Authentication/Best Evidence Rule

Question 1

What are the methods of authenticating a writing?

Answer 1

1. Witness’ personal knowledge: i.e. witness saw X sign the document, etc.
2. Proof of Handwriting
   a. Lay person opinion: lay witness testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as result of experience in normal course of affairs.
   b. Expert comparison opinion: handwriting expert testifies to opinion that X wrote document on basis of comparison between document and genuine sample of X’s handwriting.
   c. Jury comparison: jury compares document with exemplar of X’s handwriting.
3. Proof by circumstantial evidence: A party may rely on circumstantial evidence such as appearance, contents, substantce, internal patterns or other distinctive characteristics (e.g. if the document refers to information that only X would know, this may be used as an inference that X is the author).
4. Ancient Document Rule: authenticity may be inferred IF document is -
   a. at least 20 years old (**New York: **30 years old)
   b. facially free of suspicion;
   c. found in a place of natural custody.
5. Solicited Reply Doctrine: document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Question 2

What are self-authenticating documents? What is the effect of presenting a self-authenticating document?

Answer 2

Self-authenticating documents are presumed to be authentic - there is no need for foundation testimony and it shifts the burden to the opposing party to show inauthenticity.

The following are considered self-authenticating documents:

a. official publications (i.e. government documents)
b. certified copies of public or private records on file in public office
c. newspapers or periodicals
d. trade inscriptions and labels
e. acknowledged document (e.g. certification by public notary that author acknowledged herself, etc.)
f. signatures on commercial paper (e.g. promissory note, etc.)

Question 3

How are photographs authenticated?

Answer 3

Witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed. The photographer DOES NOT need to testify to its authenticity.

Question 4

What is the best evidence rule?

Answer 4

A party who seeks to prove the contents of a writing must either:

a. produce the original writing; OR
b. provide an acceptable excuse for its absence.

If the court finds the excuse acceptable, the party may then use secondary evidence, like oral testimony or a copy.

Question 5

When does the best evidence rule apply? When does it not apply?

Answer 5

Applies: when a party is seeking to prove the contents of a writing.

1. The writing is a legally operative document in the present case, i.e. the writing itself creates the rights and obligations at issue - to prove the terms, see the writing itself.
2. Witness is testifying to facts that she learned solely from reading about them in a writing.

Doesn’t apply: when a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.

Question 6

What qualifies as the “original writing”? What is a duplicate? What are the NY distinctions?

Answer 6

**“Original writing”: **Whatever the parties intended as the original; any counterpart intended to have the same effect; any negative of film or print from the negative; printout of computer-stored data.

Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon copy). Duplicate is admissible to the same extent as original UNLESS it would be unfair, or there is a genuine question is raised as to authenticity of original.

New York: Photocopies are acceptable as substitutes for the original only if made in ordinary course of business.

NOTE: Handwritten copy is neither an original nor a duplicate.

Question 7

What are good excuses for non-production of the original?

Answer 7

1. Lost in good faith or cannot be found with due diligence;
2. Destroyed without bad faith;
3. Cannot be obtained with legal process

If the court is persuaded by a preponderance of the evidence that an excuse has been established, then secondary evidence is admissible.

Question 8

What are exceptions to the best evidence rule?

Answer 8

1. Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
2. Certified copies of public records.
3. Collateral documents that are not important to the case. (e.g. license of an expert, etc.)