Authentication, Writings, Real evidence Flashcards
What is the general rule around when a writing or any secondary evidence of its content will be received into evidence?
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
In order for a writing to be received what must be true about its proof?
Proof must be:
1)sufficient to support a jury finding
2) of genuineness
In order for a writing to be received what must be true about its proof in plain english?
Proof must be enough that a reasonable juror could conclude the writing is genuine.
What are the methods for a party to authenticate a document?
1) by pleadings
2) by stipulation
3) other evidence
What other evidence can authenticate a document?
1) Opponent’s admission
2) Eye witness testimony
3) Handwriting verifications
4) Ancient document status
5) Reply letter doctrine
6) Photos and video
How can a document be authenticated by opponent’s admission?
By providing evidence that Party against whom it’s offered has:
1)either admitted its authenticity
2) acted upon it as authentic
How can a document be authenticated by eyewitness testimony?
By testimony of anyone:
1) who saw it executed
2) heard it acknowledged
Who can authenticate a document by eyewitness testimony?
Anyone
Does a subscribing witness have to authenticate a document by eyewitness testimony?
No, unless by state statute.
Who can authenticate a document by handwriting verifications?
Opinion of a non expert lay witness who has familarity with the writer’s handwriting
What must a laywitness/non expert have experience with to properly authenticate a document?
The writer’s handwriting.
How must a laywitness/non expert have come about their experience to properly authenticate a document?
In the normal course of affairs
What does in the normal course of affairs mean for handwriting authentication by a non-expert?
Familiarity can not be acquired for purposes of the current litigation
Can a non-expert/lay person come about their familarity with a document their testifying about for purposes of testiying?
No.
What must an expert who seeks to give opinion on authentication of a document base their opinion on?
Samples of the alleged writer’s hand writing
How can a jury/fact-finder properly authenticate a document?
1) By comparing writing
2) to samples of the alleged writer’s writing
What must evidence seeking to authenticate a purportedly ancient document establish it’s authenticity?
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.
For FRE purposes, what does Ancient Document rule apply to? What does it not just apply to?
1) Ancient document applies to all writings
2) Not just dispositive writings (deeds/wills)
What is the difference between the rule of authentication for ancient documents and the hearsay exception for ancient documents?
Authentication – documents must be 20 years old
Hear say exception – only applies if document prepared before 1998
How can a document be authenticated by a reply letter doctrine?
By evidence that it was
1) written in response
2) to a communication sent
3) to the alleged author
What is the general rule around photo/video admissibility?
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
For a photo/video to be admissible, must photag, videog come in and authenticate it?
No, a witness familiar with the scene/object/person is sufficient.
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?
Yes
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?
1) Camera/video was properly operating at relevant time
2) Photo/video was downloaded/developed from that camera/video
Can an X-ray be authenticated by the testimony of a witness stating it is a correct representation of facts?
No.
What must be shown to authenticate an X-ray?
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
If a statement is admissible only if said by a particular person, what authentication is required?
The identity of the speaker.
What is an example of a statement that is admissible only if said by a particular person?
Statement by an opposing party
How can voice identification be identified?
1) by opinion of ANYONE
2) who has heard the voice at ANY TIME
At what time can someone become familiar with a voice so as to do voice identification?
At any time – including after litigation has begun and for the sole purpose of testifying.
who can authenticate statements made during telephone conversations?
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
What is said about self authenticating documents?
They prove themselves.
What extrinsic evidence is required for self authenticating documents?
It is not required.
What are self authenticating documents?
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
On commercial papers, what else is self authenticating?
The signatures on them
What must be done for business/electronically generated records and the data copied from them for them to be self authenticating?
Records must be
1) certified
2) proponent gives adverse party reasonable written notice AND
3) opportunity for inspection
What must a party seeking to introduce give to its opposing party in order for business records to be self authenticating?
1) reasonable written notice of introduction
2) Opportunity for inspection
What is the best evidence rule also known as?
The original document rule
What does the best evidence rule apply to?
Writings, recordings, or photographs
What qualifies as a photo for best evidence rule purposes?
Videos. x-rays, and any tangible collection of data
If the best evidence rule is implicated, what must happen?
