Authentication, writings, and real evidence Flashcards
When faced with a writing on an evidence question, 3 potential issues
Whenever faced with a writing on an evidence question, be alert to three potential issues
- authentication
- best evidence rule, and
- hearsay
Authentication of writings and spoken statements generally
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
Methods of authenticating writings generally
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
Opponent’s admission (authentication of writing)
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
Eyewitness testimony (authentication of writing)
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
Handwriting verifications (authentication of writing)
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
Ancient documents (authentication of writing)
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
Reply letter doctrine (authentication of writing)
A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author
Photographs and videos (authentication of writing)
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
Unattended camera when authenticating photographs and videos
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
X-ray pictures, electrocardiograms, etc (authentication of writing)
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
Authentication of oral statements generally
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
Authenticating 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
Authenticating oral statements - telephone conversations
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
Self-authenticating documents (8)
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
Self-authentication of business records and the like
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
Best evidence rule generally
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
When best evidence rule applies
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
When best evidence rule does not apply
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
Originals and duplicates
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
When duplicates are admissible
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
Admissibility of secondary evidence
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
Summaries of voluminous records - exception to best evidence rule
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
Certified public records - best evidence rule
Best evidence rule does not apply to copies of public records that are certified as correct or testified to as correct
