What is the general rule of Admissibility for writings?
A writing is not admissible until it has been authenticated. A testimonial foundation is required showing what the writing is & what it purports
What are the three methods of direct authentication?
- Admission
- Eyewitness testimony
- Handwriting Proof
What are the three general conditions of admissibility?
- Testimony of witness that she recognizes object OR evidence that the object has been held in a SUBSTANTIALLY UNBROKEN CHAIN OF POSSESSION.
- Condition of Object: if condition is significant, must show that its in substantially the same condition
- Balancing test: For legal relevancy-must not be outweighed by auxiliary policy or principle.
Which three ways can handwriting proof be offered?
- By lay witness familiar with handwriting BEFORE trial, not for purposes of testimony
- Expert witness
- Jury comparison
What are two forms of circumstantial evidence to prove authentication?
- Ancient Document Rule: 20+ years, regular on its face, and found in a natural place of custody
- Solicited Reply Doctrine: Proof that disputed document came in response to prior communication.
A mails B an offer, and received from B a purported acceptance, despite not recognizing B’s signature. Is this sufficiently authenticated?
LIkely yes, based on the Solicited Reply Doctrine, which states that it is sufficient circumstantial evidence of authentication if disputed document came in response to prior communication.
How much evidence is necessary to lay a proper foundation?
This refers to the “Quantum of Proof” and needs enough evidence to justify a jury finding of genuineness.
What kinds of documents are “Self-authenticating”?
- Certified copies of public or business records
- Official publications
- Newspapers and Periodicals
- Trade Inscriptions or Labels
- Acknowledged documents
- Signatures on certain commercial documents
How do you authenticate a photo?
Need witness to testify if the photo accurately portrays the certain facts relevant to the issue and verified by the witness as correct representation of those facts.
How can you authenticate voice?
A voice may be identified by the opinion of anyone who has heard the voice at any times, including after litigation has begun & for the sole purpose of testifying.
What is the Best Evidence Rule?
The BER requires that a party seeking to prove the CONTENTS of a WRITING must either:
- Produce the original documents OR
- Account for the absence of the original. If reasonable, need to lay foundation for secondary evidence (oral testimony/copies)
What does the Best Evidence Rule apply to?
- Legally operative documents-documents that by their existence create or destroy a legal relationship
- Witness’s sole knowledge comes from a document-Witness wants to recite orally what he read.
What does the Best Evidence Rule NOT apply to?
- Facts independent of the writing-Witness has personal knowledge of a fact that happens to be described in writing-> NO need to produce the writing or explains its absence
- Collateral Documents: BER doesn’t apply to documents of minor importance.
A brings a personal injury suit against B, asks Physician X to testify. Does the Best Evidence Rule apply to X’s medical license?
No, this would be considered a collateral document, unless physician’s right to practice comes under issue.
What are the three modifications to the Best Evidence Rule?
- Public Records: original not required, certified copies OK.
- Voluminous documents: if originals unreasonably voluminous, OK to provide summaries, charts, or calculations instead, SO LONG AS originals would otherwise be admissible and are given to opposing party.
- Duplicates: photo/xerox copies OK if it “accurately reproduces original.” NOT ok if genuine doubt about authenticity of original or unfair to admit duplicate in lieu of original.
