1
Q
3 possible barriers to admissibility
DOCUMENTARY EVIDENCE
A
- Authentication
- Best evidence
- Hearsay
2
Q
general rule
AUTHENTICATION
A
- Must be authenticated by proof showing that the writing is what the proponent claims it it BEFORE writing or secondary evidence of its content may be received in evidence
- needs testimonial sponsor to prove writing was made, signed, or adopted by particular relevant person (unless self-authenticating)
RULE 901-903
3
Q
quantum of proof
AUTHENTICATION
A
- Requires only enough evidence to support a finding that the matter is what its proponent claims it is
- Not required the proponent establish its genuineness by a preponderance of the evidence as a condition to admissibility
RULE 901
4
Q
how many genuineness of a document be admitted?
AUTHENTICATION
A
- Through discovery process
- Through stipulation at pretrial conference
- By failure to deny an allegation in a pleading
5
Q
What evidence can be used to authenticate?
A
Writing may be authenticated by any evidence that serves to establish its authenticity
RULE 901
6
Q
FRE methods
AUTHENTICATION
A
- FRE do not limit methods
- FRE lists several examples
1. admission
2. testimony of eyewitness
3. handwriting verifications
4. ancient documents
5. reply letter doctrine
6. photographs
7. x-ray pictures, electrocardiograms, etc.
RULE 901
7
Q
admission
AUTHENTICATION
A
A writing may be authenticated by evidence
- that the party against whom the writing is offered
- has either admitted its authenticity OR
- acted upon the writing as authentic
8
Q
testimony of eyewitness
AUTHENTICATION
A
A writing may be authenticated
- by testimony of one who
- sees it executed OR
- hears it acknowledged
RULE 903
9
Q
handwriting verifications
AUTHENTICATION
A
A writing may also be authenticated
- by evidence
- of the genuineness
- of the handwriting of the maker
10
Q
handwriting verification by lay witness
AUTHENTICATION
A
- lay witness
- who has personal knowledge
- of the handwriting of the supposed writing
- may state his opinion as to whether the document is in that person’s handwriting
- BUT CANNOT become familiar with handwriting merely for the purpose of testifying
NOTE = this is an exception to the general inadmissibility to opinion testimony by lay witnesses
11
Q
handwriting verification by comparison of writings
AUTHENTICATION
A
- expert witness OR
- the trier of fact
- can determine the genuineness of a writing
- by comparing the questioned writing
- with another writing proved to be genuine
12
Q
ancient documents
AUTHENTICATION
A
Document may be authenticated by evidence that it
- Is at least 20 years old
- Is in such condition as to be free from suspicion concerning its authenticity AND
- Was found in a place where such writing, if authentic, would likely be kept
RULE 901(b)(8)
13
Q
reply letter doctrine
AUTHENTICATION
A
writing may be authenticated by evidence that
- it was written
- in response
- to a communication
- sent to the claimed author
- IF the content of the letter makes it unlikely that it was written by anyone other than the claimed author
14
Q
photographs
AUTHENTICATION
A
GENERAL RULE = photographs are admissible ONLY IF
- identified by a witness
- as a portrayal of certain facts
- relevant to the issue AND
- verified by the witness
- as a correct representation of those facts
15
Q
x-ray pictures, electrocardiograms, etc.
AUTHENTICATION
A
to authenticate, must show
- Process used is accurate
- Machine itself was in working order
- The operator was qualified to operate it
- Custodial chain must be established to forestall danger that the evidence has been substituted or tampered with
16
Q
handwriting verification methods
AUTHENTICATION
A
- opinion of lay witness
2. comparison of writings by expert witness or trier of fact
17
Q
uses of authentication by comparison
AUTHENTICATION
A
- handwriting
- fingerprints
- blood
- hair
- clothing fibers
- lotsa stuff
18
Q
who can authenticate photographs?
AUTHENTICATION
A
- witness who is familiar with the scene or object depicted = suffices
- generally, not necessary to call the photographer to authenticate
19
Q
photograph by unattended camera
AUTHENTICATION
A
Admitted upon a showing that
- the camera was properly operating at the relevant time AND
- the photograph was developed from film obtained from that camera
20
Q
what is not sufficient to authenticate x-ray pictures, electrocardiograms, etc.?
