Authentication, Writings, Real Evidence

Question 1

What are the two rules to keep in mind when writings are introduced?

Answer 1

(A) authentication (B) best evidence rule

Question 2

What is the standard to authenticate writings?

Answer 2

Proof must be sufficient to support a jury finding of genuineness - i.e. writing is what you say it is

Question 3

How can writings be authenticated?

Answer 3

Pleadings or stipulation. E.g.,

• opponent’s admission
• eyewitness testimony - saw/heard it executed
• handwriting verifications - by (a) lay witness who is (prior to trial) familiar with handwriting (b) expert (c) jury comparison
• ancient doc
• reply letter
• photos/videos - by witness of facts

Question 4

How are photos/videos authenticated?

Answer 4

By witness verifying they are fair & accurate portrayal of underlying facts. Do NOT need original photographer.

Question 5

What are the reqs for ancient doc to be self-authenticated?

Answer 5

(A) at least 20 yrs old at time of introduction
(B) in condition as to create no suspicion re authentication
(C) found in place where it would be likely kept

Note: applies to any type of writing

Question 6

How can photo/video be authenticated when there are no eye witnesses?

Answer 6

By showing camera was properly operated at the time and photo/video was gotten from that camera.

Question 7

How can xrays/machine reports be authenticated?

Answer 7

Can not merely have eye witness testimony that it is accurate. Need to show that process used was accurate, machine in working order, operator was qualified. AND custodial chain must be established.

Question 8

When must oral statements be authenticated?

Answer 8

When admissibility depends on the identity of the speaker (e.g. opposing party statements).

Question 9

How can oral statements be authenticated? Telephone conversations?

Answer 9

By anyone who has heard the voice at any time. (Including for sole purpose of litigation).

Telephone convos: can be authenticated by anyone party to the call who testifies (a) recognized person’s voice (b) person knew facts only they would know (c) called certain number and that person answered (d) called biz and spoke re biz

Question 10

Which writings are self-authenticating? (No extrinsic evidence necessary)

Answer 10

• domestic/foreign public docs bearing seal
• official publications (govt)
• certified copies of public records or private records in public office
• newspapers, periodicals
• trade inscriptions or labels
• notarized docs
• commercial paper
• biz records, electronically generated records, and data copied from electronic device (BUT req’s certification, written notice, opportunity for inspection)
• ancient docs

Question 11

What is the best evidence rule?

Answer 11

To prove content of a writing/physical evidence, original or duplicate must be produced absent exceptions.

Question 12

What types of evidence does the best evidence rule apply to?

Answer 12

Writings, recordings, photos, videos, data, X-rays, etc.

Question 13

When does the BER apply/not apply?

Answer 13

Applies: (a) when writing is legally dispositive/operative (e.g. K) or (b) when witnesses’s knowledge comes from document itself

Does NOT apply: When witness has PK of facts.

Question 14

When are duplicates allowed to stand in for originals under BER?

Answer 14

Duplicates will satisfy the BER as long as they are made by mechanical means (not by hand), and unless (a) circumstances make it unfair to admit the duplicate or (b) genuine q is raised re authenticity of the original

Question 15

When can party introduce secondary evidence despite BER applying?

Answer 15

Exceptions to the BER rule include:

• valid excuse for non-production of original
• voluminous records (summary ok)
• certified public records
• writing is collateral issue
• testimony or written admission re contents by opponent

Question 16

What are valid excuses for non-production of the original writing under BER?

Answer 16

• loss or destruction (unless in bad faith)
• cannot be obtained by judicial process
• in possession by adversary who fails to produce

Question 17

If there is a valid excuse for non production of original writing, what evidence can party introduce in its place?

Answer 17

ANY evidence, no type is preferred over another.

Question 18

Which preliminary q’s of fact does the jury decide re: the BER?

Answer 18

• whether original ever existed
• whether certain writing is an original
• when the evidence offered accurately reflects original

Question 19

What req’s must real evidence meet to be introduced?

Answer 19

(A) authentication - by eye witness testimony or evidence re unbroken chain of possession
(B) if condition is significant, party must show it is in the substantially same condition

Question 20

Are reproductions/explanatory real evidence allowed?

Answer 20

Yes, but not typically admitted into evidence.

Question 21

Are demonstrations/experiments allowed?

Answer 21

Yes, but only if done in substantially similar conditions.