Writings Flashcards
general rule of authentication
as a general rule, a writing or secondary evidence of a writing’s content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is ….
….which means that the proof that the writing is what you say it is must be sufficient to support a jury finding of genuineness [a reasonable juror could conclude that the writing is genuine]
authenticity is a prelimiary fact to be determined by the jury
what are the methods of authentication of written statements, documents, and photographs?
(1) Opposing party admits authenticity or acted upon the document as authentic
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(2) eyewitness testimony by anyone who saw the document executed or heard it acknowledged
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(3) evidence that the maker’s handwriting is genuine
Forms of handwriting verification evidence:
[a] opinion of a lay witness who has familiarity with the handwriting in the course of normal affairs [not acquired for purposes of litigation - i.e. you cannot study handwriting merely to testify] – also, no requirement that W saw signature recently
[b] opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting
[c] fact finder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting
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(4) Evidence that document is ancient
A document is ancient if:
[a] it is at least 20 years old when offered into evidence
[b] it is in a condition that creates no suspicion as to authenticity, AND
[c] was found in a place where such a writing would likely be kept
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(5) reply letter doctrine — a writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author
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(6) Photos and videos are authentic if proponent does the following:
[a] for photos/videos that were taken by a live body:
Witness who is familiar with the scene, object, or person identifies photos/videos as being a portrayal of certain facts relevant to the issue and verifies they are a fair and accurate representation of those facts
[you don’t need to call the photographer]
[b] for photos/videos taken by an unattended camera/no one who could authenticate the scene is present at the taking of the photo:
showing that the camera was properly operating at the relevant time and that the photograph or video was downloaded from that camera or developed from film obtained from that camera
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(7) x-ray pictures, electrocardiograms, etc. are authentic if proponent can show:
(a) that the process used is accurate,
(b) the machine was in working order,
(c) the operator was qualified to operate it,
AND
(d) custodial chain was established to assure the X-ray has not been tampered with
What are the methods of authentication for oral statements?
Name the types of oral statements and how to authenticate them
(1) voice identification
Can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying
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(2) telephone conversations
Can be authenticated by any party to the call who testifies that:
(a) they recognized the other party’s voice
(b) the speaker had knowledge of certain facts that only a particular person would have
(c) they called a particular person’s number and a voice answered as that person or that person’s residence,
OR
(d) they called a business and talked with the person answering the phone about matters relevant to the business
what are self-authenticating documents
state the definition and examples
Documents that “prove themselves”
domestic public documents bearing a seal, and similar official foreign public documents
official publications (e.g., government pamphlets)
Certified copies of public records or private records on file in a public office
newspapers and periodicals
trade inscriptions and labels
acknowledged (notarized) documents
commercial paper (including signatures thereon) and related documents
business records, electronically generated records, and data copied from an electronic device, IF:
(a) the records are certified AND
(b) the proponent gives the adverse party reasonable written notice and an opportunity for inspection
what is the best evidence / original document rule?
To prove the content of a writing, the original writing must be produced if the terms of the writing are material
what is a “writing” in the best evidence rule?
writing, recording, or photograph (including videos, X-rays, and any tangible collections of data)
What is secondary evidence and when is it allowed instead of the original evidence to prove a content of the writing?
secondary evidence of the content of an original (or admissible duplicate):
- handwritten copies
- notes
- oral testimony
[if secondary evidence is admissible, proponent can use ANY type of secondary evidence]
secondary evidence of the writing, such as oral testimony, is admissible only if the proponent proves a satisfactory excuse for the original’s absence
Valid excuses:
(1) loss or destruction of the original (unless the proponent lost or destroyed the original in bad faith)
(2) the original cannot be obtained by any available judicial process [usually means it is in possession of a third party outside the jurisdiction and can’t be obtained by a reasonable effort)
(3) the original is in the possession of an adversary who, after due notice, fails to produce the original
when does the best evidence rule apply and not apply? List the situations
Best evidence rule applies int he following circumstances:
(1) where the writing is a legally operative or dispositive instrument [i.e. writing itself creates legal obligations and rights]
(2) where the knowledge of a witness concerning a fact results from having read it in the writing
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Best evidence rule does NOT apply in the following circumstances:
(1) when witness has personal knowledge of facts, even if the fact happens to also be recorded in a writing
what is an original writing in the best evidence rule?
the writing itself
OR
any counterpart that is intended by the person executing it to have the same effect as the original. this includes the negative of a photograph or any print of it, or the printout or other readable output of electronically stored information
what are duplicates of writings and when are they admissible?
duplicate — an exact copy of an original made by mechanical means
[e.g., a photocopy or carbon copy … NOT a handwritten copy, which is secondary evidence]
admissible to SAME extent as original unless:
(1) the circumstances make it unfair to admit the duplicate, OR
(2) a genuine question is raised about the authenticity of the original
exceptions to best evidence rule
(1) summaries/charts of voluminous records when it is inconvenient to present the voluminous records in court
BUT
[a] proponent must make the originals or duplicates available for inspection or copying, AND
[b] the court may order proponent to produce the records in court
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(2) certified public records or public records testified to as correct
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(3) writing is collateral/of minor importance to litigated issue
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(4) opponent has already given testimony or made a written admission (like in a depo) about the writing’s contents
[i.e. proponent can use this evidence rather than producing original]
what aspects of the compliance with the best evidence rule are reserved to the jury?
[1] whether the original ever existed
[2] whether a writing produced at trial is an original
[3] whether the evidence offered correctly reflects the contents of the original
what is real evidence and how may it be presented?
actual physical evidence addressed directly to the trier of fact
direct, circumstantial, original, or prepared (demonstrative)
how can you authenticate real evidence?
(1) testimony of a witness that they recognize the object as what the proponent claims it is
OR
(2) evidence that the object has been held in a substantially unbroken chain of possession
what is the standard of proof for real evidence
the proof that the object is what the proponent claims it is must be sufficient to support a jury finding of genuineness such that a reasonable juror could conclude that the object is what the proponent claims it to be
