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Evidence > Authentication, Writings, Real evidence > Flashcards

Authentication, Writings, Real evidence Flashcards

1
Q

What is the general rule around when a writing or any secondary evidence of its content will be received into evidence?

A

It will not be received unless:
1) Writing is authenticated
2) by proof
3) that shows the writing is what its proponent claims it is

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2
Q

In order for a writing to be received what must be true about its proof?

A

Proof must be:
1)sufficient to support a jury finding
2) of genuineness

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3
Q

In order for a writing to be received what must be true about its proof in plain english?

A

Proof must be enough that a reasonable juror could conclude the writing is genuine.

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4
Q

What are the methods for a party to authenticate a document?

A

1) by pleadings
2) by stipulation
3) other evidence

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5
Q

What other evidence can authenticate a document?

A

1) Opponent’s admission
2) Eye witness testimony
3) Handwriting verifications
4) Ancient document status
5) Reply letter doctrine
6) Photos and video

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6
Q

How can a document be authenticated by opponent’s admission?

A

By providing evidence that Party against whom it’s offered has:
1)either admitted its authenticity
2) acted upon it as authentic

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7
Q

How can a document be authenticated by eyewitness testimony?

A

By testimony of anyone:
1) who saw it executed
2) heard it acknowledged

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8
Q

Who can authenticate a document by eyewitness testimony?

A

Anyone

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9
Q

Does a subscribing witness have to authenticate a document by eyewitness testimony?

A

No, unless by state statute.

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10
Q

Who can authenticate a document by handwriting verifications?

A

Opinion of a non expert lay witness who has familarity with the writer’s handwriting

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11
Q

What must a laywitness/non expert have experience with to properly authenticate a document?

A

The writer’s handwriting.

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12
Q

How must a laywitness/non expert have come about their experience to properly authenticate a document?

A

In the normal course of affairs

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13
Q

What does in the normal course of affairs mean for handwriting authentication by a non-expert?

A

Familiarity can not be acquired for purposes of the current litigation

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14
Q

Can a non-expert/lay person come about their familarity with a document their testifying about for purposes of testiying?

A

No.

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15
Q

What must an expert who seeks to give opinion on authentication of a document base their opinion on?

A

Samples of the alleged writer’s hand writing

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16
Q

How can a jury/fact-finder properly authenticate a document?

A

1) By comparing writing
2) to samples of the alleged writer’s writing

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17
Q

What must evidence seeking to authenticate a purportedly ancient document establish it’s authenticity?

A

Evidence must show:
1) Document was AT LEAST 20 years old when offered into evidence
2) Is in a condition that is not suspicious to authenticity
3) Was found in a place where a document like it would be kept.

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18
Q

For FRE purposes, what does Ancient Document rule apply to? What does it not just apply to?

A

1) Ancient document applies to all writings
2) Not just dispositive writings (deeds/wills)

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19
Q

What is the difference between the rule of authentication for ancient documents and the hearsay exception for ancient documents?

A

Authentication – documents must be 20 years old
Hear say exception – only applies if document prepared before 1998

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20
Q

How can a document be authenticated by a reply letter doctrine?

A

By evidence that it was
1) written in response
2) to a communication sent
3) to the alleged author

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21
Q

What is the general rule around photo/video admissibility?

A

Only admissible if:
1) identified by a witness as a portrayal of certain facts relevant to the issue
2) wirtness verifies that the photos/videos are a fair and accurate representation

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22
Q

For a photo/video to be admissible, must photag, videog come in and authenticate it?

A

No, a witness familiar with the scene/object/person is sufficient.

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23
Q

Is a photo or video that is taken when no person who could authenticate the scene is present, is it admissible? What must be shown?

A

Yes

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24
Q

Is a photo or video that is taken when no person who could authenticate the scene is present, what must be shown to admit it?

A

1) Camera/video was properly operating at relevant time
2) Photo/video was downloaded/developed from that camera/video

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25
Q

Can an X-ray be authenticated by the testimony of a witness stating it is a correct representation of facts?

A

No.

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26
Q

What must be shown to authenticate an X-ray?

A

1) the process used is accurate
2) the machine was in working order
3) the operator was qualified to operate it.
4) A proper custodial chain to refute tampering notions

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27
Q

If a statement is admissible only if said by a particular person, what authentication is required?

A

The identity of the speaker.

