Authentications, Writings, and Real Evidence

Question 1

Key Issues to Be Aware of for Writings

Answer 1

• authentication
• best evidence rule
• hearsay

Question 2

Authentication of Writings and Spoken Statements - General Rule

Answer 2

• generally, writing or secondary ev of its content will not be received in ev unless the writing is authenticated by proof that shows the writing is what the proponent claims it is
• proof must be sufficient to support a jury finding of genuineness

Question 3

Methods of Authentication

Answer 3

• parties can admit genuineness by the pleadings or by stipulation

Doc can also be authenticated by other ev, including following ex’s:
- opponent’s admission
- eyewitness testimony
- handwriting verifications
- reply letter doctrine
- ancient documents
- photos + videos
- x-rays

Question 4

Authentication - Opponent’s Admission

Answer 4

• writing can be authenticated by ev that [arty against whom it is offered has either admitted its authenticity or acted upon it as authentic

Question 5

Authentication - Eyewitness Testimony

Answer 5

• writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged
• testimony can be from anyone (doesn’t have to be from a subscribing witness unless required by statute)

Question 6

Authentication - Handwriting Verifications

Answer 6

• writing can be authenticated by evidence that the maker’s handwriting is genuine

Such ev may be in form of:
- opinion of a lay witness who has familiarity with alleged writer’s handwriting in course of normal affairs (NOT acquired for purposes of the current litigation)
- opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting
- factfinder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting

Question 7

Ancient Documents

Answer 7

Doc can be authenticated by ev that it:
- is at least 20 yrs old when offered into ev
- is in a condition that creates no suspicion as to authenticity
- was found in a place where such a writing would likely be kept

Question 8

Ancient Documents - Hearsay vs. Authentication

Answer 8

• docs can be authenticated if at least 20 yrs old
• BUT hearsay exception only applies if the doc was prepared before 1998

Question 9

Reply Letter Doctrine

Answer 9

• writing can be authenticated by ev that it was written in response to a communication sent to the alleged author

Question 10

Photographs and Videos

Answer 10

• admissible only if identified by a witness as a portrayal of certain facts relevant to the issue + verified by the witness as a fair and accurate representation of those facts
• ordinarily not necessary to call photographer to authenticate the photo or video -> witness familiar with the scene, object or person is sufficient

Question 11

Unattended Camera

Answer 11

• if photo or video taken whenno person who could authenticate the scene is present, the photo or video may be admitted upon showing that the camera was properly operating at the relevant time + the photo or video was downloaded from that camera or developed from film obtained from that camera

Question 12

X-Ray Pictures, Electrocardiograms, Etc

Answer 12

• X-ray can’t be authenticated by testimony of a witness that it is a correct representation of the facts

Must be shown that:
- the process used is accurate
- machine was in working order
- operator was qualified to operate it
- custodial chain must be established to assure the X-ray has not been tampered with

Question 13

Authentication of Oral Statements

Answer 13

• when a statement is admissible if said only by a particular person, authentication as to the identity of the speaker is required

Question 14

Voice Identification

Answer 14

• voice can be identified by the opinion of anyone who has heard the voice at any time
  -> INCLUDES after litigation has begun and for the sole purpose of testifying

Question 15

Authentication - Telephone Conversations

Answer 15

• statements made during a telephone call can be authenticated by any party to the call who testifies that:
  1) they recognized the other party’s voice
  2) the 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 that person or that person’s residence OR
  4) they called a business and talked with the person answering the phone about matters relevant to the business

Question 16

Self-Authenticating Docs

Answer 16

Extrinsic ev of authenticity not required for:
- domestic public docs bearing a seal, and similar official foreign public docs
- official publications
- certified copies of public records or private records on file in a public office
- newspapers and periodicals
- trade inscriptions and labels
- acknowledged docs
- commercial paper and related docs
- business records, electronically generated records, and data copied from an electronic device, if the records are certified and proponent gives adverse party reasonable written notice and opportunity for inspection

Question 17

Best Evidence Rule

Answer 17

• to prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material
• secondary ev of the writing, such as oral testimony, is admissible only if proponent provides a satisfactory excuse for the original’s absence

Question 18

When the Best Evidence Rule Applies

Answer 18

• where the writing is a legally operative or dispositive instrument (the writing itself creates rights and obs) OR
• where knowledge of a witness concerning a fact results from having read it in the writing

