Evidence Rules 4

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Evidence Rules 4
2010-07-17 12:16:50
Tangible Evidence

Tangible evidence
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  1. Authentication
    Real evidence: by personal knowledge, distinctive markings, or chain of custody. Must be authenticated by Clear and convincing evidence under NY law.

    Documentary evidence:

    • by proof - stipulation, testimony of eyewitness, handwriting verification
    • ancient documents - 20 years old (30 in NY, but only 10 for maps surveys and real property records stored in the proper place), in condition not creating suspicion, found in place where it would be if authentic
    • by reply letter - letter in reply is presumed to be from original recipient.
    • handwriting verification - by eyewitness or by comparison with known sample

    Self-authenticating documents:

    • i) Public documents bearing a government seal or signature of an authorized government official;
    • ii) Certified copies of public records;
    • iii) Official publications issued by a public authority, newspapers, and periodicals;
    • iv) Trade inscriptions;
    • v) Notarized or otherwise acknowledged documents;
    • vi) Commercial paper (including the signature thereon, and related documents);
    • vii) Any document declared by Congress to be authentic, and
    • viii) Records of a regularly conducted activity certified by a custodian of the records (NY: only in civil actions and when produced pursuant to subpoena)

    Oral statements:

    • Voice identification who heard the voice at any time
    • In telephone conversation, caller recognized speaker's voice, speaker knew facts only particular person would know, number dialed was correct and speaker identified self
  2. Best Evidence rule
    Duplicates allowed: unless there is genuine question as to authenticity of original or unfair to admit duplicate in lieu of original (e.g., only part of original is duplicated)

    Evidence of original's content allowed if:

    • Original lost or destroyed
    • Original unobtainable by judicial means
    • Party against whom document to be offered was in possession, but did not produce the document
    • document relates only to a collateral matter

    NY Rule: duplicates generally not admissible. Exceptions: duplicates of business records accurately reproduced; and duplicates reproduced as image that cannot be altered without leaving record of such changes.
  3. Parol evidence rule
    Not allowed where written agreement is complete integration.

    Allowed where written agreement is partial integration


    • To clarify ambiguity
    • Prove trade custom or course of dealing
    • Show fraud, duress, or mistake
    • Show consideration has/has not been paid.