Documentary Evidence Flashcards
3 possible barriers to admissibility
DOCUMENTARY EVIDENCE
- Authentication
- Best evidence
- Hearsay
general rule
AUTHENTICATION
- Must be authenticated by proof showing that the writing is what the proponent claims it it BEFORE writing or secondary evidence of its content may be received in evidence
- needs testimonial sponsor to prove writing was made, signed, or adopted by particular relevant person (unless self-authenticating)
RULE 901-903
quantum of proof
AUTHENTICATION
- Requires only enough evidence to support a finding that the matter is what its proponent claims it is
- Not required the proponent establish its genuineness by a preponderance of the evidence as a condition to admissibility
RULE 901
how many genuineness of a document be admitted?
AUTHENTICATION
- Through discovery process
- Through stipulation at pretrial conference
- By failure to deny an allegation in a pleading
What evidence can be used to authenticate?
Writing may be authenticated by any evidence that serves to establish its authenticity
RULE 901
FRE methods
AUTHENTICATION
- FRE do not limit methods
- FRE lists several examples
1. admission
2. testimony of eyewitness
3. handwriting verifications
4. ancient documents
5. reply letter doctrine
6. photographs
7. x-ray pictures, electrocardiograms, etc.
RULE 901
admission
AUTHENTICATION
A writing may be authenticated by evidence
- that the party against whom the writing is offered
- has either admitted its authenticity OR
- acted upon the writing as authentic
testimony of eyewitness
AUTHENTICATION
A writing may be authenticated
- by testimony of one who
- sees it executed OR
- hears it acknowledged
RULE 903
handwriting verifications
AUTHENTICATION
A writing may also be authenticated
- by evidence
- of the genuineness
- of the handwriting of the maker
handwriting verification by lay witness
AUTHENTICATION
- lay witness
- who has personal knowledge
- of the handwriting of the supposed writing
- may state his opinion as to whether the document is in that person’s handwriting
- BUT CANNOT become familiar with handwriting merely for the purpose of testifying
NOTE = this is an exception to the general inadmissibility to opinion testimony by lay witnesses
handwriting verification by comparison of writings
AUTHENTICATION
- expert witness OR
- the trier of fact
- can determine the genuineness of a writing
- by comparing the questioned writing
- with another writing proved to be genuine
ancient documents
AUTHENTICATION
Document may be authenticated by evidence that it
- Is at least 20 years old
- Is in such condition as to be free from suspicion concerning its authenticity AND
- Was found in a place where such writing, if authentic, would likely be kept
RULE 901(b)(8)
reply letter doctrine
AUTHENTICATION
writing may be authenticated by evidence that
- it was written
- in response
- to a communication
- sent to the claimed author
- IF the content of the letter makes it unlikely that it was written by anyone other than the claimed author
photographs
AUTHENTICATION
GENERAL RULE = photographs are admissible ONLY IF
- identified by a witness
- as a portrayal of certain facts
- relevant to the issue AND
- verified by the witness
- as a correct representation of those facts
x-ray pictures, electrocardiograms, etc.
AUTHENTICATION
to authenticate, must show
- Process used is accurate
- Machine itself was in working order
- The operator was qualified to operate it
- Custodial chain must be established to forestall danger that the evidence has been substituted or tampered with
handwriting verification methods
AUTHENTICATION
- opinion of lay witness
2. comparison of writings by expert witness or trier of fact
uses of authentication by comparison
AUTHENTICATION
- handwriting
- fingerprints
- blood
- hair
- clothing fibers
- lotsa stuff
who can authenticate photographs?
AUTHENTICATION
- witness who is familiar with the scene or object depicted = suffices
- generally, not necessary to call the photographer to authenticate
photograph by unattended camera
AUTHENTICATION
Admitted upon a showing that
- the camera was properly operating at the relevant time AND
- the photograph was developed from film obtained from that camera
what is not sufficient to authenticate x-ray pictures, electrocardiograms, etc.?
