Writings and other Physical Evidence.

Question 1

Authentication

1) What is authentication?
2. ) Breach of contract action. Defendant denies entering into the contract. Plaintiff offers a letter of acceptance that he claims is signed by defendant. What does plaintiff have to prove to authenticate the letter? How does plaintiff prove this?

3;) What is the Ancient documents rule. Authenticity is established if (i) document is 20 years old or more, (ii) does not on its face present any irregularities (e.g., erasures), and (iii) was found in a place of natural custody (i.e., where you would expect such documents to be found).

4.) Plaintiff authenticates the letter in one of the ways described above. Defense experts and lay witnesses dispute signature is defendant’s. Is letter admissible?

Answer 1

1. ) proving it is what the proponent of that evidence claims it to be. (Burden of proof is low—“sufficient to sustain finding.)
2. ) *_Signatures. _* Need to get proof from the witness. Examples:
   a. Admission. Plaintiff asks defendant, “This is your signature on the letter, isn’t it?”
   b. Eyewitness testimony. Witness says, “I saw defendant sign the letter.”
   c. Expert opinion. Handwriting expert compares disputed signature with a genuine

example and declares the signatures were made by the same person.

d. Lay opinion. Lay witness has seen defendant sign his name elsewhere and says the disputed signature is defendant’s.
e. Circumstantial evidence. Plaintiff testifies he mailed offer to defendant and four days later this letter (Exhibit A) arrived, postmarked defendant’s home town, made specific reference to details in the offer letter, and purported to accept it. (Ancient Document Rule)
f. A genuine exemplar.
3. ) Authenticity is established if (i) document is 20 years old or more, (ii) does not on its face present any irregularities (e.g., erasures), and (iii) was found in a place of natural custody (i.e., where you would expect such documents to be found).
4. ) Yes. It is a low burden and will be admitted.

Question 2

Authentication

1. ) _Self-authenticating writings. _
2. ) What is a trade inscripton?
3. ) Plaintiff claims he drank abottle of Whoopsi Cola with an eyeball in it. Defendant denies it was a bottle oftheir soda. Plaintiff offers the bottle, imprinted with the words “Whoopsi Cola.” Self-authenticating?

Answer 2

1. ) For certain writings, authentication is unnecessary. These include certified copies of public documents (deeds), acknowledged documents (i.e., documents where the original signature is attested before a notary to be valid), official publications (government pamphlets), newspapers, periodicals, business records, and trade inscriptions.
2. ) Trade inscription = tag or label that purports to have been attached in course ofbusiness and indicates ownership, control or origin.
3. ) Yes.

Question 3

Authentication

Photos. Watch for personal knowledge problem. Does fact testified to = fact

perceived?

1. ) Suit for injuries suffered in auto accident. Plaintiff shows eyewitness photo of the intersection taken by newspaper reporter one year before accident. Plaintiff offers photo so jury can see the street layout. Plaintiff asks witness, “Does this photo fairly & accurately depict what the intersection looked like at the time of the accident?” Witness says “Yes.” Defendant objects, claiming only photographer can authenticate. How should the court rule?
2. ) Compare: Plaintiff asks the witness “Is this a photo of the intersection taken at the time of the accident?”

Authentication of non-unique items

3. ) How do you authenticate items that are facially indistinguishable from other like items (e.g., bag of white powder, generic handgun).
4. ) Prosecution for cocaine possession. Prosecutor offers Exhibit A, bag of white powder, claiming it is same bag found on defendant. Cop testifies he found a bag of white powder on defendant and gave it to police evidence custodian. Custodian then testifies he put bag in a safe until he gave it to police chemist. Chemist testifies he determined powder was cocaine and then returned bag to the evidence custodian. Custodian testifies he kept the bag in a safe until today, when he brought it to trial. He then identifies Exhibit A as that bag. Are the bag and the test results admissible?

Answer 3

1. ) Objecion overulled. What the witness said they have personal knowledge to speak of.
2. ) Objection sustained. THe photographer would have personal knowledge not this witness
3. ) To authenticate, proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be.
4. ) Yes. Becuase the chain of custody has been laid regarding that bag. (If there are little breaks then there’s no problem. Big breaks in time of custody then we might have a problem)

Question 4

Best Evidence Rule

1. ) What is the definition of a writing?
2. ) When is this rule applied?

Example1: Action for breach of written contract. Defendant admits making contract but denies breach. Plaintiff testifies that defendant delivered goods on the tenth while written contract calls for delivery on the first. Does the best evidence rule apply?

Example2: Defendant charged with murdering his wife.

Officer testifies that, when defendant was arrested, he had a letter which read “Your wife is having an affair with the 82nd Airborne Division.” Does the best evidence rule apply?

Example3: Same case. Witness to the murder testifies as to the date of death. Defense makes best evidence rule objection on grounds the date of death is contained on a written death certificate. Does best evidence rule apply?

Example 4: Same case. Coroner testifies that x-ray of victim’s body showed her neck was broken. Does the best evidence rule apply?

3.) Voluminous documents exception. Antitrust suit. Accountant testifies that he examined thousands of

invoices in defendants’ files and only once did the sales price exceed the price

fixed by defendants. Admissible over a best evidence objection?

Answer 4

Applies only where evidence offered to prove the contents of a writing.

1. ) Writings = not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data. The rule requires original, but with many exceptions.
2. ) When the Case turns on contents of legal instrument.

Example1: Yes

Knowledge obtained from writing.

Example2: Yes

Example3: No this is not a best evidence problem. Witnesses knowledge doesn’t come from that example

Example4: Yes

3.) Can be summarized if originals available forinspection. Yes it is admissble

Question 5

Issue number #2 wit best evidence Rule:

Assuming the best evidence rule applies, what type of evidence is admissible to prove the contents of a “writing”?

2a) Defendant doctor offers a carbon copy of his post surgery notes to show how he performed the surgery. Admissible? How about a photocopy? A handwritten copy?
4a. ) Yes; No D destroyed evidence

Answer 5

1. ) Originals. Computer printouts and, in the case of public documents, certified copies are considered originals.
2. ) Duplicates usually also admissible. “Duplicate” = a copy of original produced by same impression that produced the original (eg, a carbon copy) or by a machine (e.g., photocopier or camera). Malpractice suit. 2a.) Not admissble
3. ) Exception to admissibility of duplicates or other written evidence that is not the original: this evidence is not admissible where there is genuine question as to authenticity of original. Same case. Plaintiff claims that original of the post surgery notes was altered to omit reference to the fact the doctor closed the incision with library paste. Is a photocopy of the notes admissible? (NAH not adissible)
4. ) Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony.
   4a. ) Prosecution for treason. Prosecution witness testifies to contents of a note in which defendant outlined details of his plan to sell stealth bomber secrets to the Swiss, who are developing a chocolate bar that produces invisible acne. Defendant ate the note when FBI kicked in his door. Is the testimony admissible over a best evidence objection?

What if defendant offered the testimony?