Authentication, Writings, and Real Evidence Flashcards
Three potential issues
1) authentication
2) best evidence rule
3) hearsay
(and relevance)
Authentication of Writings and Spoken Statements
Generally, writings or secondary evidence will not be admissible unless AUTHENTICATED by proof.
Proof must be SUFFICIENT TO SUPPORT A JURY FINDING of genuiness. (reasonable juror could conclude).
Methods of Authentification
1) Opponents admission
–admitted it or acted upon it as authentic
2) eyewitness testimony
–saw it executed or heard it acknowledged
3) Lay opinion on handwriting (if lay witness had pre-existing knowledge)
4) expert opinion on handwriting
5) Jury comparison on handwriting
6) Ancient Documents
7) Reply Letter Doctrine
8)Photos and videos
9) Xray pictures, electrocardiograms
Ancient document rule (writings, spoken statements)
Document can be authenticated if:
1) at least 20 years old
2) in non-suspicious condition, and
3) found in place where such a writing would be kept
Applies to ALL writings, not just deeds and wills.
BUT hearsay exception for ancient documents will only apply if the doc was prepared before 1998
Reply letter doctrine (writings, spoken statements)
DOc can be authenticated by evidence it was written in response to communication sent to alleged author
Photos and Videos (writings and spoken statements)
Generally, admissible only if identified by witness as fair and accurate representation of facts depicted.
Generally, photographer need not testify.
See unattended camera rule
Unattended camera rule
Photograph/video admissible if camera was properly operating and photograph/video came from that camera
Xray pictures, electrocardiograms, etc. (writigns and spoken statements)
Must be shown that:
1) the process used wis accurate
2) the machine was in working order
3) and the operator was qualified to operate it
Custodial chain must be established to assure xray hasn’t been tampered with
Authentication of Oral Statements
When a statement is admissisble only if said by a particular person, authentification as to the identity of the speaker is required
VOICE ID
Opinion of anyone who had heard the voice at ANY TIME, including after litigation has begun and for the sole purpose of testifying
Telephone Conversations
Can be authenticated by any party to the call who testifies that:
1) they recognized the other parties voice
2) the speaker had knowledge of certain facts that only a particular person would have
3) they called a particular persons number and a voice answered as that person or that persons residence OR
4) they called a busienss and talked with the person answering about matters relevant to hte business
Self Authenticating Documents
“Prove themselves.” Extrinsic eviendece of authenticity is not required.
1) Domestic public docs with seal
2) official publications
3) certified copies of public records or private files on record at public office
3) Newspapers and periodicals
4) trade inscriptions and labels
6) notarized couments
7) commercial papers
8) Business records and electronically generated records with certification and notice
Best Evidence RUle
To prove the content of a writing, recording, or photograph (defined broadly), the original writing must be produced if the terms of the writing are material.
Secondary evidence admissible only if proponent has good excuse for not producing the original
Applicability of Best Evidence Rule
Two principal situations:
1) where the writing is a legally operative or dispositive instrument (creates rights and obligations) OR
2) where the knowledge of a witness concerning a fact results from having read it in the writing
Does NOT apply where the witness has personal knowledge fo the fact to be proved, even if the fact happens to ALSO be recorded in a writing. Oral testimony may be given.
“Originals” Definition
Writing iteslf, or any counterpart intended to have the same effect
also includes the negative of a photograph or any print of it, or the printout or other readable output of ESI
