Authentication and BER

Question 1

Authentication, when needed

Answer 1

If relevance of writing depends on its source or authorship, showing must be made that it is authentic - that it is what it purports to be.

Foundation must be laid in order to authenticate.

Question 2

Methods of Authentication

Answer 2

1. Personal knowledge
2. Proof of handwriting (lay person opinion, expert opinion, jury comparison)
3. Proof by Circumstantial evidence (e.g. only X would know information contained in writing)
4. Ancient Documents - if a) 20 years old, b) facially free of suspicion, and c) found in a place where you’d expect it to be = deemed authentic
5. Solicited Reply Doctrine - if received in response to prior communication to alleged author

Question 3

Burden of Proof for Authentication

Answer 3

Conditional Relevancy standard - document is admissible if COURT determines there is sufficient evidence for a reasonable juror to conclude the document is genuine.

Judge herself need not be convinced, need only be sufficient evidence for reasonable juror.

Question 4

Self-Authenticating Documents

Answer 4

1. Official Publications
2. Certified Copies of Public or Private Records
3. Newspapers or periodicals
4. Trade inscriptions and labels
5. Acknowledged document (certification by notary public that author acknowledged authorship)
6. Commercial Paper

Question 5

Authentication of photographs

Answer 5

A witness may testify on the basis of personal knowledge of a thing or a scene that the photo is a “fair and accurate representation” of the people or objects portrayed.

NEED NOT BE Photographer

Question 6

Best Evidence Rule

Answer 6

A party who seeks to prove the contents of a writing (inc. sound recordings, X-Ray, or film) must either PRODUCE the ORIGINAL writing, or provide an acceptable excuse for its absence (in which case can use secondary evidence).

(a DUPLICATE is admissible to same extent as original unless it would be unfair or there is a genuine question about the authenticity of the original)

Question 7

When the Best Evidence Rule Applies

Answer 7

1. When the writing is a legally operative document - the writing itself creates rights and obligations (contract, patent, deed, lease, divorce decree)
2. When the witness is testifying to facts that she learned SOLELY FROM reading about them/watching them in a writing

Question 8

When the BER does NOT apply

Answer 8

Does NOT apply when a witness testifies to a fact based on personal knowledge of what happened, independent of the writing that records the fact.

Question 9

What qualifies as an “original” for the BER?

Answer 9

1. whatever the parties intended as the original (counterpart created to have the same effect/at the same time, negative or print of film, computer print-out)
2. A DUPLICATE is any counterpart produced by any mechanical means that accurately reproduces the original. (photocopy; carbon copy)

Handwritten copy is NOT original or duplicate

Question 10

Valid EXCUSES to BER

Answer 10

Excuse must be established by a preponderance of the evidence in order for court to allow secondary evidence:

1. lost or cannot be found with due diligence
2. destroyed without bad faith of proponent
3. cannot be obtained through legal process

Question 11

“Escapes”/exceptions to BER

Answer 11

1. Voluminous Records - may be presented through summary, IF originals would be admissible and are available for inspection
2. Certified Copies of Public Records meet BER
3. Collateral Documents might be excused from BER (documents that don’t go to the merits of the case)