Real and Documentary Evidence Flashcards
What are the self-authenticating documents (i.e. no need to est. foundation)?
1) Official gov’t publications
2) Certified copies of public OR private records on file in public office (e.g. a mtg/deed is a PRIVATE document that is filed in a public office)
3) Newspapers or mags
4) Trade inscriptions and labels (e.g. a label on a bottle of water)
5) Notarized (aka “acknowledged”) document
6) Commercial paper (i.e. the signatures are deemed genuine)
7) Certified business records (also admissable under hearsay) Don’t forget about hearsay!!
What are the 4 methods ofauthentication?
1) Eyewitness’ personal knowledge (e.g. witness observed X sign the document; can verify the photograph)
2) Proof of handwriting by….
- Lay person opinion (e.g. verifies based on familarity w/ handwriting);
- Expert comparison opinion (e.g. handwriting expert); OR
- Jury comparison (e.g. compare doc w/ example of X’s handwriting)
3) Ancient document rule: authenticity may be inferred IF the document is >20 yrs old
4) Solicited Reply Doctrine: doc can be authenticated by evidence that it was received in response to a prior communication to the alleged author (e.g., π mails K offer to ∆, properly addressed and posted, and later receives an acceptance purportedly signed by X)
What are the3 questions you need to ask for document/photo evidence?
- Has it been authenticated?
- Is it the best-evidence?
- Is there hearsay?
When is a document admissible (based on its authenticity)?
The Conditional Relevancy Std:A document is admissible if ct determines that there is sufficient evidence from which a reasonable juror could conclude doc is genuine
What is the purpose of the authentication?
If the relevance of a writing or picture depends on its source or authorship, a showing must be made that the writing is authentic (genuine)
What is the Best Evidence Rule?
A party who seeks to prove the contents of a writing must EITHER:
i) PRODUCE the “original writing”; OR
ii) provide an ACCEPTABLE EXCUSE for its absence (and provide secondary testimony like oral testimony or copy) “Writing” includes sound recordings, X-rays, photos and films
When does the Best Evidence Rule apply?
When a party seeks to prove the contents of a writing in TWO situations
1) the writing is a legally operative document in the present case (e.g. patent, deed, mtg, divorce decree, writen K)
2) witness is testifying to facts that she learned SOLELY from reading about them in a writing (BUT, not when witness has PERSONAL KNOWLEDGE independent of doc)
What is an original writing?
1) writing or its counterpart;
2) negative of film or print;
3) print-out of computer data; OR
4) photocopy (mechanical) Photocopies are admissible (to same extent as original) UNLESS it would be UNFAIR(e.g. a fuzzy photocopy) or there is a genuine question as to its AUTHENTICITY
What counts as a valid EXCUSE for non-production of original writing (under Best Evidence Rule)?
1) lost or destruction: can’t be found w/ due diligence;
2) Original is in possession of a third party outside the jurisdiction and is unattainable
3) Original is in possession of an adversary who after receiving notice fails to produce the original
NOTE: Secondary evidence would still be necessary if an excuse exists. The ct has to be PERSUADED by a preponderance of the evidence that an excuse has been established
When does the Best Evidence Rule NOT apply?
1) voluminous records can be presented viasummary or chart; PROVIDED orignal records would be admissible and are available for inspection
2) certified copies of public records
3) collateral docs (i.e. docs not important for case) can be proven by secondary evidence
4) Fact to be proved exists independently of the writing
What is real evidence? What are the reqs for admission?
Actual physical evidence.
1) It must be authenticated by witness testimony that she recognizes the object as what the proponent claims it to be
2) There must be evidence that it has been held in a substantially unbroken chain of possession
3) Must meet the balancing test
Give some examples of real evidence.
- Photos, diagrams, and maps
- Charts, models
- Exhibition of child in paternity suits
- Exhibition of injuries
- Jury view of the scene
- Demonstrations
