writings

Question 1

before admitting writings think of what acryonm?

Answer 1

OPRAH

1) original writing rule (best evidence rule)
2) Privilege
3) Relevance
4) Authenticity
5) Hearsay

Question 2

what does authenticity mean?

Answer 2

it is purported what we purported it to be

Question 3

for any writing to be offered into evidence what must be shown

Answer 3

1) authenticity

2) foundation must be shown that the writing is genuine that it is what it appears to be

Question 4

what are the 2 main methods of authenticity

Answer 4

1) direct evidence

2) circumstantial evidence

Question 5

what are the ways to authenticate something by direct evidence (3 ways)

Answer 5

1) admission
2) eyewitness testimony
3) handwriting proof
(a) lay witness:
(b) expert witness
(c) jury comparison

Question 6

what must be met for lay witness authentic a handwriting

Answer 6

must have personal KNOWLEDGE BEFORE LITIGATION of the handwriting

Question 7

ways to authentic a writing by circumstantial evidence

Answer 7

1) ancient document rule

2) solicited reply doctrine

Question 8

what is the ancient document rule for authenticating a writing

Answer 8

1) 20 or more years old
2) regular on its face and
3) found in a place of natural custody

Question 9

solicited reply doctrine for circumstantial evidence rule for authenticating writing

Answer 9

proof that disputed document came in response to a prior communication
- a document can be authenticated by proof that it was received in response to prior communication to the alleged author

Question 10

what is the rule for self authenticating documents

Answer 10

generally documents are not self-authenticating and need to lay foundation

Question 11

what documents are self- authenticating

Answer 11

1) certified copies of public or business records
2) official publications
3) newspapers or periodicals
4) trade instructions or labels
5) notarized documents
6) signature on certain UCC documents

Question 12

authentication of photos

Answer 12

witness must testify on basis of personal knowledge that the photo is “fairly and accurately represents” the persons or objects portrayed

Question 13

does the photographer need to authenticate the photo?

Answer 13

NO.

- Witness only needs to say it “fairly and accurately represents” the object or persons portrayed

Question 14

what is the best evidence rule

Answer 14

original writings: a party seeking to introduce the contents of the writing (including films, photos, X-Rays, and recordings) must either

1) produce the original document OR
2) account for the absence of the original

Question 15

what happens if the account of the original document is reasonable under the best evidence rule

Answer 15

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 16

what does the best evidence rule apply to (2 things)

Answer 16

1) legally operative documents- documnets that by their existence create or destroy a legal relationship that is in dispute (ex: deed, K, will lease, divorce decree)
2) witnesses SOLE KNOWLEDGE comes from the document

Question 17

what does the best evidence rule NOT apply to

Answer 17

1) facts independent of the writing: where witness has personal knowledge of events or items described in the writing, independent of the writing
2) collateral documents: minor importance

Question 18

what are 3 modifications to the best evidence rule

Answer 18

1) public records- certified copies admissible in place of originals
2) voluminous documents
3) duplicates

Question 19

what is the rule for voluminious documents in the best evidence rule

Answer 19

if originals are too voluminous to be produced in court, summaries, charts or calculations are admissible in place of originals as long as

1) originals would be admissible if offered AND
2) originals are made available to opposing party

Question 20

when are duplicates not allowed under the best evidence rule for modification

Answer 20

1) if there is a genuine question raised about the authenticity of the original OR
2) it would be unfair to admit the duplicate in the place of the original

Question 21

what are excuses for non-production of the original document under the best evidence rule

Answer 21

1) lost or cannot be found with due diligence
2) destroyed w/o bad faith (cant shred)
3) cannot be obtained with legal process

Question 22

difference b/w present recollection refreshed and past recollection recorded

Answer 22

• present recollection refreshed: a witness may be shown any writing or other thing that may refresh their memory of an event . Writing need not be authenticated, is not in evidence and may be used solely to refresh their recollection
• past recollection recorded: applies when a party is seeking to introduce writing into evidence. To have this writing read into evidence, a foundation must be laid.

Question 23

Can any person who is familiar with an alleged speakers voice authenticate a recording of the voice by giving an opinion as to its identity

Answer 23

YES, so long as the witness is familiar with the voice of the D it makes no difference that the W acquired such familiarity only after.

Question 24

is authenticity of a document a preliminary fact to be decided by the jury

Answer 24

Yes, where there is a dispute as to the authenticity of a document, the issue is up to the jury to decide.