Documentary Evidence Flashcards
What is the authentication requirement for writings and secondary sources?
Must generally be shown to be what the proponent claims it is, shown by the standard of “sufficient to support a jury finding”
What are the methods of authentication of a writing?
(1) Admission in pleadings or by stipulation
(2) Eyewitness testimony of one seeing it executed/acknowledged
(3) evidence of genuineness of handwriting
(4) Evidence that it is an ancient document
(5) Reply letter doctrine
How may handwriting verification be done?
(1) Testimony by a lay witness with personal knowledge of the handwriting
(2) testimony by an expert who has compared the handwriting to samples
(3) A comparison of samples for trier of fact to draw conclusions from
What are the requirements for authentication by proof that it is an ancient document?
Evidence that the document is (1) more than 20 years old; (2) in such condition as to be free from suspicion as to authenticity; (3) found in a place where such a writing would be kept
What is the reply letter doctrine?
document can be authenticated by evidence that it was received in response to a prior communication to the alleged author
How are photos authenticated?
Testimony of witness on the basis of personal knowledge that it is a fair and accurate representation of people or objects portrayed (does not need to be the photographer)
If the photograph was taken when no one was there who could verify the portrayal , it may be admitted by showing that the camera was properly operating and the photo was taken by that camera (developed from film)
How are X-rays and similar evidence authenticated?
Evidence that the process used is accurate, the machine was in working order, the operator was qualified, and that there has been a custodial chain (not tampered with)
How are statements made during a phone call authenticated?
Statements made during a phone conversation may be authenticated by a party to the call who testifies that:
(1) they recognize the other party’s voice, or
(2) the speaker knew certain facts only the identified party would know, or
(3) they called a particular person’s phone number and that voice answered, or
(4) they called a business and talked with a person about matters relevant to the business
What documents are self-authenticating?
(1) public documents bearing a seal (domestic or foreign)
(2) Certified copies of public records
(3) official publications
(4) newspapers and periodicals
(5) trade inscriptions and labels
(6) acknowledged documents
(7) commercial paper
(8) Certified business records W/ notice to other party/opportunity for inspection
(9) electronically generated data/records if certified and notice and inspection opportunity to other side
What is the best evidence rule?
To prove the terms of a writing (here meaning writing, recording, photograph, x-ray), the original writing must be produced if the terms of the writing are material, and secondary evidence of the writing will only be acceptable where the original is unavailable
This applies where (1) the writing is a legally operative or dispositive instrument or (2) where knowledge of a witness concerning a fact results from having read it in a document.
This is also known as the original document rule.
The best evidence rule does not apply where …
(1) the fact to be proved exists independent of the writing
(2) writing is collateral to litigated issue
(3) the writings are voluminous records which can’t feasibly be examined in court (summary acceptable)
(4) the writings are certified public records
What is an “original”?
For the purposes of the best evidence rule, an original means either the writing itself or any copy intended by the person executing it to have the same effect as an original. Duplicates are admissible unless authenticity challenged or unfairness would result
When may secondary evidence of the contents of a writing be offered?
Where the original writing is unavailable — if a satisfactory explanation is given for non production. Valid excuses include loss or destruction of original, in possession of 3rd party outside court’s jurisdiction, in possession of adversary who fails to produce after notice. If this is shown, any type of secondary evidence may be offered
Generally, how may a voice be identified?
A voice may be identified by the opinion of anyone who has previously heard the voice.
