Evidence - Authentication_Best Evidence Flashcards
What are the 6 self-authenticating documents (i.e. no need to est. foundation)?
Self-Authenticating Documents… 1) Official gov’t publications 2) Certified copies of public OR private records on file in public office (e.g. a mtg/deed is a PRIVATE document that is filed in a public office) 3) Newspapers or mags 4) Trade inscriptions and labels (e.g. a label on a bottle of water) 5) Notarized (aka “acknowledged”) document 6) Commercial paper (i.e. the signatures are deemed genuine) 7) Certified business records (also admissable under hearsay) Don’t forget about hearsay!!
What are the 4 methods ofauthentication? NOTE: NY Distinction
Methods… 1) Witness’ personal knowledge (e.g. witness observed X sign the document; can verify the photograph) 2) Proof of handwriting by…. Lay person opinion (e.g. verifies based on familarity w/ handwriting); Expert comparison opinion (e.g. handwriting expert); OR Jury comparison (e.g. compare document w/ example of X’s handwriting) 3) Ancient document rule: authenticity may be inferred IF the document is… ≥ 20 yrs old [NY DISTINCTION: document must be ≥ 30 yrs old]; facially free of suspicion; AND found in natural place 4) Solicited Reply Doctrine: doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author (e.g., π mails K offer to ∆, properly addressed and posted, and later receives an acceptance purportedly signed by X)
What are the3 questions you need to ask for document/photo evidence?
- Has it been authenticated? 2. Is it the best-evidence? 3. Is there hearsay?
When is a document admissible (based on its authenticity)?
The Conditional Relevancy Std:A document is admissible if ct determines that there is suffiicent evidence from which a reasonable juror could conclude doc is genuine
What is the purpose of the authentication?
If the relevance of a writing or picture depends on its source or authorship, a showing must be made that the writing is authentic (genuine) This process is “laying foundation”
What is the Best Evidence Rule?
Best Evidence Rule: A party who seeks to prove the contents of a writing must EITHER: (i) PRODUCE the “original writing”; OR (ii) provide an ACCEPTABLE EXCUSE for its absence (and provide secondary testimony like oral testimony or copy) “Writing” includes sound recordings, X-rays, and films
When does the Best Evidence Rule apply?
When a party is seeking to prove the contents of a writing in TWO situations… 1) the writing is a legally operative document in the present case (e.g. patent, deed, mtg, divorce decree, writen K) 2) witness is testifying to facts that she learned SOLELY from reading about them in a writing (BUT, not when witness has PERSONAL KNOWLEDGE independent of doc)
What is an original writing? NOTE: NY distinction
Original writing is a 1) writing or its counterpart; 2) negative of film or print; 3) print-out of computer data; OR 4) photocopy (mechanical) Photocopies are admissible (to same extent as original) UNLESS it would be UNFAIR(e.g. a fuzzy photocopy) or there is a genuine question as to its AUTHENTICITY NY DISTINCTION: photocopies are acceptable BUT only if the copies were made in ordinary course of business (i.e. not made for only for litigation) NOTE: an original is NOT a handwritten copy
What counts as a valid EXCUSE for non-production of original writing (under Best Evidence Rule)?
Excuses for non-production of ORIGINAL: 1) lost & can’t be found w/ due diligence; 2) destroyed w/o bad faith; 3) can’t be obtained w/ legal process (beyond ct’s subpoena pwr) NOTE: Secondary evidence would still be necessary if an excuse is est. The ct has to be PERSUADED by a perponderance of the evidence that an excuse has been est.
When does the Best Evidence Rule NOT apply?
BER does NOT apply when… 1) voluminous records can be presented viasummary or chart; PROVIDED orignal records would be admissible and are available for inspection 2) certified copies of public records 3) collateral docs (i.e. docs not important for case) can be proven by secondary evidence
What are the things to consider for DOCUMENTARY EVIDENCE
NB: WHENEVER THERE IS A WRITING ON THE BAR EXAM, CONSIDER 3 POTENTIAL ISSUES (ASIDE FROM RELEVANCE):
i) Authentication - i) General rule. The party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be
ii) Best evidence (original doc rule) - (1) Rule. The rule applies only when a party seeks to prove the contents of a writing, which arises in two situations:
(a) The writing is a legally operative document—i.e., the writing itself creates rights and obligations
(b) The witness is testifying to facts she learned solely from reading about them in a writing
iii) Hearsay - out of ctr statements that assert the truth of the matter asserted as truth
What is the best evidence rule
Best evidence (original doc rule) - (1) Rule. The rule applies only when a party seeks to prove the contents of a writing, which arises in two situations:
(a) The writing is a legally operative document—i.e., the writing itself creates rights and obligations (contract or will)
- The witness is testifying to facts she learned SOLELY from reading/reviewing/looking about them in a writing/X-Ray/ Pictures/Listening to a record … “Writing.” Includes documents, recordings, films, and X-rays (or any dulplicates)
- Rule. If a party seeks to prove the contents of a writing, the party must either:
(a) Produce the writing; or
(b) Provide an acceptable excuse for its absence
Excuse for Nonproduction of Original/Duplicates (if dont have Original/Duplicates then can use other form to admit the evidence)
(1) Rule. A party need not produce the original (or an acceptable duplicate) if the original is:
(a) Lost or cannot be found with due diligence
(b) Has been destroyed without bad faith
(c) Cannot be obtained with legal process
Establishing excuse. If the court is persuaded by a preponderance of the evidence that an excuse has been established, then secondary evidence is admissible—e.g., oral testimony or a handwritten copy