AUTHENTICATION
A
Cannot be authenticated merely by testimony of witness that it is a correct representation of the facts
21
Q
proving accuracy of process for x-rays
AUTHENTICATION
A
court will usually take judicial notice of this
22
Q
FRE for evidence of authenticity
AUTHENTICATION
A
RULE 901
23
Q
oral statements - use
AUTHENTICATION
A
Authentication as to the identity of the speaker
= necessary where identity of speaker is important
24
Q
oral statements - methods
AUTHENTICATION
A
- Voice identification
2. Telephone conversations
25
voice identifications
| AUTHENTICATION
A voice may be identified
- whether heard firsthand or through a device
- by the opinion of anyone who
- has heard the voice at any time
- even if that person became familiar with a voice after litigation has begun and
- even if that person became familiar with a voice for the sole purpose of testifying
26
telephone conversations
| AUTHENTICATION
Statements made during a telephone conversation may be authenticated
- by one of the parties to the call
- who testifies to one of the following
a. He recognized the other party’s voice OR
b. The speaker has knowledge of certain facts that only a particular person would have OR
c. He called X’s phone number and voice answered “this is X” or the like (which authenticates the conversation as being with X or X’s agency) OR
d. He called X’s business establishment and talked with the person answering the phone about matters relevant (which is sufficient to show person answering phone held a position in the business)
27
self-authenticating documents - definition
| AUTHENTICATION
Certain writings are said to
1. prove themselves or
2. be self-identifying on their face
= don't require extrinsic evidence of authenticity
RULE 902
28
self-authenticating documents - examples
| AUTHENTICATION
1. Domestic public documents that are signed and sealed
2. Foreign public documents signed by a person authorized by the laws of that country
3. Certified copies of public records
4. Official publications
5. Printed materials purporting to be newspapers or periodicals
6. Trade inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin
7. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments
8. Commercial paper, signatures thereon, and documents relating thereto, to the extent provided by general commercial law
9. Business records certified as such by a custodian or other qualified person IF offering party gives reasonable written notice AND makes record/certification available for inspection so adverse party has fair opp to challenge
RULE 902
29
FRE #s
| BEST EVIDENCE RULE
RULES 1001-1008
30
rule
| BEST EVIDENCE RULE
AKA original document rule
- In proving the terms of a writing
- Where the terms are material
= the original writing must be produced
31
when is secondary evidence permitted?
| BEST EVIDENCE RULE
Secondary evidence of the writing is permitted ONLY AFTER it has been shown
- that the original is unavailable
- for some reason
- other than the serious misconduct of the proponent
RULE 1002
32
rationale
| BEST EVIDENCE RULE
Reflects belief
1. that the exact words of a writing, particularly in the case of operative or dispositive instruments such as contracts, deeds, or wills, should be presented to the court
2. that there is a hazard of inaccuracy in common methods of approximating the contents of a writing
3. that oral testimony based on memory of the terms of the writing presents greater risk of error than oral testimony concerning other situations
33
applicability
| BEST EVIDENCE RULE
Applies to 2 classes of situations:
1. Where the writing is a legally operative or dispositive instrument
2. Where the knowledge of a witness concerning a fact results from having read it in the document
34
examples where the writing a legally operative or dispositive instrument
BEST EVIDENCE RULE
contract, deed, will, or divorce decree
35
can a witness testify about the content of a written deed without producing original deed?
BEST EVIDENCE RULE
NO, witness may not testify about the content of a written deed
UNLESS sufficient reason is given for not producing the original deed
36
may a witness who memorized mileage recorded on car sticker for certain date testify as to mileage without producing car sticker?
BEST EVIDENCE RULE
NO, witness
- who memorized mileage recorded on car sticker for a certain date, and
- who had no other source of knowledge on this significant litigated issue
MAY NOT testify as to the mileage
WITHOUT establishing a reason for the unavailability of the writing
37
nonapplicability/modification of
| BEST EVIDENCE RULE
Rule doesn’t apply in 4 classes of situations:
1. Fact to be proved exists independently of any writing
2. Writing is collateral to litigated issue
3. Summaries of voluminous records
4. Public records
38
fact to be proved exists independently of any writing
| BEST EVIDENCE RULE
= best evidence rule does not apply when fact to be proved has an existence independent of any writing, such as:
1. all events that happen to have been memorialized by documents
2. writings that the substantive law does not regard as essential repositories of the facts recorded
= oral testimony may be given w/o production of OR explanation for absence of original writings
39
does BEST EVIDENCE RULE apply:
witness may testify orally that he paid for goods received without producing the receipt that was given
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn't apply
40
does BEST EVIDENCE RULE apply:
admissions or confessions of a party may be testified to orally by anyone who heard them, even though the admissions or confessions were later reduced to writing
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn't apply
41
does BEST EVIDENCE RULE apply:
fact such as birth, marriage, age, and death may be proved orally, although certificates evidencing these facts are in existence
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn't apply
However, since a divorce is effective only by a judicial decree, the best evidence rule requires that the fact of divorce be proved by the decree itself
42
does BEST EVIDENCE RULE apply:
testimony heard at a prior trial may be testified to in another case without production of the stenographic transcript of the prior testimony
?
NO, fact to be proved exists independently of any writing = best evidence rule doesn't apply
One who heard the prior testimony can repeat it
43
writing is collateral to litigated issue
| BEST EVIDENCE RULE
= best evidence rule does not apply to writings of minor importance to the matter in controversy
RULE 1004(d)
44
does BEST EVIDENCE RULE apply:
an expert witness testifying on the value of a car is allowed to establish his status as a car dealer without production of his dealer’s license
?