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28
Q

What is an example of a statement that is admissible only if said by a particular person?

A

Statement by an opposing party

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29
Q

How can voice identification be identified?

A

1) by opinion of ANYONE
2) who has heard the voice at ANY TIME

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30
Q

At what time can someone become familiar with a voice so as to do voice identification?

A

At any time – including after litigation has begun and for the sole purpose of testifying.

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31
Q

who can authenticate statements made during telephone conversations?

A

1) By any party to the call
2) who testifies that:
1) they recognized other party’s voice
2) 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 the person/ or that person’s residence
4) They called a business and spoke with someone at the business with matter relevant to the business

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32
Q

What is said about self authenticating documents?

A

They prove themselves.

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33
Q

What extrinsic evidence is required for self authenticating documents?

A

It is not required.

34
Q

What are self authenticating documents?

A

Domestic public documents bearing a seal and similar foren docs
2) Official publications like Gov pamphlets
3) Certified copes of public records or private records on file in a public office
4) Newspapers/periodicals
5) Trade inscriptions/labels
6) Acknowleged, or notarized documents
7) Commercial paper and the signatures on them
8) Business records/electronically generated records/ and data copied from them

35
Q

On commercial papers, what else is self authenticating?

A

The signatures on them

36
Q

What must be done for business/electronically generated records and the data copied from them for them to be self authenticating?

A

Records must be
1) certified
2) proponent gives adverse party reasonable written notice AND
3) opportunity for inspection

37
Q

What must a party seeking to introduce give to its opposing party in order for business records to be self authenticating?

A

1) reasonable written notice of introduction
2) Opportunity for inspection

38
Q

What is the best evidence rule also known as?

A

The original document rule

39
Q

What does the best evidence rule apply to?

A

Writings, recordings, or photographs

40
Q

What qualifies as a photo for best evidence rule purposes?

A

Videos. x-rays, and any tangible collection of data

41
Q

If the best evidence rule is implicated, what must happen?

A

1) The original writing, recording, photograph
2) must be produced
3) if the terms of the writing are material

42
Q

What must the terms of a photo, writing or recording be to implicate the best evidence rule?

A

Material

43
Q

When is secondary evidence admissible as it relates to a writing, photo, video that’s terms are material?

A

Only if the proponent of the evidence:
1) provides a satisfactory excuse
2) for the original’s absence

44
Q

What is an example of secondary evidence that could be sought to be admitted to authenticate a photo, writing, video that has terms that are material?

A

Oral testimony.

45
Q

When does the best evidence rule apply?

A

1) where the writing is a
1.a) legally operative or
1.b) dis positive instrument

2) where the knowledge of a witness concerning a fact results from having read it in the writing

46
Q

What does it mean in plain English that a writing is legally operative or dispositive instrument?

A

The writing
1) itself
2) creates rights
3) or obligations

47
Q

When does the best evidence rule not apply?

A

If the witness has personal knowledge of the fact to be proved

48
Q

If a fact is recorded in writing, photo, or video, and a witness has personal knowledge of the fact proponent is seeking to be proved, what result?

A

The witness can testify about the fact, and the photo/writing/video does not need to be supplied.

49
Q

What is an “original”?

A

1) the writing itself
2) or any counterpart
3) intended by person executing it
4) to have same effect as an original

50
Q

What are examples of originals?

A

1) a negative of a photo
2)any print of a photo
3) the print out or other readable output of electronically stored info

51
Q

What is a “duplicate”?

A

1) An exact copy of an original
2) made by mechanical means

52
Q

What is an example of a duplicate?

A

a photocopy or carbon copy

53
Q

How does the admissibility of duplicates alter from originals?

A

Duplicates are admissible to same extent as originals UNLESS:
1) Circumstances make it unfair to admit duplicate
2) a genuine question of authenticity is raised about the duplicate’s original

54
Q

What class of writing are photo copies in? How are photo copies treated?

A

1) Photo copies are duplicates.
2) Usually the same as originals

55
Q

What class are copies made by hand in? How are they treated?

A

Copies made by hand are secondary evidence.
2) They are only admittable if:

2.a The Original OR
2.b The Duplicate
2.c are unavailable

56
Q

What can the proponent do if an original writing/photo/video or
admissible duplicate is unavailable?

