Authentication, Writings, and Real Evidence Flashcards
What level of proof is needed for a writing to be authenticated?
Proof that is sufficient to support a jury finding** **of** **genuineness
List (8), “X-Plethoraas”
What are the methods of authentication
- X-rays, EKGs etc
- Photographs and Videos
- Reply Letter Doctrine
- Eyewitness Testimony
- Handwriting verifications
- Opponent’s Admission
- Ancient documents
- Admit through pleadings or stipulation
List (4), WANT
How are X-Rays, EKGs, etc established as authentic?
Lay-person cannot authenticate instead must show:
- W: Machine was in working order
- A: Process used was accurate
- N: Establish that machine has not been tampered with
- T: Operator was qualified/trained to operate machine
List (2)
When are Photographs and Videos admissible?
Admissible only if:
- Portrayal: Photo/video was identified by witness as a portrayal of facts relevant to issue at hand
- Verification: verified by witness as fair and accurate representation of those facts
Define
Reply Letter Doctrine
A writing can be authenticated by evidence that the writing was written into response to a communication to the alleged author
Define
How does Eyewitness testimony authenticate a writing
Writing authenticated by someone who saw the writing executed or heard the writing being acknowledged
NOTE: Testimony can be by anyone
ex: execution of a will
List (3)
Handwriting verifications
Authenticate that handwriting is genuine through:
- Opinion of lay witness who has familiarity with alleged writer’s handwriting
- Opinion of expert who has compared writing with samples of alleged writer’s handwriting
- Jury/fact-finder’s comparison of writing with samples of alleged writer’s handwriting
List (2)
How does an Opponent’s Admission authenticate a writing
Opponent authenticates writing either through:
- admission -or-
- acts upon the writing as it being authentic
List (3)
Ancient Documents
A document can be authenticated by evidence that it:
- is at least 20 years old
- is in a condition which creates no suspicion to it’s authenticity
- found in a place where such document would likely be kept
Applies to all writings not just dispositive instruments (i.e. wills + deeds)
Ancient documents hearsay exception
the related hearsay exception for ancient document will only apply if the document was created before 1998.
Rationale: older documents are presumably more reliable because they are less likely to have been doctored up to win a lawsuit.
List (2)
Unattended camera - admissible?
YES if can show that
- Camera properly operating at relevant time
- Photo or video was downloaded from the camera which recorded the event
List (2)
Through what means can oral statements be authenticated
- Voice identification
- Telephone conversations
Define
Voice identification
Voice can be ID’ed by anyone who has heard the voice at any time (including after litigation has begun)
List (4)
Voice in Telephone conversations can be authenticated by
By a party to the phone convo who:
- Recognize: party (who was part of convo) recognized speaker’s voice
- Certain facts: speaker had knowledge of certain facts only a particular person would have
- Voice answering: party called a particular person’s number and voice answered as that person or person’s residence
- Business: called a business and spoke with a person who answered Qs related to the business
Self-Authenticating Documents
Hint: what type of evidence is not required?
Documents that by themselves prove that extrinsic evidence is NOT required
Best Evidence Rule
(aka original document rule)
To prove content of writing, recording, or photo the ORIGINAL writing, recording, photo must be produced if terms of writing, or content of recording, or photo are MATERIAL.
When is secondary evidence (aka not the original writing) permitted under the Best Evidence Rule (original document rule)
Only when there is a satisfactory excuse for the original’s absence
When does the Best Evidence Rule (original document rule) NOT APPLY?
When the witness has PERSONAL KNOWLEDGE of the fact to be proven.
When the witness has personal knowledge of the facts what is permitted in lieu of producing the original writing the recorded the event?
Oral Testimony
list (2)
When does Best Evidence Rule (original document rule) ARISE?
When contents of writing, photo, or video are in dispute so, BER is used so that the
- Party can prove contents of a writing, photo, or video
AND
- Party only knows of the facts bc they came from a writing, photo, or video
The best evidence rule APPLIES
- Terms of writing need to be proven OR
- W relies on contents of original document during their testimony
⚠️ The Best Evidence answer on the MBE is usually wrong. BER only applies to situations where material terms are at issue. Be wary of questions where the terms are not material.
List (2)
What counts as an original?
- The writing itself
- Counterpart of writing (i.e. negatives of a photo or screenshot of a computer screen)
What is a duplicate?
Exact copy of the original made by MECHANICAL means (i.e. photocopy)
List (2)
Duplicates are admissible to the same extent as originals UNLESS
- the circumstances make it unfair to admit the duplicate
- i.e. it’s a bad copy
- there is genuine question about the authenticity of the duplicate
- and would need to see the original to verify authenticity
Are handwritten copies duplicates or originals?
what type of evidence are they?
NEITHER!!
handwritten copies are considered secondary evidence
What type of evidence are handwritten copies?
handwritten copies are considered secondary evidence
What is secondary evidence/When is it produced?
- Evidence that is produced when parties cannot produce originals or duplicates AND
- a valid excuse for lack of original/duplicate
List (3)
Excuses for non-production of original
- Loss or destruction
- EXCEPTION: does not count if lost or destroyed in bad-faith
- Original in possession of an adversary
- who despite due notice fails to produce the og copy
-
Cannot be obtained by any judicial process
- usually doc is in hands of third party, and
- doc cant be obtained despite reasonable effort
List (4)
EXCEPTIONS to Best Evidence Rule
- original not needed to prove contents of writing, photo, video*
- aka what can be used in lieu of original*
- Summaries of Voluminous Records
- Certified Public Records
- Writing is of minor issue to litigated issue
- Testimony or written admission of opponent
Define + note
When are summaries of voluminous records appropriate?
inconvenient to examine voluminous records in court, so produce summary or chart
NOTE: must make original/duplicate records available for review in needed
Why does the BER NOT apply to certified public records
BER doesn’t apply to public records that are certified or testified to as correct
Why does testimony or written admission of opponent excuse using the BER?
Opponent has personal knowledge of the facts and Proponent (i.e. P) can use that evidence instead of giving an excuse for production of nonoriginial
Who normally makes determinations of fact regarding admissisbility of duplicates, other copies, oral testimony as contents of the original?
the court
List (3)
What can the jury decide regarding admissibility?
- Exist: Whether original ever existed
- Originality: Whether a writing produced at trial is an original
- Reflection: Whether the evidence offered correctly reflects the contents of the original
Define
Real evidence
Actual, physical evidence
Can be:
- direct
- circumstantial
- original
- prepared (demonstrative)
List (2)
What legal requirements are needed for real evidence
- Authentication
- Condition of object
List (2)
How is real evidence authenticated?
- Testimony of a witness that recognizes the object as what proponent claims it to be - OR -
- Evidence that object has been held in a substantially unbroken chain of possession
What standard of proof is required for real evidence?
Proof sufficient to support a jury finding of genuineness
How does the condition of the object play a role in regards to admissibility?
If the condition of the object is an important factor in the case, then the object must be shown in substantially the same condition at trial
List (5)
Types of Real Evidence
- Reproductions and Explanatory Real Evidence
- Maps, charts, models etc
- Demonstrations
- Exhibition of injuries
- Jury view of the Scene
note
What can be considered reproductions and explanatory real evidence?
relevant photos, diagrams, maps etc
NOTE: items used just to explain allowed during trial but not allowed during deliberations
Maps, charts, models are allowed under what condition?
and how is this condition authenticated?
They must be authenticated by testimonial evidence that they are faithful reproductions of thing being depicted
what is original evidence
A type of real evidence that has some connection to the transaction that is in question at trial
(i.e. a murder weapon is original evidence)
