Authentication, writings, and real evidence Flashcards
General rule
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 shows the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of geniuses (that is, a reasonable juror could conclude that the writing is genuine)
Proper methods of authentication of a writing:
(1) Opponent’s Admission
-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.
(2) Eyewitness Testimony
-Can be authenticated by anyone who saw the writing executed or heard it acknowledged. Testimony can be from anyone; it does not have to be from a subscribing witness.
(3) Handwriting Verifications
-A writing can be authenticated by evidence that the maker’s handwriting is genuine. The evidence may be offered in the form of (1) the opinion of a lay witness (nonexpert) who has familiarity with the alleged writer’s handwriting in the course of normal affairs (they cannot have acquired this knowledge for the purposes of the current litigation) (2) the opinion of an expert witness who has compared the writing to samples of the alleged writer’s handwriting. (3) The jury’s comparison of the writing to samples of the alleged writer’s handwriting.
(4) Ancient Documents
A document can be authenticated by evidence that it is (1) at least 20 years old (2) is in a condition that creates no suspicion as to authenticity; and (3) was found in a place where such a writing would likely be kept (related hearsay exception will only apply if the document was prepared before 1998)
(5) Reply Letter Doctrine
A writing can be authenticated by evidence that it was in response to a communication sent to the alleged author. (Ex: P mails a properly addressed and posted contract offer to X, and later receives an acceptance signed by X.)
(6) Photographs or Videos
Generally. photos and videos are only admissible if identified by a witness as a portrayl of certain facts relevant to the issue and verified by the witness as fair and accurate representation of those facts. It is not necessary to call the photographer to authenticate the photogrpa or video; a witness familiar with the scene, object, or person is sufficent.
In unattended camera situations: if a photograph or video is taken when no person who could authenticate the scene is present, the photogrpah or video may be admitted upon a showing that the camer 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.
Proper authentication methods of oral statements
When a statement is admissible only if said by a particular person (example: statement by an opposing party), authentication as to the identity of the person is required. These are the methods:
(1) 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 (CONTRASTING WITH WRITEN AUTHETNICATION). or
(2) Telephone coversations: statements made during a telephone conversation can be authenticated by any party who testifies that (1) they recognized the other party;s voice, (2) the speaker had knowledge of certain facts that only a particulr 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 business and talked with the person answering the phone about matter relevant to the businesss).
Best evidence rule
To prove the content of a writing, recording, or photograph (defined broadly to include x-ray’s videeos, and any tangible collection of data we use writing) the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence.
When does the best evidence rule apply ?
(1) where the writing is a legally operative or dispositive intrument (that is, the writing itself creates rights and obligations); 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?
The rule does not apply when the witness has personal knowledge of the fact to be proved, even if the fact happens to be also recored in a writing. Oral testimony of the fact may be given without producing the orignal writing that recorded the event.
The federal rules of evidence reserve the folowing questions of preliminary fact for the jury:
- whether the original existed
- whether a writing produced at trial is an original
- whether the evidence offered correctly reflects the contents of the original
