Misc: Documents, judicial notice, etc

Question 1

Authentication rule, describe it

Answer 1

Every item of physical evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it is.

Question 2

How do you prove that a document is authentic?

Answer 2

• Proving authentication – may be proved by any means that serve to establish authenticity (low burden) (you only need to convince the jury)
• Self-authenticating evidence - writings that contain identifying information do not need separate authentication
  
  • >> E.g., deeds, notarized documents, newspapers

Question 3

When is a document self-authenticated?

Answer 3

• Ancient documents - automatically authenticated if:

1. 20 or more years old;
2. Does not present any irregularities on its face; and
3. Found in a place of natural custody

Question 4

How do you authenticate Voice

Answer 4

Voice - whether heard firsthand or through a recording, a voice may be identified by anyone who heard the voice at any time

Question 5

Rule for authentication of non-unique items

Answer 5

• Non-unique items - item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe)

>> Proponent must establish ‘‘chain of custody,” i.e., that the proffered evidence is the same item it is claimed to be (will be admissible absent large breaks in chain)

Question 6

Best evidence rule

Answer 6

If evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable

Question 7

What is written for purposes of best evidence rule?

Answer 7

'’Writing’’= any tangible collection of data (e.g., videos, documents, photos, books, e-mails, text messages, computer drives, x-rays)

Question 8

Best Evidence Rule, applicability

Answer 8

Applicability- rule onIy applies if evidence is offered to prove its contents (e.g., W’s knowledge is obtained from a writing, case turns on contents of a legal instrument, etc.)

Question 9

What evidence is sufficient to prove a writing’s content?

Answer 9

1. Originals
2. Duplicates - must be a machine or carbon copy
   
   • Admissible unless there is a genuine question as to the authenticity of the original itself
3. Testimony regarding contents - admissible if original is lost or destroyed, unless done so in bad faith by proponent of testimony

Question 10

What is the “voluminous documents” exception?

Answer 10

A voluminous series of documents may be summarized in court

>> Originals relied upon must be available for inspection

Question 11

What is the completeness doctrine?

Answer 11

if a party introduces part of a writing or record into evidence, an adverse party may introduce evidence that should be fairly considered with it

Question 12

Judicial Notice, what it is?

Answer 12

A court may recognize a fact as true without formal presentation of evidence, either on its own or upon formal request of a party

Question 13

Requirement of facts to be judicial notice?

Answer 13

1. Manifest facts- those capable of verification by a source with unquestionable accuracy (e.g., calendar, almanac), or
2. Notorious facts - those generally known within the jurisdiction

Question 14

How judicial notice of laws work?

Answer 14

Judicial notice of laws- court must take judicial notice of fed. and state laws and regulations

• All other laws - court has discretion to take judicial notice
• *>>** E.g., municipal ordinances, foreign laws, etc.

Question 15

What is the effect of judicial notice? (civ vs criminal)

Answer 15

Effect of judicially-noticed facts/laws:

• Civil - jury must take judicially-noticed facts as conclusive
• Criminal – jury may take judicially- noticed facts as conclusive, but is not required to

Question 16

What is the confrontation clause?

Answer 16

An otherwise admissible out-of-court statement offered against D in a criminal case may be excluded under the 6th Amend. Confrontation Clause

“in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

Question 17

Confrontation clause applied, requirements

Answer 17

Out-of-court statement offered against D will be excluded if:

1. The declarant is currently unavailable;
2. D had no prior opportunity to cross-examine the declarant about the statement at the time it was made; and
3. The statement is testimonial

• Exception - an out-of-court statement will not be excluded if declarant is unavailable as a result of D’s own wrongdoing

Question 18

What is testimonial statement under confrontation clause

Answer 18

Testimonial statement - includes:

• Prior statements made during court proceedings
• Statements made in furtherance of a police investigation

>> I.e., a statement aimed at producing evidence potentially relevant to a later prosecution

Question 19

Confrontation Clause Testimonial Exception

Answer 19

Exception- statements made to police during an ongoing emergency are non­ testimonial

They can be admitted without violating the Confrontation Clause

Question 20

Confrontation clause and co-defendant rule

Answer 20

The Confrontation Clause bars admission of an out-of­ court statement by a non-testifying co-D if the statement expressly implicates another D

Question 21

Exception to co-defendant statement exclusion (confrontation)

Answer 21

Exceptions - A co-D’s out-of-court statement is admissible if either:

1. Declarant co-D testifies- Confrontation Clause does not bar an out-of-court statement if the declarant co-D testifies and is subject to cross­ exam
2. Redaction - portions of the co-D’s testimony referring to the non-declarant D are redacted
   
   • >> Redaction is not effective unless it clearly makes the non-declarant co-D’s identity anonymous
3. Coerced confession- the statement is used to rebut a charge of a coerced confession

Question 22

How do you authenticate a Photo?

Answer 22

A W must identify the photo as a portrayal of the facts relevant to the issue, and it must confirm that is a correct representation of those facts. A witness familiar with the scene is sufficient

Robot Camera: If no one can confirm the scene, then authentication would occur by showing that the camera was correctly operated.