Authentication and Witnesses

Question 1

4 Kinds of Evidence Need Authentication

Answer 1

Kinds of evidence that need authentication:

1. Real Evidence
2. Private Writings/Documents
3. Public Documents - Automatic
4. Photos, Videos (only need witness to say that it’s fair and accurate)

Question 2

Authenticating real evidence

(1) Distinct, recognizable
(2) Indistinct; fungible

Answer 2

1. Distinct - authenticated by a witness with personal knowledge who testifies that he recognizes the item
2. Indistinct - is authenticated by proving the chain of custody
   Needed for evidence such as drugs, blood, DNA samples

Question 3

Authenticating Private Writings/Documents

Answer 3

1. Admission - party admits he wrote or signed the document
2. Witness - A witness testifies that she saw the person write or sign the document
3. Proof of Handwriting or signature by:
   a. Witness familiar with the handwriting
   b. Handwriting Expert
   c. Jury supplied with writing samples and
   makes conclusion
4. Circumstantial evidence - most frequently used for authenticating documents

Question 4

Self Authenticating Documents

Answer 4

These are presumed authentic - but doesn’t mean they get passed hearsay rule

1. Certified copies of public or private records on file in public office
2. Newspapers or periodicals
3. Trade inscriptions and labels
4. Acknowledged (notarized) document
5. Commercial paper

Question 5

Authentication of Photographs

Answer 5

Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed.

Question 6

Best Evidence Rule

Answer 6

• A party who seeks to prove the contents of a writing, recording, photograph, x-ray where the terms are material, the original must be produced.
• Secondary evidence of the writing, such as oral testimony, regarding the contents of the writing is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent

GA - only applies to writings.

Question 7

Best Evidence Copy Rule

Answer 7

Duplicates are copies accurately reproduced by mechanical means (photocopies) and are ADMISSIBLE to the same extent as the original if a satisfactory explanation is given for the nonproduction of the original.

Question 8

Dead Man Statute

Answer 8

1. In a CIVIL action only,
2. an INTERESTED WITNESS
3. is INCOMPETENT to testify
4. against the estate of a decedent
5. concerning a PERSONAL TRANSACTION OR COMMUNICATION between the interested person and decedent.
   * Not in the FRE

Question 9

Past Recollection Recorded

Answer 9

Hearsay Exception
Foundation:
1. W at one time had personal knowledge of facts in the writing
2. Writing was made by the W or under her direction, or was adopted by the W
3. Writing was timely made - fresh in mind
4. Writing is accurate
5. W has insufficent recollection to testify fully and accurately
- Item CAN be admitted into evidence, BUT it can’t be taken with jury over objection

Question 10

Refreshing Recollection v. Past Recollection Recorded

Answer 10

Refreshing Recollection - Anything can be used, witness need not have seen it before, can’t read out loud, can’t admit into evidence

Past Recollection Recorded - writing made or adopted by witness as true when memory fresh, can read out loud, can admit into evidence

Question 11

Lay Opinion Testimony

Answer 11

Admissible if:

1. Based on witness’ perception (personal knowledge)
2. Rational
3. Mundane, non-expert opinion

Question 12

4 Basic Requirements of Expert Witness

Answer 12

1. Witness is qualified by education and/or experience
2. Witness represented a field of expertise or theory that is reliable;
3. Witness has applied her expertise reliably to the facts of this case;
4. Witness has based her opinion on reliable facts and data

Question 13

4 Possible Factual Bases for Determining Expert Witness Has Based Opinion on Reliable Facts and Data

Answer 13

Expert may draw upon

1. Personal knowledge (e.g. treating physician)
2. Facts Admitted at trial (e.g. X-rays)
3. Facts NOT admitted at trial but material that is reasonably relied upon by experts in that particular field. (physician reviewed MRI report by radiologist)
4. Facts NOT admitted into evidence and NOT reasonably relied upon by experts in the field (medical review in time magazine) - If not CRITICAL to the formation of the opinion this can be used

Question 14

Compentency

Answer 14

Children/Infants - understand the difference between lying and telling the truth; meaning the oath. Considered Competent

Mental/Physical Limitaitons- testify it at all coherent

Oath or Affirmation - All witenesses must swear of affirm to tell the truth
It they refuse - contempt of court

Personal Knowledge - All witnesses, other than experts, must limit testimony to personal knowledge

Question 15

May the witness testify?

Answer 15

1. Is the testimony relevant

2. Does the probative value outweigh any danger of unfair prejudice, confusion, or undue delay.

Question 16

Requirement for Expert Witness in Med Mal Cases

Answer 16

1. Must have actively practiced or taught within 3 of last 5 years
2. Have practiced or taught with sufficent frequency to establish an appropriate level of the standard of care
3. Must be a member of the same profession
   - However Dr’s with sufficent experience and knowledge may testify to the standards of care for nurses and other specified health care providers.

Question 17

When Best Evidence Rule Does Not Apply

Answer 17

1. Fact to be proved exists independent of writing
2. Writing is collateral to litigated issue
3. Summaries of Voluminous Records
4. Public Records - Though if copy must be certified as correct by custodian of document, or testified to be correct by a person who compared to the original