writings Flashcards
before admitting writings think of what acryonm?
OPRAH
1) original writing rule (best evidence rule)
2) Privilege
3) Relevance
4) Authenticity
5) Hearsay
what does authenticity mean?
it is purported what we purported it to be
for any writing to be offered into evidence what must be shown
1) authenticity
2) foundation must be shown that the writing is genuine that it is what it appears to be
what are the 2 main methods of authenticity
1) direct evidence
2) circumstantial evidence
what are the ways to authenticate something by direct evidence (3 ways)
1) admission
2) eyewitness testimony
3) handwriting proof
(a) lay witness:
(b) expert witness
(c) jury comparison
what must be met for lay witness authentic a handwriting
must have personal KNOWLEDGE BEFORE LITIGATION of the handwriting
ways to authentic a writing by circumstantial evidence
1) ancient document rule
2) solicited reply doctrine
what is the ancient document rule for authenticating a writing
1) 20 or more years old
2) regular on its face and
3) found in a place of natural custody
solicited reply doctrine for circumstantial evidence rule for authenticating writing
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
what is the rule for self authenticating documents
generally documents are not self-authenticating and need to lay foundation
what documents are self- authenticating
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
authentication of photos
witness must testify on basis of personal knowledge that the photo is “fairly and accurately represents” the persons or objects portrayed
does the photographer need to authenticate the photo?
NO.
- Witness only needs to say it “fairly and accurately represents” the object or persons portrayed
what is the best evidence rule
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
what happens if the account of the original document is reasonable under the best evidence rule
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
what does the best evidence rule apply to (2 things)
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
what does the best evidence rule NOT apply to
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
what are 3 modifications to the best evidence rule
1) public records- certified copies admissible in place of originals
2) voluminous documents
3) duplicates
what is the rule for voluminious documents in the best evidence rule
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
when are duplicates not allowed under the best evidence rule for modification
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
what are excuses for non-production of the original document under the best evidence rule
1) lost or cannot be found with due diligence
2) destroyed w/o bad faith (cant shred)
3) cannot be obtained with legal process
difference b/w present recollection refreshed and past recollection recorded
- 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.
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
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.
is authenticity of a document a preliminary fact to be decided by the jury
Yes, where there is a dispute as to the authenticity of a document, the issue is up to the jury to decide.
