Chapter 3 - Sources of Evidence: Physical Evidence (Evidence Book p. 125- 127 Flashcards
In addition to the testimonial evidence of witnesses offered at trial, parties may offer physical evidence, which consists of two types:
1. ________ _________ (tangible items like a murder weapon, a bag of contraband, or documents in the case, such as a contract or a photograph); and
2. __________ ___________ (usually documentary evidence specifically prepared for litigation in order to help clarify the testimony of a witness, such as a diagram, timeline, chart, or photograph.
Real Evidence
Demonstrative Evidence
Authentication of Evidence. What Rule?
Rule 901
_______________ is the process at trial of providing preliminary proof that an exhibit is what it purports to be.
Authentication
Authentication is the process at trial of providing preliminary proof that an exhibit is what is _________ to be.
purports
Authentication is the process at trial of providing preliminary proof that an exhibit is what it purports to be. Once that preliminary proof is provided, the proponent is considered to have sufficiently ________ ______ _________ for the exhibit. If the exhibit violates no other rule, it will be admitted at trial.
laid the foundation
Once admitted, the fact-finder can then, if it so chooses, base an ultimate finding that the exhibit is what it _______ _______ ______, although the fact finder can also determine that exhibit is a fraud.
purports to be
In order for the fact finder to be able to determine that the exhibit is what it purports to be, there must be some preliminary evidence a ____________ upon which to base that finding.
foundation
There are eight general steps to authenticating physical evidence
1. ?
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8.
- Mark Exhibit (letter or number)
There are eight general steps to authenticating physical evidence
1.
2. ?
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- give exhibit to the opposing attorney
There are eight general steps to authenticating physical evidence
1.
2.
3. ?
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- give exhibit to the witness
There are eight general steps to authenticating physical evidence
1.
2.
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4. ?
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- lay the foundation Rule 901(a)
There are eight general steps to authenticating physical evidence
1.
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5. ?
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- offer the exhibit
There are eight general steps to authenticating physical evidence
1.
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6. ?
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- address any objections
There are eight general steps to authenticating physical evidence
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7. ?
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- ask the judge for a ruling on the exhibit
There are eight general steps to authenticating physical evidence
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2.
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7.
8. ?
- if accepted, hand the exhibit to the clerk, then show it to the jury, and then proceed to ask the witness questions about the now admitted evidence.
There are eight general steps to authenticating physical evidence
1.
2.
3.
4.
5.
6.
7.
8.
- mark exhibit (letter or number)
- give exhibit to the opposing attorney
- give exhibit to the witness
- lay the foundation Rule 901(a)
- offer the exhibit
- address any objections
- ask the judge for a ruling on the exhibit; and
- if accepted, hand the exhibit to the clerk, then show it to the jury, and then proceed to ask the witness questions about the now admitted exhibit.
Authentication of Documents. What rule?
901(b)
Rule __________ sets forth a number of illustrative examples of what would qualify as laying a proper foundation.
901(b)
Rule 901(b) sets forth a number of illustrative examples of what would qualify as ___________ _____ ________ __________.
laying a proper foundation
901(b)(1)
Witness with knowledge about the document
901(b)(2)
a witness familiar with the handwriting on the document
901(b)(3)
a handwriting expert to analyze the handwriting, or letting the jury compare handwriting samples
901(b)(4)
a witness who can identify “distinctive characteristics” about the “appearance or contents” of the writing.
the examples in Rule 901(b) are non-exclusive. True or False.
True
For exhibits that are easily interchangeable, and thus difficult to specifically identify and distinguish, such as cocaine powder, often a _____________________ will be necessary to show, for example, that the cocaine seized from the defendant can be fully accounted for at all times from the time of seizure, up through the time of trial.
chain of custody
Whether or not there is a _______________ or if there are gaps in the chain, sometimes goes only to the weight of the evidence rather than to its _____________.
chain of custody
admissibility
Rule ______ and Rule ________ provide that voice identifications or telephone conversations can be authenticated/ identified by someone hearing the voice or receiving the telephone call who is familiar with the voice or who has made or received the telephone call to or from, a certain telephone number.
901(b)(5) and 901(b)(6)
Rule 901(b)(5) and Rule 901(b)(6) provide that ______ __________ or ____________ __________ can be authenticated/identified by someone hearing the voice or receiving the telephone call who is familiar with the voice or who has made or received the telephone call to or from ,a certain telephone number.
voice identifications or telephone conversations
Although many documents exist today in digital form on computers, smart phones, and other electronic devices, the foundation for these “e-documents” can be laid in a manner similar to that of paper documents. Email messages, for example, including the “metadata” about the formation and history of the email, can be authenticated by someone who has_________ ________about the email, and/or can recognize certain ___________ ___________ about or within the email.
personal knowledge
distinctive characteristics
To properly authenticate ________ _________, the screen shot or photograph of the screen must include: the name and/or phone number of the person sending the _______ _______- and the date and time of the __________ __________.
text message
text message
text message
To properly authenticate text messages, the screenshot or photograph of the screen must include:
1.
2.
- the name and/or phone number of the person sending the text message and
- the date and time of the text message
Each ________ of social media should be evaluated under the applicable rule, or rules, of evidence.
piece
For example, a photograph found on a person’s Facebook page would require the same authentication as would be required for any other photograph. A posting would require a different means of authentication, et cetera.
What does this refer to?
Each piece of social media should be evaluated under the applicable rule, or rules, of evidence.
Emojis present some challenges with regard to authentication. The basis for authentication is much like any other kind of documentary evidence; the proponent of the evidence must:
produce evidence sufficient to support a finding that the item is what the proponent claims it is.
Do not confuse authentication with meaning!!!!!
!!!!
Establishing that an emoji came from the sender on a specific date and time will likely satisfy the requirement of _______________. But emojis create a unique problem of which courts and users may not be aware of what they mean or how they were intended to mean or be interpreted.
authentication
Establishing that an ________ came from the sender on a specific _______ and _______ will likely satisfy the requirement of authentication.
emoji
date and time
Another challenge with emojis is that when one user sends an emoji to another, the emoji that is seen by the receiver may be _________ than the emoji sent by the sender.
different
Is interpretation of an emoji an authentication problem?
NO
Is actual symbols displayed between devices an authentication problem?
YES
For authentication to be proper, one must arguably demonstrate that the _____ received was the _______ sent .
emoji
emoji
For ____________ to be proper, one must arguably demonstrate that the emoji received was the emoji sent.
authentication
Web sites, web searches, and other internet data and activity (such as GPS, social media, cell phone text messages, etc.) all constitute “documents” that can be authenticated and identified in the same manner as traditional documents. If someone with direct knowledge about the internet data, or someone who recognizes and can identify distinctive characteristics about the data is not available, a computer forensic expert can be helpful in laying the foundation for this kind of material, as well as being persuasive. TRUE or FALSE.
True
