Authentication, Writings, and Real Evidence

Question 1

true or false: a writing or any secondary evidence of its contents will NOT be admitted into evidence without authentication.

Answer 1

TRUE

Question 2

what is required for a writing to be authenticated? (2 things)

Answer 2

proof that
1) shows the writing is what the proponent claims it is, and
2) is sufficient enough to support a jury finding of genuineness (reasonable juror could conclude that the writing is genuine

Question 3

true or false: parties may admit the authenticity of a document by the pleadings or by stipulation.

Answer 3

TRUE

Question 4

in what 5 ways may a writing be properly authenticated by other evidence?

Answer 4

1) opponent’s admission
2) eyewitness testimony
3) handwriting verifications
4) ancient documents
5) reply letter

Question 5

when is a writing authenticated by an opponent’s admission?

Answer 5

authenticated by evidence that the party against whom its being offered has either admitted its authenticity OR acted upon it as authentic (express or implied admission)

Question 6

when is a writing authenticated by eyewitness testimony? (2 options)

Answer 6

authenticated by testimony of anyone who saw it executed or heard it acknowledged
**NOTE = testimony can be from anyone (subscribing witness not required unless specified by statute)

Question 7

when is a writing authenticated by handwriting verification?

Answer 7

authenticated by evidence that the maker’s handwriting is genuine either by:
1) opinion of a lay witness who has prior familiarity with the alleged writer’s handwriting (not for purposes of litigation),
2) opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting, or
3) the jury’s comparison of the writing to samples of the alleged writer’s handwriting

Question 8

how must an ancient document be authenticated?

Answer 8

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 its authenticity, and
3) was found in a place where such writing would likely be kept

Question 9

when can a writing be authenticated by reply letter? (reply letter doctrine)

Answer 9

writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author

Question 10

when are photographs and videos admissible? (authentication, 2 rqmts))

Answer 10

admissible only if:
1) identified by a witness as a portrayal of certain facts relevant to the issue, and
2) verified by the witness as a fair and accurate representation of those facts

Question 11

true or false: a party MUST call the original photographer or videographer to authenticate a photo or video.

Answer 11

FALSE (a witness familiar with the scene, object, or person is sufficient)

Question 12

when may a photo or video taken by an unattended camera be admitted? (authentication, 2 rqmts)

Answer 12

admissible if shown that:
1) camera was properly operating at the relevant time, and
2) photo/video was downloaded/developed from film from that camera

Question 13

true or false: an X-ray can be authenticated by testimony of a witness as to its the fair/accurate representation of certain facts.

Answer 13

FALSE (NOT authenticated like photos/videos are)

Question 14

when are X-rays admissible? (authentication, 4 rqmts)

Answer 14

admissible if its shown that:
1) the process used is accurate,
2) the machine was working at the time,
3) operator was qualified to operate it, and
4) a custodial chain establishes that the X ray has not been tampered with

Question 15

in what situation is authentication of a speaker’s identity required?

Answer 15

when a statement is admissible ONLY IF it was said by a particular person (ie – opposing party stmt)

Question 16

who can authenticate a voice identification?

Answer 16

can be identified/authenticated by anyone who has heard the voice at any time
**NOTE = this includes before litigation AND for the sole purpose of testifying (broader than for handwriting IDs)

Question 17

how can statements made over the phone be authenticated? (4 ways)

Answer 17

can be authenticated by any party to the call who testifies:
1) they recognized 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/their residence, or
4) they called a business and talked with the person answering the phone about matters related to the business

Question 18

what 8 kinds of writings are considered “self authenticating”? (no need for extrinsic evidence)

Answer 18

1) domestic public documents bearing a seal (and similar foreign public docs)
2) official publications (ie – govt pamphlet)
3) certified copies of public records OR private records on file in a public office
4) newspapers/periodicals
5) trade inscriptions, labels
6) acknowledged (notarized) documents
7) commercial paper and related docs (including signatures thereon), and
8) business records that (1) are certified, (2) noticed to adverse party in writing, and (3) given opportunity for inspection

Question 19

what is the best evidence rule? (aka – OG document rule)

Answer 19

to prove the content of a writing, recording, or photograph, the original “writing” must be produced if the terms of the writing are material
AND
secondary evidence of a writing, such as oral testimony, is admissible ONLY if the proponent establishes a satisfactory excuse for the original’s absence

Question 20

in what 2 situations does the best evidence rule apply?

Answer 20

1) where the writing is a legally operative or dispositive instrument (writing itself creates rights/obligations/etc), OR
2) where the knowledge of a witness concerning a fact results from having read it in the writing

Question 21

when does the best evidence rule NOT apply? (no need to produce original writing)

Answer 21

when the witness has personal knowledge of the fact to be proved (testimony admissible without proof of the original)

Question 22

what is an “original” writing?

