Evidence AMP - Real And Documentary Evidence Flashcards
By definition, documentary evidence is __________.
A oral evidence given under oath and recorded as a video
B any object conveying a firsthand sense impression to the trier of fact
C evidence in the form of a writing
D any communication regarding a fact in dispute by someone who has actual knowledge by means of his senses
C
Evidence in the form of a writing (e.g., a contract or a confession) is known as documentary evidence.Oral evidence given under oath is testimonial evidence, not documentary evidence, even if recorded.Any object that conveys a firsthand sense impression to the trier of fact (e.g., a gun) is known as real evidence. Documentary evidence must be a writing.A communication regarding a fact in dispute by someone who has knowledge by means of his senses is referred to as direct evidence. Documentary evidence refers specifically to written evidence.QUESTION ID: E0050 Additional Learning
Which of the following is true under the best evidence rule?
A If the opponent has custody of an original document, secondary evidence is automatically admissible.
B The contents of a writing can be proved by out-of-court oral admissions of the party against whom such evidence is offered.
C An “original” means not only the writing or recording itself, but also a counterpart intended by the person executing it to have the same effect as an original.
D Secondary evidence in the form of handwritten copies of the original is never admissible.
C
An original is the writing or recording itself or any counterpart intended by the person executing it to have the same effect as an original. A duplicate is an exact copy of an original, e.g., a carbon copy or photocopy. Duplicates are admissible to the same extent as originals in federal courts, unless (i) a genuine question is raised about the original’s authenticity, or (ii) under the circumstances, it would be unfair to admit the duplicate in place of the original. If the proponent cannot produce the original writing or recording in court, he may offer secondary evidence of its contents in the form of copies (e.g., handwritten copies, which would not be considered duplicates because they are not exact copies), notes, or oral testimony about the contents of the original if a satisfactory explanation is given for the nonproduction of the original. If the opponent has custody of the original, secondary evidence is not automatically admissible. To justify the admissibility of the secondary evidence, there must be a showing of the opponent’s custody, service of a timely notice to produce, and the opponent’s failure to produce the original in court. Where the pleadings give notice to the opposite party that he will be charged with possession of the writing, service of the notice to produce is unnecessary. A proponent may prove the contents of a writing, recording, or photograph 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. However, it is generally held that the contents of a writing, photograph, etc., cannot be proved simply by out-of-court oral admissions of the party against whom such evidence is offered (unless of course the original is otherwise accounted for). QUESTION ID: E0072 Additional Learning
The standard of proof for authenticating a document is:
A Proof sufficient to support a jury finding of genuineness
B Proof by clear and convincing evidence
C Proof by a preponderance of the evidence
D Proof beyond a reasonable doubt
A
The standard of proof for authenticating a document is proof sufficient to support a jury finding of genuineness, i.e., enough evidence to support a jury finding that the document is what the proponent claims it is. It is not required that the proponent of a document establish its genuineness by a preponderance of the evidence, clear and convincing evidence, or proof beyond a reasonable doubt. QUESTION ID: E0064A Additional Learning
Which of the following is true regarding authentication of evidence?
A A writing may be authenticated by any evidence that serves to establish its authenticity
B An X-ray picture is authenticated in the same way as any photograph—by testimony of a witness that it is a correct representation
C A writing must be authenticated by the person who signed it
A
In general, a writing may be authenticated by any evidence that serves to establish its authenticity. The Federal Rules do not limit the methods of authentication, but rather list several examples of proper authentication. Unlike photographs, an X-ray picture generally CANNOT be authenticated by testimony of a witness that it is a correct representation of the facts. A different procedure of authentication is necessary. First, it must be shown that the process used is accurate (as to X-rays, the court will usually take judicial notice of this). Then it must be shown that the machine itself was in working order and the operator was qualified to operate it. Finally, a custodial chain must be established to forestall the danger that the evidence has been substituted or tampered with. A writing generally need NOT be authenticated by the person who signed it. Authentication may be by the testimony of someone who sees it executed or hears it acknowledged. Modern statutes eliminate the common law necessity of producing a subscribing witness, unless specifically required by statute. If testimony of a subscribing witness is required (e.g., in authenticating a will), his denial or failure to recollect the execution of the writing does not preclude authentication by other evidence. QUESTION ID: E0065A Additional Learning
Which statement is true regarding the authentication of real evidence?
