Tangible Evidence

Question 1

Authenticating Real Evidence

Answer 1

1. Personal Knowledge: Testimony of a witness that recognizes and identifies the item
2. Distinctive Feature or Markings
3. Chain of Custody

Question 2

Authenticating Documentary Evidence

Answer 2

1. Consent of the Parties
2. Eyewitness Testimony AND Distinctive Features
3. Ancient Documents: Must be
   
   1. At least 20 years old
   2. In a condition unlikely to create suspicion AND
   3. Was found in a place where such documents would be if authentic
4. Reply Letter Doctrine: Authenticated by evidence that it was written in response to another letter
5. Handwritten Verification: Either by (1) Expert or Jury comparison to known sample or (2) lay witness with personal knowledge of the handwriting
6. Self-Authenticating: (FRE 902)
   
   1. Public Documents bearing a Government Seal
   2. Certified Copies of Public Record
   3. Official Publications issued by Public Authority
   4. Trade inscriptions
   5. Notarized documents
   6. Commercial paper

Question 3

Authenticating Oral Statements

Answer 3

1. Voice Identification: Can be authenticated by anyone who heard the voice at the time
2. Telephone Conversations: Four Options
   
   1. Caller recognizes speaker’s voice
   2. The speaker knew facts that only a particular person would not
   3. The caller dialed the number believed to be the speaker’s and the speaker identified themself upon answering
   4. The caller dialed a business and spoke with a person who answered questions about business regularly conducted over the phone

Question 4

The Best Evidence Rule (Original Document Rule)

Answer 4

Rule: No describing the document instead of producing them, unless there is a need to do so.

• The rule limits the ability to present other evidence of the contents of the document (pictures or recordings of the document instead of the document itself)
• The rule prohibits witness testimony about a document WHEN THE DOCUMENT CAN BE PRODUCED

Duplicates

Duplicates are permissible unless

1. There is a genuine question about authenticity of the original OR
2. In fairness, the original should be required

Apply Best Evidence Rule when Contents are at Issue

If the contents of a document are at issue, the BER applies.

• The document was used as proof of an event
• The document has a legal effect (contract/will)
• Witness testimony is based on facts learned from the document

Question 5

Exceptions to the Best Evidence Rule

Answer 5

1. Document is Unavailable
   
   1. Original is Lost or Destroyed
   2. Original cannot be obtained through the judicial process OR
   3. The party against whom the document is introduced had control of the original and knew that it was going to be an issue at trial (and now the original is not able to be produced)
2. Public Records
   
   1. A certified copy can be used instead of the original
3. Voluminous Writings
   
   1. May present in the form of a chart or summary
   2. Originals or duplicates must be made available to other party
4. Admission by Party

Question 6

The Parole Evidence Rule

Answer 6

Purpose is to exclude evidence that, if introduced, would change the terms of a written contract. No extrinsic evidence may be submitted,

[Many contracts are written as complete integrations.]

Partial Integration

If a contract is only partially integrated, the rule excludes evidence that would add to the contract BUT allows evidence that might contradict the terms.

Exceptions

Extrinsic evidence about the contract can be admitted to:

• Clarify ambiguity
• Prove a custom of trade or course of dealing
• Show fraud, duress, mistake, or illegal purpose, OR
• Show whether consideration had been paid