Answer 22

the writing itself OR any counterpart that is intended by the person executing it to have the same effect as the original
**NOTE = includes the negative of a photo, printout or readable outputs of electronically-stored information

Question 23

what is a “duplicate” of a writing?

Answer 23

an exact copy of an original made by mechanical means (ie – photocopy, carbon copy – NOT the human hand)

Question 24

true or false: generally, duplicates are admissible to the same extent of originals.

Answer 24

TRUE (with 2 exceptions)

Question 25

in what 2 situations are duplicates NOT admissible to the same extent as originals?

Answer 25

not admissible to the same extent if:
1) the circumstances make it unfair to admit the duplicate, or
2) a genuine question is raised about the authenticity of the original

Question 26

when are handwritten copies of a writing admissible despite being secondary evidence?

Answer 26

ONLY when the original/duplicate is UNAVAILABLE

Question 27

what are 3 valid excuses that justify the admission of secondary evidence of a writing (original considered unavailable)?

Answer 27

1) loss or destruction (unless proponent lost or destroyed it in bad faith)
2) OG cannot be obtained by any available judicial proceeding (ie – 3d party outside court’s jurisdiction has it and cannot be obtained thru reasonable effort)
3) OG is in the possession of an adversary who, after due notice, fails to produce the original (adversary can’t benefit from their failure to produce)

Question 28

true or false: once a valid excuse for proving contents of a writing by secondary evidence is shown, ANY type of secondary evidence may be admitted to prove the contents.

Answer 28

TRUE (no preferred types of secondary evidence)

Question 29

what are the 4 exceptions to the best evidence rule?

Answer 29

1) summaries of voluminous records
2) certified public records
3) writings that are collateral to litigated issue (of minor importance to the matter in controversy)
4) testimony/written admission of opponent

Question 30

when may a party present the contents of a voluminous record in a summary?

Answer 30

may be presented when:
1) it would be inconvenient to examine a voluminous collection of records in court,
2) proponent makes original/duplicates available for inspection or copying
**NOTE = court may order proponent to produce the records in court

Question 31

what are “certified” public records?

Answer 31

records that are either certified as correct or testified to as correct

Question 32

when may testimony/written admission of an opponent be introduced without an excuse for nonproduction of an original?

Answer 32

when the party against whom the writing is being offered given testimony, a deposition, or a written admission about the writing’s contents

Question 33

what 3 preliminary questions of fact about best evidence are left to the jury?

Answer 33

1) whether the original ever existed
2) whether the writing produced at trial is an original, and
3) whether the evidence offered correctly reflects the contents of the original

Question 34

true or false: generally, determinations of fact regarding admissibility of duplicates, copies, and oral testimony as to the contents of an original are left to the court.

Answer 34

TRUE
**NOTE = 3 specific fact questions left to jury

Question 35

what is “real” evidence?

Answer 35

actual physical evidence addressed directly to the trier of fact (may be direct, circumstantial, original or prepared/demonstrative)

Question 36

what 3 general requirements must real evidence meet to be admitted?

Answer 36

must be:
1) relevant
2) authenticated, and
3) in substantially same condition at trial (if condition of evidence is significant)

Question 37

how may be real evidence be authenticated?

Answer 37

authenticated 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
**NOTE = to show substantially unbroken chain, witnesses in chain will testify

Question 38

what standard of proof must real evidence authentication meet?

Answer 38

proof must be sufficient to support a jury finding of genuineness (reasonable juror could conclude that the object is what the proponent claims it to be)
**NOTE = same standard as for authenticating writings

Question 39

true or false: relevant photos, maps, diagrams, reproductions are generally ADMISSIBLE.

Answer 39

TRUE

Question 40

true or false: items used for explanatory purposes at trial are ADMISSIBLE.

Answer 40

FALSE (permitted at trial but NOT admitted into evidence/jury won’t be given it during deliberations)

Question 41

when are maps, charts, models used to illustrate testimony admissible?

Answer 41

when they are authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted

Question 42

true or false: the court has discretion to permit experiments or demonstrations to be performed in the courtroom.

Answer 42

TRUE

Question 43

what is required for an experiment to be allowed to be performed in a courtroom?

Answer 43

must be performed under conditions that are substantially similar to those attending the original event

Question 44

when may demonstrations of bodily injury NOT be allowed?

Answer 44

where the demonstrations would unduly traumatize the jury

Question 45

true or false: exhibition on injuries in personal injury or crim cases is generally permitted

Answer 45

TRUE (BUT still subject to 403 unfair prejudice balancing)

Question 46

true or false: trial judge generally has discretion to permit the jury to view places at issue in the case.

Answer 46

TRUE
**NOTE = if lots of change to places at issue – probably prejudicial/not allowed