Writings, Recordings, Photographs Flashcards
What are the two requirements for admitting a reproduction as demonstrative evidence?
A reproduction (e.g., photograph, movie, diagram, sketch, map) is admissible IF:
- properly authenticated; AND
- its value is not outweighed by the danger of unfair prejudice.
AdaptiTip: Reproductions differ from purely explanatory items, such as maps, charts, or models, which are for
the purpose of illuminating testimony and not admitted into evidence.
Which three types of evidence are commonly used to authenticate documents?
The three types of evidence often used to authenticate documents include:
- ADMISSIONS: the party against whom the writing is offered has admitted to its authenticity or acted upon it as
authentic; - EYEWITNESS TESTIMONY: someone saw the document executed or heard it acknowledged; AND/OR
- HANDWRITING verification.
Sources: Fed. R. Evid. 901, 903
Which two methods may be used to authenticate handwriting evidence?
Handwriting evidence may be authenticated by:
- NON-EXPERT witness: offers opinion based on personal knowledge that the handwriting belongs to a
particular person; AND/OR - EXPERT witness or TRIER OF FACT: determines the genuineness of a writing by comparing it with another
specimen confirmed to be genuine.
AdaptiTip: A non-expert may not become familiar with handwriting for the sole purpose of testifying to its
authenticity, although the witness may do so for authenticating oral statements.
What are the three requirements for authenticating an ancient document PRIOR to admitting it under the
hearsay exception?
FRE 901(b)(8) requires authentication of the ancient document before it may be examined for substantive
admissibility under the hearsay exception.
An ancient document is authenticated upon a showing that it is:
1. free from suspicion regarding its authenticity;
- found in a location where it would likely be if authentic; AND
- at least 20 years old.
AdaptiTip: These are the requirements for authentication; the requirement that the document be prepared prior
to Jan. 1, 1998 still applies to the ancient document hearsay exception (e.g., a document written in 2000,
although more than 20 years old, was prepared after Jan. 1, 1998 and would therefore be inadmissible under
the hearsay exception).
What is the “reply letter doctrine” in evidence law?
The “reply letter doctrine” allows a writing to be authenticated by showing that it was written in response to a letter mailed to the alleged author (e.g., the identity of a witness-author may be shown when witness-author
received a letter from another person in response to an original letter by witness-author).
AdaptiTip: The contents of the writing must show that it was unlikely that anyone other than the alleged author
What is the “best evidence rule”?
When a party wants to prove the material terms of a writing (e.g., recording, photograph, X-Ray), the “best evidence rule” requires the original writing to be produced.
AdaptiTip: The best evidence rule is also known as the “original document rule.”
What are the four exceptions to the best evidence rule?
The best evidence rule does not apply (the original writing does not need to be produced) when:
- the facts to be proved exist independently of the writing (e.g., a witness has independent knowledge of
something that was memorialized in writing); - the writing is only of minor or collateral importance;
- the writing contains voluminous records that can be summarized; OR
- the writing is in the form of a certified public record.
When is secondary evidence of a writing admissible under the best evidence rule?
If the original writing is unavailable for a reason other than the proponent’s serious misconduct, secondary
evidence may be used (e.g., oral testimony regarding the writing’s contents, non-exact written copies, etc.).
AdaptiTip: Valid reasons for allowing secondary evidence include the destruction of the original in good faith,
the original is outside the jurisdiction and inaccessible, or the opposing party failed to produce it.
What does the “parol evidence rule” stand for?
The “parol evidence rule” states that when parties to a contract have agreed that a specific writing is the final
embodiment of the terms of their contract (i.e., it is fully integrated), other evidence is inadmissible if it would
add, alter, or contradict the terms of that writing.
AdaptiTip: This rule and its exceptions generally arise in contract law questions, although it is evidentiary in nature
What is a “self-authenticating” document?
A document is “self-authenticating” if no evidence is necessary to prove its authenticity (i.e., no testimonial
sponsor or other extrinsic evidence is required to establish it is the thing it purports to be).
AdaptiTip: Examples of self-authenticating documents include certified public records, official publications,
newspapers, commercial paper, and certified business records.
When is a “duplicate” admissible under the best evidence rule?
A duplicate may be used as the “original” writing, in the form of a machine or carbon copy, IF the authenticity of
the original writing is not in question or the circumstances do not render use of a duplicate unfair.
What is the “voluminous document exception” to the best evidence rule?
The “voluminous document exception” permits the use of a summary, chart, or calculation of voluminous
documents as long as the originals are available for inspection and copying.
What is the “completeness doctrine”?
Under the “completeness doctrine,” when a party introduces all or part of a writing or recorded statement into
evidence, an adverse party may introduce evidence of any other remaining part or any related writing or
a recorded statement that due to fairness should be considered contemporaneously with the evidence originally
introduced.
