Authentication, Writings, and Real Evidence Flashcards
Authentication of Writings and Spoken Statements
generally, a writing or any secondary evidence of its content will not be received in evidence unless writing is authenticated by proof that shows that the writing is what the proponent claims it is. Proof must be sufficient to support a jury finding of genuineness
Methods of Authentication
Parties may admit genuineness of document by pleadings or by stipulation. A document can also be authenticated by other evidence
Methods of Authentication
Opponent’s Admission
a writing can be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic
Methods of Authentication
Eyewitness Testimony
a writing can be authenticated by testimony of anyone who saw it executed or head it acknowledged. Testimony can be from anyone; doesn’t have to be from subscribing witness unless required by statute
Methods of Authentication
Handwriting Verifications
a writing can be authenticated by evidence that the maker’s handwriting is genuine. Evidence can be in form of:
- opinion of lay witness who has familiarity with the alleged writer’s handwriting in course of normal affairs (not acquired for purposes of current litigation; along the same lines, a lay witness who does not have familiarity with the handwriting cannot become familiar with it merely for purposes of testifying)
- opinion of expert who has compared writing to samples of alleged writer’s handwriting; or
- fact-finder’s (jury’s) comparison of writing to samples of alleged writer’s handwriting
Methods of Authentication
Ancient Documents
a document can be authenticated by evidence that it:
- is at least 20 years old when offered into evidence
- is in a condition that creates no suspicion as to authenticity; and
- was found in a place where such a writing would likely be kept
in contrast to many jurisdictions, Federal Rules applies this to all writings, no just dispositive instruments like deeds and wills
Methods of Authentication
Reply Letter Doctrine
a writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author
Methods of Authentication
Photographs and Videos
Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Ordinarily not necessary to call photographer to authenticate; a witness familiar with the scene, object, or person is sufficient
Methods of Authentication - Photographs and Videos
Unattended Camera - Proper Operation of Camera
if a photograph or video is taken when no person who could authenticate the scene is present, the photograph or video may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera
Methods of Authentication
X-Ray Pictures, Electrocardiograms, etc.
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 the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Custodial chain must be established to assure that X-ray has not been tampered with
Compare - Authentication of Oral Statements
when a statement is admissible only if said by a particular person, authentication as to the identity of the speaker is required
Authentication of Oral Statements
Voice Identification
a voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying
Authentication of Oral Statements
Telephone Conversations
statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
(1) they recognize the other party’s voice;
(2) the speaker had knowledge of certain facts that only a particular person would have;
(3) they called a particular person’s number and a voice answered as that person or that person’s residence; or
(4) they called a business and talked with the person answering the phone about matters relevant to the business
Self-Authenticating Documents
Certain writings “prove themselves.” Extrinsic evidence is not required for:
- domestic public documents bearing a seal, and similar official foreign public documents
- official publications (such as a government pamphlet)
- certified copies of public records or private records on file in a public office
- newspapers and periodicals
- trade inscriptions and labels
- acknowledged (notarized) documents
- commercial paper (including signatures thereon) and related documents
- business records, electronically generated records, and data copied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection
Best Evidence Rule (Original Document Rule)
to prove the content of a writing, recording, or photograph (defined broadly to include videos, X-rays, and any tangible collection of data), the original writing must be produced if the terms of the writing are material
secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence.
