Evidence- Documentary Evidence

Question 1

What is the standard of authentication for a writing?

Answer 1

Whether a reasonable juror could conclude it was genuine.

Question 2

What are the methods of authentication?

Answer 2

• admission by a party in pleading or stipulation
• Witness personal knowledge: saw person sign doc
• Handwriting verification:
  (a) lay opinion (someone familiar with person’s writing)
  (b) expert opinion (compares to other docs person wrote)
  (c) jury opinion (compares to exemplar doc person wrote)

Question 3

What is the ancient document rule?

Answer 3

Authenticity may be presumed if doc is:

(a) at least 20 years old
(b) facially free of suspicion
(c) found in a place where document would likely be kept

Question 4

What is solicited reply doctrine?

Answer 4

Document authenticated if:
received in response to a prior communication to the alleged author.

e.g.: P mails offer to X, X returns signed offer to P, authenticated by X

Question 5

How are photographs authenticated?

Answer 5

witness may testify on personal knowledge that photo is “fair and accurate representation” of people/objects displayed (does not have to be photographer)

• if photograph is taken by unattended camera with no one to authenticate the scene, the photograph is still admitted upon showing that the camera was properly operating at the relevant time and the photo was developed from that camera

Question 6

What are self-authenticating documents?

Answer 6

Official documents that are presumed authentic.

Question 7

What is the best evidence rule?

Answer 7

a party seeking to prove contents of writing, recording, or photograph must produce original copy

If that cannot be done, the party must provide an acceptable excuse for its absence

Question 8

When does best evidence rule apply?

Answer 8

• writing is a legally operative document (creates rights and obligations; e.g. a contract)
• witness is testifying about facts she learned solely from reading about them in writing (but not if witness is testifying about a fact he has personal knowledge of independent of the writing)

Question 9

When does best evidence rule not apply?

Answer 9

when witness with Personal Knowledge testifies to a fact that exists independently of a writing.

Question 10

What qualifies as a writing under the best evidence rule?

Answer 10

writing itself,
any counterpart intended to have same effect
any negative of film or print
computer printout

Question 11

Are duplicates of originals admissible?

Answer 11

duplicates are exact copies of the original produced by mechanical means (such as a photocopy (duplicate) distinguished from a handwritten copy (secondary evidence and not a duplicate)

Generally admissible to same extent as writings unless:

(a) it would be unfair (e.g. fuzzy fax);
(b) genuine question raised as to authenticity of original

Question 12

What are valid excuses for non-production of the original?

Answer 12

• lost
• destroyed w/o bad faith
• cannot be obtained

Question 13

What are exceptions for best evidence rule?

Answer 13

• voluminous records can be presented through chart
• certified copies of public records
• collateral documents

Question 14

How can x-rays be authenticated?

Answer 14

Unlike photographs, x-rays cannot be authenticated by testimony of a witness but must be done by showing that the process and machine were proper, the operator was qualified, and x-ray was not tampered with.

Question 15

How can oral statements be authenticated?

Answer 15

• authentication of voice by any person who has heard the speaker at any time (including after commencement of litigation)
• if telephone call: a party to the call

Question 16

If there is a valid non-production of the original evidence under the exception to the best evidence rule, what other evidence can be admitted in its place?

Answer 16

“Secondary evidence” such as handwritten copies, notes, oral testimony.

If the party against whom the secondary evidence is being offered proves it by admitting to it, then it is admitted into evidence.