Pg 10 Flashcards
What is the identification scheme for an item of evidence for the plaintiff or the prosecution and for items for the defense?
Numbers are used for the plaintiff/prosecution and letters are used for the defendant. I.e.: exhibit one or exhibit A
Whenever an attorney hands an item of evidence to someone else, such as the witness or the opposing party, how should he identify the item?
By its identification marker, he cannot state what it is because that is unsworn testimony
When an item is offered into evidence, the court can allow counsel to do what?
A limited cross examination on the foundation that is offered
A court views evidence that is introduced, regarding its authenticity/identity/credibility, in what light?
The one most favourable to the proponent
What is a list of ways that you can authenticate evidence?
– Testimony of a witness with knowledge – non-expert opinion about handwriting – comparison by expert witness or trier of fact – distinctive characteristics – opinion identifying a person’s voice – evidence about a phone conversation – evidence about public record – ancient document or data compilation – process or system evidence - methods provided by statute or rule – demonstrative evidence - photographs – video – in court demonstrations – computer models or simulations
How do you authenticate evidence through the testimony of a witness with knowledge?
That person testifies that the item is what it is claimed to be which they know because of their relevant knowledge of the exhibit
What are some different ways that a witness can give testimony about evidence to authenticate it?
If she says she remembers signing the contract, drafting it, saw the defendant sign it, saw the defendant draft it, worked at Kinko’s and photocopied it for the party who said it was a contract that he signed, etc.
Is it possible to authenticate an item of evidence on cross-examination?
Yes, through testimony of the defendant that has knowledge of the item using leading questions
What are the different ways that personal knowledge of an item of evidence can be gotten?
Through any of the five senses
If you are authenticating an object of evidence through testimony of a witness with knowledge, what must be shown?
That the object is the one involved, and is in substantially the same condition as it was at the time of the incident. If changes have happened, they must be explained and the jury cannot be confused or mislead
What are the three ways you can authenticate a physical object through testimony of a witness with knowledge?
– Testimony of personal knowledge
– distinctive characteristics
– chain of custody
How do you authenticate an item of evidence through distinctive characteristics?
If the object is unique with identifying marks or labels, that can be offered
How do you authenticate an item of evidence through chain of custody?
If the item is not readily identifiable and has no distinctive characteristics or is fungible it can be authenticated through testimony of continuous possession by an individual together with testimony by each person that the object stayed in substantially the same condition during possession and and there is an accounting for its whereabouts between the time it was gotten and the time it went to court
If there was a break in custody for an item of evidence, can the item still be authenticated through the chain of custody method?
Yes, as long as the chain, viewed as a whole, supports the improbability of alteration, substitution, or change of condition. The proponent has to establish a reasonable probability that no modification happened. This creates a presumption of regularity for the chain of custody
How can an item of evidence be authenticated through non-expert opinion about handwriting?
A non-expert can give an opinion that the handwriting is genuine based on his familiarity with it that was not acquired for the current litigation
What are the ways that a non-expert can become familiar with another person‘s hand writing in order to authenticate it?
From seeing the person write, exchanging letters with them, being a bank employee that handles their checks, being present in his office where genuine writings were ordinarily held in the course of business, etc.
What is the standard to determine the sufficiency of a non-expert’s opinion about hand writing in order to authenticate the item of evidence?
A court decides if a reasonable jury viewing evidence most favourably to the proponent could believe the witness had sufficient familiarity to identify handwriting and that the identification is accurate. Need proof that the writings the witness observed are genuine
Is it enough for a non-expert to give an opinion about handwriting to authenticate it if he just says “I believe, I can’t be positive but, the writing is similar to.“?
Yes
If it ends up that a witness that is testifying to opinion about handwriting of another only had limited opportunity to familiarize himself with that person’s writing, does that affect the admissibility of the testimony?
No, it only goes to weight
What are some factors to be considered in weighing a non-expert opinion’s testimony about another person‘s hand writing for authentication?
If the observation happened a long time ago, if the person‘s handwriting has changed, if the circumstances are too incredible to testify with reliability
Is it possible for a non-expert to give an opinion about the handwriting of another for authentication by comparing it with specimens?
No, that is only for expert witnesses or the trier of fact
What can a non-expert that is testifying about the authenticity of a sample of handwriting be asked to do on cross-examination?
Pick out a genuine writing from false copies
What is the difference between an expert and a non-expert’s testimony?
Experts testify in the form of opinions and non-experts testify in the form of facts
When an expert witness gives an opinion on another person‘s hand writing for authentication, what happens?
He compares the document with an authenticated specimen and his opinion is based on that. He looks to see if there are so many common identifying characteristics that it’s possible to show the exemplar and the item have the same origin
What are some different things that an expert can give an opinion about for authentication of an item of evidence?
Ballistics, handwriting, fingerprints, DNA, type writing, tire tread marks, shoe prints, bite marks
What can a cross examiner do to an expert witness when the expert is trying to authenticate an item of evidence?
Can make him pick out the genuine from false samples, or give him any reasonable test of skill if it will aid the jury in deciding what weight to give the expert’s testimony
When can an expert refuse to do tests of his skill when he is there to authenticate an item of evidence?
If he needs professional equipment to do it and that equipment is not available
How do you authenticate an item of evidence through its distinctive characteristics?
Talk about its appearance, content, substance, internal patterns, distinctive characteristics that when taken together with all the circumstances support a finding that the matter is with the proponent claims it to be
How can you authenticate a letter through distinctive characteristics?
By talking about its contents containing information that few others would know
What is the reply doctrine?
Once a letter/email/fax/telegram/text/phone call has been sent, anything in reply to it authenticates it based on its contents
If the plaintiff knows an exhibit is a letter that was sent by the defendant because she sent a letter to him a few days before and got this letter in response and his letter references her letter and its contents, is that enough to authenticate the item?
Yes, through distinctive characteristics and the reply doctrine
If a plaintiff doesn’t remember signing, drafting, or seeing the other party sign or draft a contract, but she does remember the terms that reflect her deal, is that enough to authenticate it?
Yes
What is required for a person to give an opinion identifying another person’s voice in order to authenticate that item of evidence?
The hearer must have sufficient familiarity with the speaker’s voice, which can be gotten before or after hearing the voice to be identified and can be first-hand or electronically transmitted
Is it possible for a lay witness to gain familiarity with the voice of another for the express purpose of litigation?
Yes. And the person needn’t have ever heard the other person’s voice in person
If you get a threatening phone call and the police catch the guy, do a lineup, you listen to each persons’ voices, and pick out the defendant, is that enough to authenticate it even though you didn’t know that person’s voice before the phone call?
Yes
