Documentary Evidence Flashcards
What is authentication of a writing?
A writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuiness.
Can the authentication be admitted through pleadings or stipulation?
Yes.
Can a writing be authenticated through admissions?
Yes, a writing may be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic.
Can a writing be authenticated through eyewitness testimony?
Yes, by testimony of one who sees it executed or hears it acknowledged. Need not be a subscribing witness.
How is a writing authenticated through handwriting verification?
through opinion of a non expert with personal knowledge of the alleged writer’s handwriting or the opinion of an expert who has compared the writing to samples of the maker’s handwriting. or the trier of fact looking at comparisons.
How is an ancient document authenticated?
by evidence that it is 1) 20 years old 2) is in such condition as to be free from suspiscion as to authenticity, and 3) was found in a place where such a writing would likely be kept.
What is the reply letter doctrine?
a writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.
When are photographs admissable?
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. a witness familiar with the scene is sufficient.
How are x-rays authenticated?
you have to show that the process was accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custodial chain must be established to assure that the X-Ray has not been tampered with.
How does voice identification work?
a voice may be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying.
How does voice identification work for telephone conversations?
it may be authenticated by one of the parties to the call who testifies that 1) he recognized the other party’s voice, 2) the speaker had knowledge of certain facts that only a particular person would have; 3) he called a particular person’s number and a voice answered as that person or that person’s residence, or 4) he called a business and talked with the person answering the phone about matters relevant to the business.
What writings are self-authenticating?
1) domestic public documents bearing a seal
2) similar official foreign public documents
3) certified copies of public records,
4) official publications
5) newspapers and periodicals
6) trade inscriptions
7) acknowledged documents
8) commercial paper and related documents
9) business records.
What is the best evidence rule?
this rule is more accurately called the original document rule. To prove the terms of a writing, the original writing must be produced if the terms of the writing are material. Secondary evidence (oral testimony) of the writing is admissible only if the original is unavailable.
In what situations does the rule apply?
1) the writing is a legally operative or dispositive instrument
2) the knowledge of a witness concerning a fact results from having to read it in the document.
When does the best evidence rule NOT apply?
1) Fact to be proved exists independently of writing
2) writing is collateral to litigated issue (minor importance)
3) Summaries of Voluminous Records
4) Public Records that are certified copies
When can secondary evidence of a unavailable writing’s contents come in?
He must give a satisfactory foundation, such as the original was 1) loss or destroyed, 2) outside the jurisdiction and unobtainable, and 3) in the possession of an adversary who, after notice, fails to produce the original.
What are questions of preliminary facts for the jury?
1) whether the original ever existed?
2) whether a writing, recording, or photo produced at rial is an original; and
3) whether the evidence offered correctly reflects the contents of the original.
What are more examples of the best evidence rule applying?
1) deed
2) contract
3) will
4) written warranty
5) content medical record
