Documentary and Real Evidence

Question 1

Before Admitting Any Writing, Consider this Mneumonic.

Answer 1

OPRAH

• Original writing – BER
• Privelege
• Relevance
• Authenticity
• Hearsay

Question 2

General Rule of Authentication (Foundation)

Answer 2

Any writing offered into edivence must first be authenticated

A foundation must be laid to show that writing is authentic (genuine): that it is what it appears to be

The proponent must produce sufficient evidence to support a finding that the writing is what the proponent claims it is.

Question 3

Methods of Authentication

Answer 3

• Admission by opposing party
• Eyewitness testimony (can even be by opposing party)
• Handwriting proof

Question 4

Handwriting proof

Answer 4

• Lay witness, but they cannot become familiar with the handwriting just for the purpose of testifying
• But, for voice identification, witness can become familiar with the persons voice under any circumstances
• Expert witness
• Jury comparison

Question 5

Amount of Proof Needed to Authenticate Documents

Answer 5

Need sufficient evidence to justify a reasonable jury fidsing the document to be genuine

Question 6

Self-Authenticating Documents

Answer 6

• Generally, docs not self-authenticating.
• Exceptions:
  
  • Certified copies of business records, provided that:
    
    • Record certified by custodian or other qualified person to meet business records hearsay exception, and
    • Offering party gives adverse party reasonable written notice and makes the record and certification available for inspection so adverse party has a fair opportunity to challenge
  • Certified copies of public records.
  • Official publications
    
    • (e.g. pamphlet from State DMV that has markings on its face from the department)
  • Newspapers or periodicals
    
    • (e.g. copy of tabloid in defamation case)
  • Trade inscriptions or labels
    
    • (e.g. label from soup can to prove P ate bad Campbells soup).
  • Acknowledged documents
    
    • (i.e. notarized)
  • Signature on certain commercial documents (as per UCC)

Question 7

Authenticating Photographs Rule

Answer 7

• witness must testify on the basis of personal knowledge that the photograph fairly and accurately represents the persons or objects portrayed
• Can be any witness with knowledge of photos authenticity, not the photographer
  
  • e.g. person in car wreck says pic fairly and accurately represents wrecked car

Question 8

Best Evidence Rule

Answer 8

Party seeking to intro the contents of a writing (incl films, photos, x-rays, and recordings) must either:

• Produce the original document, or
• Account for the absence of the original

Question 9

what can be admitted in place of the original document

Answer 9

• If the explanation for absence of the original is reasonable, then a foundation has been laid for secondary evidence, then either a copy or oral testimony may be admitted to prove the content of the original.

Question 10

What the best evidence rule applies to

Answer 10

• Legally operative docs
  
  • Docs that create or destroy legal relation in dispute (deed, will, lease, divorce decree, etc…)
• Witnesss sole knowledge comes from a document
  
  • Cannot prove what the writing says if the only way he knew that was from the writing itself

Question 11

What the best evidence rule does not apply to

Answer 11

1. Facts independent of the writing
   
   1. Where the witness has personal knowledge of events or items described in the writing, independent of the writing
   2. E.g. saying you know he paid his loan because you saw him do it, versus you only know because you saw the receipt
2. Collateral Documents
   
   1. Best evidence rule does not apply to documents of minor importance, e.g. witness testifies she is a licensed real estate broker as background info, no need to product broker’s license.

Question 12

Modifications to the Best Evidence Rule

Answer 12

• Public records
  
  • Can admit certified copies in place of originals
• Voluminous documents
• Duplicates in place of original

Question 13

Best Evidence Rule Modifications- Voluminous Documents

Answer 13

1. If originals are too voluminous to be produced in court, summaries, charts, or calcs are admissible in place of originals so long as
   
   1. Originals would be admissible if offered, and
   2. Originals are made available to opposing party

Question 14

Best Evidence Rule Modifications- Duplicates in place of original

Answer 14

1. E.g. xerox copies
2. No need to explain absence
3. Admissible to the same extent as the original unless
   
   1. Genuine question raised about the authenticity of the original, or
   2. It would be unfair to admit the duplicate in place of the original

Question 15

Duplicates-VA Rule

Answer 15

In VA, photocopies do not qualify as duplicates unless they were made in the OCOB.

Question 16

Excuses for Non-Production of Original

Answer 16

1. Lost or cannot be found with due diligence
2. Destroyed w/o bad faith (not with intent to destroy evidence for case at hand)
3. Cannot be obtained with legal process
4. A ct must find by prep of the evidence that excuse has been established; secondary evidence (e.g. oral test) is then admissible