Tangible Evidence Flashcards
What is tangible evidence?
evidence that’s not presented in the form of testimony by a witness
- Documentary Evidence
- Physical Objects
Authentication as a condition precedent to admissibility requires evidence to be what?
To authenticate an item, proponent must produce sufficient evidence to support a finding that the matter in question is what the proponent claims it to be
When is demonstrative Evidence Admissible?
Court may allow demonstrations & experiments to be performed in the courtroom
- Court has discretion to exclude evidence of pers. injury if the demo. of such severe injuries would result in unfair prejudice
- Court may exclude demo that can’t he effectively cross-examined
- Science exp. are permitted but may be excluded if they will result in undue waste of time or confusion of the issues
Authentication of Physical Objects
Authenticated by testimony of:
- personal knowledge or the object
- its distinctive characteristic or
- Chain of Custody (when applicable)
What is required for a chain of custody with physical objects?
Authentication by chain of custody must be used w/ respect to physical objects that could easily be tampered with or confused with a similar object. The witness testifying must:
- Account for item’s whereabouts from the time it was obtained until its introduction at trial
- The party entering the item must account for any change in the evidence
Introduction of Reproductions
Authenticated by testimony of a witness w/ pers. knwoledge that the object accurately depicts what its proponent claims it does
X-ray Images & Electrocardiograms
Physical representations of things that can’t otherwise be seen
- Can’t be authenticated by the testimony of a witness that they are accurate reproductions of the facts
- To authenticate - must be shown that:
- an accurate process was used
- The machine used was working properly, and
- the operator of the machine was qualified to operate it
- Chain of custody must also be est.
Documentary Evidence
Usually authenticated by stipulation, eyewitness testimony, or handwriting verification
- Ancient Documents
- Public Records
- Reply Letter
- Handwriting Verification
- Self-Authenticating
Ancient Documents
Authentic if it is:
- At least 20 years old
- In a condition unlikely to create suspicion as to its authenticity, and
- Found in a place where it would likely be if it were authentic
Public record
Authenticated by evidence that the doc. was:
- recorded or filed in a public office as authorized by law or
- that the document is from the office where items of that kind are kept
Reply Letter Doctrine
Written in response to a communication
- 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 1st communication
Handwritting Verification
2 ways handwriting verification may be used to authenticate a writing
- Comparison by Expert or Trier of Fact OR
- Compare w/ another writing that has been proven to be genuine
- May also be used to auth. fingerprints, cloth fibers, hair
- Non-Expert with personal knowledge of the claimed author’s handwriting
- Can testify as to whether the doc. is in that person’s handwriting
- Lay witness may not have become familiar with the handwriting for the purp. of litigation
Self-Authenticating Documents
The following are self-authenticating, they don’t need extrinsic evidenceof authenticity in order to be admitted
- Pub. doc. bearing gov’t seal & signature of auth. gov’t official or not sealed but signed by auth. gov’t official & certified by another auth. gov’t official
- Certified copies of pub. rec.
- Official publications issued by pub. authority
- Newspapers and periodicals
- Trade Inspections
- Notarized documents
- Commercial paper
- Any doc., signature, or other item declared by fed. statute to be authentic, and
- Records of a regularly conducted activity certified by a custodian of the records
Oral Statements
May need to be authenticated as to the identity of the speaker in cases in which that identity is important
Voice Identification
Can be identified by any person who has heard the voice at any time (including one made familiar solely for purp. of litigation)
Telephone Conversations
A party to a telephone conversation may authenticate statements made during that convo. as having been made by a particular person, by testifying that:
- The caller recognized the speakers voice
- The speaker knew facts that only a particular person would know
- The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering, or
- The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone
Best Evidence Rule
Requires that the original document (or reliable duplicate) be produced in order to prove the contents of a writing, recording, or photo, including elec. doc., x-ray, videos
- Writing - Letters, words, numbers or their equivalent set down in any form
When does the best evidence rule apply?
- When the contents of the doc. are at issue, or
- A witness is relying on the contents of the document when testifying
When are the contents of a document at issue?
- The doc. is used as proof of the happening of an event, such as with photos of a bank robbery
- The doc. has a legal effect, such as with a contract or will, OR
- The witness is testifying based on facts learned from the writing (as opposed to pers. knowledge), such as with x-ray image
When is best evidence rule not applicable?
- Where a fact to be proved has a source independent from the writing (the fact occurred regardless of whether the writing exists)
- Then the contents are not at issue & the best evidence rule doesn’t apply
What qualifies as an original for the purposes of the best evidence rule?
Must be produced to prove contents of writing when contents are at issue or witness is relying on contents when testifying
- An Original
- A Duplicate, unless gen. question as to auth. of original or circ. make it unfair to admit the dup.
- Certified copy of a public record
- Summaries of voluminous records, unless there is a genuine question of authenticity
If best evidence rule applies, when is the original not required?
If the evidence is:
- Lost or destroyed (not in bad faith)
- Opponent has poss. of the evidence & failed to produce it
- Document not closely related to controlling issue (collateral matter)
- Subpoena can’t obtain doc.
When do summaries qualify for the best evidence rule?
Contents of voluminous docs. may be presented as summary if:
- contents can’t be conveniently examined in court
- Proponent must make originals or duplicates available for examination & copying by other parties at a reas. time and place
- Court may order proponent to produce the originals or duplicates in court
Admission by Party
- Proponent may prove contents of original by admission by party against whom it is offered without accounting for the original
- Oral Statement made Out of Court Statement - if party against whom doc. is offered admits contents of doc., BER applies
- Proponent must account for the orig. b/f using the adverse party’s oral statement to prove the contents of the doc
Parole Evidence Rule
Operates to exclude evidence that, if introduced, would change the terms of a written agreement
Complete Integration
Contains all the terms to which the parties agreed
- PER is in effect, and no extrinsic evidence may be introduced
Partial Integration
Contains some but not all of the agreed upon terms
- Extrinsic evidence that adds to the writing may be admitted
- Evidence that contradicts the writing may not be admitted
Parol Evidence Rule Exceptions
Extrinsic Evidence always admissible for the following purposes:
- To clarify an ambiguity in the terms of the writing
- To prove trade custom or course of dealings
- To show fraud, duress, mistake, or illegal purpose on the part of one or both parties, or
- To show that consideration has (or has not) been paid
Parol Evidence Rule - Applicable Evidence
- Only evidence of prior or contemp. negotiations is subject to the PER
- Negotiations after execution of the written contract not prohibited by PER
- May be offered to prove subsequent modifications of the agmt.
