarity, expert, jury’s comparison), ancient documents (have special rules)
What are the requirements for ancient documents?
A document can be authenticated by evidence that it:
- is at least 20 years old
- is in a condition that creates no suspicion as to authenticity
- was found in a place it would likely be kept
How are photographs or videos authenticated?
Only if identified by a witness as a fair and accurate representation of those facts. A witness familiar with the scene, object, or person is sufficient
What if no person is available to authenticate an unattended camera?
Can be authenticated by showing that the camera was properly operating at the time and photo or video was downloaded from that camera.
When do you need to authenticate an oral statement?
When a statement is admissible only if said by a particular person (ex, statement by an opposing party), authentication as to the identity of the speaker is required.
How can an oral statement/voice be authenticated?
Voice authentication- opinion of anyone who has heard the voice at any time
Phone conversations- any party to the call who testifies that (1) they recognize the other party’s voice, (2) speaker knew stuff only they would know, (3) they called a particular person or business and answered as that person
What are self-authenticating documents?
- domestic public documents with a seal & similar foreign documents
- official publications
- certified copies of public records
- newspapers and periodicals
- trade inscriptions and labels
- notarized documents
- commercial paper and related documents
- business records (certified, notice, and opportunity for inspection)
What is the Best Evidence Rule?
Original document rule
To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material.
When does the Best Evidence Rule apply?
Applies in 2 situations:
(1) when the writing is legally operative
(2) where the W’s knowledge stems from having read it in the writing
When does the Best Evidence Rule not apply?
When the W has personal knowledge of the fact to be proved, even if the fact happens to be in a writing.
Are duplicates admissible?
Duplicates are admissible to the same extent as originals, unless: (1) it’s unfair or (2) genuine question about the authenticity of the original
What if a party can’t produce the original writing or an admissible duplicate?
The party may offer other evidence of its contents: handwritten copies, notes, or oral testimony if a satisfactory explanation is given for the non-production of the original
What are satisfactory excuses for non-production of an original document?
- Loss or destruction of the original (unless it was in bad faith)
- Original can’t be obtained by any available judicial process
- Original is in the possession of an adversary who fails to produce the original
What are the exceptions to the Best Evidence Rule?
- Summaries of voluminous records
- Certified public records
- Writing is collateral to litigated issue
- Testimony or written admission of opponent
What is real evidence?
Actual physical evidence addressed directly to the trier of fact
How can real evidence be admitted?
Must be relevant, authenticated, and the same condition at trial (if condition is at issue)
How can you authenticate real evidence?
Must be identified as what the proponent claims it to be, by either:
(A) testimony of W that they recognize that object as what proponent claims it to be
(B) evidence that the object has been held in a substantially unbroken chain of possession
What standard of proof applies to real evidence?
Proof must be sufficient to support a jury finding of genuineness
Can the court exclude real evidence?
Yes, by Rule 403 factors
