Evidence - Authentication

Question 1

AUTHENTICATION OF WRITINGS AND SPOKEN STATEMENTS

Answer 1

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 genuineness (that is, a reasonable juror could conclude that the writing is genuine).

Question 2

Methods of Authentication

Answer 2

Opponent’s Admission, Eyewitness Testimony, Handwriting Verifications,

Question 3

Eyewitness Testimony

Answer 3

A writing can be authenticated by testimony of anyone who saw it executed or heard it acknowledged. The testimony can be from anyone; it doesn’t have to be from a subscribing witness unless required by statute.

Question 4

Handwriting Verifications

Answer 4

A writing can be authenticated by evidence that the maker’s handwriting is genuine. This evidence may be in the form of:
• The opinion of a lay witness (nonexpert) who has familiarity with the alleged writer’s handwriting in the course of normal affairs (not acquired for purposes of the current litigation);
• The opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting; or
• The fact-finder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting.

Question 5

Can a nonexpert who does not have familiari- ty with the alleged writer’s handwriting cannot become familiar with it merely for purposes of testifying?

Answer 5

No.

Question 6

Reply Letter Doctrine

Answer 6

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

Question 7

Ancient Documents

Answer 7

A document can be authenticated by evidence that it:
• Is at least 20 years old;
• Is in a condition that creates no suspicion as to authenticity (for example, there are no erasures on the document); and
• Was found in a place where such a writing would likely be kept

Question 8

hearsay exception for ancient documents

Answer 8

will only apply if the document was prepared before 1998

Question 9

Photographs

Answer 9

Generally, photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a fair and accurate representation of those facts. Ordinarily, it is not necessary to call the photographer to authenticate the photograph; a witness familiar with the scene is sufficient.

Question 10

Unattended Camera—Proper Operation of Camera

Answer 10

If a photograph is taken when no person who could authen- ticate the scene is present, the photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photograph was downloaded from that camera or developed from film obtained from that camera.

Question 11

X-Ray Pictures, Electrocardiograms, Etc.

Answer 11

Unlike photographs, an X-ray cannot be authenticated by testimony of a witness that it is a correct representation of the facts. It must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it. Finally, a custo- dial chain must be established to assure that the X-ray has not been tampered with.

Question 12

Authentication of Oral Statements

Answer 12

When a statement is admissible only if said by a particular person (for example, as a statement by an opposing party), authentication as to the identity of the speaker is required.

Question 13

Voice Identification

Answer 13

A voice can 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.
By an expert
or By the trier of fact

Question 14

Handwriting

Answer 14

(Familiarity BEFORE trial)
by an expert
by the trier of fact

Question 15

Telephone Conversations

Answer 15

LOOK for PERSONAL FAMILIARITY!
Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
(1) they recognized the other party’s voice (unlike handwriting, this can be (Familiarity BEFORE or DURING trial);
(2) the speaker had knowledge of certain facts that only a particular person would have;
(3) they called a partic- ular person’s number and a voice answered as that person or that person’s residence; or (4) they called a business and talked with the person answering the phone about matters relevant to the business.

Question 16

Self-Authenticating Documents

Answer 16

Certain writings are said to “prove themselves.” Extrinsic evidence of authenticity is not required for the following:
• Domestic public documents bearing a seal, and similar official foreign public documents;
• Official publications (such as a government pamphlet);
• Certified copies of public records or private records on file in a public office;
• Newspapers and periodicals;
• Trade inscriptions and labels (meaning, a tag or label that purports to have been attached in the course of business and indicates ownership, control, or origin);
• Acknowledged (notarized) documents;
• Commercial paper (including signatures thereon) and related documents; and
• Business records, electronically generated records, and data cop- ied from an electronic device, if the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 17

Photocopies are duplicates and, thus, are treated the same as originals. In contrast, handwritten
copies are considered secondary evidence and are admissible only if the original or a duplicate is unavailable

Answer 17

To prove the content of a writing, recording, or photograph (defined broadly to include videos, X-rays, and any tangible collection of data), the original writing, recording, or photograph must be produced if its terms are material. Secondary evidence of the writing, recording, or photograph (such as oral testimony) is admissible only if the propo- nent provides a satisfactory excuse for the original’s absence.

Question 18

Best evdience rule

Answer 18

If youre trying to prove the contents of a writing, photograph, or recording, you need the original or a justification.

