Tangible Evidence

Question 1

What is tangible evidence generally?

Answer 1

Evidence that is not presented in the form of testimony by a witness; it includes both documentary evidence like a written contract or a letter, and physical objects like a weapon, clothing, injury or sound recording.

Question 2

What is the general rule on authenticating tangible evidence?

Answer 2

ALL tangible evidence must be authenticated. To authenticated an item, the proponent must produce sufficient evidence to support a finding that the thing is what the proponent claims it is. This is a lesser standard than a preponderance of the evidence.

Question 3

How are physical objects authenticated?

Answer 3

1. Personal knowledge
2. Distinctive characteristics
3. Chain of Custody
4. Reproductions and explanatory evidence
5. X-Ray images and electrocardiograms

Question 4

How is tangible evidence authenticated through personal knowledge?

Answer 4

A witness’s testimony of personal knowledge.

EX: The owner of a stolen pocket watch saying: yes, that is my pocket watch that was stolen.

Question 5

How can tangible evidence be authenticated by its distinctive characteristics?

Answer 5

Testimony as to its distinctive characteristics.

EX: An electronically stored document may be authenticated by its metadata (like its filename, file type, creation date and permissions)

Question 6

How can tangible evidence be authenticated by chain of custody?

Answer 6

Authentication by chain of custody must be used with respect to a physical object that could easily be tampered with or confused with a similar item. such as a blood sample. The witness testifying must account for the whereabouts of the item from the time it was obtained up until its introduction at the trial.

Question 7

How can reproductions and explanatory evidence be used to authenticate tangible evidence?

Answer 7

When reproductions like maps, photos, movies or diagrams are intro’d into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object depicts what its proponent claims it does.

The creator must not generally testify, though they can. if they do, they generally authenticate by confirming that the particular reproduction method is accurate.

Question 8

How are x-rays and other physical representations of things that cannot otherwise be seen (like the inner workings of the human body) authenticated?

Answer 8

these things, unlike other reproductions, cannot be authenticated merely by the testimony of a witness that they are accurate representations of facts. To authenticate them then, it must be:

1. shown that an accurate process was used
2. that the machine used was working properly,
3. that operator was qualified to operate it, AND
4. a chain of custody is established

Question 9

How is documentary evidence generally authenticated?

Answer 9

Documentary evidence is commonly authenticated by stipulation, testimony of an eyewitness, or handwriting verification.

Question 10

How are ancient documents and data compilations authenticated?

Answer 10

A document or data compilation, including data stored electronically, is considered authenticated if it is:

1. At lest 20 years old
2. in a condition unlikely to create suspicion as to its authenticity and
3. found in a place where it would likely to be if it were authentic.

Question 11

How are public records authenticated?

Answer 11

A public record may be authenticated by evidence that the document was recorded or filed in a public office as authorized by law or that the document is from the office where the items of that kind are kept.

Question 12

What is the reply letter doctrine?

Answer 12

The reply letter states that a document may be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.

Question 13

How can handwriting verification be used to authenticate a writing.

Answer 13

There are two methods by which handwriting may be used to authenticate a writing:

1. Comparison: An expert witness or the trier of fact may compare the writing in question with another writing that has been proven to be genuine in order to determine the authenticity of the writing in question. (also applies to fibers, fingerprints, and hair)
2. non-expert opinion: A lay witness with personal knowledge of the claimed author’s handwriting may testify as to whether the document is in that person’s handwriting. The lay witness must not have become familiar with the handwriting for the purposes of litigation.

Question 14

Which documents are self-authenticating? (do not require extrinsic evidence of authenticity in order to be admitted)

Answer 14

1. Public document bearing a governmental seal and signature of an authorized governmental official or that are not sealed but signed and certified by separate governmental officials.
2. Certified copies of public records
3. official publications issued by a public authority
4. Newspapers and periodicals
5. Trade inscriptions (labels affixed in the course of business that indicate ownership)
6. Notarized acknowledgment documents
7. Commercial paper (including the signature and related documents)
8. Any document, signature or other item declared by federal statute to be authentic
9. Records of a regularly-conducted activity certified by a custodian of the records. (NOTE: in this case only the proponent must give notice and give an opportunity for inspection so adverse party has a fair opportunity to challenge

Question 15

Must attesting witnesses authenticate a document?

Answer 15

No, the testimony of a witness who attests or subscribes to a document generally is not required to authenticate a document. However, such testimony may be required by state law, such as to authenticate a will.

Question 16

When must oral statements be authenticated?

Answer 16

Oral statements may not need to be authenticated as to the ID of the speaker in cases in which the identity is important (such as an opposing party’s statement).

Question 17

How are voices identified and authenticated?

Answer 17

A voice can be identified by any person who has heard the voice at any time (including one made familiar solely for the purposes of litigation, in contrast to handwriting) It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.

Question 18

How are telephone conversations authenticated?

Answer 18

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

1. The caller recognized the speaker’s voice
2. The speaker knew facts that only a particular person would know.
3. The called dialed a number believed to be the speaker’s, and the speaker ID himself when answering; or
4. The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone

Question 19

What is the best evidence rule?

Answer 19

The best evidence rule (also known as the original document rule) requires that the original document (or reliable duplicate) be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. A “writing” is defined as “letters, words, numbers or their equivalent set down in any form.”

Question 20

When does the best evidence rule apply?

Answer 20

ONLY when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.

NOTE: this is often a wrong answer choice

ALSO: does NOT require a party to present the most persuasive, nor does it require the presentation of a documentary evidence instead of a witness’ testimony simply because a document is available.

