Evidence: Types, Relevancy, Authentication and the Best Evidence Rule Flashcards
Types of Evidence
(a) Direct Evidence: Relies on actual knowledge
- I saw Paul leave at 2pm/I saw it raining
(b) Circumstantial Evidence: Relies on inference
- I called Paul but he didnt answer at 2pm/the man came in with a wet umbrella
(c) Real and Documentary Evidence
Real: knife used in the attack
Documentary Evidence: Written evidence, such as a contract.
(d) Demonstrative Evidence: It is admissible if it bears substantial similarity to an issue of fact involved in trial.
- A video tape of a crash “test”
Relevancy
Defined - Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
Admissibility
Irrelevant evidence is not admissible. All relevant evidence is admissible unless:
(1) There is a statute or rule that says otherwise or;
(2) The probabtive value is substantially outweighed by a danger of one or more of the following (“403” test): unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless presenting cumulative evidence.
(3) This balancing test favors admittign the evidence.
- cant us NG in civil case
Authentication and Identification
The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Examples:
(i) Testimony by a Witness with Knowledge
(ii) Hand Writing
(iii) Voice and Telephone Conversations
(iv) Other ways to authenticate a letter or telephone conversation
(v) Photograph
(vi) Ancient Documents
(vii) Public Records
(viii) Self-Autenticating Documents
(i) Testimony by a Witness with Knowledge
Testimony that an item is what it is claimed to be by someone who has knowledge.
(1) Prosecutor claims that specific gun was held to Patti’s head. Patti can autehnticate it by saying that the gun in court is the same gun.
(2) Chain of custody
(ii) Handwriting
Three ways to authenticate it is a person’s handwriting
(1) A law witness who was familiar with the handwriting before the litigation (and did not acquire this familiarity soley for the current litigation), can testify that the hand writing is genuine.
(2) An expert witness, by comparison.
(3) The trier of fact may compare the speciman with an authenticated speciman.
Who signed the card?
(iii) Voice and Telephone Conversations
(1) An opinion identifying a person’s voice - whether heard firsthand or on a recording can be used to authenticate the alleged speaker’s voice even if the person acquired familiarity with the voice solely for the purpose of litigation.
(2) A telephone conversation may be authenticated by showing that the call was made to a particular person if circumstances (including self-identification) show that the person answering was the one called; or that the call was made to a particular business if the call related to business reasonably transacted over the telephone.
(iv) Other ways to authenticate a letter or telephone conversation
(1) Showing a particular person disclosed knowledge of facts known peculiarly to him;
(2) Showing the letter/response was in reply to a duly authenticated one (“reply doctrine”);
(3) Language patterns may indicate authenticity or its opposite.
(v) Photograph
A witness authenticates a photograph by testifying that, based on his or her peronal knowledge, the photograph is a “fair and accurate representation” of what is portrayed in the photograph .
The photographer does not need to testify.
(vi) Ancent Documents
An ancient document is authenticated if:
(1) It is in a condition that creates no suspicion about its authenticity
(2) Is in a place where, if authentic, it would likely be; and
(3) Is at least 20 years old when offered.
(vii) Public Records
Evidence that a document was recorded or filed in a public office as authorized by law; or a purported public record or statement is from the office where items of this kind are kept.
(viii) Self-Authenticating Documents
(1) Official publications (book, pamphlets, etc)
(2) Certified copies of records filed in a public office.
(3) Newspaper and periodicals.
(4) Trade inscriptions and the like (signs, tags, labels)
(5) Acknowledge documents (a document that has certification by a notary public).
(6) Commercial paper and related documents.
The Best Evidence Rule
One only needs to present documentary evidence (that is, the original writing or a duplicate) of an event when the party is seeking to prove the contents of a writing:
(1) The writing is a legally operative document (will, written contract, deed, mortgage, lease, a movie/photograph in an obscenity action, written libel, copyright material) or
(2) The witness is testifying to fact she learned solely from reading about them in a writing or watching them in a video and that witness has NO independent knowledge of the events.
Requirement of an Original Writing
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
However, a duplicate is admissible to the same extent as the original unless
(1) A genuine question is raised about the original’s authenticity or
(2) The circumstances make it unfair to admit the duplicate (e.g. unclear to read).
When is an original (or duplicate) NOT required
(1) It was lost or destroyed without bad faith
(2) An original cannot be obtained by any judicial process (e.g. subpoena); or
(3) It is not closely related to a controlling issue.
Jury Decisions Regarding Origional Writings
Ordinarily a judge will determine the admissibility of documents. The jury will determine the following issues:
(1) Whether the original of a writing, recording, or photograph existed;
(2) Whether the writing, recording, or photograph is the original or; or
(3) Whether the evidence offered accurately reflects the contents of the original.