A If the evidence can be easily tampered with, the proponent of the evidence must negate all possibilities of tampering
B In some circumstances, real evidence may be authenticated by a witness’s testimony that the object is what the proponent claims it is
C All real evidence must be authenticated by establishing a chain of custody
B
If the object has significant features that make it identifiable upon inspection, a witness may authenticate the object by recognition testimony—i.e., a witness’s testimony that the object is what the proponent claims it is. Real evidence may be authenticated by establishing a chain of custody, but may also be authenticated by other means (e.g., recognition testimony. If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must show that it has been held in a substantially unbroken chain of possession but does not need to negate all possibilities of substitution or tampering. QUESTION ID: E0066B Additional Learning
Which of the following is correct under the best evidence rule?
A If a document has been recorded and filed, that original must be offered into evidence.
B Secondary evidence of a writing is permitted only if the original was destroyed by the proponent.
C The best evidence rule applies to writings that are collateral to the matter in controversy.
D Contents of voluminous writings that cannot conveniently be examined in court may be presented in the form of a summary.
D
When it would be inconvenient to examine a voluminous collection of writings, recordings, or photographs in court, the proponent may present their contents in the form of a chart, summary, or calculation. However, the originals or duplicates must be made available for examination and copying, and the judge may order them to be produced in court. Secondary evidence of a writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent (e.g., if the proponent destroyed the writing). Any narration by a witness is likely to include references to transactions consisting partly of written communications. The best evidence rule does not apply to writings that are collateral (i.e., ones of minor importance) to the matter in controversy. The best evidence rule is modified so that a proponent may offer into evidence a copy of an official record or a copy of a document that has been recorded and filed. Such a copy must be certified as correct by the custodian of the document or other person authorized to do so, or testified to be correct by a person who compared it to the original. The purpose of this exception is to prevent the loss or absence of public documents due to litigation. QUESTION ID: E0069 Additional Learning
Under the Federal Rules of Evidence, which of the following questions of preliminary fact must be determined by the judge, rather than the jury?
A Whether the original ever existed.
B Whether oral testimony regarding an original’s contents is admissible.
C Whether the evidence offered correctly reflects the contents of the original.
D Whether a writing, recording, or photograph produced at trial is an original.
B
Ordinarily, it is for the court to make the determinations of fact that govern the admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the Federal Rules specifically reserve three questions of preliminary fact for the jury: (i) Whether the original ever existed; (ii) Whether a writing, recording, or photograph produced at trial is an original; and (iii) Whether the evidence offered correctly reflects the contents of the original. QUESTION ID: E0073 Additional Learning
Evidence in the form of a writing is known as:
A Testimonial evidence
B Real evidence
C Documentary evidence
C
Evidence in the form of a writing (e.g., a contract or a confession) is known as documentary evidence. Testimonial evidence is oral evidence given under oath. It is not documentary evidence, even if recorded. Any object that conveys a firsthand sense impression to the trier of fact (e.g., a gun) is known as real evidence. Documentary evidence must be in the form of a writing. QUESTION ID: E0050A Additional Learning
The best evidence rule __________ where the writing involved is a contract or deed or where the witness knows a given fact only from having read it in a document.
A Applies
B Does not apply
C Sometimes applies
A
The best evidence rule applies: (i) where the writing is a legally operative or dispositive instrument such as a contract, deed, will, or divorce decree; or (ii) where the knowledge of a witness concerning a fact results from having read it in the document. QUESTION ID: E0070A Additional Learning
Which of the following statements about the best evidence rule is true?
