Tangible Evidence Flashcards
Physical Objects
Personal knowledge: A physical object may be authenticated by testimony of personal knowledge of the object.
Distinctive characteristics: A physical object may be authenticated by testimony of its distinctive characteristics.
Chain of custody: 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.
Documentary Evidence
Documentary evidence is commonly authenticated by stipulation, testimony of an eyewitness, or handwriting verification.
Ancient documents and data compilations: A document or data compilation, including data stored electronically, is considered authentic if it is (i) at least 20 years old, (ii) in a condition unlikely to create suspicion as to its authenticity, and (iii) found in a place where it would likely be if it were authentic
Public records: 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 items of that kind are kept
Reply letter doctrine: 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.
Handwriting verification (Documentary Evidence)
There are two methods by which handwriting verification 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. This method may also be used for authenticating other items, such as fingerprints, cloth fibers, 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 the current litigation.
Self-authenticating documents
i) Public documents bearing a governmental seal and a signature of an authorized governmental official or that are not sealed but are signed by an authorized governmental official and certified by another authorized governmental official;
ii) Certified copies of public records;
iii) Official publications issued by a public authority;
iv) Newspapers and periodicals;
v) Trade inscriptions (e.g., labels affixed in the course of business that indicate ownership);
vi) Notarized (acknowledged) documents;
vii) Commercial paper (including the signature thereon, and related documents);
viii) Any document, signature, or other item declared by federal statute to be authentic; and
ix) Records of a regularly conducted activity (e.g., a business) certified by a custodian of the records.
Oral Statements
Oral statements may need to be authenticated as to the identity of the speaker in cases in which that identity is important (e.g., an opposing party’s statement).
Voice identification
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 the rule for handwriting verification). It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.
Telephone conversations
A party to a telephone conversation may authenticate statements made during that conversation as having been made by a particular individual by testifying that:
i) The caller recognized the speaker’s voice;
ii) The speaker knew facts that only a particular person would know;
iii) The caller dialed a number believed to be the speaker’s, and the speaker identified himself upon answering; or
iv) The caller dialed a business and spoke to the person who answered about business regularly conducted over the phone.
Contents at issue and the best evidence rule
The contents of a document are at issue when:
i) The document is used as proof of the happening of an event, such as with a photograph of a bank robbery;
ii) The document has a legal effect, such as with a contract or a will; or
iii) The witness is testifying based on facts learned from the writing (as opposed to personal knowledge), such as with an x-ray image.
An original writing or recording
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 information accurately is an original. An original of a photograph includes the negative and any print made from it
