Authentication

Question 1

What 3 things should be remembered if you see a writing?

Answer 1

(1) Authentication
(2) Best Evidence Rule
(3) Hearsay

Question 2

Rule of authentication

Answer 2

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

Question 3

What is the standard of proof for authenticating a writing?

Answer 3

Proof is sufficient to support a jury finding of genuineness (reasonable person)

Question 4

How can a document be authenticated?

Answer 4

Opponent admission, eyewitness testimony, handwriting verifications (person with familiarity, expert, jury’s comparison), ancient documents (have special rules)

Question 5

What are the requirements for ancient documents?

Answer 5

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

Question 6

How are photographs or videos authenticated?

Answer 6

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

Question 7

What if no person is available to authenticate an unattended camera?

Answer 7

Can be authenticated by showing that the camera was properly operating at the time and photo or video was downloaded from that camera.

Question 8

When do you need to authenticate an oral statement?

Answer 8

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.

Question 9

How can an oral statement/voice be authenticated?

Answer 9

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

Question 10

What are self-authenticating documents?

Answer 10

• 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)

Question 11

What is the Best Evidence Rule?

Answer 11

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.

Question 12

When does the Best Evidence Rule apply?

Answer 12

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

Question 13

When does the Best Evidence Rule not apply?

Answer 13

When the W has personal knowledge of the fact to be proved, even if the fact happens to be in a writing.

Question 14

Are duplicates admissible?

Answer 14

Duplicates are admissible to the same extent as originals, unless: (1) it’s unfair or (2) genuine question about the authenticity of the original

Question 15

What if a party can’t produce the original writing or an admissible duplicate?

Answer 15

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

Question 16

What are satisfactory excuses for non-production of an original document?

Answer 16

• 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

Question 17

What are the exceptions to the Best Evidence Rule?

Answer 17

• Summaries of voluminous records
• Certified public records
• Writing is collateral to litigated issue
• Testimony or written admission of opponent

Question 18

What is real evidence?

Answer 18

Actual physical evidence addressed directly to the trier of fact

Question 19

How can real evidence be admitted?

Answer 19

Must be relevant, authenticated, and the same condition at trial (if condition is at issue)

Question 20

How can you authenticate real evidence?

Answer 20

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

Question 21

What standard of proof applies to real evidence?

Answer 21

Proof must be sufficient to support a jury finding of genuineness

Question 22

Can the court exclude real evidence?

Answer 22

Yes, by Rule 403 factors