EX: A witness writes down her observations of an accident immediately after it happens. The best evidence rule does not prevent the witness from testifying simply because the writing exists

Question 21

For the best evidence rule, when are the contents of a document at issue?

Answer 21

The contents of a document are at issue when:

1. The document is used as proof of the happening of an event, such as with a photograph of a bank robbery
2. The document has a legal effect, such as with a contract or a will; or
3. The witness is testifying based on facts learned from the writing (as opposed to personal knowledge), such as with an x-ray image.

Question 22

For the best evidence rule, what does ‘original’ mean?

Answer 22

An original of a writing or recording includes any counterpart intended to have the same effect as the original by the person who executed or issued it. If the information is stored electronically, any legible printout (or other output readable by sight) that reflects the info accurately is an original. An original of a photograph includes the negative and any print made from it.

Question 23

What are the exceptions to the Best Evidence Rule?

Answer 23

1. Duplicates
2. Original Unavailable
3. Public Records
4. Summaries
5. Admission by party

Question 24

What is the duplicate exception to the best evidence rule?

Answer 24

A duplicate is a counterpart produced by any process or technique that accurately reproduces the original. A duplicate is admissible to the same extent as the original unless:

1. There is a genuine question as to the authenticity of the original
2. the circumstances make it unfair to admit the duplicates, such as may be the case when only the part of the original is duplicated.

HANDWRITTEN COPIES: Handwritten copies of an original are not duplicates and are only admissible only when the original or duplicate is lost, destroyed, or in the possession of an adversary who fails to produce it.

Question 25

What is the ‘original unavailable’ exception to the Best Evidence Rule

Answer 25

The original is not required and other evidence of its contents is admissible if:

1. All of the originals are lost or destroyed, and not by the proponent acting in bad faith
2. The original cannot be obtained by any available judicial process
3. The party against whom the original would be offered a. had control of the original, b. was at the time put on notice that the original would be the subject of proof at the trial or hearing, and c. failed to produce it at the trial or hearing, OR
4. The writing, recording, or photograph is not closely related to a controlling issue.

In such cases, once the party has accounted for the absence of an original, the party may prove the contents of the writing, recording, or photograph by other means.

Question 26

What is the public records exception to the Best Evidence Rule?

Answer 26

The contents of a public record (an official record or a document recorded or filed in a public office as authorized by law) may be, and generally are, proved by a certified copy rather than by the original record. Alternatively, a public record may be proved by a copy of the record plus the testimony of a person who has compared the copy with the original. If a certified or compared copy cannot by obtained by reasonable diligence, the contents may be proved by other evidence.

Question 27

What is the summaries exception to the best evidence rule?

Answer 27

The contents of voluminous writings, recordings, or photographs may be presented in the form of a chart, summary or miscalculation, if such contents cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination and copying by other parties at a reasonable time and place. The court may order the proponent to produce the originals or duplicates in court.

Question 28

What is the ‘admission by party’ exception to the best evidence rule?

Answer 28

The proponent may prove the contents of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. In such case, the proponent does not need to account for the original.

Out of Court Statement: If a party against whom a document is offered admits to the contents of the document in an oral statement made out of court (other than during a deposition), the best evidence rule applies.The proponent must account for the original before using the adverse party’s oral statement to prove the contents of the document.

Question 29

what is the role of court and jury in the best evidence rule?

Answer 29

Ordinarily, the court determines whether the proponent has fulfilled the conditions for admitting other evidence of the content of the document. If a jury trial, however, the jury determines any issue as to whether:

1. An asserted writing, recording or photograph ever existed
2. Another writing, recording, or photograph produced at trial is the original; or
3. Other evidence of the content correctly reflects the content.

Question 30

What is the parole evidence rule?

Answer 30

Generally, the parol evidence rule operates to exclude evidence that, if introduced, would change the terms of the written agreement. The rule is baed on the assumption that a written contract represents the complete agreement between parties.

Question 31

What is complete integration under the parole evidence rule?

Answer 31

If a written agreement is a complete integration (i.e., contains all of the terms to which the parties agreed), then the parol evidence rule is in effect, and no extrinsic evidence may be introduced.

Question 32

What about parole evidence and partial integration?

Answer 32

A contract that contains some, but not all, or the terms to which the parties agreed is a partial integration. In this case, the extrinsic evidence that adds to the writing may be admitted. Evidence that contradicts the writing may not be admitted.

Question 33

What are the exceptions to the parole evidence rule?

Answer 33

Extrinsic evidence can always be admitted for the following purposes:

1. To clarify an ambiguity in terms of the writing,
2. To prove trade custom or course of dealings
3. To show fraud, duress, mistake, or illegal purpose on the part of the one or both parties; or
4. To show that consideration has (or has not) been paid.

Question 34

What kind of evidence is subject to the parol evidence rule?

Answer 34

Only evidence of prior contemporaneous negotiations is subject to the parol evidence rule. In other words, evidence of negotiations conducted AFTER the execution of the written contract is not prohibited by the parol evidence rule and may be offered to prove subsequent modifications of the agreement.

Question 35

Are demonstrations and experiments allowed to be performed in the courtroom?

Answer 35

Yes, a court may allow demonstrations and experiments to be performed in the courtroom. This may include exhibition of injuries in a personal injury or criminal case. A court has discretion to exclude evidence of personal injuries if the demonstration of such severe injuries would result in unfair prejudice. A court may also exclude a demo that cannot be effectively cross-examined. Science experiments are permitted but may be excluded if they will result in undue waste of time or confusion of issues.