Writings and other Physical Evidence.

Question 1

Authentication.

Answer 1

Every item of non-testimonial evidence (e.g., writings, photos, guns) must be authenticated.

This means proving it is what the proponent of that evidence
claims it to be.

Question 2

Burden of Proof for Authentication

Answer 2

Burden of proof is low—“sufficient to sustain finding.”

Question 3

Signatures can be authenticated by:

Answer 3

1. Admission.
   
   • Plaintiff asks defendant, “This is your signature on the letter, isn’t it?”
2. Eyewitness testimony.
   
   • Witness says, “I saw defendant sign the letter.”
3. Expert opinion.
   
   • Handwriting expert compares disputed signature with a genuine example and declares the signatures were made by the same person.
4. Lay opinion.
   
   • Lay witness has seen defendant sign his name elsewhere and says the disputed signature is defendant’s.
5. 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.

Question 4

Ancient documents rule. Authenticity is established if:

Answer 4

1. document is 20 years old or more,
2. does not on its face present any irregularities (e.g., erasures), and
3. was found in a place of natural custody (i.e., where you would expect such documents to be found).

Question 5

What are Self-authenticating writings and types?

Answer 5

For certain writings, authentication is unnecessary.
These include:

1. certified copies of public documents (deeds),
2. acknowledged documents (i.e., documents where the original signature is attested before a notary to be valid),
3. official publications (government pamphlets),
4. newspapers,
5. periodicals,
6. business records, and
7. trade inscriptions.

Question 6

Trade inscription

Answer 6

Trade inscription = tag or label that purports to have been attached in course of business and indicates ownership, control or origin.

Question 7

Photos

Answer 7

Watch for personal knowledge problem. Does fact testified to = fact perceived?

Question 8

Authentication of non-unique items - How do you authenticate items that are facially indistinguishable from other like items (e.g., bag of white powder, generic handgun).

Answer 8

To authenticate, proponent must lay chain of custody demonstrating that this is the specific item proponent claims it to be.

Question 9

Best Evidence Rule applies when?

Answer 9

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

Question 10

What are writings for the Best Evidence Rule?

Answer 10

Writings = not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data.

Question 11

What does the Best Evidence Rule Require?

Answer 11

The rule requires original, but with many exceptions.

Question 12

When is evidence being offered to prove contents of a writing?

Answer 12

1. Case turns on contents of legal instrument.
2. Knowledge obtained from writing.

Question 13

Voluminous documents exception

Answer 13

Can be summarized if originals available for inspection

Question 14

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

Answer 14

1. Originals
2. Duplicates usually also admissible
3. Testimony regarding contents of writing may be admissible

Question 15

BER - What are Originals?

Answer 15

Computer printouts and, in the case of public documents, certified copies are considered originals.

Question 16

BER - What is a duplicate?

Answer 16

“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).

Question 17

Exception to admissibility of duplicates or other written evidence that is not the original:

Answer 17

this evidence is not admissible where there is genuine question as to authenticity of original.

Question 18

When may Testimony regarding contents of writing be admissible?

Answer 18

where original lost or destroyed, unless bad faith by proponent of testimony.