Authentication_Best Evidence Flashcards
What are the 6 self-authenticating documents
i.e. no need for FOUNDATION testimony?
Self-Authenticating Documents…
Document will be PRESUMED AUTHENTIC and the burden of proof re: authentication will automatically be shifted to the other side if the document is:
1) Official publication
2) Certified copies of public OR private records on file in public office (e.g. a mtg/deed is a PRIVATE document that is filed in a public office)
3) Newspapers or periodicals
4) Trade inscriptions and labels (e.g. a label on a bottle of water)
5) Notarized (aka “acknowledged”) document
6) Commercial paper / Promissory Note (i.e. the signatures are deemed genuine)
7) Certified business records (also admissible under hearsay) Don’t forget about hearsay!!
What are the 5 methods ofauthentication?
NOTE: NY Distinction
5 Methods of AUTHENTICATION…
1) Witness’ Personal Knowledge:
e. g. witness observed X sign the document; can verify the photograph
2) Proof of Handwriting by….
(a) Lay person opinion (e.g. verifies based on
familiarity w/ handwriting);
(b) Expert comparison opinion (e.g. handwriting
expert); OR
(c) Jury comparison (e.g. Jury itself compares
document w/ sample of X’s handwriting)
3) Proof by Circumstantial Evidence: a party may rely on anything relevant that connects the alleged author to the document
e. g. appearance, contents, substance, internal patterns or other distinctive characteristics (e.g. the document refers to info that only “X” would know so can infer that “X” is the author)
4) Ancient Document Rule: authenticity may be inferred IF the document is…
(a) ≥ 20 yrs old
*****NY DISTINCTION: must be ≥ 30 yrs old;
(b) facially free of suspicion (e.g. no erase marks);
AND
(c) found in a place of author’s natural custody
5) Solicited Reply Doctrine: doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author
e. g., π mails K offer to ∆, properly addressed and posted, and later receives an acceptance purportedly sent by X
What are the3 questions you need to ask for document/photo evidence?
Whenever there is evidence that is a WRITING, must be alert to the following 3 potential issues ASIDE from relevance
- Has it been authenticated?
- Is it the best-evidence?
- Is there hearsay?
STD for Admissibility based on AUTHENTICITY
CONDITIONAL RELEVANCY STANDARD
When is a document admissible (based on its authenticity)?
The Conditional Relevancy Std = A document is admissible if ct determines that there is sufficient evidence from which a reasonable juror could conclude doc is genuine
Note: The judge herself DOES NOT have to be persuaded that the document is authentic
PURPOSE OF AUTHENTICATION
What is the purpose of the authentication?
If the relevance of a writing or picture depends on its source or authorship, a showing must be made that the writing is authentic (genuine)
This process is “LAYING the FOUNDATION” for admissibility
What is the Best Evidence Rule?
Best Evidence Rule = A party who seeks to prove the contents of a writing must EITHER:
(i) PRODUCE the “original writing”; OR
(ii) provide an ACCEPTABLE EXCUSE for its absence AND provide SECONDARY EVIDENCE like oral testimony or a copy
Note: a “Writing” includes sound recordings, X-rays, and films
When does the Best Evidence Rule apply?
When a party is seeking to prove the contents of a writing in TWO situations…
1) the writing is a LEGALLY OPERATIVE DOCUMENT in the present case
- – i.e. the writing itself creates the rights and obligations at issue
- – e.g. patent, deed, mtg, divorce decree, written K
2) witness is testifying to facts that she learned SOLELY from reading about them in a writing
COMMON BAR QUESTION
THE BEST EVIDENCE RULE will NOT apply when witness has PERSONAL KNOWLEDGE independent of doc
— e.g. if jack actually witnessed a bombing then there is no requirement to produce the “written” film version
— the film will not be required but it is allowed as corroborating evidence
What is an original writing?
NOTE: NY distinction
Original writing is a
1) writing or its counterpart;
(a) Whatever parties intended as original
(b) Any counterpart intended to have same effect
as original
2) negative of film or print directly from the negative;
3) print-out of computer data; OR
4) Duplicate – counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon copy)
Rules on duplicates: Photocopies are admissible (to same extent as original) UNLESS it would be UNFAIR(e.g. a fuzzy photocopy) or there is a genuine question as to its AUTHENTICITY
**NY DISTINCTION: photocopies are acceptable BUT only if the copies were made in ordinary course of business (i.e. not made for only for litigation)
NOTE: a handwritten copyis NEITHER an Original NOR a Duplicate
What counts as a VALID EXCUSE for non-production of original writing (under Best Evidence Rule)?
VALID Excuses for non-production of ORIGINAL:
1) lost & can’t be found w/ due diligence;
2) destroyed without bad faith;
3) cannot be obtained w/ legal process (beyond ct’s subpoena pwr)
FOR ALL VALID EXCUSES: The ct has to be PERSUADED by a preponderance of the evidence that an excuse has been established
NOTE: Secondary evidence would still be necessary if an excuse is established
When does the Best Evidence Rule NOT apply?
a.k.a. “ESCAPE” from the Best Evidence Rule
The requirements of the BER do NOT apply when…
1) VOLUMINOUS RECORDS can be presented viasummary or chart; PROVIDED orignal records would be admissible and are available for inspection
2) CERTIFIED COPIES of PUBLIC RECORDS
3) COLLATERAL DOCS (i.e. docs not important for case) can be proven by secondary evidence
NOTE: If the court in its discretion determines that a writing is unimportant to the issues of the case, contents may be proven by secondary evidence
e.g. a licensed expert witness DOES NOT have to show his license b/c that is a collateral writing
Authentication of PHOTOGRAPH
To Authenticate a photograph, a witness may testify on personal knowledge that the photograph is a FAIR and ACCURATE representation of the people or objects portrayed
Note: Foundation witness need not be a photographer. Witness need only to have personal knowledge of what is depicted in photograph
