Writings & Physical Evidence Flashcards
Authenticating Documents
FRE 901
Common methods
- Stipulation or eyewitness testimony
1. Ancient documents & data compilation - At least 20 years old when offered
- condition creates no suspicion about authenticity and
- was in place where authentic document would likely be
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Public records
* Record was recorded or filed in public office as authorized by law or in office where that type of item is kept - Reply letter
- Document written in response to communication and
- contents make it unlikely response was written by someone other than recipient of first communication
- Handwriting
- Comparison – expert witness or trier of fact compares authenticated against disputed handwriting (or fingerprints, hair, cloth fibers) or
- Non-expert opinion – lay witness with personal knowledge of authentic handwriting not acquired for litigation gives opinion on disputed handwriting. However, the lay witness must not have become familiar with the handwriting for the purpose of the current litigation.
- Self-authenticating
- Public documents with official’s signature & authorized by official or seal
- Certified copies of public records & records of regularly conducted activities
- Newspapers, periodicals & official publications
- Documents with trade inscription
- Acknowledged documents
- Commercial papers, including signature & related documents
How is evidence authenticated?
An item of evidence must be authenticated prior to admission.
- This requires that the proponent produce evidence sufficient to support a finding that the item is what the proponent claims it to be.
This can be done by having a witness with personal knowledge of the item testify that it is what the proponent claims.
Overview of The Best Evidence Rule
General Rule:
The best evidence rule requires that the original document or a reliable duplicate be produced to prove the contents of document relied on by witness or whose contents are at issue.
(*Duplicates are admissible unless original’s authenticity is questioned or it would be unfair to admit them.)
Application:
- This rule is only implicated in two narrow situations:*
1) when a witness is relying on the document while testifying or
2) when the contents of the document are at issue (e.g., a written agreement in a breach-of-contract dispute, a will in a probate action).
Exceptions:
1. Original unavailable
Other evidence can be used to prove content if:
i) originals lost or destroyed (not by proponent’s bad faith)
ii) originals not attainable by judicial process
iii) opponent had original, knew it was required & failed to produce or
iv) content not closely related to controlling issue
2. Admission by party
Contents can be proven by opposing party’s:
i) testimony
ii) deposition or
iii) written statement
3. Public Record
Content’s of public record can be proven by:
i) certified copy
ii) copy of records & comparison testimony or
iii) other evidence if above proof is not reasonably obtainable
Authenticating Oral Statements
Oral statements may need to be authenticated as to the identity of the speaker in cases in which that identity is important.
A voice can be identified by any person who has heard the voice at any time (including one made familiar solely for the purposes of litigation).
It makes no difference whether the voice was heard firsthand or through mechanical or electronic transmission or recording.
The Rule of Completeness
The rule of completeness applies when a party introduces all or part of a writing or recorded statement.
It allows an adverse party to then introduce any other part of that writing or recorded statement (or another writing or recorded statement) that in fairness should be considered at the same time.
This rule allows for the admission of statements that are otherwise inadmissible to ensure a fair understanding of the previously admitted statement.
But those statements must be explanatory of OR relevant to the previously admitted statement.
Authenticating Physical Objects
FRE 901
- Personal knowledge
- Testimony by witness with personal knowledge of object (or that reproduction depicts original object)
- Most common method of authentication
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Comparison
* Comparison of object or writing against authenticated specimen by expert or trier of fact -
Distinctive characteristics
* Testimony on object’s appearance, contents, substance, internal patterns, or other distinctive characteristics - Chain of custody
- Substantially unbroken account of object’s whereabouts from time it was obtained until introduction at trial
- Required method for authenticating objects that could easily be tampered with or confused with similar item (eg, blood sample)
- X-ray images & electrocardiograms
- Evidence showing accurate process was used, machine was working properly, machine operator was qualified & chain of custody
- Required method for authenticating physical representations of things that cannot otherwise be seen
Authenticating a video recording
A video recording is authenticated when a witness with personal knowledge of the thing depicted testifies that the recording fairly and accurately depicts that thing.
Once that testimony is admitted, the recording is admissible if it is relevant and not excluded by any other rule of evidence.
Is real or physical evidence (e.g., a three-dimensional model) subject to the best evidence rule?
NO.
Real or physical evidence (e.g., a three-dimensional model) is not subject to the best evidence rule.
The best evidence rule generally requires that an original recording, writing, or photograph be produced to prove its contents. However, real or physical evidence is not subject to this rule.
Authenticating a photograph
A photograph is authenticated by having a witness with personal knowledge of the thing depicted testify that the photograph fairly and accurately depicts that thing.
Authenticating an item of evidence that is a physical representation of something that could not otherwise be seen
x-ray image
When the evidence sought to be admitted is a physical representation of something that could not otherwise be seen—e.g., an electrocardiogram or x-ray image—authentication requires proof that:
1) the process for creating the evidence was accurate
2) the machine that produced the evidence was working properly AND
3) the operator of the machine was qualified to operate it.
Is a heir’s opposition of the introduction of a photocopy of the original holographic will into evidence on the ground that the testator was not of sound mind when the original was drafted constitute a challenge as to the original’s authenticity?
NO.
Example PQ3: the heir opposed introduction of the photocopy of the original holographic (i.e., handwritten) will into evidence on the ground that the testator was not of sound mind when the original will was drafted.
However, this argument does not constitute a challenge to the original’s authenticity. And since there is no indication that the circumstances would otherwise make it unfair to admit the photocopy, it is admissible.
Compromise offers & negotiations
Public policy encourages the settlement of disputes. As a result, FRE 408 generally bars the admission of evidence of compromise offers (or acceptance of such offers), as well as conduct or statements made during compromise negotiations, when that evidence is offered to:
i) prove or disprove the validity or amount of a disputed claim OR
ii) impeach by a prior inconsistent statement or contradiction.
_***This is true even when the party seeking to introduce such evidence was not a party to the agreement.***_
Certified copies of pubic records
Copy of official record—or of document recorded or filed in public office as authorized by law—i_s self-authenticating if copy is certified as correct by:_
1) custodian or person authorized to make certification
2) document sealed & signed by government entity OR
3) if no seal, document signed by employee of government entity & signature is certified as genuine by another public officer
In a dispute about whether a video recording existed and the content thereof, with regard to the best evidence rule, what does the jury determine?
With respect to the best evidence rule (which applies when the contents of a video recording are offered to prove the events captured in the recording), the jury determines whether the alleged recording ever existed and, if so, whether other evidence as to the content of that recording reflects that content.
Example:
Neighbor charged with burglary. Apt manager says video evidence showed neighbor breaking and entering but since the video has been lost. Neighbor argues that video wasn’t working at the time of the alleged burglary. What is the role of the jury?
- The jury may determine both whether the video ever existed and whether the apartment manager’s testimony accurately reflected the content of the video.
Attorney’s inadvertent disclosure of a communication that is protected by attorney-client privilege
- Federal Rule*
- State Rule*
Under the federal rule, an attorney’s inadvertent disclosure of a communication that is protected by the attorney-client privilege can operate as a waiver of the privilege when there is a failure by the attorney to promptly take reasonable steps to rectify the error.
However, this rule does not apply when the disclosure was made in a state court proceeding and the applicable state law does not treat the disclosure as a waiver.
- When state law is more protective of the attorney-client privilege than the federal rule, applicable state law governs and the disclosure is not treated as a waiver in a subsequent federal proceeding.