A It applies to any event that has been memorialized in writing, such as a person’s birth or death
B It applies to writings that are considered legally operative instruments, such as a written contract or deed
C It applies to facts that have an existence independent of a writing
B
The best evidence rule applies to writings that are considered legally operative instruments, such as a written contract or deed. Along with wills and judgments, written contracts or deeds are considered to be written transactions and thus are essential repositories of the facts recorded. The rule does NOT apply to any event that happens to have been memorialized by a document, such as a person’s birth or death. These facts may be proved orally even though there are documents that evidence these facts. Where the fact to be proved has an existence independent of any writing, the best evidence rule does not apply. For example, a person may testify as to a purchase of goods without producing the receipt therefor. QUESTION ID: E0071B Additional Learning
A voice heard in a tape recording may be identified by:
A The opinions of at least two separate persons who have heard the voice previously
B The opinion of anyone who has heard the voice at any time
C The speaker only
D The opinion of anyone who has heard the voice a minimum of two times previously
B
Oral statements often require authentication as to the identity of the speaker. A voice, whether heard firsthand or through a device (e.g., a tape recording) may be identified by the opinion of anyone (not just the speaker) who has heard the voice at any time. There is no requirement regarding the number of times heard or the number of people who heard it. QUESTION ID: E0067A Additional Learning
If the condition of an object of real evidence is significant, the object must be shown to be in __________ condition at trial.
A Substantially the same
B Working
C Exactly the same
A
Real evidence, like all other forms of evidence, must be relevant to the proposition in issue. The admissibility of real proof also depends on additional legal requirements. If the condition of the object is significant, it must be shown to be in substantially the same condition at the trial. Moreover, the object must be logically helpful or reliable in tending to prove the proposition in issue. QUESTION ID: E0066A Additional Learning
A writing __________ be authenticated by __________.
A May; evidence that the party against whom it is offered has admitted its authenticity
B May never; merely verifying the handwriting of the maker
C May not; circumstantial evidence
A
A writing may be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon the writing as authentic. A writing MAY be authenticated by circumstantial evidence. For example, the rules for ancient documents and reply letters involve authentication by circumstantial evidence. Any proof tending in reason to establish genuineness is sufficient. A writing MAY be authenticated by evidence of the genuineness of the handwriting of the maker. QUESTION ID: E0064B Additional Learning
The following is an example of a self-authenticating document:
A A handwritten statement against interest
B An uncertified copy of a birth certificate
C A newspaper
C
Contrary to the general rule, which requires testimonial sponsorship, there are certain writings that are said to “prove themselves” or to be “self-identifying” or “self-authenticating” on their face. The Federal Rules of Evidence specifically provide that extrinsic evidence of authenticity as a condition to admissibility is not required as to the following: (i) Domestic public documents that are signed and sealed;(ii) Foreign public documents signed by a person authorized by the laws of that country;(iii) Certified copies of public records (an uncertified copy would not qualify); (iv) Official publications (i.e., books, pamphlets, or other publications purporting to be issued by a public authority); (v) Printed materials purporting to be newspapers or periodicals;(vi) Trade inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin;(vii) Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments; (viii) Commercial paper, signatures thereon, and documents relating thereto, to the extent provided by general commercial law; and(ix) Business records and certain electronic records certified as such by a custodian or other qualified person. QUESTION ID: E0068A Additional Learning
The following document would satisfy the best evidence rule without any need for explanation:
A A document that is substantially similar to the original in all relevant aspects
B A photocopy of the original document
C A handwritten copy containing exactly the same information as the original
B
An original is the writing or recording itself or any counterpart intended by the person executing it to have the same effect as an original. A duplicate is an exact copy of an original, e.g., a photocopy. Duplicates are admissible the same as originals in federal courts, unless (i) a genuine question is raised about the original’s authenticity, or (ii) under the circumstances, it would be unfair to admit the duplicate in place of the original. If the proponent cannot produce the original writing or recording in court, he may offer secondary evidence of its contents in the form of copies (e.g., handwritten copies, which would not be considered duplicates because they are not exact copies), notes, or oral testimony about the contents of the original. However, he must first give a satisfactory explanation for the nonproduction of the original. The best evidence rule does not allow any substantially similar copies. QUESTION ID: E0072B Additional Learning
