Before Admitting Any Writing, Consider this Mneumonic.
OPRAH
- Original writing – BER
- Privelege
- Relevance
- Authenticity
- Hearsay
General Rule of Authentication (Foundation)
Any writing offered into edivence must first be authenticated
A foundation must be laid to show that writing is authentic (genuine): that it is what it appears to be
The proponent must produce sufficient evidence to support a finding that the writing is what the proponent claims it is.
Methods of Authentication
- Admission by opposing party
- Eyewitness testimony (can even be by opposing party)
- Handwriting proof
Handwriting proof
- Lay witness, but they cannot become familiar with the handwriting just for the purpose of testifying
- But, for voice identification, witness can become familiar with the persons voice under any circumstances
- Expert witness
- Jury comparison
Amount of Proof Needed to Authenticate Documents
Need sufficient evidence to justify a reasonable jury fidsing the document to be genuine
Self-Authenticating Documents
- Generally, docs not self-authenticating.
- Exceptions:
- Certified copies of business records, provided that:
- Record certified by custodian or other qualified person to meet business records hearsay exception, and
- Offering party gives adverse party reasonable written notice and makes the record and certification available for inspection so adverse party has a fair opportunity to challenge
- Certified copies of public records.
- Official publications
- (e.g. pamphlet from State DMV that has markings on its face from the department)
- Newspapers or periodicals
- (e.g. copy of tabloid in defamation case)
- Trade inscriptions or labels
- (e.g. label from soup can to prove P ate bad Campbells soup).
- Acknowledged documents
- (i.e. notarized)
- Signature on certain commercial documents (as per UCC)
- Certified copies of business records, provided that:
Authenticating Photographs Rule
- witness must testify on the basis of personal knowledge that the photograph fairly and accurately represents the persons or objects portrayed
- Can be any witness with knowledge of photos authenticity, not the photographer
- e.g. person in car wreck says pic fairly and accurately represents wrecked car
Best Evidence Rule
Party seeking to intro the contents of a writing (incl films, photos, x-rays, and recordings) must either:
- Produce the original document, or
- Account for the absence of the original
what can be admitted in place of the original document
- If the explanation for absence of the original is reasonable, then a foundation has been laid for secondary evidence, then either a copy or oral testimony may be admitted to prove the content of the original.
What the best evidence rule applies to
- Legally operative docs
- Docs that create or destroy legal relation in dispute (deed, will, lease, divorce decree, etc…)
- Witnesss sole knowledge comes from a document
- Cannot prove what the writing says if the only way he knew that was from the writing itself
What the best evidence rule does not apply to
- Facts independent of the writing
- Where the witness has personal knowledge of events or items described in the writing, independent of the writing
- E.g. saying you know he paid his loan because you saw him do it, versus you only know because you saw the receipt
- Collateral Documents
- Best evidence rule does not apply to documents of minor importance, e.g. witness testifies she is a licensed real estate broker as background info, no need to product broker’s license.
Modifications to the Best Evidence Rule
- Public records
- Can admit certified copies in place of originals
- Voluminous documents
- Duplicates in place of original
Best Evidence Rule Modifications- Voluminous Documents
- If originals are too voluminous to be produced in court, summaries, charts, or calcs are admissible in place of originals so long as
- Originals would be admissible if offered, and
- Originals are made available to opposing party
Best Evidence Rule Modifications- Duplicates in place of original
- E.g. xerox copies
- No need to explain absence
- Admissible to the same extent as the original unless
- Genuine question raised about the authenticity of the original, or
- It would be unfair to admit the duplicate in place of the original
Duplicates-VA Rule
In VA, photocopies do not qualify as duplicates unless they were made in the OCOB.
Excuses for Non-Production of Original
- Lost or cannot be found with due diligence
- Destroyed w/o bad faith (not with intent to destroy evidence for case at hand)
- Cannot be obtained with legal process
- A ct must find by prep of the evidence that excuse has been established; secondary evidence (e.g. oral test) is then admissible
