Writings

Question 1

General Rule of Authentication

Answer 1

A writing is not admissible until it has been authenticated. A foundation must be laid showing that the writing is what it purports to be, i.e., that it is genuine. Writings are not self-authenticating. A testimonial foundation is required.

Question 2

DIRECT EVIDENCE IN THE FORM OF:

Answer 2

1. Admision​: Witnesses admit to the authenticity of the writing
2. Eyewitness Testimony: other witnesses saw the writing occur
3. Handwriting Proof:

• Lay Witness: any witness can testify to authenticity provided that the witness is familiar with writing (saw at least once). (1) CANNOT HAVE BECOME FAMILIAR SOLELY FOR PURPOSES OF COURT (2) CANNOT DO COMPARISON OF TWO SIGNATURES
• Exper Witnesss: can compare disputed signature to genuine signature
• Jury Comparison: can compare genuine and signatures at issue

Question 3

CIRCUMSTANTICAL EVIDENCE IN THE FORM OF:

PA DISTINCTION

Answer 3

Ancient Document Rule: Document may be authenticated by evidence that it is:

(1) 20 or more years, (2) regular on its face, (3) found in a place of natural custody.

Solicited Reply Doctrine: Proof that disputed document came in response to prior communication.

PA DISTINCTION: ) require that a document be 30 years old to qualify as an ancient document.

Question 4

Quantum of Proof Needed to Authenticate

Answer 4

Sufficient evidence to justify a jury finding of genuineness is needed for proof of authenticity

Question 5

Sel-Authenticatin Documents: May be Admitted without a foundation or testimonial sponsorship.

Answer 5

1. Certified Copies of Public or Business Records (E.g., certified copy of mortgage)
2. Official Publications (E.g., a pamphlet of the State Motor Vehicle Dept. which reflects on its face that it is from the Dept.)
3. Newspapers and Periodicals (E.g., a copy of the National Inquirer offered by Pl. in a defamation action to prove publication of the defamatory article.)
4. Trade Inscriptions or Labels (E.g., Pl. offers label on can of peas to show that deleterious substances ingested by Pl. came from “Green Giant Company.”)
5. Acknowledged Documents (attaches document showing that signature is genuine)
6. Signatures on Certain Commercial Documents as provided by U.C.C.

Question 6

Authentication of Photographs

Answer 6

Photographs are admissible only if identified by a witness as a portrayal of certain facts relevant to the issue verified by the witness as a correct representation of those facts. NEED NOT CALL PHOTOGRAPHER.

UNATTENDED CAMERA-PROPERATION OF CAMERA: if photo or video is taken when no person who could authenticate scene present, NEED evidence that camera was operating properly and phot or video developed from film of camera.

Question 7

Best Evidence Rule

Answer 7

Requires that a party seeking to prove the content of a writing (includes films, photos, X-rays and recordings) must either (1) produce the original document or (2) account for the absence of the original. If the explanation for absence of the original is reasonable, then a foundation has been laid for secondary evidence. Then, either a copy or oral testimony may be admitted to prove the content of the original.

Question 8

The Best Evidence Rule Applies to:

Answer 8

Legally operative documents - documents that by their existence create or destroy a legal relationship that is in dispute. (E.g., deed, divorce decree, will, written contract.)

Witness’s knowledge comes from a document. Witness wants to recite orally what he read.

Question 9

The Best Evidence Rule Does Not Apply To:

Answer 9

Facts independent of the writing i.e. witness has personal knowledge of a fact that just happens to be described in a writing. No need to produce the writing or explain its absence.

Collateral Documents

• The best evidence rule does not apply to writings of minor importance. (Madge happens to testify that she is divorced in a personal injury damage claim. Her treating physician testifies he is licensed to practice medicine preliminary to giving his opinion. No need to produce divorce decree or license.)

Question 10

Modifications to the Best Evidence Rule

Answer 10

Public Records - certified copies admissible in place of originals

Voluminous documents

• If originals are too voluminous to be produced in court, summaries, charts or calculations are admissible in place of originals as long as (a) originals would be admissible if offered and (b) originals are made accessible to opposing party.

Duplicates

• In place of originals. A “duplicate” is a copy produced by any technique which avoids casual errors and “accurately reproduces the original.” Carbons, photographic copies, xeroxes, faxes are all duplicates. A duplicate is admissible to the same extent as the original (i.e., no need to explain absence of the original) UNLESS:

1. a genuine question is raised about authenticity of the original OR
2. The circumstances make it unfair to admit the duplicate in lieu of the original.