Authentication, Writings, and Real Evidence Flashcards
true or false: a writing or any secondary evidence of its contents will NOT be admitted into evidence without authentication.
TRUE
what is required for a writing to be authenticated? (2 things)
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
true or false: parties may admit the authenticity of a document by the pleadings or by stipulation.
TRUE
in what 5 ways may a writing be properly authenticated by other evidence?
1) opponent’s admission
2) eyewitness testimony
3) handwriting verifications
4) ancient documents
5) reply letter
when is a writing authenticated by an opponent’s admission?
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)
when is a writing authenticated by eyewitness testimony? (2 options)
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)
when is a writing authenticated by handwriting verification?
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
how must an ancient document 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 its authenticity, and
3) was found in a place where such writing would likely be kept
when can a writing be authenticated by reply letter? (reply letter doctrine)
writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author
when are photographs and videos admissible? (authentication, 2 rqmts))
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
true or false: a party MUST call the original photographer or videographer to authenticate a photo or video.
FALSE (a witness familiar with the scene, object, or person is sufficient)
when may a photo or video taken by an unattended camera be admitted? (authentication, 2 rqmts)
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
true or false: an X-ray can be authenticated by testimony of a witness as to its the fair/accurate representation of certain facts.
FALSE (NOT authenticated like photos/videos are)
when are X-rays admissible? (authentication, 4 rqmts)
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
in what situation is authentication of a speaker’s identity required?
when a statement is admissible ONLY IF it was said by a particular person (ie – opposing party stmt)
who can authenticate a voice identification?
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)
how can statements made over the phone be authenticated? (4 ways)
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
what 8 kinds of writings are considered “self authenticating”? (no need for extrinsic evidence)
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
what is the best evidence rule? (aka – OG document rule)
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
in what 2 situations does the best evidence rule apply?
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
when does the best evidence rule NOT apply? (no need to produce original writing)
when the witness has personal knowledge of the fact to be proved (testimony admissible without proof of the original)
what is an “original” writing?
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
what is a “duplicate” of a writing?
an exact copy of an original made by mechanical means (ie – photocopy, carbon copy – NOT the human hand)
true or false: generally, duplicates are admissible to the same extent of originals.
TRUE (with 2 exceptions)
in what 2 situations are duplicates NOT admissible to the same extent as originals?
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
when are handwritten copies of a writing admissible despite being secondary evidence?
ONLY when the original/duplicate is UNAVAILABLE
what are 3 valid excuses that justify the admission of secondary evidence of a writing (original considered unavailable)?
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)
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.
TRUE (no preferred types of secondary evidence)
what are the 4 exceptions to the best evidence rule?
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
when may a party present the contents of a voluminous record in a summary?
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
what are “certified” public records?
records that are either certified as correct or testified to as correct
when may testimony/written admission of an opponent be introduced without an excuse for nonproduction of an original?
when the party against whom the writing is being offered given testimony, a deposition, or a written admission about the writing’s contents
what 3 preliminary questions of fact about best evidence are left to the jury?
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
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.
TRUE
**NOTE = 3 specific fact questions left to jury
what is “real” evidence?
actual physical evidence addressed directly to the trier of fact (may be direct, circumstantial, original or prepared/demonstrative)
what 3 general requirements must real evidence meet to be admitted?
must be:
1) relevant
2) authenticated, and
3) in substantially same condition at trial (if condition of evidence is significant)
how may be real evidence be authenticated?
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
what standard of proof must real evidence authentication meet?
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
true or false: relevant photos, maps, diagrams, reproductions are generally ADMISSIBLE.
TRUE
true or false: items used for explanatory purposes at trial are ADMISSIBLE.
FALSE (permitted at trial but NOT admitted into evidence/jury won’t be given it during deliberations)
when are maps, charts, models used to illustrate testimony admissible?
when they are authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted
true or false: the court has discretion to permit experiments or demonstrations to be performed in the courtroom.
TRUE
what is required for an experiment to be allowed to be performed in a courtroom?
must be performed under conditions that are substantially similar to those attending the original event
when may demonstrations of bodily injury NOT be allowed?
where the demonstrations would unduly traumatize the jury
true or false: exhibition on injuries in personal injury or crim cases is generally permitted
TRUE (BUT still subject to 403 unfair prejudice balancing)
true or false: trial judge generally has discretion to permit the jury to view places at issue in the case.
TRUE
**NOTE = if lots of change to places at issue – probably prejudicial/not allowed
