Documentary & Real Evidence Flashcards
What is the general rule regarding authentication of evidence? What is the process of authentication called?
General Rule: The party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what that party claims it to be.
The process of authentication – of proving that a piece of evidence is what the party claims it to be – is called laying the foundation.
What is the authentication rule for writings?
If the relevance of a writing depends upon its source or authorship, the party offering the document must prove the source or authorship to authenticate the writing.
What are the methods available for authenticating writings?
- Testimony by a witness with knowledge (e.g. eye-witness);
- Proof of the author’s handwriting by lay opinion, expert witness, comparison by the jury.
- Ancient Document Rule
- Solicited Reply Doctrine
What is the ancient document rule? What is the difference between the federal rule and the rule in Virginia?
The Ancient Document Rule provides that authenticity may be inferred if the document is:
- at least 20 years old (VA: real estate deeds self-authenticating only if at least 30 years),
- facially free of suspicion, AND
- found in its natural location.
What is the solicited reply doctrine?
The Solicited Reply Doctrine provides that a document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
What is required for a person to authenticate the author’s handwriting by lay opinion? What is required for an expert witness to authenticate the author’s handwriting? Jury?
- In order for an individual to authenticate the author’s handwriting by lay opinion, the individual must be familiar with handwriting in normal course of affairs - not as prep for litigation.
- In order for an expert witness to prove the author’s handwriting, she must be qualified and must compare the document in question to genuine sample.
- In order for a jury to authenticate the author’s handwriting, the jury must compare the document in question to a genuine sample.
What is the legal effect of self-authenticating documents? What are examples of self-authenticating documents?
Self-authenticating documents are presumed authentic and no foundation testimony is needed for these documents. Examples of self-authenticating documents include:
- Official publications (gov’t regulations);
- Certified copies of public or private documents on file in public office (a deed filed w/county clerk);
- Newspapers or periodicals
- Trade inscriptions and labels (Campbell Soup)
- Acknowledged document (Notarized)
- Commercial paper (Promissory Note)
- Certified Business Records, offered into evidence under the business records hearsay exception – must be certified by the custodian or some other qualified person who knows how it was prepared and that these documents were made in the regular course of business at or about the time of the events described in the document.
How is a photograph authenticated as “demonstrative” or “illustrative” evidence?
If the purpose of the photograph is to “illustrate” a witness’s testimony, it can be authenticated by the Witness testifying, based on personal knowledge that the photo is an accurate depiction of the people or objects portrayed.
Can a photograph be admitted as evidence having the effect of acting as a “silent” witness? If so, what are the requirements for a party to offer such evidence?
Yes. Sometimes, a photograph is not illustrating a witness’s testimony, but rather is itself the evidence (e.g. photos from surveillance cameras).
A party offering such a photograph must show:
- That the camera was properly functioning
- That the film was properly loaded and removed AND
- That the film has not been altered or tampered with (chain of custody)
What is the best evidence rule?
If a party seeks to prove the contents of a writing, the party must either produce the writing or provide an excuse for its absence. If the court finds the excuse acceptable, the party may then use secondary evidence, such as oral testimony, to prove the contents.
A “writing” includes documents, recordings, films, and X-rays.
When is the best evidence rule applicable?
Only when the party seeks to prove the contents of a writing, which arises in two principal situations:
- The writing is a legally operative document (i.e. creates rights and obligations), OR
- The witness is testifying to facts that she learned solely from reading about them in a writing.
In regards to the best evidence rule, what is meant by an “original writing”?
The “original” includes the writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative.
In regards to the best evidence rule, what is meant by an “duplicate writing”? What is the rule regarding duplicates?
A duplicate is any counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy).
Rule for duplicates: A duplicate is admissible to the same extent as an original, unless there is a genuine question about the authenticity of the original; or it would be unfair to admit the duplicate. Oral testimony is not considered an original.
What are the available excuses for not producing the original writing?
A party need not produce the original (or an acceptable duplicate) if the original:
- is lost or cannot be found with due diligence, or
- has been destroyed without bad faith, or
- cannot be obtained with legal process.
How can a party escape the requirements of the best evidence rule?
- Voluminous Records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
- Certified copies of public records
- Collateral documents, if the court determines that the document is unimportant/irrelevant to the issues in the case.
