Evidence - Authentication Of Writings And Best Evidence Rule

Front 1

What is authentication

Back 1

If the relevance of a writing is based on its source of authorship, a showing must be made that the writing is authentic.

Front 2

What is foundation?

Back 2

In the absence of a stipulation as to authenticity, a foundation must be made to have the evidence admitted.

Front 3

What are the methods of Authentication?

Back 3

1) Witness' personal knowledge
2) Proof of handwriting
3) Ancient Document Rule
4) Solicited Reply Doctrine

Front 4

What is the witness's personal knowledge?

Back 4

The witness observed the writing

Front 5

How can you prove handwriting?

Back 5

1) lay person opinion
2) expert comparison opinion
3) Jury comparison

Front 6

What is lay person opinion?

Back 6

Lay witness testifies to opinion that X wrote the document, based on familiartity with X's handwriting as result of experience

Front 7

Expert Comparison Opinion

Back 7

Handwriting Expert testifies to opinion that X wrote document on hasis of comparison between the document and genuine sample

Front 8

Jury Comparison

Back 8

Jury compares a sample and the original and decides

Front 9

What is the ancient document rule?

Back 9

Authenticity may be inferred IF document is:
- at least 20 years old
- facially free of suspicion
- found in a place of natural custody

(with age comes reliability)

Front 10

What is the solicited reply doctrine?

Back 10

A document can be authenticated by evidence that it was in response to a prior communcation to the alleged author

Front 11

What is proof by circumstantial evidence?

Back 11

evidence that illustrates distinctive characteristics

Front 12

What is the conditional relevancy standard?

Back 12

The document is admissible if the court determines there is sufficent evidence from which a reasonable juror could conclude the document is genuine

Front 13

What is a self-authenticating document?

Back 13

D document that is presumed to be authentic, therefore there is no need for foundation testimony

Front 14

What are the types of self-authenticating documents?

Back 14

NC TACO
- Newspapers/Periodicals
- Certified copies of public/private records on file in a public office
- Trade Inscriptions and labels
- Acknowledged document
- Commerical paper (ex. prmissory note)
- Offical Publication

Front 15

How are photographs authenticated?

Back 15

Witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate representation" of the people or objects portrayes

Front 16

What is the Best Evidence Rule?

Back 16

A party who seeks to prove the contents of a writing must either:
produce the original writing
OR
provide an acceptable excsue for tis absence

Front 17

What is a writing?

Back 17

sound recordings
x-rays
films

Front 18

When does the Best Evidence Rule Apply?

Back 18

When the party is seeking to prove the contents of a writing
Ex. (a deed or contract OR, W is testifying she learned of something from the writing)
Usually it is a legally operative document

Front 19

What is a legally operative document?

Back 19

The writing itself creates rights and obligations

Front 20

When does the Best Evidence Rule not apply

Back 20

When a witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact

Front 21

What is an original writing?

Back 21

- whatever the parties intended to be the original - anything intended to be the original (comouter print out is ok)

- Duplicate (photocopies are ok)
UNLESS, it would be unfair or there would be a genuine issue of authenticity

- Handwritten copy ie neither an original nor duplicate

Front 22

What are excuses fof non-production of original?

Back 22

- lost or cannot be found
- destroyed without bad faith
- cannot be obtained with legal process

Front 23

What is the legal standard if an excuse it used?

Back 23

Court must be persuaded by preponderance of the evidence that excuse has been established, secondary evidnece is then admissible

Front 24

When will the judge cut the party a break even though the original is available?

Back 24

1) If Voluminous (too much to bring into courtroom)
2) certified copies of public records (keep originals on file)
3) Collateral Documents (not very important to the merits of the case)