AUTHENTICATION, WRITINGS, AND REAL EVIDENCE

Question 1

Tip

Answer 1

Whenever you are faced with a writing on an Evidence question, be alert to 3 potential issues: (1) authentication, (2) best evidence rule, and (3) hearsay. We’ll be covering authentication and the bestevidence rule in this module (along with some issues relating to real/demonstrative evidence).

Question 2

AUTHENTICATION OF WRITINGS AND
SPOKEN STATEMENTS
LOW

Answer 2

• All evidence MUST be authenticated b/f being admitted into evidence.
• Party must prove that item it seeks to admit is actually what the party purports it to be, UNLESS parties stipulate otherwise.
• Proof must be sufficient to support a jury finding of genuineness (reasonable juror could conclude that writing is genuine).

Question 3

Methods of Authentication

Answer 3

• Parties may admit genuineness of a doc by pleadings/by stipulation.
• A doc can also be authenticated by other evidence, following are examples of proper authentication.

Question 4

Opponent’s Admission

Answer 4

• Writing can be authenticated by evidence that party against whom it is offered has either admitted its authenticity/acted upon it as authentic.

Question 5

Eyewitness Testimony

Answer 5

• Writing can be authenticated by testimony of anyone who saw it executed/heard it acknowledged.
• Testimony can be from anyone; it doesn’t have to be from a subscribing witness unless required by statute.

Question 6

Handwriting Verifications
MED

Answer 6

• Writing can be authenticated by evidence that maker’s handwriting is genuine.
• This evidence may be in the form of:
  (1) Opinion of a lay witness (nonexpert) who has familiarity w/ alleged writer’s handwriting (not acquired for purposes of current litigation);
  (2) Opinion of expert who has compared writing to samples of alleged writer’s handwriting; or
  (3) Fact-finder’s ( jury’s) comparison of writing to samples of alleged writer’s handwriting

Question 7

Tip

Answer 7

Remember that a nonexpert who does not have familiarity w/ alleged writer’s handwriting cannot become familiar w/ it merely for purposes of testifying. (Compare rule for voice IDs infra.)

Question 8

Ancient Documents

Answer 8

• Doc 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 docs may be authenticated if they are at least 20 years old, related hearsay exception for ancient docs will only apply if doc was prepared b/f 1998

Question 9

Tip

Answer 9

In contrast to the rule in many jurisdictions, the ancient doc provision of Federal Rules applies to all writings, not just dispositive instruments like deeds and wills.

Question 10

Reply Letter Doctrine

Answer 10

• Writing can be authenticated by evidence that it was
  written in response to a communication sent to alleged author.

Question 11

Photographs and Videos

Answer 11

• Must be identified by witness as portrayal of certain facts relevant to issue & verified by witness as a fair & accurate representation of those facts.
• Ordinarily, it is not necessary to call photographer to authenticate photograph or video; a witness familiar w/ scene, object, or person is sufficient.

Question 12

Unattended Camera—Proper Operation of Camera

Answer 12

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

Question 13

X-Ray Pictures, Electrocardiograms, Etc.

Answer 13

• Unlike photos, 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 process used is accurate, machine was in working order, & operator was qualified to operate it.
• Finally, a custodial chain must be established to assure that X-ray has not been tampered with

Question 14

Compare—Authentication of Oral Statements

Answer 14

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

Question 15

Voice Identification

Answer 15

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

Question 16

Telephone Conversations

Answer 16

• Statements made during phone conversation can be
  authenticated by any party to the call who testifies that:
  (1) they recognized the other party’s voice;
  (2) speaker had knowledge of certain facts that only a particular person would have;
  (3) they called a particular person’s number & a voice answered as that person/that person’s residence; or
  (4) they called a business & talked w/ the person answering phone about matters relevant to the business.

Question 17

Self-Authenticating Documents

Answer 17

• Certain writings are said to “prove themselves.” Extrinsic evidence of authenticity is not required for the following:
  (1) Domestic public docs bearing a seal, and similar official foreign public docs;
  (2) Official publications (like a gov pamphlet);
  (3) Certified copies of public/private records on file in a public office;
  (4) Newspapers & periodicals;
  (5) Trade inscriptions & labels;
  (6) Acknowledged (notarized) docs;
  (7) Commercial paper (including signatures thereon) & related docs; and
  (8) Business records, electronically generated records, and
  data copied from an electronic device, if records are certified & proponent gives adverse party reasonable written notice & an opportunity for inspection

Question 18

BEST EVIDENCE RULE
MED

Answer 18

-“Original document rule.”
- To prove content of writing, recording, or photo (include videos, X-rays, & any tangible collection of data; we’ll use “writing” as shorthand going forward), original writing must be produced if terms of writing are material.
- Secondary evidence of writing, like oral testimony, is admissible only if proponent provides a satisfactory excuse for original’s absence.

