Authentication and Best Evidence Flashcards
Authentication as a condition precedent to admissibility requires evidence to be what?
Sufficient to support a finding that the matter in question is what the proponent claims it to believe. Sufficient evidence is that which a reasonable juror could find to be genuine by a preponderance of the evidence.
All evidence, whether direct or circumstantial, may be classified as either of what two catagories?
- Testimonial
or
- Tangible
When is demonstrative evidence is admissible?
- Must assist the trier of fact
- Fairly and accurately sets the scene
- Witness must be substantially familiar with the evidence shown
e. g. maps and charts
How can real evidence be authenticated?
Testimony from a witness about first hand knowledge
More Info: Real Evidence Authentication
What is required for a chain of custody with fungible items?
- Accounting for an item’s whereabouts from the time of issue until trial. This is a big area for impeachment by defense counsel in criminal cases.
- The party entering the item must account for any change in the evidence.
How can documents be authenticated or identified?
Can be authenticated by:
- Custodian: witness must be substantially familiar with the items
- A person who prepared the document/report (preparer of lab report)
- An eyewitness to the signing of the document
- An opinion by expert witness on handwriting, fingerprints, shoeprints, tire tread marks, ballistics, etc.
Or
- By the jury comparing samples.
What are the three ways to authenticate handwriting?
- Lay person familiar with the writing (≠ as a result of preparing for trial)
- Comparison by expert
- Comparison by trier of fact
What does a showing that a call was made to the number assigned prove?
That call was received by the person assigned to that number
A showing that a call was made from an assigned number proves?
That the call came from the person assigned to a number
What documents need no foundation witness to prove they are genuine?
- Certified documents (public documents under seal)
- Official publications by a public authority
- Newspapers and periodicals
- Trademarks
- Acknowledged documents (notarized documents)
And
- Commercial paper (bills of lading).
When analyzing writings, what are the issues the proponent must overcome regarding admissibility?
The proponent must prove it is:
- An original writing
- Not Privileged
- Relevant
- Authentic
- Not Hearsay
* More Info:* Admissibility - Writings
What is required to prove the content of a writing, recording, or photograph?
The original is required unless an exception applies. The purpose is to reduce fraud. This rule covers every instrument used to capture statements.
When does the best evidence rule apply?
The contents of a writing are an issue in the case:
- Legally operative documents where the writing has independent legal significance
- Document-dependent testimony: the only reason the witness knows this is because they saw/heard what was captured (if independently known, does not apply).
* More Info:* Best Evidence Rule
When is best evidence rule not applicable?
Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT at issue and the best evidence rule does not apply.
What qualifies as an original for the purposes of the best evidence rule?
- An original
- A xerox copy
- Certified copy of a public record
- Summaries of voluminous records, unless there is a genuine question of authenticity