1) The original writing, recording, photograph
2) must be produced
3) if the terms of the writing are material
What must the terms of a photo, writing or recording be to implicate the best evidence rule?
Material
When is secondary evidence admissible as it relates to a writing, photo, video that’s terms are material?
Only if the proponent of the evidence:
1) provides a satisfactory excuse
2) for the original’s absence
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?
Oral testimony.
When does the best evidence rule apply?
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
What does it mean in plain English that a writing is legally operative or dispositive instrument?
The writing
1) itself
2) creates rights
3) or obligations
When does the best evidence rule not apply?
If the witness has personal knowledge of the fact to be proved
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?
The witness can testify about the fact, and the photo/writing/video does not need to be supplied.
What is an “original”?
1) the writing itself
2) or any counterpart
3) intended by person executing it
4) to have same effect as an original
What are examples of originals?
1) a negative of a photo
2)any print of a photo
3) the print out or other readable output of electronically stored info
What is a “duplicate”?
1) An exact copy of an original
2) made by mechanical means
What is an example of a duplicate?
a photocopy or carbon copy
How does the admissibility of duplicates alter from originals?
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
What class of writing are photo copies in? How are photo copies treated?
1) Photo copies are duplicates.
2) Usually the same as originals
What class are copies made by hand in? How are they treated?
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
What can the proponent do if an original writing/photo/video or
admissible duplicate is unavailable?
If a satisfactory explanation for the lack of Original/Duplicate is given, they can offer secondary evidence of the original/duplicate’s contents.
What are valid excuses for non-production of original writing/video/x-ray
1) loss or destruction
2) Original cannot be obtained by any available judicial process
3) Original is in possession of an adversary
when is loss or destruction an invalid excuses for non-production of original writing/video/x-ray
if proponent lost or destroyed it in bad faith
when is “the original cannot be obtained by any available judicial process” a valid excuse for non-production of original writing/video/x-ray?
When it is in possession of a third party
2) outside the jurisdiction
3) cannot be obtained despite reasonable effort
when is “in the possession of an adversary” a valid excuse for non-production of original writing/video/x-ray
1) When due notice is given
2) to the adversary,
3) and they still fail to produce the original
If an excuse for failure to produce an original is valid, what type of secondary evidence must be used to prove its contents?
Any secondary evidence can be used.
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?
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.
What writing does the best evidence rule not apply?
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
If an opponent has given testimony, deposition, or written admission about a writing/photo/video’s content, what may a proponent do?
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
Who decides admissibility of duplicates?
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
What is real evidence?
1) Actual physical evidence
2) addressed directly to the trier of fact
What can real evidence be?
1) direct
2) circumstantial
3) original
4) prepared
What does authentication mean for real evidence?
Object must be identified as what proponent claims it to be
What are the general conditions of real evidence admissibility?
1) Relevance
2) Authentication
3) Condition is substantially the same
How does authentication of real evidence happen?
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
What standard of proof applies to real evidence?
Sufficient to support a jury finding of genuineness.
What is the common english standard of proof applies to real evidence?
A reasonable juror could conclude that the object is what proponent claims it to be.
What does condition mean as applied to real evidence? When is it implicated?
If the condition of object is significant.
Must be shown to be in substantially same condition at trial
If real evidence is admissible, can the court ever exclude it?
Yes, if it fails 403 balancing test (probative value is significantly outweighed by danger of unfair prejudice/waste of time
If an item is used entirely for explanatory purposes, how will the court treat it?
It will be permitted at trial, but usually not admitted into evidence
What does admitted into evidence mean?
A thing is given to the jury during deliberations
Are maps/charts/models admissible? If so for what purpose?
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.
Are experiments/demonstrations allowed to be performed in the court room?
Experiments/demonstrations may be called – it is up to the courts discretion.
How must an expiriment be performed if done in a court room?
It must be performed under
1) conditions that are
2) substantially similar
3) to those attending the original event
Are demonstrations/exhibitions of bodily injury allowed in the court room?
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.
What does trial court consider when deciding on jury view of the scene?
1) the need for the view
2) changes in the conditions of the premises
