Tangible Evidence

Question 1

Authentification - Physical Evidence

Answer 1

Tangible evidence is any evidence not presented as oral or verbal testimony

Example 81: Documentary evidence: Letters, contracts

Example 82: Physical evidence: Guns, knives, clothing, videotapes

A. Authentication

• All tangible evidence must be authenticated.
• Authentication is showing that an object is what it is claimed to be.

1. Authenticating Physical Evidence FRE 901

a. Personal Knowledge of the witness who has familiarity with the object

Example 83: George Atzerodt states, “That is John Wilkes Booth’s derringer.”

b. Using distinctive characteristics

Example 84: Booth had his initials engraved on his derringer.

Example 85: Electronic documents can be identified by their meta-data.

c. By chain of custody

Example 86: Blood samples or drug samples

• Witness must verify whereabouts from time evidence was collected until trial

d. Reproductions FRE 901

Example 87: Photographs, diagrams, maps, movies

• A witness who has personal knowledge must testify that it accurately depicts what it is claimed to represent.

e. X-Rays or Electrocardiograms (PMOC)

1) Accurate process
2) Machine was working properly
3) Qualified operator and
4) Show chain of custody

Question 2

Authentification - Documentary Evidence

Answer 2

Methods of Authenticating Documentary Evidence

1) Stipulation ( parties agree)
2) Testimony of an eyewitness; or

Example 88: David Herold traveled with John Wilkes Booth. He testifies that the diary belongs to Booth, and he saw Booth writing in it.

3)Handwriting verification

Types of Documentary Evidence

1. Ancient Documents

i) More than 20 years old;
ii) In a condition that is unlikely to create suspicion about its authenticity; and
iii) Found in a place it would likely be found.

Example 89: A letter written on papyrus that is thought to be written by Pharaoh is found in the basement of Wal-Mart. This creates suspicion and is not found in a place it would likely be found.

2. Public Records

• Recorded or filed in a public office as authorized by law; or
• The document is from the office where items of that kind are kept.

3. Reply Letter Doctrine

• Written response to an original communication; and
• Unlikely it was forged by someone else

4. Handwriting Verification

1. Comparison - Expert witness or the trier of fact compares the writing in question with another writing that has been proven to be genuine.
2. A non-expert witness with personal knowledge of the handwriting who recognizes the handwriting

Example 90: David Herold needs to have original knowledge of what John Wilkes Booth’s handwriting looks like before litigation.

Note 14: A non-expert witness cannot have become familiar with the handwriting for litigation purposes.

Self-Authenticating Documents do NOT require extrinsic proof of authenticity

• Public documents bearing a seal
• Certified copies of public records
• Newspapers or periodicals;
• Trade inscriptions (e.g., a label)
• Notarized or acknowledged documents vii. Commercial paper
• Documents declared by federal statute to be authentic
• Records of regularly conducted business activity

Editor’s Note 2: ’The business records need to be certified by a custodian of the records.

Note 15: Although most self-authenticating documents do not require advance notice, records of regularly conducted business activity do require advance notice provided to opposing counsel.

Attesting Witness - Testimony of attesting witness is generally not required to authenticate a document

Question 3

Authentification - Oral Statements

Answer 3

Voice Identification

• Any person who has heard the voice at any time
• Even if made for purpose of litigation
• Makes no difference whether mechanical, electronic, or live

Example 91: An audience member heard John Wilkes Booth yell. Then, she stands outside the window of his jail cell to hear him talk. Her testimony is admissible as identification of Booth’s voice.

A party to a telephone conversation may authenticate statements made during that conversation by testifying that:

i. He recognized the speaker’s voice;
ii. The speaker knew facts that only a particular person would have known;

Example 92: George Atzerodt testifies to a telephone conversation with John Wilkes Booth. If Booth states facts that only Booth could know, that could be authentication that it was in fact Booth on the phone.

iii. The caller dialed the number that was believed to be the speaker’s and the speaker identified himself upon answering; or
iv. The caller dialed a business number and spoke to the person about regular business.

Question 4

Best Evidence Rule

Answer 4

Exam Tip 5: The Best Evidence Rule is frequently a wrong answer on the MBE.

The Best Evidence Rule (Original document rule) ONLY applies when the material terms of a writing are at issue or if a witness is relying on the writing to testify. So, beware of a fact pattern in which the witness is not relying on the document while testifying. Beware of a fact pattern in which the witness is relying on a writing but for an immaterial matter .

1.In General

• Applies to writings, recordings, photographs, electronic documents, X-rays, and videos
• Applies when
  
  • The documents of a writing are at issue; or
  • A witness is relying on the document when testifying.

Note 16: The Best Evidence Rule does NOT require a party to present the most persuasive evidence; nor does it require that the document be presented if the witness can testify without it

Example 93: Clara Harris wrote down her observations immediately after the shooting. She can testify about the event, even though a writing exists, if she can testify about the document without it.

2.Contents “at issue”

• A document is being used as proof of an event
• The document has legal effect (e.g., a will or contract) or
• The witness is testifying based on the facts learned in the writing

3.Original

• An original of a writing or recording includes any counterpart intended to have the same affect as the original

Example 94: A printout of electronically stored information

Example 95: A negative or print of a photograph

4.Exceptions

• A duplicate is admissible if produced accurately unless
  
  • A genuine question of authenticity of the original arises; or
  • unfair to admit the duplicate (e.g., a partial copy)

Note 17: A handwritten copy of an original is not a duplicate and Is only admissible when the original or duplicate lost, destroyed, or in the possession of an adversary who fails to produce it.

• Original Unavailable - Original Not Required and Duplicate Will Suffice ​
  
  • All originals lost or destroyed
  • Original could not be obtained through any judicial process
  • Party against whom it is being offered is in control of it and fails to produce it when they had notice the writing was needed at trial; or
  • collateral matter
• Copies of Public Records
  
  • Must be certified
  • If non-certified, there must be testimony by someone who saw the original
  • If no copies available, court may allow other means to prove the issue
• Summaries or a Chart of an Original
  
  • Allowed if proponent makes originals or duplicates available for copy and examination
  • By court order
• Admission by a Party FRE 1007
  
  • Can be a substitute if the contents of a writing, recording, or photograph are proven by testimony of the party against whom it is being offered
• Role of Court FRE 1008
  
  • Generally, Court determines whether Best Evidence Rule has been satisfied

Question 5

Parol Evidence Rule (PER)

Answer 5

• Exclusionary rule that relates to written contracts
• Assumes that a written contract represents the complete agreement
• Complete Integration: PER applies and no extrinsic evidence is allowed at trial
• Partial Integration: If the document contains some but not all of the terms, extrinsic evidence is allowed at trial and PER would not apply.