A

If a satisfactory explanation for the lack of Original/Duplicate is given, they can offer secondary evidence of the original/duplicate’s contents.

57
Q

What are valid excuses for non-production of original writing/video/x-ray

A

1) loss or destruction
2) Original cannot be obtained by any available judicial process
3) Original is in possession of an adversary

58
Q

when is loss or destruction an invalid excuses for non-production of original writing/video/x-ray

A

if proponent lost or destroyed it in bad faith

59
Q

when is “the original cannot be obtained by any available judicial process” a valid excuse for non-production of original writing/video/x-ray?

A

When it is in possession of a third party
2) outside the jurisdiction
3) cannot be obtained despite reasonable effort

60
Q

when is “in the possession of an adversary” a valid excuse for non-production of original writing/video/x-ray

A

1) When due notice is given
2) to the adversary,
3) and they still fail to produce the original

61
Q

If an excuse for failure to produce an original is valid, what type of secondary evidence must be used to prove its contents?

A

Any secondary evidence can be used.

62
Q

If it would be inconvenient to examine a voluminous collection of records in court, what can a proponent do?

What must they do for this to be acceptable?

What can the court do?

A

They may present their contents in the form of a chart or summary

2) They must make the originals or duplicates available for inspection/copying

3) The court may order the proponent to produce the records in court.

63
Q

What writing does the best evidence rule not apply?

A

1) Certified public records
2) Writing that is of minor importance (collateral) to the matter in controversy
3) Opponent has given testimony, deposition, or a written admission about the writing’s content

64
Q

If an opponent has given testimony, deposition, or written admission about a writing/photo/video’s content, what may a proponent do?

A

1)The proponent can use this evidence,
2) not supply the original writing/ photo/video
3) Not provide an excuse for not providing the original/writing/video

65
Q

Who decides admissibility of duplicates?

A

Normally the court

But FRE reserves for jury
1) whether original ever existed
2) whether a writing produced at trial is an original
3) Whether the evidence offered correctly reflects contents of original

66
Q

What is real evidence?

A

1) Actual physical evidence
2) addressed directly to the trier of fact

67
Q

What can real evidence be?

A

1) direct
2) circumstantial
3) original
4) prepared

68
Q

What does authentication mean for real evidence?

A

Object must be identified as what proponent claims it to be

68
Q

What are the general conditions of real evidence admissibility?

A

1) Relevance

2) Authentication

3) Condition is substantially the same

69
Q

How does authentication of real evidence happen?

A

By:
1) Testimony of witness that they recognize the object as what Proponent claims it as
2) Evidence object has been held in substantially unbroken chain

70
Q

What standard of proof applies to real evidence?

A

Sufficient to support a jury finding of genuineness.

71
Q

What is the common english standard of proof applies to real evidence?

A

A reasonable juror could conclude that the object is what proponent claims it to be.

72
Q

What does condition mean as applied to real evidence? When is it implicated?

A

If the condition of object is significant.

Must be shown to be in substantially same condition at trial

73
Q

If real evidence is admissible, can the court ever exclude it?

A

Yes, if it fails 403 balancing test (probative value is significantly outweighed by danger of unfair prejudice/waste of time

74
Q

If an item is used entirely for explanatory purposes, how will the court treat it?

A

It will be permitted at trial, but usually not admitted into evidence

75
Q

What does admitted into evidence mean?

A

A thing is given to the jury during deliberations

76
Q

Are maps/charts/models admissible? If so for what purpose?

A

1) Yes usually, for illustrating testimony so long as they are:

1) authenticated by testimonial evidence 2)that they are faithful reproductions
3) of object/thing depicted.

77
Q

Are experiments/demonstrations allowed to be performed in the court room?

A

Experiments/demonstrations may be called – it is up to the courts discretion.

78
Q

How must an expiriment be performed if done in a court room?

A

It must be performed under
1) conditions that are
2) substantially similar
3) to those attending the original event

79
Q

Are demonstrations/exhibitions of bodily injury allowed in the court room?

A

Yes, but they may not be if demonstration would:
1)unduly traumatize
2) the injury

Exhibitions are allowed in PERSONAL INJURY or CRIMINAL CASE generally, but judge has 403 discretion.

80
Q

What does trial court consider when deciding on jury view of the scene?

A

1) the need for the view
2) changes in the conditions of the premises

81
Q
A

Evidence (8 decks)

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