II. AUTHENTICATION OF WRITINGS

Question 1

Whenever a writing appears on the exam, be alert to 3 potential issues (aside from relevance):

Answer 1

authentication, best evidence rule, and hearsay.

Question 2

OVERVIEW

Answer 2

A showing must be made that the writing is authentic (genuine), i.e., that it is what it purports to be. This is the process of authentication.
In the absence of a stipulation as to authenticity, a FOUNDATION must be made in order for the document to be admissible.

Question 3

A. Methods of Authentication, In General 4
Issue: whether X is the author of DOCUMENT.
1,

Answer 3

1. Witness’s personal knowledge: Witness observed X sign document.
   

Question 4

A. Methods of Authentication, In General

2. Proof of Handwriting 3

Answer 4

(a) Lay opinion: Lay witness testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as result of experience in normal course of affairs.
(b) Expert comparison opinion: Handwriting expert testifies to opinion that X wrote document on basis of comparison between document and genuine sample (exemplar) of X’s handwriting.
(c) Jury comparison: Jury compares document with exemplar of X’s handwriting.

Question 5

A. Methods of Authentication, In General

3, ancient

Answer 5

Ancient Document Rule—authenticity may be inferred IF document is: (a) at least 20 years old
(b) facially free of suspicion
(c) found in a place of natural custody


Question 6

A. Methods of Authentication, In General

4. Solicited Reply Doctrine

Answer 6

4. Solicited Reply Doctrine
   Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
   Example: P mails contract offer to X, properly addressed and posted, and later receives an acceptance purportedly signed by X.

Question 7

A. Methods of Authentication, In General

burden?

Answer 7

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 8

B. Self-AuthenticatingDocuments

1. In General.

Answer 8

Presumed authentic—no need for foundation testimony:

(a) Official publications
(b) Certified copies of public or private records on file in public office (deeds filed in office)
(c) Newspapers or periodicals
(d) Trade inscriptions and labels
(e) Acknowledged document
(f) Commercial paper

Question 9

B. Self-AuthenticatingDocuments

2. Texas rule of self-authentication for BUSINESS RECORDS:

Answer 9

(1) Affidavit by custodian or other person capable of testifying that the record qualifies for the business records hearsay exception.
(2) Business records hearsay exception is satisfied.
(3) Original or exact duplicate of the business record is attached to the affidavit.
(4) Notice to other parties: Affidavit and attachment are filed with court at least 14 days prior to trial and prompt notice is given to other parties.
- makes the attachment self-authenticating

Question 10

C. 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.
-dont need to be photographer or knew the photo existed