Authentication, Writings, and Real Evidence

Question 1

Authentication of Writings

Answer 1

Writing must be authenticated by proof that shows that the writing is what the proponent claims it is, in the form of:
-Stipulations
-Party-opponent admits authenticity or acted upon it as authentic
-Authentication by eyewitness testimony
-Handwriting verification by lay witness who has familiarity with author’s handwriting before trial (versus voice identification can be from whenever)
-Alternatively, by expert or jury comparison
-Ancient documents
-At least 20 years old, non-suspicious condition, and found in place
where such a writing would likely be kept
-Hearsay exception to ancient documents only applies to pre-1998 docs
-Reply letter doctrine (P sends contract to X and later receives signed contract)
-Photographs and witnesses must be identified by witness familiar with scene, object, or person (but x-rays must be further authenticated)

Question 2

Authentication of Oral Statements

Answer 2

Identity of speaker must be authenticated
-A voice can be identified by the opinion of anyone who has heard the voice at any time (low bar)
-Telephone conversations can be authenticated by any party to the call

Question 3

Self-Authenticating Documents

Answer 3

Extrinsic evidence of authenticity is not required for:
-Domestic public documents bearing a seal
-Official publications
-Certified copies of public or private records on file in a public office
-Newspapers and periodicals
-Trade inscriptions and labels
-Notarized documents
-Commercial paper
-Business records

Question 4

Best Evidence Rule

Answer 4

To prove the content of a writing, recording, or photograph, the original (or exact copy made by mechanical means) must be produced unless the proponent provides a satisfactory excuse for the original’s absence
-If excused, secondary evidence of its contents are admissible (i.e.,
handwritten copies, notes, or oral testimony)
-Jury makes factual determinations about originals

Applies in two scenarios:
1. Writing is legally operative instrument (i.e., will)
2. Knowledge of a witness concerning a fact comes from having read it in writing (in contrast to having personal knowledge of the facts)

Satisfactory excuses include:
-Loss of destruction of the original
-Cannot be obtained by any available judicial process
-The original is in possession of an adversary who fails to produce the original

Exceptions:
-Summaries of voluminous records
-Certified public records
-Writing of minor importance (collateral) to matter
-Party-opponent admission

Question 5

Real Evidence

Answer 5

Actual physical evidence addressed directly to the trier of fact
-Must be relevant
-Must be identified as what the proponent claims it to be by:
-Witness testimony
-Evidence of substantially unbroken chain of possession