What is a good exam tip whenever a a writing appears on the exam, be alert to three potential issues (aside from relevance)?
- Authentication
- Best evidence rule; and
- Hearsay
What is the process of authentication?
If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be.
*In the absence of a stipulation as to authenticity, a FOUNDATION must be made in order for the document to be admissible.
What the methods of authentication?
- Witness’ personal knowledge: i.e. Witness observed X sign document.
- Proof of Handwriting
- Proof by Circumstantial Evidence
- The Ancient Document Rule
- Solicited Reply Doctrine
How do you prove authentication by proof of handwriting? 3 ways:
- Lay Person: 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.
- Expert Comparison Opinion: Handwriting expert testifies to opinion that X wrote document on basis of comparison between document and genuine sample (exemplar) of X’s handwriting.
- Jury comparison: Jury compares document with exemplar of X’s handwriting.
How do we prove authentication by circumstantial evidence?
A party may rely on circumstantial evidence, such as appearance, contents, substance, 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) (this is anything that is relevant to connect the author to the particular document)
How do we prove authentication by Ancient Document Rule? 3 parts
- If it is at least 20 years old
- The document must be facially free from suspicion
- Found in a place of natural custody
How do we prove authentication by the Solicited Reply Doctrine? Used a lot when it comes to text messages and emails
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author (EXAMPLE: P mails contract offer to X, properly addressed and posted, and later receives an acceptance purportedly signed by X)
HYPO: During plaintiff’s case-in-chief, Witness testifies that, in her opinion, document was written by X because she is familiar with X’s handwriting. X advises the judge that he intends to testify during the defense that the document is a forgery and argues that the judge cannot admit the document into evidence until the judge is personally convinced that the document was written by X. Good argument?
No: Conditional relevancy standard—document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine, i.e., that X is the author. The judge herself does not need to be persuaded that doc is authenticated, judge only has to find that a there is some evidence in the record that a rational jury could find authenticity
What are Self-AuthenticatingDocuments?
In General. Presumed authentic—no need for foundation testimony: this Automatically shifts the burden of proof to the other side to prove forgery
What are examples of self authenticating documents?
- Official Publications, i.e. government publications
- Certified copies of public or private records on file in public office, i.e. Real estate deed or mortgage filed
- Newspapers or periodicals, i.e. Stock quotes for a particular day, unlikely that it is forged
- Trade inscriptions and labels
- Acknowledged Document, i.e. Doc that has on it certification by a notary public, and certified that the author appeared before the notary and acknowledged to the notary her authorship
- Commercial Paper, i.e. Under the UCC promissory notes, signatures, etc.
How do you show the authentication of photographs?
Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed.
Authentication of photographs: Alice testifies that she observed the auto accident that occurred at the intersection of Hickory and Elm Streets on July 1. She is shown a photograph and asked whether it is a fair and accurate portrayal of the Hickory and Elm intersection as she remembers it on July 1. “Objection: No foundation that Alice was the photographer.” What ruling?
Overruled, the foundation witness does not need to be the photogropher
Personal knowledge enough
