Authentication of Writings

Question 1

Authentication of writings

Answer 1

Q-TIP: whenever a writing appears on the exam, be alert to 3 potential issues: authentication, best evidence rule and hearsay

OVERVIEW: If the relevance of a writing depends on who is its source/author, you must AUTHENTICATE it. I.e. is it what it purports to be.

In absence of stipulation authenticity, must have foundation to admit doc.

Question 2

Methods of authentication, generally

Answer 2

Issue: whether X is the author of document
a. Authentication is done either by pleadings or stipulation

b. Witness personal knowledge: witness observed X sign document

c. Proof of handwriting or voice
i. Lay person opinion: someone who is familiar with another’s handwriting through normal course of affairs. Like CEO’s secretary, or classmate who traded classnotes.
ii. Expert comparison opinion: handwriting expert.
iii. Jury comparison

d. Proof by circumstantial evidence—for ex if it’s a text or email (unless you saw someone see the text being documented)
i. For ex style, types of words, internal patterns, contents, substance
ii. For ex. doc only refers to info that people with inside knowledge
e. For photograph foundation, itness must identify it as a portrayal of certain facts relevant to the issue, and verified as correct by the witness.

Solicited reply document

if authenticity is in dispute–> Admit on CONDITIONAL RELEVANCY—
admit if court determines there is sufficient evidence from which a reasonable juror could conclude the doc is genuine
a. Judge HERSELF doesn’t have to think it’s genuine. Just has to be enough evidence that its POSSIBLE it is genuine.

Question 3

Ancient document rule

Answer 3

authenticity may be inferred IF doc is:

i. Ancient (at least 20 years old)
ii. Facially free of suspicion (no erasures, whiteouts, ripped pages)
iii. Found in a place of natural custody

Question 4

Solicited reply document

Answer 4

i. Doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author
ii. Ex: P emails contract offer to X and later receives an acceptance purportedly sent by X
1. Possible someone intervened, but it’s probably X

if authenticity is in dispute–> Admit on CONDITIONAL RELEVANCY—
admit if court determines there is sufficient evidence from which a reasonable juror could conclude the doc is genuine
a. Judge HERSELF doesn’t have to think it’s genuine. Just has to be enough evidence that its POSSIBLE it is genuine.

Question 5

Compare authentication of oral statements

Answer 5

a. When a statement is admissible only if said by a particular person, authentication as to ID of speaker is required.

Question 6

Self-authenticating documents

Answer 6

a. In general presumed authentic—no need for foundation testimony. BOP to remove is on the opponent.
i. Official publications – anything published by gov’t
ii. Certified copies of public or private records if on file in public office
1. For ex deed or mortgage
iii. Newspapers or periodicals – ex. price of stock copy of WSJ
iv. Trade inscriptions and labels
v. Acknowledged document- certification by notary public.
vi. Commercial paper

Question 7

Authentication of photographs

Answer 7

a. Witness may testify based on personal knowledge that photo is fair and accurate representation of the people or objects shown
b. Witness doesn’t have to be the photographer, just has to have personal knowledge of what it shows