Writings Flashcards
Issues to Look for Whenever Writing Appears on the Exam
Relevance
Authentication
Hearsay
Best Evidence Rule
Authentication of Writings
A showing must be made that the writing is genuine (that it is what it purports to be).
The conditional relevancy standard applies, meaning the document is admissible if the court determines that there is sufficient evidence from which a reasonable juror could conclude the document is genuine.
Methods of Authentication
Witnesses Personal Knowledge
Proof of Handwriting (via layperson, expert, or juror comparison)
Ancient Documents Rule
Solicited Reply Doctrine
Ancient Documents Rule
The authenticity of a document may be inferred if the document is at least 20 years old, facially free from suspicion (i.e. no cross outs or white out), and found in a place of natural custody.
Solicited Reply Doctrine
Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
Authentication of Photographs
Witness may testify cross-outs personal knowledge that the photograph is a “fair and accurate representation of the people or object portrayed.
Self-Authenticating Documents
Official Publications
Certified copies of pulice or private records on file in public office
Newspapers or periodicals
Trade Inscriptions and Labels
Acknowledged (notarized) Documents
Commercial Paper
Certified Business records (with reasonable written notice to adverse parties).
Best Evidence Rule
aka Original Writings Rule
In order to prove the contents of the writing, recording, or photograph, the original must be produced or there must be an acceptable excuse for its absence.
When the Best Evidence Rule Applies
When the writing is a legally operative document (meaning the writing itself creates legal rights and obligations)
When the witness is testifying to facts that he or she learned solely from reading about them in writing.
When the Best Evidence Rule Does Not Apply
When a witness with personal knowledge testifies to a fact that exists independently of a writing that records a fact.
What Qualifies as an “Original Writing”
The writing itself or any counterpart intended to have the same effect (i.e. film negative, computer print out, etc.)
Any counterpart or duplicate produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon copy, etc.) is admissible to the same extent as the original unless it would be unfair (i.e. fuzzy photocopy) or a genuine issue is raised as to the authenticity of the original.
Excuses for Non-Production of Original Document
Lost or cannot be found with due diligence
Destroyed without bad faith
Cannot be obtained with legal process
Courts must be persuaded by a preponderance of the evidence that the excuse has been established.
Escapes from Best Evidence Rule
Voluminous Records can be summarized or presented via chart
Certified copies of public records
Collateral Documents (documents not important to merits of the case determined by judge).
