Writings and Other Physical Evidence

Question 1

Authentication.

1. ) Rule for Ancient Documents
2. Rule for Self-authenticating writings.

Answer 1

1. ) Ancient documents. If document is (Federal 20, California 30) years old or more, does not on its face present irregularities (e.g., erasures), and was found in a place of natural custody (i.e., where you would expect such documents to be found), authenticity is established.
2. ) For certain writings, authentication is unnecessary. These include (Federal and Califnornia) 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, (Federal only) business records and trade inscriptions.

Question 2

Best Evidence Rule (Called “Secondary Evidence Rule” in California).

Exempt from Prop. 8 in California. This means that, even in a criminal case, the Secondary Evidence Rule applies. This rule applies only where evidence is offered to prove the contents of a writing (defined to include any tangible collection of data).

The rule requires proof of contents with original, but with many exceptions.

1. ) Other than the original, what tangible evidence is admissible to prove contents of a writing?
2. When is testimony admissible to prove contents of a writing?

Answer 2

1.) Federal: Duplicates usually also admissible. “Duplicate” = a copy of original produced by same impression that produced the original (e.g., a carbon copy) or by a machine (e.g., photocopier, camera). Handwritten copy is not a duplicate.

California: Admits duplicates and other written evidence of contents of original, such as handwritten notes.

2.) Federal and California: Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony.