Evidence: Authentication/BER

Question 1

Exam Tip

Answer 1

Whenever a writing appears on the exam, be on alert to three potential issues (aside from relevance): Authentication, BER, and Hearsay.

Question 2

Overview:

Answer 2

If the relevance of a writing depends upon its source or authorship, a showing must be made that the writing is authentic (genuine), i.e. that it is what it purports to be.

Question 3

IN the absence of a stipulation as to authenticity

Answer 3

A FOUNDATION must be made in order for the document to be admissible

Question 4

Methods of Authentication (in general)

Answer 4

Issue: whether X is author of document.

1. Witness’ personal knowledge
2. Proof of handwriting
3. Proof by circumstantial evidence– for typed

Question 5

Proof of handwriting

Answer 5

1. lay person opinion
2. expert comparison opinion
3. Jury comparison

Question 6

Ancient Document Rule

Answer 6

authenticity may be inferred if:

1. at least 20 years old
2. facially free of suspicion
3. found in a place of natural custody

Question 7

Solicited Reply Doctrine

Answer 7

Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
Ex. P mails K offer to X, properly addressed and posted, and later receives an acceptance purportedly signed by X

Question 8

During P’s case in chief, witness testifies that in her opinion, document was written by X because she is familiar with X’s handwriting. X advises the judge that he intends to testify during the defense that the document is a forgery and argue that the judge cannot admit the document into evidence until the judge is personally convinced that the document was written by X. Good argument?

Answer 8

NO– judge doesn’t have to find it authenticated herself.
Conditional relevancy standard– document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine. i.e. that X is the author.

Question 9

Self-authenticating documents

Answer 9

1. Official publications
2. Certified copies of public or private records on file in public office
3. Newspaper or periodicals
4. Trade inscriptions and labels
5. Acknowledged document
6. Commercial paper

Question 10

Authentication of photographs

Answer 10

Witness may testify on the basis of personal knowledge that the photograph is a fair and accurate representation of the people or objects portrayed.

Question 11

Best Evidence Rule

Answer 11

A party who seeks to prove the contents of a writing must either produce the original writing, or provide an acceptable excuse for its absence.
If the court finds the excuse acceptable, the party may then use secondary evidence – oral testimony or a copy.
DEfn of writing includes: sound recordings, x-rays ,and films.

Question 12

Bubba ordered 100 pounds of shrimp from Gulf Shrimp CO. pursuant to a written purchase order. In his suit for breach of K, Bubba takes the stand and testifies, “I didn’t get what I ordered. The purchase order called for 3” jumbo shrimp and they delivered 1” mini shrimp.” Which of the following would be a valid objection to Bubba’s testimony?
(A) the actual shrimp are the best evidence of what was delivered.
(B) the purchase order is the best evidence of what the K required.

Answer 12

(B) is a valid objection–we want to look at the actual writing.

Question 13

When Best Evidence Rule Applies– when a party is seeking to prove the contents of a writing– two principal situations

Answer 13

1. The writing is a legally operative document i.e. the writing itself creates rights and obligations
2. Witness is testifying to the facts that she learned solely from reading about them in a writing.

Question 14

Tommy the Terrorist is charged with detonating a bomb. No one witnesses the detonation but it was captured on film by an unmanned surveillance camera. Counterterrorism Agent Jack Bower testifies that he watched the film and it clearly shows Tommy was the bomber. Objectionable?>

Answer 14

Yes, it violates BER. Witness has no personal knowledge –everything came from the film (writing).

Question 15

When best evidence rule does not apply

Answer 15

When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.

Question 16

Agent Jack Bower is prosecuted for giving perjured testimony at a congressional hearing into the use of torture during the interrogation of terrorist suspects. At trial, a congressional aide offers to testify to what Jack said during the hearing. True or False: The aide’s testimony is improper because the transcript is best evidence of what Jack said.

Answer 16

False, BER doesn’t apply. Transcript didn’t create the perjury.

Question 17

Agent JB, claiming he worked a 24-hour shift, sues Boss for nonpayment of wages and failure to reimburse for expenses.
(a) without producing any documents, J testifies, “I worked 24 hours and my expenses were $15mill.” Boss objects – “Best evidence rule–produce the time sheets and receipts.”

Answer 17

Overruled, BER doesn’t apply. JB has personal knowledge of an independent fact.

Question 18

Agent JB, claiming he worked a 24-hour shift, sues Boss for nonpayment of wages and failure to reimburse for expenses.
(b) Without producing any documents, Boss testifies “Jack’s time sheets show he worked only 20 hours, and the receipts show only $10 million in expenses.”

Answer 18

BER violated – no personal knowledge. Everything he knows cam from sheets. He’s trying to prove contents of writing.

Question 19

What qualifies as original writing?

Answer 19

1. Whatever the parties intended as the original; any counterpart intended to have the same effect; any negative of the film or print from the negative; computer print out
2. Duplicate: any counterpart produced by any mechanical means that accurately reproduced the original (eg. photocopy, carbon copy).
3. Handwritten copy is neither original or duplicate.

Question 20

Rule on duplicates

Answer 20

duplicate is admissible to same extent as original UNLESS it would be unfair (e.g. photocopy of fuzzy fax), or genuine question is raised as to authenticity of original.

Question 21

Excuses for non-production of original

Answer 21

1. lost or cannot be found with due diligence
2. destroyed without bad faith
3. cannot be obtained with legal process
   Court must be persuaded by preponderance of the evidence that excuse has been established; secondary evidence is then admissible (e.g. testimony based on memory, handwritten copy).

Question 22

Escapes

Answer 22

1. Voluminous records can be presented through a summary or chart, provided the original records would be admissible and they are available for inspection.
2. Certified copies of public records
3. Collateral documents
   * if court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence.