authentication & secondary evidence

Question 1

a ‘writing’ is

Answer 1

any tangible thing to record a communication on

Question 2

cec 1400 authentication is

Answer 2

authentication: introduce evidence sufficient to support a finding that the writing is what you claim it is or establishment of such facts by any other means provided by law

Question 3

cec 1401 must authenticate before

Answer 3

must authenticate before writing received into evidence and before secondary evidence of its content may be received

Question 4

cec 1402 if writing even appears altered

Answer 4

if a writing at least appears to be altered in a material way, party producing it must account for that.

if alteration was made by someone else w/out his concurrence or made w/ consent of parties affected by it, or innocently made, or did not change anything

Question 5

cec 1520 proving content of writing

Answer 5

content of a writing may be proved by an otherwise admissible original

Question 6

cec 1521 secondary evidence (copies, duplicates, printout, recording) rule

Answer 6

secondary evidence rule:

content of a writing can be proved by otherwise admissible secondary evidence… which will be excluded if genuine dispute about material terms of the writing or it would be unfair

cannot use oral testimony to prove content if inadmissible under 1523

Question 7

cec 1522 ad’l grounds for excluding secondary evidence

Answer 7

ad’l grounds for exclusion of secondary evidence

in a cirminal action: if original is in proponent’s control and they don’t make it reasonably available unless it’s a duplicate, not closely related to controlling issues, a copy in custody of public entity

Question 8

1523 oral testimony as secondary evidence

Answer 8

CEC § 1523: General rule is the oral testimony is not admissible to prove the content of a writing, except when one of the following 4 conditions is met:

1. The original was either lost or inadvertently destroyed, or
2. The proponent does not have the original or a copy and was not able to rx procure the original copy using the court process or other means, or
3. The proponent does not have the original or a copy & the writing is not closely related to controlling issues in the litigation
4. Does not require that the originals be unavailable, but applies when the writings are so voluminous that it would waste the court’s time to examine the entire batch.
   i. When the only evidence sought is the “general result of the whole,” the court finds a thorough examination to be a waste of judicial resources
   ii. Ask the witness who has read all of the documents to summarize them.