NO, writing is collateral to litigated issue = best evidence rule doesn't apply
45
writing is collateral to litigated issue - factors
| BEST EVIDENCE RULE
Test of “collateralness” =
1. Centrality of the writing to the major issues of a litigation
2. Complexity of the relevant features of the writing
3. Existence of a genuine dispute as to the contents of the writing
46
summaries of voluminous records
| BEST EVIDENCE RULE
= best evidence rule does not apply when it would be inconvenient to examine a voluminous collection of writings, recordings, or photographs in court, the proponent may present their contents in the form of a chart, summary, or calculation
BUT requires
1. originals or duplicates must be made available for examination and copying
2. and the judge may order them to be produced in court
RULE 1006
47
public records
| BEST EVIDENCE RULE
= best evidence rule is modified so that a proponent may offer into evidence a copy of an official record or a copy of a document that has been recorded and filed
BUT requires such a copy to be either
1. certified as correct by custodian of the document or other authorized person OR
2. testified to be correct by a person who compared it to the original
RULE 1005
48
public records - purpose
| BEST EVIDENCE RULE
= to prevent the loss or absence of public documents due to litigation
49
writings and recordings - definition
| BEST EVIDENCE RULE
= letters, words, numbers, or their equivalent set down in any form
RULE 1001
50
photograph - definition
| BEST EVIDENCE RULE
= a photographic image or its equivalent stored in any form
RULE 1001
51
original of writings and recordings - definition
| BEST EVIDENCE RULE
= the writing or recording itself or any counterpart intended by the person executing it to have the same effect as an original
52
original of photograph - definition
| BEST EVIDENCE RULE
= includes the negative or any print from it
53
original of computer-stored - definition
| BEST EVIDENCE RULE
= includes the negative or any print from it
54
duplicate - definition
| BEST EVIDENCE RULE
= counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original
AKA an exact copy of an original made by mechanical means
RULE 1001(e)
55
duplicate - admissibility
| BEST EVIDENCE RULE
Admissible to the same extent as originals UNLESS
1. A genuine question is raised about the original’s authenticity or
2. Under the circumstances, it would be unfair to admit the duplicate in place of the original
RULE 1003
56
duplicate - rationale
| BEST EVIDENCE RULE
Rationale for relaxed standard:
By definition, these documents are exact copies = their introduction into evidence is objectionable only if some question existed as to genuineness of original
57
secondary evidence of contents - admissibility
| BEST EVIDENCE RULE
If the proponent cannot produce the original writing or recording in court,
- he may offer secondary evidence of its contents in the form of
1. copies OR
2. notes OR
3. oral testimony about the contents of the original
- IF a satisfactory explanation is given for the nonproduction of the original
58
copies - definition
| BEST EVIDENCE RULE
includes handwritten copies
| = not be considered duplicates because they are not exact copies
59
secondary evidence of contents - valid excuse
| BEST EVIDENCE RULE
Valid excuse justifying the admissibility of secondary evidence would include
1. Loss or destruction of original
2. Original outside jurisdiction or unobtainable
3. Original in possession of adversary who after notice fails to produce
60
secondary evidence of contents - sufficient proof
| BEST EVIDENCE RULE
A proponent
- may prove the contents of a writing, recording, or photograph
- through
1. testimony OR
2. deposition OR
3. written admission
- of the party against whom it is offered
- and need not account for the nonproduction of the original
RULE 1007
61
secondary evidence of contents - insufficient proof
| BEST EVIDENCE RULE
Generally held that contents of a writing/photograph/etc. = cannot be proved simply by
- out-of-court
- oral admissions
- of the party
- against whom such evidence is offered
UNLESS of course the original is otherwise accounted for, duh
62
original outside jurisdiction - foundational requirements
| BEST EVIDENCE RULE
Not within jurisdiction = some reasonable effort or request to 3P for product must be shown to admit secondary evidence
= must show original is
1. In possession of 3P
2. Outside the jurisdiction AND
3. Unobtainable
63
original in possession of adversary who after notice fails to produce - foundational requirements
BEST EVIDENCE RULE
1. Showing of his custody
2. Service of timely notice to produce (unless pleadings give notice)
3. Failure to produce it in court
= justifies admissibility of secondary evidence
64
```
original unobtainable (within jurisdiction) - requirement
BEST EVIDENCE RULE
```
Within jurisdiction = must be subpoenaed
65
secondary evidence of contents - functions of court
| BEST EVIDENCE RULE
Ordinarily, for court to make
- determinations of fact
- that determine admissibility
- of duplicates, other copies, and oral testimony
- as to contents of an original
66
secondary evidence of contents - functions of jury
| BEST EVIDENCE RULE
3 Qs of preliminary fact for jury:
1. Whether original ever existed
2. Whether a writing, recording, or photography at trial is an original AND
3. Whether the evidence offered correctly reflects the contents of the original
RULE 1008
Evidence
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