Documentary Evidence (Writings)

Question 1

What is the standard for showing authentication?

Answer 1

The proof must be sufficient to support a jury finding of genuineness.

Question 2

T or F: Genuineness be admitted by pleadings or stipulation?

Answer 2

True.

Question 3

How may a writing be authenticated by a party against whom it is offered?

Answer 3

A writing may be authenticated by evidence that a party against whom it is offered has either admitted its authenticity or acted upon it as authentic.

Question 4

How can a witness authenticate a writing?

Answer 4

By testimony of one who sees it executed or hears it acknowledged.

Question 5

How is handwriting verified?

Answer 5

Evidence may be the opinion of a non-expert with personal knowledge of the alleged maker’s handwriting
The opinion of an expert who has compared the writing samples to the maker’s handwriting
By the trier of fact through comparison of samples

Question 6

How are ancient documents authenticated?

Answer 6

Evidence must show that is:

(1) at least 20 years old
(2) is in such condition as to be free from suspicion to authenticity; and
(3) was found in a place where such a writing would likely be kept.

Question 7

In KS, how old must an ancient document be to be authenticated?

Answer 7

At least 30 years old.

Question 8

What is the reply letter doctrine?

Answer 8

A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.

Question 9

How are photographs admissible?

Answer 9

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.

Question 10

Is a the photographer necessary to authenticate a photo?

Answer 10

No. A witness familiar with the scene is sufficient.

Question 11

If a photograph is taken when no person could authenticate the scene is present, how is the photograph admitted?

Answer 11

Upon a showing that the camera was properly operating at the relevant time and that the photograph was developed from film obtained from that camera.

Question 12

X-Ray Pictures and electrocardiograms can be authenticated through a witness, T or F?

Answer 12

False. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Custodial chain must be established.

Question 13

What is required to get oral statements authenticated?

Answer 13

Authentication as to the identity of the speaker is required.

Question 14

How is a speaker’s voice identified?

Answer 14

Through voice identification 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.

Question 15

How are statements made during a telephone conversation authenticated?

Answer 15

One of the speakers to the call 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.

Question 16

What are self-authenticating documents?

Answer 16

Certain writings that are said to “prove themselves.” Extrinsic evidence of authenticity is not required.

Question 17

Which documents are self-authenticating?

Answer 17

Domestic public documents bearing a seal, similar official foreign public documents, certified copies of public records, official publications, newspapers and periodicals, trade inscriptions, acknowledged documents commercial paper and related documents, and certified business records.

Question 18

What is the Best Evidence Rule (BER)?

Answer 18

More accurately called the “original document rule.” To prove the terms of a writing (including a recording, photograph, or x-ray), the original must be produced if the terms of the writing are material.

Question 19

Under the BER, secondary evidence is available when?

Answer 19

Only if the original is unavailable.

Question 20

In what two classes of situations does the BER apply?

Answer 20

Where the writing is a legally operative or dispositive instrument OR the knowledge of a witness concerning a fact results from having read it in the document

Question 21

When does the BER rule NOT apply?

Answer 21

The rule does not apply where the fact to be proved as an existence independent of any writing, when the writing is collateral to the litigation, when there are summaries of voluminous records, or to copies of public records that are certified as correct or testified to as correct.

Question 22

The BER covers what kinds of evidence?

Answer 22

Writings, recordings, and photographs.

Question 23

What is an original under the BER?

Answer 23

An original is the writing itself or any copy that is intended by the person executing it to have the same effect as an original.

Question 24

What is a duplicate under the BER?

Answer 24

An exact copy of an original, such as a photocopy made by mechanical means.

Question 25

When are duplicates admissible in Federal Court?

Answer 25

Duplicates are admissible in federal courts unless the authenticity of the original is challenged or unfairness would result.

Question 26

In KS, what else are admissible as originals?

Answer 26

Carbon copies and microfilmed business records are admissible as originals.

Question 27

In KS, when are duplicates admissible?

Answer 27

Duplicates are admissible as secondary evidence only when an exception is established.

Question 28

If the proponent cannot produce the original writing in court, what may he do?

Answer 28

He may offer secondary evidence of its contents.

Question 29

In able to offer secondary evidence of the original’s contents, what must the proponent offer?

Answer 29

A satisfactory explanation given for the non-production of the original.

Question 30

What are examples of secondary evidence?

Answer 30

Handwritten copies, notes, oral testimony.

Question 31

What are valid excuses justifying the admissibility of secondary evidence?

Answer 31

Loss or destruction of the original, the original is in possession of a third party outside the jurisdiction and is unobtainable, the original is in the possession of an adversary who, after due notice, fails to produce the original.

Question 32

After a party gives a satisfactory foundation, the Federal Rules permits a party to prove the contents of a writing how?

Answer 32

By ANY kind of secondary evidence, thus abolishing degrees of secondary evidence.

Question 33

Under Fed’l Law, an exception to the BER is that a proponent may prove the contents of a writing, recording, or photograph through what kind of evidence?

Answer 33

Through the testimony, deposition, or written admission of the party against whom it is offered and need not account for the nonproduction of the original.

Question 34

In KS, the testimony or written admission of a party also allows a document to come in as an exception to the BER - T or F?

Answer 34

False. There is no exception for party admissions in KS.

Question 35

Generally, who makes determinations of facts regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original?

Answer 35

The court. There are exceptions.

Question 36

What questions of preliminary fact are for the jury?

Answer 36

Whether an original ever existed, whether a writing/recording/photograph produced at trial is an original, and whether the evidence offered correctly reflects the contents of the original.

Question 37

What is the parole evidence rule (PER)?

Answer 37

If an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and hence constitutes the ONLY evidence of it. Therefore, prior/contemporaneous agreements or negotiations are merged into the written agreement and they are inadmissible to vary the terms of the writing.

Question 38

When does the PER NOT apply (3 instances)?

Answer 38

Does not apply to exclude evidence of prior or contemporaneous agreements in certain circumstances:

1. Incomplete or ambiguous contract
2. Reformation of contract (party alleges facts entitling him to reformation, like a mistake)
3. Challenge to validity of contract (admissible to show that the K is void or voidable, or was made subject to valid condition precedent that has not been satisfied.

Question 39

Does the PER apply to subsequent modifications?

Answer 39

No. The rule applies only to negotiations prior to or at the time of, the execution of the K. Parole evidence IS ADMISSIBLE to show subsequent modification or discharge of the written K.