Authentication of Writings

Question 1

What are the three potential issues that might be raised when you see a writing on the exam?

Answer 1

1. Authentication
2. Best Evidence Rule
3. Hearsay

Question 2

What is authentication?

Answer 2

If the relevance of a writing depends upon its source or authorship, a showing must eb made that the writing is authentic, i.e., that it is what it purports to be.

Question 3

What are the methods of authentication?

Answer 3

1. Witness’s personal knowledge
2. Proof of Handwriting
3. Ancient Document Rule
4. Solicited Reply Doctrine

Question 4

How is authentication proven by a witness’ personal knowledge?

Answer 4

The witness can testify that he observed X sign the document

Question 5

How is authentication proven by proof of handwriting?

Answer 5

1. Lay person with familiarity
2. Expert comparison with genuine sample
3. Jury comparison

Question 6

What is the ancient document rule? **

Answer 6

Authenticity may be inferred if document is:

1. At least 20 years old (NY - 30 years)
2. Facially free of suspicion
3. Found in a place of natural custody

Question 7

What is the solicited reply doctrine?

Answer 7

A document can be authenticated by evidence that it was received in response to a prior communication with the author.

Question 8

Who makes the authenticity determination?

Answer 8

The jury! It’s a conditional relevancy standard (a reasonable juror could find it authentic).

Question 9

What documents are self-authenticating?

Answer 9

1. Official government publications
2. Deeds / Mortgages, etc
3. Newspapers / Periodicals
4. Commercial Paper
5. Acknowledged documents (notary public)

Question 10

How are photographs authenticated?

Answer 10

By a person with personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed