Evidence: Authentication Of Writings And Best Evidence Rule

Front 1

When writing appears on exam, be alert to 3 issues:

- authentication
- best evidence rule
- hearsay

Back 1

Authentication: Showing must be made that writing is authentic (genuine).

In absence of a stipulation as to authenticity, a foundation must be made in order for the document to be admissible.

Front 2

General Methods of Authentication

Back 2

1) Witness's personal knowledge
2) Proof of handwriting (lay opinion based on familiarity); expert comparison; jury comparison (w/exemplar)
3) Ancient document rule: at least 20 years old; facially free of suspicion; & found in place of natural custody
4) Solicited Reply Doctrine: doc can be authenticated by evid it was received in response to prior communication to alleged author

Hint 2

Conditional relevancy standard: Document admissible if court determines there's sufficient evidence from which a reasonable juror could conclude document is genuine

Front 3

Self-Authenticating Documents

Back 3

Generally presumed authentic and don't need foundation testimony:

-official publications
-certified copies records on file in public office
-newspapers or periodicals
- trade inscriptions or labels
- acknowledge document
- commercial paper

Hint 3

TX rule of self-authentication for BUSINESS RECORDS:

- affidavit by custodian or other person capable of testifying record qualifies for business records hearsay exception
- bus records hearsay exception satisfied
- orig/exact duplicate of record attached to affidavit
- notice: filed at least 14 days prior to trial and prompt notice to other parties

Front 4

Authentication fo Photographs

Back 4

Witness may testify on basis of personal knowledge that photo is "fair and accurate representation" of people or objects portrayed

Witness doesn' thave to be the photographer

Front 5

Best Evidence Rule ("original writings" rule)

To prove contents of writing, recording, photograph, an original must be produced. [includes sound records, x-rays, films, photographs] or provide acceptable excuse for its absence.

If court accepts excuse, party may use secondary evidence (oral testimony or a copy)

Back 5

Key inquiries:

1) What does it mean "to prove the contents" of a writing?
2) To what evidence does BER apply?
3) What is an "original?"
4) What are the exceptions to the BER?

Front 6

BER applies when a party is seeking to prove the contents of a writing

2 principal situations:
1) Writing is a legally operative document (creates rights and obligations)
2) W is testifying to facts she learned solely from reading about them in a writing

Back 6

BER inapplicable when a W with personal knowledge testifies to a fact that exists independently of a writing which records the fact

Front 7

Original Writing:

- writing itself, any counterpart intended to have same effect; negative of film or print from negative; computer print-out

- duplicate: any counterpart produced by mechanical means that accurately reproduced original (photocopy, carbon copy)- Rules of duplicates: admissible to same extent as original UNLESS unfair (shitty copy) or genuine question raised as to authenticity of original

- handwritten copy neither original nor duplicate

Back 7

Excuses for non-production of original

1) lost or can't be found with due diligence
2) destroyed w/o bad faith
3) can't be obtained with legal process

Court must be persuaded by preponderance of evidence of excuse; secondary evidence is then admissible (e.g., testimony based on memory, handwritten copy)

Once established, no hierarchy of any secondary evidence!

Hint 7

Escapes:

1) voluminous records via summary or chart if originals admissible/available for inspection
2) certified copies of public records
3) collateral doc's

If court, in discretion, determines writing is collateral, contents may be proven by secondary evidence