Authentication, writings, and real evidence

Question 1

When faced with a writing on an evidence question, 3 potential issues

Answer 1

Whenever faced with a writing on an evidence question, be alert to three potential issues
- authentication
- best evidence rule, and
- hearsay

Question 2

Authentication of writings and spoken statements generally

Answer 2

As a general rule, a writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that it shows that the writing is what the proponent claims it is

The proof must be sufficient to support a jury finding of genuineness - reasonable juror could conclude that the writing is genuine

Question 3

Methods of authenticating writings generally

Answer 3

Parties may admit the genuineness of a document by the pleadings or stipulation

Document can also be authenticated by other evidence
- opponent’s admission
- eyewitness testimony
- handwriting verifications
- ancient documents
- reply letter doctrine
- photographs and videos
- x-ray pictures, electrocardiograms, etc

Question 4

Opponent’s admission (authentication of writing)

Answer 4

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

Question 5

Eyewitness testimony (authentication of writing)

Answer 5

A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged

Testimony can be from anyone - does not have to be from a subscribing witness unless required by statute

Question 6

Handwriting verifications (authentication of writing)

Answer 6

A writing can be authenticated by evidence that the maker’s handwriting is genuine

May be in the form of
- opinion of a non expert witness who has familiarity with the alleged writer’s handwriting in the course of normal affairs (not acquired for purposes of current litigation)
- opinion of an expert who has compared the writing to samples, or
- the jury’s comparison

Question 7

Ancient documents (authentication of writing)

Answer 7

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

Applies to all documents

While documents may be authenticated if they are at least 20 years old, the related hearsay exception will only apply if the document was prepared before 1998

Question 8

Reply letter doctrine (authentication of writing)

Answer 8

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

Question 9

Photographs and videos (authentication of writing)

Answer 9

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 the photographer to authenticate the photograph or video
- a witness familiar with the scene, object, or person is sufficient
- unattended camera

Question 10

Unattended camera when authenticating photographs and videos

Answer 10

If a photograph or video is taken when no person who could authenticate the scene is present, 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

Question 11

X-ray pictures, electrocardiograms, etc (authentication of writing)

Answer 11

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 show the x-ray was not tampered with

Question 12

Authentication of oral statements generally

Answer 12

When a statement is admissible only if said by a particular person, authentication as to the identity of the speaker is required
- voice identification
- telephone conversations

Question 13

Authenticating oral statements - voice identification

Answer 13

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

Question 14

Authenticating oral statements - telephone conversations

Answer 14

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that
- they recognized the other party’s voice
- the speaker had knowledge of certain facts that only a particular person would have
- they called a particular persons number and a voice answered as that person or that person’s residence, or
- they called a business and talked with the person answering the phone about matters relevant to the business

Question 15

Self-authenticating documents (8)

Answer 15

Certain writings are said to prove themselves

Extrinsic evidence of authenticity is not required for the following
- domestic public documents bearing a seal, and similar official foreign public documents
- official publications
- certified copies of public records or private records on file in a public office
- newspaper and periodicals
- trade inscriptions and labels
- acknowledged (notarized) documents
- commercial paper and related documents, and
- business records, electronically generated records, and data copied from an electronic device - if certified and proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 16

Self-authentication of business records and the like

Answer 16

Business records, electronically generated records, and data copied from an electronic device

If certified and proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 17

Best evidence rule generally

Answer 17

To prove the content of a writing, recording, or photograph
- defined broadly
- includes videos, x-rays, and any tangible collection of data

Original writing must be produced if the terms of the writing are material

Secondary evidence of the writing (like oral testimony) is admissible only if the proponent provides a satisfactory excuse for the original’s absence

Question 18

When best evidence rule applies

Answer 18

The rule applies in 2 principal situations
- where the writing is a legally operative or dispositive instrument - writing itself creates rights and obligations, or
- where the knowledge of a witness concerning a fact results from having read it in the writing

Question 19

When best evidence rule does not apply

Answer 19

The rule does not apply where the witness has personal knowledge of the face 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

Question 20

Originals and duplicates

Answer 20

Original - the writing itself or any counterpart that is intended by the person executing it to have the same effect as an original
- includes the negative of a photograph or any print of it, or
- the printout or other readable output of electrically stored information

Duplicate - an exact copy of an original made by mechanical means
- photocopies are duplicates but hand written copies are considered secondary evidence

Question 21

When duplicates are admissible

Answer 21

Duplicates are admissible to the same extent as originals, unless
- the circumstances make it unfair to admit the duplicate, or
- a genuine question is raised about the authenticity of the original

Question 22

Admissibility of secondary evidence

Answer 22

If the proponent cannot produce the original writing or an admissible duplicate, may offer secondary evidence of its contents (handwritten copies, notes, oral testimony) if a satisfactory explanation is given for the non-production of the original
- loss or destruction, unless the proponent lost or destroyed it in good faith
- original cannot be obtained by any available judicial process - usually means in possession of a third party outside jurisdiction and cannot be obtained despited reasonable effort
- original is in the possession of an adversary who, after due notice, fails to produce the original

If valid excuse, can prove contents by any type of secondary evidence

Question 23

Summaries of voluminous records - exception to best evidence rule

Answer 23

When it would be inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary

But the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court

Question 24

Certified public records - best evidence rule

Answer 24

Best evidence rule does not apply to copies of public records that are certified as correct or testified to as correct

Question 25

Writing is collateral to litigated issue - exception to best evidence rule

Answer 25

The rule does not apply where the writing is of minor importance - collateral - to the matter in controversy

Question 26

Testimony or written admission of opponent - exception to best evidence rule

Answer 26

Where the opponent has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original

Question 27

Who makes fact determinations regarding admissibility

Answer 27

Ordinarily, it is for the court to make determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original

But the federal rules reserve the following questions of preliminary fact for the jury
- whether the original ever existed
- whether a writing produced at trial is an original, and
- whether the evidence offered correctly reflects the contents of the original

Question 28

Real evidence generally

Answer 28

Real evidence is actual physical evidence addressed directly to the trier of fact

Real evidence may be direct, circumstantial, original, or prepared (demonstrative)

Evidence must be relevant and meet following
- authentication
- condition of object

Question 29

Authentication of real evidence

Answer 29

The object must be identified as what the proponent claims it to be, either by,
- testimony of a witness that they recognize the object as what the proponent claims it is, or
- evidence that the object has been held in a substantially unbroken chain of possession

Proof must be sufficient to support a jury finding of genuineness

Question 30

Condition of object - real evidence

Answer 30

If the condition of the object is significant, it must be shown to be in substantially the same condition at trial

Question 31

Reproductions and explanatory real evidence

Answer 31

Relevant photographs, diagrams, maps, or other reproductions are generally admissible

Items used entirely for explanatory purposes are permitted at trial
- but are usually not admitted into evidence

Question 32

Maps, charts, models, etc

Answer 32

Maps, charts, models, etc., are usually admissible for purpose of illustrating testimony
- but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted

Question 33

Demonstrations

Answer 33

In its discretion, may permit experiments or demonstrations to be performed in the courtroom

An experiment must be performed under conditions that are absolutely similar to those attending the original event

Demonstrations of bodily injury may not be allowed where the demonstrations would unduly traumatize the injury

Question 34

Exhibitions of injuries

Answer 34

Exhibitions of injuries in a personal injury or criminal case is generally permitted

But the court has discretion to exclude for unfair prejudice

Question 35

Jury view of the scene

Answer 35

The trial court has discretion to permit the jury to view places at issue in the case

Need for the view and changes in the condition of the premises following the events at issue in the case are relevant considerations