Applicability of Best Evidence Rule
the rule applies in 2 principal situations:
- where the writing is a legally operative or dispositive instrument (that is, the writing itself creates rights and obligations) or
- where the knowledge of a witness concerning a fact results from having read it
It does not apply where the witness has personal knowledge of the facts to be proved, even if the fact happens to also be recorded in a writing. Oral testimony of the fact may be given without producing the original writing that recorded the event
Best Evidence Rule
“Originals” and Admissibility of “Duplicates”
Original: the writing itself or any counterpart that is intended by the person executing it to have the same effect as an original. This includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information
Duplicate: an exact copy of an original made by mechanical means (ex: photocopy or carbon copy)
- duplicates are admissible to the same extent as originals, unless:
(1) the circumstances make it unfair to admit the duplicate
(2) a genuine question is raised about the authenticity of the original
photocopies are duplicates and, thus, are usually treated the same as originals. In contrast, handwritten copies are considered secondary evidence and are admissible only if the original or duplicate is unavailable
Best Evidence Rule
Admissibility of Secondary Evidence of Contents
if proponent cannot produce original writing (or an admissible duplicate) in court, they may offer secondary evidence of its contents if a satisfactory explanation is given for non-production of original
Best Evidence Rule: Admissibility of Secondary Evidence of Contents
Excuses for Non-Production of Original
valid excuses include:
- loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith
- the original cannot be obtained by any available judicial process. (usually means that it is in possession of a third party outside the jurisdiction and cannot be obtained despite reasonable effort)
- original is in possession of an adversary who, after due notice, fails to produce the original
Best Evidence Rule: Admissibility of Secondary Evidence of Contents
No Degrees of Secondary Evidence
if there is a valid excuse, Federal Rule permit party to prove contents of writing by any type of secondary evidence (such as handwritten copies, notes, oral testimony, etc.) one type of secondary evidence is not perferred over the other
Best Evidence Rule Exceptions
Summaries of Voluminous Records
when it would be inconvenient to examine a voluminous collection of records in court, proponent may present contents in the form of a chart or summary. However, must make originals or duplicates available for inspection or copying, and court may order proponent to produce records in court
Best Evidence Rule Exceptions
Certified Public Records
rule does not apply to copies of public records that are certified as correct or testified to as correct (want to keep public records in place they are kept to avoid losing them in the process of moving them in and out of court proceedings)
Best Evidence Rule Exceptions
Writing is Collateral to Litigated Issue
rule doesn’t apply where writing is of minor importance to matter in controversy
Best Evidence Rule Exception
Testimony or Written Admission of Opponent
where opponent (party against whom the writing is being offered) has given testimony, a deposition, or written admission about writing’s contents, proponent may use this evidence and need not give an excuse for non-production of original
Best Evidence Rule
Functions of Court and Jury
Ordinarily, it is for court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to contents of original. However, Federal Rules reserve following questions of preliminary fact for jury:
- whether original ever existed
- whether writing produced at trial is an original
- whether evidence offered correctly reflects contents of original
Real Evidence
actual physical evidence addressed directly to the trier of fact. May be direct, circumstantial, original, or prepared (demonstrative)
Real Evidence
General Conditions of Admissibility
must be relevant and meet following requirements:
- authentication: the object must be identified as what the proponent claims it to be either by:
(1) testimony of a witness that they recognize the object as what the proponent claims it is; or
(2) evidence that the object has been held in a substantially unbroken chain of possession
- condition of object: if the condition of the object is significant, it must be shown to be in substantially the same condition at trial
Particular Types of Real Evidence
There are particular types of real evidence that are often admissible, but they are still subject to Rule 403 discretion. These include:
- reproductions and explanatory real evidence
- maps, charts, models, etc.
- demonstrations
- exhibition of injuries
- jury view of the scene
Types of Real Evidence
Reproductions and Explanatory Real Evidence
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 (not given to jury during deliberations)
Types of Real Evidence
Maps, Charts, Models, Etc.
Maps, charts, models, etc., are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted
Types of Real Evidence
Demonstrations
the court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that ar esubstantially similar to those attending the original event. Demonstrations of bodily injury may not be allowed where demonstrations would unduly dramatize the injury
Types of Real Evidence
Exhibition of Injuries
exhibition of injuries in a personal injury or criminal case is generally permitted, but remember that court has discretion to excude this for unfair prejudice (rule 403)
Types of Real Evidence
Jury View of the Scene
trial court has discretion to permit the jury to view places at issue in the case. The need for the view and changes in the condition of the premises following the event at issue in the case are relevant considerations here.
