Documents, Real and Demonstrative Evidence

Question 1

Authentication

Answer 1

All evidence, other than testimony, must be authenticated as genuine in order to be admitted. Authentication is proof that the item is what the proponent claims it is.

Question 2

Methods of authentication

Answer 2

a. Real evidence
b. Demonstrative evidence
c. Writings and recordings
d. Self- authenticating documents

Question 3

Real evidence

Answer 3

Can be authenticated by distinctive characteristics or chain of custody

Question 4

Demonstrative evidence

Answer 4

must be a fair representation

Question 5

Writings and recordings

Answer 5

Can be authenticated by admissions, eyewitness testimony, handwriting verifications (expert or nonexpert with personal knowledge, or trier of fact with sample comparisons), circumstantial evidence (e.g., postmark, address), etc.

1. Ancient documents
   a. FRE: 20 years
   b. CEC: 30 years

Question 6

Self- authenticating documents

Answer 6

Certified copies of public records (e.g., deeds), official publications, newspapers, and periodicals.

1. FRE only: Business records and trade inscriptions.
2. CEC only: Signature of notary or domestic public employee.

Question 7

Best evidence rule (FRE) and secondary evidence rule (CEC)

Answer 7

To prove the contents of a writing (including photos, X- rays, recordings), the original writing must be produced. Machine duplicates are also allowed unless the authenticity of the original is disputed.

1. If original or photocopy is unavailable: Oral testimony is admissible, and the CEC even allows handwritten duplicates.
2. Best evidence rule (BER) does not apply when the fact to be proved exists independently of the writing (e.g., witness can testify from personal knowledge), where writing is collateral (minor), voluminous records, or public records.

Question 8

Summaries of voluminous writings

Answer 8

If original documents are so voluminous that they can’t be conveniently introduced into evidence, a summary may be introduced through a sponsoring witness.

Question 9

Relevance

Answer 9

All documentary evidence must be relevant in order to be admissible.