Question 19

When Best Evidence Rule Applies

Answer 19

The rule applies when evidence is offered to prove the content of a writing, recording, or photograph (we’ll use “writing” as shorthand going forward). Two situations where this happens are:
• Where the writing is a legally operative or dispositive instrument (that is, the writing itself creates rights and obligations); or
• Where the knowledge of a witness concerning a fact results from having read it in the writing

Question 20

When Best Evidence Rule Does Not Apply—Witness Has Personal Knowledge of Facts

Answer 20

The rule does not apply where the fact to be proved has an existence independent of any writing. Any witness with personal knowledge may testify to those facts; a writing also depicting those facts is not required.

Question 21

“Originals” and Admissibility of “Duplicates”: The terms “original” and “duplicate” are defined as follows:

Answer 21

• Original—The writing itself or any counterpart that is intended by the person executing it to have the same effect as an original. This includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information.
• Duplicate—An exact copy of an original made by mechanical means (for example, a photocopy or carbon copy).

Question 22

Duplicates

Answer 22

Duplicates are admissible to the same extent as originals, unless: (1) the circumstances make it unfair to admit the duplicate, or (2) a genuine question is raised about the authenticity of the original.

Question 23

photocopies vs copies made by hand

Answer 23

Photocopies are duplicates and, thus, are treated the same as originals. In contrast, handwritten
copies are considered secondary evidence and are admissible only if the original or a duplicate is unavailable

Question 24

Secondary Evidence: Admissibility of Secondary Evidence of Contents

Answer 24

If the proponent cannot produce the original writing (or an admissible duplicate) in court, they may offer secondary evidence of its contents (such as handwritten copies, notes, or oral testimony) if a satisfactory explanation is given for the non-production of the original.

Question 25

Excuses for Non-Production of Original

Answer 25

Valid excuses justifying the admissibility of secondary evidence include:
• Loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith.
• The original cannot be obtained by any available judicial process. Usually, this means that it is in possession of a third party outside the jurisdiction and cannot be obtained despite a reasonable effort.
• The original is in the possession of an adversary who, after due notice, fails to produce the original.

Question 26

No Degrees of Secondary Evidence

Answer 26

If there is a valid excuse, the Federal Rules permit a party to prove the contents of a writing by any type of secondary evidence (such as handwritten copies, notes, oral testimony, etc.). One type of secondary evidence is not preferred over the other.

Question 27

A proper foundation for the admissibility of secondary evidence may be laid by….

Answer 27

A proper foundation for the admissibility of secondary evidence may be laid by a showing that the original has been lost and cannot be found despite diligent search.

Question 28

Exceptions to Best Evidence Rule

Answer 28

a. Summaries of Voluminous Records: inconvenient to examine a voluminous collection of records in court, the proponent may present their contents in the form of a chart or summary
b. Certified Public Records: The rule does not apply to copies of public records that are certified as correct or testified to as correct.
c. Writing Is Collateral to Litigated Issue: The rule does not apply where the writing is of minor importance (that is, collateral) to the matter in controversy.
d. Testimony or Written Admission of Opponent: Where the opponent (meaning, the party against whom the writing is being offered) has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original.

Question 29

the Federal Rules reserve the following questions of preliminary fact for the jury:

Answer 29

• Whether the original ever existed;
• Whether a writing produced at trial is an original; and
• Whether the evidence offered correctly reflects the contents of the original

Question 30

The basic requirement for the authentication of demonstrative evidence is….

Answer 30

The basic requirement for the authentication of demonstrative evidence is to estab- lish that the evidence is a fair representation of what it purports to show

Question 31

REAL EVIDENCE

Answer 31

Real evidence is actual physical evidence addressed directly to the trier of fact.
Examples include the weapon allegedly used in a crime, contraband like drugs, or charts and diagrams like those prepared by a coroner to show the appearance of a body. Real evidence may be direct, circumstantial, original, or prepared (demonstrative).

Question 32

Real Evidence: Conditions of Admissibility

Answer 32

a. Authentication: The object must be identified as what the proponent claims it to be.
b. Condition of Object: If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.

Question 33

Authentication

Answer 33

The object must be identified as what the proponent claims it to be, either by:
1) Testimony of a witness that they recognize the object as what the proponent claims it is (for example, witness testi- fies that a gun is the one found at the crime scene); or
2) Evidence that the object has been held in a substantially unbroken chain of possession (for example, blood taken for blood-alcohol test)
The same standard of proof you’ve seen before applies to real evidence—the proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the object is what the proponent claims it to be).

Question 34

Condition of Object

Answer 34

If the condition of the object is significant, it must be shown to be in substantially the same condition at trial.