Chapter 3 - Sources of Evidence: Physical Evidence (Evidence Book p. 125- 127

Question 1

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.

Answer 1

Real Evidence

Demonstrative Evidence

Question 2

Authentication of Evidence. What Rule?

Answer 2

Rule 901

Question 3

_______________ is the process at trial of providing preliminary proof that an exhibit is what it purports to be.

Answer 3

Authentication

Question 4

Authentication is the process at trial of providing preliminary proof that an exhibit is what is _________ to be.

Answer 4

purports

Question 5

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.

Answer 5

laid the foundation

Question 6

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.

Answer 6

purports to be

Question 7

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.

Answer 7

foundation

Question 8

There are eight general steps to authenticating physical evidence
1. ?
2.
3.
4.
5.
6.
7.
8.

Answer 8

1. Mark Exhibit (letter or number)

Question 9

There are eight general steps to authenticating physical evidence
1.
2. ?
3.
4.
5.
6.
7.
8.

Answer 9

2. give exhibit to the opposing attorney

Question 10

There are eight general steps to authenticating physical evidence
1.
2.
3. ?
4.
5.
6.
7.
8.

Answer 10

3. give exhibit to the witness

Question 11

There are eight general steps to authenticating physical evidence
1.
2.
3.
4. ?
5.
6.
7.
8.

Answer 11

4. lay the foundation Rule 901(a)

Question 12

There are eight general steps to authenticating physical evidence
1.
2.
3.
4.
5. ?
6.
7.
8.

Answer 12

5. offer the exhibit

Question 13

There are eight general steps to authenticating physical evidence
1.
2.
3.
4.
5.
6. ?
7.
8.

Answer 13

6. address any objections

Question 14

There are eight general steps to authenticating physical evidence
1.
2.
3.
4.
5.
6.
7. ?
8.

Answer 14

7. ask the judge for a ruling on the exhibit

Question 15

There are eight general steps to authenticating physical evidence
1.
2.
3.
4.
5.
6.
7.
8. ?

Answer 15

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.

Question 16

There are eight general steps to authenticating physical evidence
1.
2.
3.
4.
5.
6.
7.
8.

Answer 16

1. mark exhibit (letter or number)
2. give exhibit to the opposing attorney
3. give exhibit to the witness
4. lay the foundation Rule 901(a)
5. offer the exhibit
6. address any objections
7. ask the judge for a ruling on the exhibit; and
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 exhibit.

Question 17

Authentication of Documents. What rule?

Answer 17

901(b)

Question 18

Rule __________ sets forth a number of illustrative examples of what would qualify as laying a proper foundation.

Answer 18

901(b)

Question 19

Rule 901(b) sets forth a number of illustrative examples of what would qualify as ___________ _____ ________ __________.

Answer 19

laying a proper foundation

Question 20

901(b)(1)

Answer 20

Witness with knowledge about the document

Question 21

901(b)(2)

Answer 21

a witness familiar with the handwriting on the document

Question 22

901(b)(3)

Answer 22

a handwriting expert to analyze the handwriting, or letting the jury compare handwriting samples

Question 23

901(b)(4)

Answer 23

a witness who can identify “distinctive characteristics” about the “appearance or contents” of the writing.

Question 24

the examples in Rule 901(b) are non-exclusive. True or False.

Answer 24

True

Question 25

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.

Answer 25

chain of custody

Question 26

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 _____________.

Answer 26

chain of custody

admissibility

Question 27

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.

Answer 27

901(b)(5) and 901(b)(6)

Question 28

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.

Answer 28

voice identifications or telephone conversations

Question 29

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.

Answer 29

personal knowledge
distinctive characteristics

Question 30

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 __________ __________.

Answer 30

text message
text message
text message

Question 31

To properly authenticate text messages, the screenshot or photograph of the screen must include:
1.
2.

Answer 31

1. the name and/or phone number of the person sending the text message and
2. the date and time of the text message

Question 32

Each ________ of social media should be evaluated under the applicable rule, or rules, of evidence.

Answer 32

piece

Question 33

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?

Answer 33

Each piece of social media should be evaluated under the applicable rule, or rules, of evidence.

Question 34

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:

Answer 34

produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Question 35

Do not confuse authentication with meaning!!!!!

Answer 35

!!!!

Question 36

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.

Answer 36

authentication

Question 37

Establishing that an ________ came from the sender on a specific _______ and _______ will likely satisfy the requirement of authentication.

Answer 37

emoji

date and time

Question 38

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.

Answer 38

different

Question 39

Is interpretation of an emoji an authentication problem?

Answer 39

NO

Question 40

Is actual symbols displayed between devices an authentication problem?

Answer 40

YES

Question 41

For authentication to be proper, one must arguably demonstrate that the _____ received was the _______ sent .

Answer 41

emoji
emoji

Question 42

For ____________ to be proper, one must arguably demonstrate that the emoji received was the emoji sent.

Answer 42

authentication

Question 43

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.

Answer 43

True