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A. Aaall classes > Authentication, Writings, and Real Evidence > Flashcards

Authentication, Writings, and Real Evidence Flashcards

1
Q

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

A

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

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2
Q

List (8), “X-Plethoraas”

What are the methods of authentication

A
  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
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3
Q

List (4), WANT

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

A

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
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4
Q

List (2)

When are Photographs and Videos admissible?

A

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
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5
Q

Define

Reply Letter Doctrine

A

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

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6
Q

Define

How does Eyewitness testimony authenticate a writing

A

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

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7
Q

List (3)

Handwriting verifications

A

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
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8
Q

List (2)

How does an Opponent’s Admission authenticate a writing

A

Opponent authenticates writing either through:

  1. admission -or-
  2. acts upon the writing as it being authentic
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9
Q

List (3)

Ancient Documents

A

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)

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10
Q

Ancient documents hearsay exception

A

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.

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11
Q

List (2)

Unattended camera - admissible?

A

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
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12
Q

List (2)

Through what means can oral statements be authenticated

A
  1. Voice identification
  2. Telephone conversations
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13
Q

Define

Voice identification

A

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

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14
Q

List (4)

Voice in Telephone conversations can be authenticated by

A

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
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15
Q

Self-Authenticating Documents

Hint: what type of evidence is not required?

A

Documents that by themselves prove that extrinsic evidence is NOT required

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16
Q

Best Evidence Rule

(aka original document rule)

A

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.

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17
Q

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

A

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

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18
Q

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

A

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

19
Q

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

A

Oral Testimony

20
Q

list (2)

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

A

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

  1. Party only knows of the facts bc they came from a writing, photo, or video
21
Q

The best evidence rule APPLIES

A
  1. where the writing is a legally operative or dispositive instrument (ie contract, deed, will, or divorce decree) OR
  2. where the knowledge of W concerning a fact comes from having read the fact in the document.
22
Q

List (2)

What counts as an original?

A
  1. The writing itself
  2. Counterpart of writing (i.e. negatives of a photo or screenshot of a computer screen)
23
Q

What is a duplicate?

A

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

24
Q

List (2)

Duplicates are admissible to the same extent as originals UNLESS

A
  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
25
Q

Are handwritten copies duplicates or originals?

what type of evidence are they?

A

NEITHER!!

handwritten copies are considered secondary evidence

26
Q

What type of evidence are handwritten copies?

A

handwritten copies are considered secondary evidence

27
Q

What is secondary evidence/When is it produced?

A
  1. Evidence that is produced when parties cannot produce originals or duplicates AND
  2. a valid excuse for lack of original/duplicate
28
Q

List (3)

Excuses for non-production of original

A
  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
29
Q

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*
A
  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
30
Q

Define + note

When are summaries of voluminous records appropriate?

A

​inconvenient to examine voluminous records in court, so produce summary or chart

NOTE: must make original/duplicate records available for review in needed

31
Q

Why does the BER NOT apply to certified public records

A

BER doesn’t apply to public records that are certified or testified to as correct

32
Q

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

A

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

33
Q

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

A

the court

34
Q

List (3)

What can the jury decide regarding admissibility?

A
  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
35
Q

Define

Real evidence

A

Actual, physical evidence

Can be:

  1. direct
  2. circumstantial
  3. original
  4. prepared (demonstrative)
36
Q

List (2)

What legal requirements are needed for real evidence

A
  1. Authentication
  2. Condition of object
37
Q

List (2)

How is real evidence authenticated?

A
  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
38
Q

What standard of proof is required for real evidence?

A

Proof sufficient to support a jury finding of genuineness

39
Q

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

A

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

40
Q

List (5)

Types of Real Evidence

A
  1. Reproductions and Explanatory Real Evidence
  2. Maps, charts, models etc
  3. Demonstrations
  4. Exhibition of injuries
  5. Jury view of the Scene
41
Q

note

What can be considered reproductions and explanatory real evidence?

A

relevant photos, diagrams, maps etc

NOTE: items used just to explain allowed during trial but not allowed during deliberations

42
Q

Maps, charts, models are allowed under what condition?

and how is this condition authenticated?

A

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

43
Q

what is original evidence

A

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)

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