Documentary and Real Evidence Flashcards
Types of Real Evidence
Direct, circumstantial, original (e.g., murder weapon), or prepared (demonstrative evidence, e.g., a sketch or model)
Conditions of admissibliity
Authentication (unbroken chain of custody OR W recognizes), same condition at trial as it was during issue, legal relevance (PV>UP, not inconvenient or indecent)
Reproductions and Explanatory Real Evidence
Reproductions and real evidence are admissible if PV>UP, but items used entirely for explanatory purposes are not admitted into evidence or given to the jury during deliberations
Documentary Evidence admissibility requirements
OPRAH: original writings rule (BER), privilege, relevance, authentication, hearsay
Authentication of Documentary Evidence
A writing offered into evidence must be authenticated; there must be sufficient evidence to support a finding that the writing is what the proponent claims it is
Methods of Authentication
Admission, eyewitness testimony, handwriting proof, ancient documents, reply letter, circumstantial evidence, photos, voice proof
Handwriting
LayW: acceptable, but cannot become familiar w/handwriting ONLY to testify (contra voice ID)
EW: can compare and authenticate as genuine
Photographs
ADM only if identified by a W as a portrayal of certain facts relevant to the issue and verified by the W as a correct represenation of those facts; needn’t call the photographer
If camera is unattended, just show it was working properly
Oral Statements
Authentication needed when identity of speaker is important; voice can be auhenticated by anyone who has hear the voice at any time; telephone conversations can be authenticated by W stating that he recognized the other party’s voice, other party had knowledge only he would have, stated his name, or talked about business matters
Self-authenticating documents
Certified copies of business records, provided that record is certified by custodian, offering party gives reasonable written notice and allows other party to inspect Certified copies of public records Official publications Newspapers Trade inscriptions or labels Notarized documents
Best Evidence Rule
In proving the terms of a writing (recording, photo, or Xray), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent
Applicability of BER
(1) writing is legally operative or dispositive instrument or (2) knowledge of W concerning fact results from having read the document
Nonapplicability of BER
Fact to be proved exists independently of any writing, writing is colalteral to the litigated issue, the writing is a summary of voluminous records, or they are public records
Duplicates
ADM to the same extent as originals unless a genuiine question is raised about the orig’s authenticity or it would be unfair to admit it in place of the original (must be exact copy made mechanically, no human agency)
Admissibility of Secondary Evidence
Allowed if loss or destruction of orig (GF), original is outside the jx and unobtainable, or original is in possesson who fails to produce
Court usually determines whether these are admissible unless the q is: whether orig ever existed, whether writing produced at trial is original, and whether evidence offered correctly reflects the contents of the original (jury decides these)
