Authentication, Writings, Real Evidence (Module 5)

Question 1

Methods of Authenticating a Writing

Answer 1

HEAR POX

1. Handwriting verification (lay-witness if they are familiar, expert, or jury can verify; a laywitness can only have seen it once to be familiar, but it must not have been merely for the purpose of testifying)
2. Eyewitness (anyone who saw writing executed)
3. Ancient Documents (20+ years old, found in correct place/condition)
4. Reply letter doctrine (communication/response to the alleged author of the writing to be authenticated)
5. Photo/video (witness needs to verify it’s a fair/accurate representation; if unattended camera, show was functioning properly at time of event)
6. Opponent’s Admission
7. X-Ray/EKG

It is for the JURY to decide if a writing is authentic; judge decides if there’s enough to support a jury finding, then jury decides if it is authentic

Question 2

Authenticating an Oral Statement

Answer 2

When statement is admissible only if said by a particular person need to authenticate identity of speaker; done by:

1. Voice ID - any who’s heard person’s voice at any time
2. Phone Convo - any party to the call that recognizes the voice, knowledge of things said on the call

Question 3

Self-Authenticating Documents

Answer 3

Following do not require extrinsic evidence to authenticate:

• Official public documents
• Official publications (ex. gov pamphlet)
• Certified public/private records on file in a public office
• Newspapers
• Trade labels
• Notarized documents
• Commercial paper and related documents
• Business records

Question 4

Best Evidence Rule

Answer 4

To prove content of a writing (or recording or video) the original must be produced if the terms of the writing are material to the case

Applies (need original document) when:

1) writing is legally operative (i.e., creates rights/obligations)
2) where witness’s knowledge concerning a fact derives from the writing
Note: does not apply where witness has personal knowledge

Question 5

Originals/Duplicates (Best Evidence Rule)

Answer 5

Original - writing itself or any counterpart that has the same effect (ex. printout of electric info is still an original)

Duplicate - exact copy made by mechanical means (photocopy, film negative)
- is admissible to same extent as original unless the circumstances make it unfair or genuine issue as to whether original itself is authentic

Question 6

Excuses for Non-Production of Original Writing

Answer 6

Secondary evidence of an original writing’s contents can only be admissible when original:

1) loss/destruction (unless bad faith)
2) cannot be obtained by judicial process
3) is in possession of adversary and they refuse to produce it

If one of these is satisfied any secondary evidence is admissible (notes, handwritten copies, testimony of person w/ personal knowledge etc.)

Question 7

Exceptions to the Best Evidence Rule

Answer 7

AWCS

1) Admission by opponent of writing’s contents

2) Writing collateral to the litigated issue (of minor importance)

3) Certified Public Records

4) Summary of voluminous Records (summary of; orig. must still be available if needed)

Question 8

Conditions for Admissibility of Real Evidence

Answer 8

Actual physical evidence; must be:

1) Relevant

2) Authenticated
- by testimony of witness
- by evidence it was held in substantially unbroken chain of possession

3) Substantially same condition at trial as it was at time of event

Standard of proof is a rxble jury could conclude the object is what they said it to be

Question 9

Types of Real Evidence

Answer 9

1) Reproductions (relevant photos, diagrams, other explanatory content but it can’t be admitted into evidence)

2) Maps, charts, models

3) Demonstrations (performed under substantially similar conditions)

4) Exhibition of injuries

5) Jury viewing of the scene at issue