Authentication, Writings, and Real Evidence

Question 1

What are the 3 issues to be on alert for in any Evidence question regarding a writing?

Answer 1

(1) Authentication
(2) The best evidence rule
(3) Hearsay

Question 2

What is the general rule regarding admissibility of writings or secondary evidence of a writing’s contents?

Answer 2

A writing or any evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine).

Question 3

Writing authentication: opponent’s admission

Answer 3

A writing can be authenticated by evidence that the party against whom the writing is offered has either admitted its authenticity or acted upon it as authentic.

Question 4

Writing authentication: eyewitness testimony

Answer 4

A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it does not have to be from a subscribing witness unless required by statute.

Question 5

Writing authentication: handwriting verification

Answer 5

A writing can be authenticated by evidence that the maker’s is genuine. This evidence may be in the form of:

(1) The opinion of a lay witness (nonexpert) who has familiarity with the alleged writer’s handwriting in the course of normal affairs (i.e., not acquired for purposes of the current litigation);
(2) The opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting; or
(3) The fact-finder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting

Question 6

HYPO: During plaintiff’s case-in-chief, Witness testifies that, in her opinion, the 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?

Answer 6

No. X may argue that the document is a forgery, but the evidence is admissible based on Witness’s testimony that she is familiar with X’s handwriting. The judge need not be convinced that X wrote the document. The proper standard is whether there is sufficient evidence from which a reasonable juror could be convinced that the document is genuine, which is met here.

Question 7

Writing authentication: ancient document rule

Answer 7

A document can be authenticated by evidence that it:

(1) Is at least 20 years old when offered into evidence;
(2) Is in a condition that creates no suspicion as to authenticity; and
(3) Was found in a place where such a writing would likely be kept

Note that while documents may be authenticated if they are at least 20 years old, the related hearsay exception for ancient documents will only apply if the document was prepared before 1998.

Question 8

Writing authentication: reply letter doctrine

Answer 8

A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author.

Question 9

Writing authentication: photographs and videos

Answer 9

Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph or video; a witness familiar with the scene, object, or person is sufficient.

Question 10

HYPO: Alice testifies that she observed the auto accident that occurred at the intersection of Hickory and Elm Streets on July 1, 2021. She is shown a photograph and asked whether it is a fair and accurate portrayal of the Hickory and Elm intersection as she remembers is on July 1, 2021. “Objection: No foundation that Alice was the photographer.” What ruling?

Answer 10

Overruled. Alice does not need to be the photographer to authenticate the photograph. She need only be familiar with the scene.

Question 11

Writing authentication: unattended camera

Answer 11

If a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera.

Question 12

Writing authentication: X-ray pictures, electrocardiograms, etc.

Answer 12

Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-ray has not been tampered with.

Question 13

What is the general rule for authentication of oral statements?

Answer 13

When a statement is admissible only if said by a particular person (for example, as a statement by an opposing party), authentication as to the identity of the speaker is required.

Question 14

Oral statements: voice identification

Answer 14

A voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.

Question 15

Oral statements: telephone conversations

Answer 15

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:

(1) They recognized the other party’s voice;
(2) The speaker had knowledge of certain facts that only a particular person would have;
(3) They called a particular person’s number and a voice answered as that person or that person’s residence; or
(4) they called a business and talked with the person answering the phone about matters relevant to the business

Question 16

What are the different kinds of self-authenticating documents?

Answer 16

(1) Domestic public documents bearing a seal, and similar foreign public documents;
(2) Official publications (such as a government pamphlet);
(3) Certified copies of public records or private records on file in a public office;
(4) Newspapers and periodicals;
(5) Trade inscriptions and labels;
(6) Acknowledged (notarized) documents;
(7) Commercial paper (including signatures thereon) and related documents; and
(8) Business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 17

What is the “best evidence rule”?

Answer 17

(More accurately called the “original document rule”)

To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence.

Question 18

HYPO: Bubba ordered 100 pounds of shrimp from Gulf Shrimp Co. pursuant to a written purchase order. In his suit for breach of contract, Bubba takes the stand and testifies, “I didn’t get what I ordered. The purchase order called for 3-inch jumbo shrimp, and they delivered 1-inch mini-shrimp.” Which of the following would be a valid objection to Bubba’s testimony?

(1) The actual shrimp are the best evidence of what was delivered.
(2) The purchase order is the best evidence of what the contract required.

Answer 18

(2) is a valid objection. Bubba is testifying to the contents of the contract, but the facts do not indicate that he has produced the original purchase order in evidence. Because the terms of the purchase order are material to the disposition of the case, it must be produced, or else Bubba may not testify to the contents of the purchase order unless he has a satisfactory excuse for not producing the original purchase order.

Question 19

When does the best evidence rule apply?

Answer 19

The rule applies in 2 principal situations:

(1) Where the writing is a legally operative or dispositive instrument (that is, the writing itself creates rights and obligations); or
(2) Where the knowledge of a witness concerning a fact results from having read it in the writing

Question 20

HYPO: Barney the Burglar is charged with breaking into a warehouse. No one witnessed the break-in, but it was captured on film by an unmanned surveillance camera. Officer Sipowicz testifies that he watched the film and it clearly shows Barney the Burglar. Objectionable?