AUTHENTICATION
Cannot be authenticated merely by testimony of witness that it is a correct representation of the facts
proving accuracy of process for x-rays
AUTHENTICATION
court will usually take judicial notice of this
FRE for evidence of authenticity
AUTHENTICATION
RULE 901
oral statements - use
AUTHENTICATION
Authentication as to the identity of the speaker
= necessary where identity of speaker is important
oral statements - methods
AUTHENTICATION
- Voice identification
2. Telephone conversations
voice identifications
AUTHENTICATION
A voice may be identified
- whether heard firsthand or through a device
- by the opinion of anyone who
- has heard the voice at any time
- even if that person became familiar with a voice after litigation has begun and
- even if that person became familiar with a voice for the sole purpose of testifying
telephone conversations
AUTHENTICATION
Statements made during a telephone conversation may be authenticated
- by one of the parties to the call
- who testifies to one of the following
a. He recognized the other party’s voice OR
b. The speaker has knowledge of certain facts that only a particular person would have OR
c. He called X’s phone number and voice answered “this is X” or the like (which authenticates the conversation as being with X or X’s agency) OR
d. He called X’s business establishment and talked with the person answering the phone about matters relevant (which is sufficient to show person answering phone held a position in the business)
self-authenticating documents - definition
AUTHENTICATION
Certain writings are said to
1. prove themselves or
2. be self-identifying on their face
= don’t require extrinsic evidence of authenticity
RULE 902
self-authenticating documents - examples
AUTHENTICATION
- Domestic public documents that are signed and sealed
- Foreign public documents signed by a person authorized by the laws of that country
- Certified copies of public records
- Official publications
- Printed materials purporting to be newspapers or periodicals
- Trade inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin
- Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments
- Commercial paper, signatures thereon, and documents relating thereto, to the extent provided by general commercial law
- Business records certified as such by a custodian or other qualified person IF offering party gives reasonable written notice AND makes record/certification available for inspection so adverse party has fair opp to challenge
RULE 902
FRE #s
BEST EVIDENCE RULE
RULES 1001-1008
rule
BEST EVIDENCE RULE
AKA original document rule
- In proving the terms of a writing
- Where the terms are material
= the original writing must be produced
when is secondary evidence permitted?
BEST EVIDENCE RULE
Secondary evidence of the writing is permitted ONLY AFTER it has been shown
- that the original is unavailable
- for some reason
- other than the serious misconduct of the proponent
RULE 1002
rationale
BEST EVIDENCE RULE
Reflects belief
- that the exact words of a writing, particularly in the case of operative or dispositive instruments such as contracts, deeds, or wills, should be presented to the court
- that there is a hazard of inaccuracy in common methods of approximating the contents of a writing
- that oral testimony based on memory of the terms of the writing presents greater risk of error than oral testimony concerning other situations
applicability
BEST EVIDENCE RULE
Applies to 2 classes of situations:
- Where the writing is a legally operative or dispositive instrument
- Where the knowledge of a witness concerning a fact results from having read it in the document
examples where the writing a legally operative or dispositive instrument
BEST EVIDENCE RULE
contract, deed, will, or divorce decree
can a witness testify about the content of a written deed without producing original deed?
BEST EVIDENCE RULE
NO, witness may not testify about the content of a written deed
UNLESS sufficient reason is given for not producing the original deed
may a witness who memorized mileage recorded on car sticker for certain date testify as to mileage without producing car sticker?
BEST EVIDENCE RULE
NO, witness
- who memorized mileage recorded on car sticker for a certain date, and
- who had no other source of knowledge on this significant litigated issue
MAY NOT testify as to the mileage
WITHOUT establishing a reason for the unavailability of the writing
nonapplicability/modification of
BEST EVIDENCE RULE
Rule doesn’t apply in 4 classes of situations:
- Fact to be proved exists independently of any writing
- Writing is collateral to litigated issue
- Summaries of voluminous records
- Public records
fact to be proved exists independently of any writing
BEST EVIDENCE RULE
= best evidence rule does not apply when fact to be proved has an existence independent of any writing, such as:
1. all events that happen to have been memorialized by documents
2. writings that the substantive law does not regard as essential repositories of the facts recorded
= oral testimony may be given w/o production of OR explanation for absence of original writings
does BEST EVIDENCE RULE apply:
witness may testify orally that he paid for goods received without producing the receipt that was given
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply
does BEST EVIDENCE RULE apply:
admissions or confessions of a party may be testified to orally by anyone who heard them, even though the admissions or confessions were later reduced to writing
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply
does BEST EVIDENCE RULE apply:
fact such as birth, marriage, age, and death may be proved orally, although certificates evidencing these facts are in existence
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply
However, since a divorce is effective only by a judicial decree, the best evidence rule requires that the fact of divorce be proved by the decree itself
does BEST EVIDENCE RULE apply:
testimony heard at a prior trial may be testified to in another case without production of the stenographic transcript of the prior testimony
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn’t apply
One who heard the prior testimony can repeat it
writing is collateral to litigated issue
BEST EVIDENCE RULE
= best evidence rule does not apply to writings of minor importance to the matter in controversy
RULE 1004(d)
does BEST EVIDENCE RULE apply:
an expert witness testifying on the value of a car is allowed to establish his status as a car dealer without production of his dealer’s license
?