Question 19

Applicability of Best Evidence Rule

Answer 19

When Rule Applies
- 2 principal situations:
(1) Where writing is a legally operative/dispositive
instrument (writing itself creates rights & obligations); or
(2) Where knowledge of witness concerning a fact results from having read it in writing

Question 20

When Rule Does Not Apply—Witness Has Personal
Knowledge of Facts

Answer 20

• Where witness has personal knowledge of fact to be proved, even if fact happens to also be recorded in a writing.
• Oral testimony of fact may be given w/o producing original writing that recorded the event.

Question 21

“Originals” and Admissibility of “Duplicates”

Answer 21

• Original—Writing itself/any counterpart that is intended
  by person executing it to have the same effect as an original.
• Includes negative of photo/any print of it, or printout/other readable output of electronically stored info.
• Duplicate—Exact copy of original made by mechanical
  means (ex. photocopy/carbon copy).
• Duplicates are admissible to same extent as originals,
  unless:
  (1) circumstances make it unfair to admit duplicate, or
  (2) genuine question is raised about authenticity of original.

Question 22

Tip

Answer 22

It is important to distinguish photocopies & copies made by hand. Photocopies are duplicates and, thus, are usually treated same as originals. In contrast, handwritten copies are secondary evidence & are admissible only if original/duplicate is unavailable.

Question 23

Admissibility of Secondary Evidence of Contents

Answer 23

• If proponent cannot produce original writing (or admissible duplicate) in ct, they may offer secondary evidence of its contents (like handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for non-production of original.

Question 24

Excuses for Non-Production of Original

Answer 24

• Valid excuses justifying admissibility of secondary evidence:
  (1) Loss/destruction of original, unless proponent lost/ destroyed original in bad faith.
  (2) Original cannot be obtained by any available judicial
  process.
• Usually, this means that it is in possession of 3rd party outside jurisdiction & cannot be obtained despite a reasonable effort.
  (3) Original is in possession of adversary who, after due notice, fails to produce original.

Question 25

No Degrees of Secondary Evidence

Answer 25

• If there is a valid excuse, party can prove contents of writing by any type of secondary evidence (like handwritten copies, notes, oral testimony, etc.).
• One type of secondary evidence is not preferred over the other.

Question 26

Exceptions to Best Evidence Rule: Summaries of Voluminous Records

Answer 26

• When it would be inconvenient to examine a voluminous collection of records in ct, proponent may present contents in a chart/summary.
• However, proponent must make originals/duplicates available for inspection/copying, & ct may order proponent to produce records in ct.

Question 27

Certified Public Records

Answer 27

• BER does not apply to copies of public records that are
  certified as correct/testified to as correct.

Question 28

Writing Is Collateral to Litigated Issue

Answer 28

• BER does not apply where writing is of minor importance (collateral) to matter in controversy.

Question 29

Testimony or Written Admission of Opponent

Answer 29

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

Question 30

Functions of Court and Jury

Answer 30

• Ordinarily, it is for ct to make determinations of fact for admissibility of duplicates, other copies, & oral testimony as to contents of original.
• However, Federal Rules reserve following questions of preliminary fact for jury:
  (1) Whether original ever existed;
  (2) Whether writing produced at trial is an original; and
  (3) Whether evidence offered correctly reflects contents of original

Question 31

REAL EVIDENCE

Answer 31

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

Question 32

General Conditions of Admissibility

Answer 32

• Real evidence must be relevant & meet the following legal requirements.
• Authentication
• Object must be identified as what proponent claims it to be, either by:
  (1) Testimony of a witness that they recognize object as what proponent claims it is (ex. witness testifies that a gun is one found at crime scene); or
  (2) Evidence that object has been held in substantially unbroken chain of possession (ex. blood taken for blood-alcohol test)
• Same standard of proof you’ve seen b/f applies to real evidence—proof must be sufficient to support a jury finding of genuineness (reasonable juror could conclude that object is what proponent claims it to be).

Condition of Object
- If condition of object is significant, it must be shown to be in substantially same condition at trial.

Question 33

Particular Types of Real Evidence

Answer 33

• While evidence below is often admissible, remember that ct still has discretion to exclude it under Rule 403 if probative value is substantially outweighed by danger of unfair prejudice, waste of time, etc.

Question 34

Reproductions and Explanatory Real Evidence

Answer 34

• Relevant photographs, diagrams, maps, or other reproductions are generally admissible.
• Items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (they are not given to the jury during its deliberations).

Question 35

Maps, Charts, Models, Etc.

Answer 35

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

Question 36

Demonstrations

Answer 36

• Ct, in its discretion, may permit experiments/demos to be performed in the courtroom.
• Experiment must be performed under conditions substantially similar to those of original event.
• Demos of bodily injury may not be allowed where demos would unduly dramatize injury.

Question 37

Exhibition of Injuries

Answer 37

• Exhibition of injuries in a personal injury/criminal case is generally permitted, but remember that ct has discretion to exclude this evidence for unfair prejudice.