Authentication and the Contents of Writings

Question 1

Authentication

Answer 1

• Condition to admission
• requires evidence that a reasonable person could find it genuine by POTE
• judge decides
• all tangible evidence plus voice identification and descriptions of a process or system

Question 2

Extrinsic authentication

Answer 2

• Someone with personal knowledge or familiarity with the item or a custodian of records
• Photo or diagram: fair and accurate representation

Question 3

Circumstantial

Answer 3

o Chain of custody: common for undistinguishable items, proof of substantially similar condition
o Ancient documents rule
o Other distinctive characteristics: appearance, contents, substance, patterns

Question 4

Handwriting

Answer 4

o By a layperson with familiarity (NOT acquired for litigation)
o By comparison by an expert with person’s known writing sample; or
o By comparison by the trier of fact

Question 5

Voice

Answer 5

o Opinion of person who has heard speaker at any time, even if familiarity is acquired for the litigation.
o Phone Conversations: Call to # assigned to person or business and circumstances show person or business answering is the one called
o Process or System Description: Evidence describing a process or system and showing that it produces an accurate result.

Question 6

Self-Authenticating

Answer 6

Extrinsic evidence is not condition to admissibility for the following: (CONTAC)

Certified documents
 seal or official certifies under seal
 foreign docs: genuineness of signature and authorized person’s official position
 copies: filed or recorded in public office and certified as correct; certified copies of business records; certified electronically generated records from reliable system; and certified copies of electronically stored data

Official publications

Newspapers or periodicals

Trade inscriptions
 Signs, tags, or labels affixed in the ordinary course of business indicating ownership, control, or origin.

Acknowledged documents
 Notarized documents (but hearsay apply to notarization)

Commercial paper
 Signatures when required by UCC

Question 7

Best Evidence Rule

Answer 7

To prove content, original is required

Only applies where contents are in issue
o Legally operative documents: independent legal significance
o Document dependent testimony: testimony is reliant on the writing not personal knowledge

Originals include
o Duplicates
o Certified copies of a public record
o Summaries of voluminous records

A duplicate is admissible to the same extent as an original unless: 1) A genuine question is raised as to the authenticity of the original; or 2) It would be unfair to admit the duplicate in lieu of the original.

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith

Question 8

Independent source rule

Answer 8

o BER doesn’t apply when fact has source independent of the writing
o Cannot testify that record proves X unless you produce the record

Question 9

Admissibility of other evidence of content

Answer 9

Original is not required, and other evidence of contents is admissible if CLOTS

Collateral
	Not closely related to controlling issue
Lost
	Lost or destroyed unless in bad faith
Opponent
	Had possession and refused to deliver
Testimony or admission by opponent
Subpoena
	Cannot be obtained by any available judicial procedure

Question 10

Public records

Answer 10

• Can be proved by copy, certified as correct, or by witness testimony upon comparison

Question 11

Summaries

Answer 11

• Original available to examination or copying by opponent or court
• Foundation: originals are admissible hearsay, opponent was given reasonable pretrial access, properly authenticated by preparer

Question 12

Testimony or admission by party