Authentication + Best Evidence Rule Flashcards
Authentication - General
**To be admitted, a writing or other physical evidence must be authenticated by PROOF showing that the writing is what proponent claims it is.
* Proof must be sufficient to support jury finding of genuineness (reasonable juror could conclude writing is genuine)
CEC and FRE same
Methods of Authentication
(i) Handwriting verification
* Lay witness opinion familiar w/handwriting before litigation,
* Expert witness, OR
* Jury’s comparison of writing
(ii) Ancient documents:
* Document must be at least 20 years old,
* In condition that creates no suspicion as to authenticity, and
* Found in place where such writing would be kept
(iii) Copy of Conviction:
* Certified copies of public records are self authenticating under CEC and FRE (also includes newspapers and official gov publications)
* CEC: NOT business records
Self-Authenticating: Document itself provides sufficient evidence for a finding that it is genuine, and no additional foundational evidence is necessary.
Authentication - Oral Statement
Oral statements must be authenticated where identity of speaker is important to the case. Statements made during telephone call can be authenticated by testimony that:
(i) speaker identified himself
(ii) listener recognizes speaker’s voice
* Requires foundation to show witness’s familiarity with the voice
(iii) speaker has knowledge only a particular person would have, OR
FRE: Best Evidence Rule
CEC: Secondary Evidence Rule
When a party seeks to prove material terms of a writing, the original must be produced
* Applies when witness obtains knowledge from having read it in a document
FRE: Duplicates (exact copy of the original) are admissible UNLESS (i) it would be unfair to admit the duplicate or (ii) a genuine question is raised regarding its authenticity
* CEC: Same as FRE except it allows handwritten notes to constitute a duplicate (FRE does not)