Question 19

When the Best Evidence Rule Does Not Apply

Answer 19

• witness has personal knowledge of the fact to be proved, even if fact also happens to be recorded in a writing
  -> in such case, oral testimony of the fact may be given without producing the original writing that recorded the event

Question 20

Best Evidence Rule - Original

Answer 20

• the writing itself or any counterpart that is intended by the person executing it to have the same effect as an original
• includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored info

Question 21

Best Evidence Rule - Duplicates

Answer 21

• duplicate = an exact copy of an original made by mechanical means
• admissible to the same extent as originals unless:
  1) the circumstances make it unfair to admit the duplicate OR
  2) a genuine question is raised about the authenticity of the original

Question 22

Best Evidence Rule - Admissibility of Secondary Evidence of Contents

Answer 22

• if proponent can’t produce the original writing or admissible duplicate in court, they may offer secondary ev of its contents if a satisfactory explanation is given for non-production of the original

Question 23

Excuses for Non-Production of Original

Answer 23

Valid excuses include:
- loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith
- original can’t be obtained by any available judicial process (usually means it’s in possession of a third party outside the jurisdiction + can’t be obtained despite a reasonable effort)
- original is in the possession of an adversary who, after due notice, fails to produce the original

Question 24

Best Evidence Rule - Types of Secondary Ev

Answer 24

• if valid excuse exists, party can prove contents of writing by ANY type of secondary ev (handwritten copies, notes, oral testimony, etc)
  -> there’s no preference for one type or another

Question 25

Exceptions to the Best Evidence Rule

Answer 25

• summaries of voluminous records - proponent can present contents in chart or summary if would be inconvenient to examine in court (but must make originals or duplicates available for copying or inspection + court can order production in court)
• best ev rule doesn’t apply to copies of public records certified as correct or testified to as correct
• doesn’t apply where the writing is of minor importance (collateral) to the main controversy
• when the party opponent has given testimony, deposition, or written admission regarding contents of the writing, proponent may use this evidence and need not give an excuse for non-production of the original

Question 26

Functions of Court and Jury

Answer 26

• court usually makes determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to contents of original

BUT fed rules reserve following questions of preliminary fact for the jury:
- whether the original ever existed
- whether a writing produced at trial is an original
- whether the evidence offered correctly reflects the contents of the original

Question 27

Real Evidence

Answer 27

• actual physical evidence addressed directly to the trier of fact
• may be direct, circumstantial, original, or prepared (demonstrative)

Question 28

Real Evidence - General Conditions of Admissibility

Answer 28

1) must be relevant

2) must be identified as what the proponent claims it to be, either by:
- testimony of a witness that they recognize the object as what the proponent claims it is (ex: witness testifies that a gun is the one found at the crime scene) OR
- ev that the object has been held in a substantially unbroken chain of possession (ex: blood taken for blood-alcohol test)
-> standard of proof: must be sufficient to support jury finding of genuineness

3) if condition of object is significant, it must be shown to be in substantially the same condition at trial

Question 29

Particular Types of Real Evidence

Answer 29

• reproductions + explanatory real ev
• maps, charts, models, etc
• demonstrations
• exhibition of injuries
• jury view of the scene

Question 30

Reproductions and Explanatory Real Evidence

Answer 30

• relevant photographs, diagrams, maps or other reproductions are generally admissible
• items used entirely for explanatory purposes are permitted at a trial, but are usually not admitted into evidence (not given to jury during its deliberations)

Question 31

Maps, Charts, Models, Etc.

Answer 31

• usually admissible for purpose of illustrating testimony, but must be authenticated by testimonial ev that they are faithful reproductions of the object or thing depicted

Question 32

Demonstrations

Answer 32

• court may permit experiments or demonstrations to be performed in courtroom
• experiment must be performed under conditions substantially similar to those attending the original event
• demonstrations of bodily injury may not be allowed where demonstrations would unduly traumatize jury

Question 33

Exhibition of Injuries

Answer 33

• generally permitted in a personal injury or criminal case
• BUT court has discretion to exclude ev for unfair prejudice

Question 34

Jury View of the Scene

Answer 34

• trial court has discretion to permit jury to view places at issue in the case
• need for view + changes in condition of the premises following the events at issue in the case are relevant considerations here