Answer 20

Yes, on two grounds. First, there is nothing in the facts to indicate that the surveillance video has been produced in evidence, which is required for Sipowicz to testify as to its contents. Second, there is nothing in the facts to indicate that the prosecution has shown that the camera was properly operating at the relevant time or that the video was downloaded from the camera.

Question 21

True or false: even if the witness has personal knowledge of the fact to be proved, if the fact happens to be recorded in a writing, the original writing must be produced to satisfy the best evidence rule.

Answer 21

False. Oral testimony of the fact may be given without producing the original writing that recorded the event so long as the witness has personal knowledge of the fact to be proved independent of the writing.

Question 22

HYPO: Alger Hiss is charged with committing perjury during his testimony at a congressional hearing. At trial, a congressional aide offers to testify to what Hiss said during the hearing.

True or false: the aide’s testimony is improper because the transcript is the best evidence of what Hiss said.

Answer 22

False. The aide has personal knowledge of what Hiss said because she was present at the time of Hiss’s testimony.

Question 23

HYPO: Worker sues Boss for nonpayment of wages and failure to reimburse for expenses.

(1) Without producing any documents, Worker testifies, “I worked 100 hours and my expenses were $1,000.” Boss objects: “best evidence rule. Produce the time sheets and expense receipts.” Results?
(2) Without producing any documents, Boss testifies: “Worker’s time sheets show she worked only 80 hours, and the receipts show only $500 in expenses.” Result?

Answer 23

(1) Overruled. The best evidence rule does not apply here. Timesheets are not legally operative documents, and Worker is testifying to facts that he has personal knowledge of independent of the timesheets.
(2) Best evidence rule objection would be sustained. Boss only knows of these facts because he saw them in the writing, so he has to produce the time sheets and expense reports.

Question 24

In the context of writings, what constitutes an “original”?

Answer 24

The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original. This includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information.

Question 25

In the context of writings, what constitutes a “duplicate”?

Answer 25

An exact copy of an original made by mechanical means (for example, a photocopy or carbon copy).

Question 26

Under what circumstances are duplicates admissible?

Answer 26

Duplicates are admissible to the same extent as originals, unless:

(1) The circumstances make it unfair to admit the duplicate, or
(2) A genuine question is raised about the authenticity of the original.

Question 27

What are valid excuses for non-production of an original writing that justify the admissibility of secondary evidence?

Answer 27

(1) Loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith
(2) The original cannot be obtained by any available judicial process. Usually, this means that it is in possession of a third party outside the jurisdiction and cannot be obtained despite a reasonable effort.
(3) The original is in the possession of an adversary who, after due notice, fails to produce the original

Question 28

Exception to the best evidence rule: summaries of voluminous records

Answer 28

When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary. However, the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.

Question 29

Exception to the best evidence rule: certified public records

Answer 29

The best evidence rule does not apply to copies of public records that are certified as correct or testified to as correct.

Question 30

Exception to the best evidence rule: testimony or written admission of opponent

Answer 30

Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original.

Question 31

Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the Federal Rules reserve these questions of preliminary fact for the jury:

Answer 31

(1) Whether the original ever existed;
(2) Whether a writing produced at trial is an original; and
(3) Whether the evidence offered correctly reflects the contents of the original.

Question 32

What is “real evidence,” and in what forms may it be introduced?

Answer 32

Real evidence is actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).

Question 33

How may real evidence be authenticated?

Answer 33

(1) Testimony of a witness that they recognize the object as what the proponent claims it is (for example, witness testifies that a gun is the one found at the crime scene); or
(2) Evidence that the object has been held in a substantially unbroken chain of possession (for example, blood taken for blood-alcohol test)

The proof must be sufficient to support a jury finding of genuineness.

Question 34

True or false: An object may be introduced in evidence in any condition, even if the condition of the object is significant to its probative value.

Answer 34

False. If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Question 35

Under what circumstances are reproductions and explanatory real evidence admissible?

Answer 35

Relevant photographs, diagrams, maps, or other reproductions are generally admissible.

Items used entirely for explanatory purposes are permitted at trial, but are usually not admitted into evidence.

Question 36

Under what circumstances are maps, charts, models, etc., admissible?

Answer 36

Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted.

Question 37

Under what circumstances are demonstrations permissible?

Answer 37

The court has discretion to permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where the demonstrations would unduly dramatize the injury.

Question 38

Under what circumstances are exhibitions of injuries permissible?

Answer 38

Exhibition of injuries in a personal injury or criminal case is generally permitted, but remember that the court has discretion to exclude the evidence for unfair prejudice.

Question 39

Under what circumstances is a jury view of the scene permissible?

Answer 39

The trial court has discretion to permit the jury to view places at issue in the case. The need for the view and changes in the condition of the premises following the events at issue in the case are relevant considerations here.