Documentary and Real Evidence

Question 1

What is judicial notice?

Answer 1

Judicial notice is the recognition of a fact as true without formal presentation of evidence.

Question 2

What types of facts can be judicially noticed? When must these facts be judicially noticed?

Answer 2

Indisputable facts that are matters of common knowledge or capable of ready and easy verification

Question 3

T/F: judicially noticed facts must be accepted as conclusive evidence in ALL types of cases.

Answer 3

False. Judicially noticed facts are conclusive in civil cases but MAY be regarded as conclusive in a criminal case.

Question 4

What are the two ways that real evidence may be authenticated?

Answer 4

1) Witness testimony that recognizes the object as what the proponent claims it is OR
2) Evidence proving that the object has been held in an substantially unbroken chain of possession (no contamination, no opportunity for others to tamper etc.)

Question 5

For real evidence, if the condition of the object is significant, it must be shown to be in ______________ at trial.

Answer 5

Substantially the same condition

Question 6

What is documentary evidence? In other words, what is a writing?

Answer 6

Documentary evidence includes writings, photographs, and recordings.

Question 7

What is the standard of proof for authenticating documentary evidence?

Answer 7

The conditional relevancy standard: proof that the document is what the proponent says it is must be sufficient to support a jury finding of genuineness.

Question 8

How can a writing be authenticated by admissions?

Answer 8

Admissions: the party against whom the writing is being offered against admits the writing’s authenticity or has acted upon it as authentic.

Question 9

How can a writing be authenticated by eyewitness testimony?

Answer 9

Eyewitness testimony: a writing can be authenticated by the testimony of a witness who sees it executed or hears it acknowledged.

Question 10

How can handwriting be authenticated? (2 ways)

Answer 10

1) Layperson’s opinion: layperson must be familiar with the writing but not for the purposes of trial.
2) Expert opinion: expert who has compared the writing to samples of the purported maker’s handwriting.

Question 11

How can a writing be authenticated as ancient evidence?

Answer 11

1) Evidence that the writing is at least 20 years old
2) Evidence in in a condition as to be free from suspicion about authenticity
3) Writing was found in a place where such a writing would have been kept

Question 12

How can a photograph be authenticated?

Answer 12

A witness familiar with the scene testifies that the photograph is an accurate representation of the scene.

Question 13

How can a writing be authenticated under the reply letter doctrine?

Answer 13

By evidence showing that it was written in response to a communication sent to the claimed author, thus proving that the claimed author wrote it.

Question 14

How are oral statements authenticated? (2 ways)

Answer 14

1) Voice recordings: by someone familiar with the purported speaker’s voice, even if that someone became familiar for the purposes of trial (distinct from handwriting authentication).
2) Phone conversation statements: by a party to that call who testifies that he recognizes the voice, the speaker knows facts only a certain person would, the speaker answered as the person who witness meant to call, speaker knew relevant facts about business.

Question 15

What are some examples of self-authenticating documents?

Answer 15

Public documents bearing a seal, foreign public documents, certified copies of public records, newspapers etc.

Question 16

What is the best evidence rule?

Answer 16

If the terms of the writing are material to the case and must be proven, the original writing must be produced.

Secondary evidence of the writing (oral testimony, handwritten copies) are only admissible if the original writing is unavailable.

Question 17

When does the best evidence rule apply?

Answer 17

1) the writing is a legally operative or dispositive instrument (eg. a contract, a will, a deed)
2) the knowledge of a witness concerning a material fact was obtained solely from viewing/hearing the document.

Question 18

T/F: a witness learned about the material terms of a contract from talking to one of the parties. Later, the witness testifies about the material terms of the contract. The best evidence rule does not apply and the original contract does not need to be produced. T/F, and why?

Answer 18

True. Facts to be proved exist independently of writing. The witness learned about the facts he is testifying about independent from viewing/reading the document.

Question 19

T/F: when a writing is of minor importance, the best evidence rule does not apply.

Answer 19

True.

Question 20

T/F: when a party wants to introduce evidence from voluminous records, the best evidence rule applies and those records must be provided in their original form.

Answer 20

False. Voluminous records may be summarized in the form of a chart or summary, and the best evidence rule does not apply.

Question 21

T/F: the best evidence rule does not apply to public records.

Answer 21

True.

Question 22

T/F: an original of a writing includes the original document AND a copy intended by the person executing it to have the same effect as an original.

Answer 22

True. A copy intended to have the same effect as the original functions as if it is the original for the purposes of the best evidence rule.

Question 23

What is a duplicate of a writing and is it admissible under the best evidence rule?

Answer 23

A duplicate is a mechanically produced exact copy of the original writing and is admissible under the best evidence rule.

Question 24

When can secondary evidence (not the original, copy, or duplicate) be admissible? (3 situations)

Answer 24

1) Loss or destruction of the original without bad faith
2) Original document is in possession of third party outside of jurisdiction and is unobtainable
3) Original document is in possession of adversary who refuses to produce the original