Authentication, Writings, and Real Evidence

Question 1

What level of proof is needed for a writing to be authenticated?

Answer 1

Proof that is sufficient to support a jury finding** **of** **genuineness

Question 2

List (8), “X-Plethoraas”

What are the methods of authentication

Answer 2

1. X-rays, EKGs etc
2. Photographs and Videos
3. Reply Letter Doctrine
4. Eyewitness Testimony
5. Handwriting verifications
6. Opponent’s Admission
7. Ancient documents
8. Admit through pleadings or stipulation

Question 3

List (4), WANT

How are X-Rays, EKGs, etc established as authentic?

Answer 3

Lay-person cannot authenticate instead must show:

1. W: Machine was in working order
2. A: Process used was accurate
3. N: Establish that machine has not been tampered with
4. T: Operator was qualified/trained to operate machine

Question 4

List (2)

When are Photographs and Videos admissible?

Answer 4

Admissible only if:

1. Portrayal: Photo/video was identified by witness as a portrayal of facts relevant to issue at hand
2. Verification: verified by witness as fair and accurate representation of those facts

Question 5

Define

Reply Letter Doctrine

Answer 5

A writing can be authenticated by evidence that the writing was written into response to a communication to the alleged author

Question 6

Define

How does Eyewitness testimony authenticate a writing

Answer 6

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

Question 7

List (3)

Handwriting verifications

Answer 7

Authenticate that handwriting is genuine through:

1. Opinion of lay witness who has familiarity with alleged writer’s handwriting
2. Opinion of expert who has compared writing with samples of alleged writer’s handwriting
3. Jury/fact-finder’s comparison of writing with samples of alleged writer’s handwriting

Question 8

List (2)

How does an Opponent’s Admission authenticate a writing

Answer 8

Opponent authenticates writing either through:

1. admission -or-
2. acts upon the writing as it being authentic

Question 9

List (3)

Ancient Documents

Answer 9

A document can be authenticated by evidence that it:

1. is at least 20 years old
2. is in a condition which creates no suspicion to it’s authenticity
3. found in a place where such document would likely be kept

Applies to all writings not just dispositive instruments (i.e. wills + deeds)

Question 10

Ancient documents hearsay exception

Answer 10

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.

Question 11

List (2)

Unattended camera - admissible?

Answer 11

YES if can show that

1. Camera properly operating at relevant time
2. Photo or video was downloaded from the camera which recorded the event

Question 12

List (2)

Through what means can oral statements be authenticated

Answer 12

1. Voice identification
2. Telephone conversations

Question 13

Define

Voice identification

Answer 13

Voice can be ID’ed by anyone who has heard the voice at any time (including after litigation has begun)

Question 14

List (4)

Voice in Telephone conversations can be authenticated by

Answer 14

By a party to the phone convo who:

1. Recognize: party (who was part of convo) recognized speaker’s voice
2. Certain facts: speaker had knowledge of certain facts only a particular person would have
3. Voice answering: party called a particular person’s number and voice answered as that person or person’s residence
4. Business: called a business and spoke with a person who answered Qs related to the business

Question 15

Self-Authenticating Documents

Hint: what type of evidence is not required?

Answer 15

Documents that by themselves prove that extrinsic evidence is NOT required

Question 16

Best Evidence Rule

(aka original document rule)

Answer 16

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.

Question 17

When is secondary evidence (aka not the original writing) permitted under the Best Evidence Rule (original document rule)

Answer 17

Only when there is a satisfactory excuse for the original’s absence

Question 18

When does the Best Evidence Rule (original document rule) NOT APPLY?

Answer 18

When the witness has PERSONAL KNOWLEDGE of the fact to be proven.

Question 19

When the witness has personal knowledge of the facts what is permitted in lieu of producing the original writing the recorded the event?

Answer 19

Oral Testimony

Question 20

list (2)

When does Best Evidence Rule (original document rule) ARISE?

Answer 20

When contents of writing, photo, or video are in dispute so, BER is used so that the

1. Party can prove contents of a writing, photo, or video

AND

2. Party only knows of the facts bc they came from a writing, photo, or video

Question 21

The best evidence rule APPLIES

Answer 21

1. Terms of writing need to be proven OR
2. 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.

Question 22

List (2)

What counts as an original?

