Tangible Evidence Flashcards
What is authentication of tangible evidence?
All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is.
How are physical objects authenticated?
Generally authenticated through personal knowledge, distinctive characteristics, or chain of custody (when applicable).
How are reproductions (photos diagrams, maps) authenticated?
Authenticated by testimony of witness with personal knowledge that object accurately depicts what its proponent claims it does.
How are X-rays and EKGs authenticated?
process used was accurate, machine works, AND operators qualified
How is documentary evidence usually authenticated?
Usually authenticated by stipulation, eyewitness testimony, or handwriting verification?
How are ancient documents authenticated?
At least 20 years old, in condition unlikely to create suspicion, and found in a likely place if it were authentic
How are public records authenticated?
recorded/filed in public office
How are reply letters authenticated?
Written in response to communication
How are handwriting verification authenticated?
Comparison or non expert with personal knowledge BUT the non expert cannot become familiar with the handwriting for the purpose of the litigation.
How are self-authenticating documents authenticated? Examples?
Doesn’t require extrinsic evidence (e.g. government authorized documents, certified public records, or newspaper)
How can you authenticate oral statements via Voice IDs?
Can be identified by any person who has heard voice at any time.
How can you authenticate oral statements via the telephone?
Party to telephone conversation may authenticate statements made by a particular person during that conversation if
-> caller recognized the speaker’s voice
-> speaker knew facts that only a particular person would know
-> caller dialed number believed to be speaker’s and speaker identified himself upon answering
OR
-> caller dialed a business and spoke about business regularly conducted over the phone
What is the best evidence rule?
The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of a writing, recording, or photograph (including electronic documents, x-rays, and videos) WHEN
-> contents of the document are at issue
OR
-> witness is relying on contents when testifying.
Aka the original document rule.
Is real or physical evidence subject to the best evidence rule?
Real or physical evidence is not subject to this rule.
Does the best evidence rule also apply to collateral issues?
No, a collateral issue can be evidenced with other admissible evidence that doesn’t fall under the “best evidence rule.”
When is a duplicate not reliable under the best evidence rule?
A duplicate is reliable UNLESS there is a genuine question as to the authenticity of the original; OR the circumstances make it unfair to admit the duplicate
Are handwritten copies of originals considered duplicates?
No.
When are original documents not required under the best evidence rule?
Originals not required when
-> originals are lost or destroyed in good faith
-> party against whom original would be offered failed to produce it
OR
-> document not closely related to controlling issue
How are content of a public record generally proved under the best evidence rule?
Certified copy
What are the rules linked to voluminous documents under the best evidence rule?
- contents of voluminous documents may be presented as summary if such contents cannot be conveniently examined in court
- proponent must make originals or duplicates available for examination and copying by other parties at a reasonable time and place
- court may order proponent to produce the originals or duplicates in court
How else can the contents of original may be proved that isn’t through a document?
May prove contents of original by admission by party against whom it is offered without accounting for original.
What does the parol evidence rule stipulate?
Operates to exclude evidence that, if introduced, would change the terms of a written agreement.
How does the PER work when there is complete integration?
Contains all terms to which parties agreed.
PER in effect and no extrinsic evidence is admissible.
What is partial integration?
Contains some but not all agreed-upon terms.
Under PER
-> extrinsic evidence that adds to writing admissible
-> evidence that contradicts not admissible
What are the exceptions under the PER?
Extrinsic evidence always admissible to
-> clarify ambiguity
-> prove course of dealings
-> show fraud/ duress/ mistake
OR
-> show presence/absence of consideration
Evidence at what point in time is excluded and not excluded by the PER?
Only evidence of prior or contemporaneous negotiations is subject to the rule.
Negotiations after contract executed not prohibited by the rule.