NO, writing is collateral to litigated issue = best evidence rule doesn’t apply
writing is collateral to litigated issue - factors
BEST EVIDENCE RULE
Test of “collateralness” =
- Centrality of the writing to the major issues of a litigation
- Complexity of the relevant features of the writing
- Existence of a genuine dispute as to the contents of the writing
summaries of voluminous records
BEST EVIDENCE RULE
= best evidence rule does not apply when it would be inconvenient to examine a voluminous collection of writings, recordings, or photographs in court, the proponent may present their contents in the form of a chart, summary, or calculation
BUT requires
- originals or duplicates must be made available for examination and copying
- and the judge may order them to be produced in court
RULE 1006
public records
BEST EVIDENCE RULE
= best evidence rule is modified so that a proponent may offer into evidence a copy of an official record or a copy of a document that has been recorded and filed
BUT requires such a copy to be either
- certified as correct by custodian of the document or other authorized person OR
- testified to be correct by a person who compared it to the original
RULE 1005
public records - purpose
BEST EVIDENCE RULE
= to prevent the loss or absence of public documents due to litigation
writings and recordings - definition
BEST EVIDENCE RULE
= letters, words, numbers, or their equivalent set down in any form
RULE 1001
photograph - definition
BEST EVIDENCE RULE
= a photographic image or its equivalent stored in any form
RULE 1001
original of writings and recordings - definition
BEST EVIDENCE RULE
= the writing or recording itself or any counterpart intended by the person executing it to have the same effect as an original
original of photograph - definition
BEST EVIDENCE RULE
= includes the negative or any print from it
original of computer-stored - definition
BEST EVIDENCE RULE
= includes the negative or any print from it
duplicate - definition
BEST EVIDENCE RULE
= counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original
AKA an exact copy of an original made by mechanical means
RULE 1001(e)
duplicate - admissibility
BEST EVIDENCE RULE
Admissible to the same extent as originals UNLESS
- A genuine question is raised about the original’s authenticity or
- Under the circumstances, it would be unfair to admit the duplicate in place of the original
RULE 1003
duplicate - rationale
BEST EVIDENCE RULE
Rationale for relaxed standard:
By definition, these documents are exact copies = their introduction into evidence is objectionable only if some question existed as to genuineness of original
secondary evidence of contents - admissibility
BEST EVIDENCE RULE
If the proponent cannot produce the original writing or recording in court,
- he may offer secondary evidence of its contents in the form of
1. copies OR
2. notes OR
3. oral testimony about the contents of the original - IF a satisfactory explanation is given for the nonproduction of the original
copies - definition
BEST EVIDENCE RULE
includes handwritten copies
= not be considered duplicates because they are not exact copies
secondary evidence of contents - valid excuse
BEST EVIDENCE RULE
Valid excuse justifying the admissibility of secondary evidence would include
- Loss or destruction of original
- Original outside jurisdiction or unobtainable
- Original in possession of adversary who after notice fails to produce
secondary evidence of contents - sufficient proof
BEST EVIDENCE RULE
A proponent
- may prove the contents of a writing, recording, or photograph
- through
1. testimony OR
2. deposition OR
3. written admission - of the party against whom it is offered
- and need not account for the nonproduction of the original
RULE 1007
secondary evidence of contents - insufficient proof
BEST EVIDENCE RULE
Generally held that contents of a writing/photograph/etc. = cannot be proved simply by
- out-of-court
- oral admissions
- of the party
- against whom such evidence is offered
UNLESS of course the original is otherwise accounted for, duh
original outside jurisdiction - foundational requirements
BEST EVIDENCE RULE
Not within jurisdiction = some reasonable effort or request to 3P for product must be shown to admit secondary evidence
= must show original is
- In possession of 3P
- Outside the jurisdiction AND
- Unobtainable
original in possession of adversary who after notice fails to produce - foundational requirements
BEST EVIDENCE RULE
- Showing of his custody
- Service of timely notice to produce (unless pleadings give notice)
- Failure to produce it in court
= justifies admissibility of secondary evidence
original unobtainable (within jurisdiction) - requirement BEST EVIDENCE RULE
Within jurisdiction = must be subpoenaed
secondary evidence of contents - functions of court
BEST EVIDENCE RULE
Ordinarily, for court to make
- determinations of fact
- that determine admissibility
- of duplicates, other copies, and oral testimony
- as to contents of an original
secondary evidence of contents - functions of jury
BEST EVIDENCE RULE
3 Qs of preliminary fact for jury:
- Whether original ever existed
- Whether a writing, recording, or photography at trial is an original AND
- Whether the evidence offered correctly reflects the contents of the original
RULE 1008
