Authentication, Best Ev Rule, & Privileges Flashcards
3 things to look for re evidence with WRITINGS
- Authentication
- Best evidence
- Hearsay
Ways to authenticate a writing (4 types)
- W’s personal knowledge (I saw him write it)
- Proof of handwriting (lay person opinion, expert comparison, jury comparison)
- Circumstantial evidence
- A. inference of authenticity for ancient docs (20 yrs @ federal, 30 yrs in NY) + facially free of suspicion + find doc in place it would normally be
- Reply doctrine (e.g., doc was received in response to communication)
Procedure when question of fact is raised w/r/t authenticity – apply what standard?
Conditional relevancy –> doc is admissible if court determines that there is enough evidence S.T. RATIONAL JURY COULD CONCLUDE WRITING IS AUTHENTIC.
Self-authenticating documents that can go directly into evidence (6 of them)? These docs put burden of proof on other side to show it’s a forgery.
- public record (e.g. govt pub)
- certified copy of public or private record that are on record in public office (e.g., mortgage)
- Newspaper/article
- Trade label
- Acknowledged doc (certified by notary that author acknowledged authorship), e.g. R/E K
- Commercial papers’ signatures
Authentication of photo: how?
- person w/ knowledge of object thereof says that it’s a fair and accurate representation thereof (needn’t be photographer)
Best evidence rule? Secondary evidence?
Someone who wants to prove contents of writing must EITHER PRODUCE ORIGINAL OR PROVIDE ACCEPTABLE EXCUSE FOR ITS ABSENCE. If excused, secondary testimony allowed = copy or testimony re contents.
When does best evidence rule apply? 2 main situations
- Where writing is legally operative doc (e.g. patent, deed, K)
- If W is referring to a writing in order to prove facts that W learned through the writing (writing includes film/sound).
When does the best evidence rule NOT apply?
When W testifies as to fact that W observes first-hand that also happens to be videotaped. (By contrast, if W’s knowledge comes from reading the writings, then best evidence rule DOES apply.)
What qualifies as original writing for best evidence rule? 3 examples
- What did parties intend? E.g., signed in counterpart = both original.
- Photo print or negative
- Print out of computer info
- What is a duplicate for best ev rule purps?
- When may it be used?
- NY distinction for photocopies?
- What does not qualify as duplicate?
- Any counterpart mechanically reproducing the original.
- Admissible to the same extent as the original UNLESS A. unfair or B. authenticity of the original in doubt
- Photocopy not used as sub for original unless made in ordinary course of bus
- Hand-written copy.
What’s an acceptable excuse for not producing original under best ev rule? 3 examples.
- Original lost or can’t be found with due diligence
- Original destroyed w/o bad faith
- Original is beyond legal process (e.g., Swiss bank vault)
If ct persuaded of acceptable excuse not to produce original, ct will accept _______?
secondary evidence: testimony about its contents or a handwritten copy
Assume best ev applies and we have the original, but ct gives us ESCAPE FROM BEST EV RULE (when - 3 occasions).
- voluminous records can be presented through summary
- certified copies of public records good enough
- collateral documents (unimportant docs) need not show originals
Procedural rule re FED cout in 2 parts
- If case arises under Fed substantive law, privileges come from common law - basic rules.
- If Fed case based on diversity of jur & state substantive law applies, then Fed ct applies state privilege laws.
3 kinds of privileges
- attorney-client
- dr-patient
- spousal