Answer 22

1. The writing itself
2. Counterpart of writing (i.e. negatives of a photo or screenshot of a computer screen)

Question 23

What is a duplicate?

Answer 23

Exact copy of the original made by MECHANICAL means (i.e. photocopy)

Question 24

List (2)

Duplicates are admissible to the same extent as originals UNLESS

Answer 24

1. the circumstances make it unfair to admit the duplicate
   
   1. i.e. it’s a bad copy
2. there is genuine question about the authenticity of the duplicate
   
   1. and would need to see the original to verify authenticity

Question 25

Are handwritten copies duplicates or originals? what type of evidence are they?

Answer 25

**NEITHER!!** handwritten copies are considered **secondary evidence**

Question 26

What type of evidence are handwritten copies?

Answer 26

handwritten copies are considered **secondary evidence**

Question 27

What is secondary evidence/When is it produced?

Answer 27

1. Evidence that is produced when parties **cannot** produce originals or duplicates **AND** 2. a **valid excuse** for lack of original/duplicate

Question 28

# List (3) Excuses for **non-production** of original

Answer 28

1. Loss or destruction 1. **EXCEPTION**: does **not** count if lost or destroyed in **bad-faith** 2. Original in possession of an **adversary** 1. who despite due notice fails to produce the og copy 3. **Cannot** be obtained by any **judicial process** 1. **​**usually doc is in hands of *third party*, and 2. doc cant be obtained despite *reasonable effort*

Question 29

# List (4) **EXCEPTIONS** to Best Evidence Rule ## Footnote * original not needed to prove contents of writing, photo, video* * aka what can be used in lieu of original*

Answer 29

1. Summaries of Voluminous Records 2. ​​​Certified Public Records 3. Writing is of **minor issue** to litigated issue 4. ​​Testimony or written admission of opponent

Question 30

# Define + note When are **summaries of voluminous records** appropriate?

Answer 30

​inconvenient to examine voluminous records in court, so produce summary or chart ## Footnote ***NOTE**: must make original/duplicate records available for review in needed*

Question 31

Why does the BER **NOT** apply to certified public records

Answer 31

BER doesn't apply to public records that are **certified** or **testified** to as **_correct_**

Question 32

Why does **testimony or written admission of opponent** excuse using the BER?

Answer 32

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

Question 33

Who normally makes determinations of fact regarding admissisbility of duplicates, other copies, oral testimony as contents of the original?

Answer 33

the court

Question 34

# List (3) What can the **jury** decide regarding admissibility?

Answer 34

1. **Exist**: Whether original ever **existed** 2. **Originality**: Whether a **writing** produced at trial is an **original** 3. **Reflection**: Whether the evidence offered **correctly reflects** the **contents** of the original

Question 35

# Define Real evidence

Answer 35

Actual, physical evidence Can be: 1. direct 2. circumstantial 3. original 4. prepared (demonstrative)

Question 36

# List (2) What legal requirements are needed for **real evidence**

Answer 36

1. Authentication 2. Condition of object

Question 37

# List (2) How is real evidence **authenticated**?

Answer 37

1. **Testimony** of a witness that **recognizes** the object as what proponent claims it to be **- OR -** 2. Evidence that object has been held in a **substantially** **unbroken chain of possession**

Question 38

What **standard of proof** is required for real evidence?

Answer 38

Proof sufficient to support a **jury** **finding** of **genuineness**

Question 39

How does the **condition** of the object play a role in regards to admissibility?

Answer 39

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

Question 40

# List (5) Types of Real Evidence

Answer 40

1. Reproductions and Explanatory Real Evidence 2. Maps, charts, models etc 3. Demonstrations 4. Exhibition of injuries 5. Jury view of the Scene

Question 41

# note What can be considered **reproductions and explanatory real evidence?**

Answer 41

relevant photos, diagrams, maps etc ## Footnote ***NOTE**: items used just to explain allowed during trial but not allowed during deliberations*

Question 42

Maps, charts, models are allowed under what condition? and how is this condition authenticated?

Answer 42

They must be authenticated by **testimonial** **evidence** that they are **faithful** **reproductions** of thing being depicted

Question 43

what is original evidence

Answer 43

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)*