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  1. General Issues
    • Whenever a writing appears, be on
    • the lookout for:

    • (1) Authentication;
    • (2) Best evidence;
    • (3) Hearsay.
  2. Authentication
    General Rule
    The party seeking to introduce an exhibit must introduce sufficient evidence for a reasonable juror to conclude that the item is what the party claims it to be.

    (Process is called laying foundation).

    If a witness has knowledge of an exhibit, their testimony that the document is genuine is sufficient.
  3. Authentication
    Methods of Authenticating Writings
    (1) Testimony by a witness with personal knowledge.

    • (2) Proof of author’s handwriting by:
    • --lay opinion;
    • --expert opinion (handwriting expert);
    • --jury comparison.

    • (3) Ancient Documents
    • --Document is at least 20 (30) years old;
    • --Document is free of suspicion;
    • --Document is found where it would be expected.

    • (4) Solicited reply doctrine
    • --A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.
    • --(P mails offer to X, properly addressed and posted, and later received acceptance purportedly signed by X. This authenticates the document as having been signed by X).
  4. Authentication
    Self-Authenticating Documents
    • (1) Official Publications
    • --(IRS pamphlet on how to file taxes)

    • (2) Certified copies of public or private documents on file in public office
    • --(deeds; mortgages)

    (3) Newspapers or periodicals

    • (4) Trade inscriptions and labels
    • --(candy bar wrapper to prove it was made by Hershey)

    • (5) Acknowledged document
    • --(notarized documents)

    • (6) Commercial paper
    • --(checks; promissory notes)

    • (7) Certified business records offered under the business records exception
    • --Must be certified:
    • (a) by someone within the business; and
    • (b) who knows how the records are regularly made; and
    • (c) that these documents were made in the regular way;
    • (d) at or about the time of the event recorded.
  5. Authentication
    Authentication of Photographs and Recordings
    • Photographs as “demonstrative” evidence:
    • --If the purpose of the photograph is to “illustrate” a witness’s testimony, the witness can authenticate by testifying that it is a fair and accurate representation of the people or objects portrayed.

    • Photograph as “Silent Witness”:
    • --Purpose of photo is itself as evidence (photos from surveillance cameras, ATMs, etc)
    • --Party offering must show:

    (a) Camera was properly installed and working; and

    • (b) Recording or image has not been tampered with.
    • Common method to show lack of tampering: chain of custody.
  6. Best Evidence Rule
    General Rule

    • Applies to writings.
    • (documents; recordings; films; x-rays)

    • Rule (FRE 1002)
    • If a party seeks to prove the contents of a writing, the party must either (a) produce the writing or (b) provide an acceptable excuse for its absence.

    If the court finds an acceptable excuse, the party may then use secondary evidence such as oral testimony (or anything else) to prove the contents.

    • Overview Questions
    • (1) When does the best evidence rule apply?
    • (2) What is an original?
    • (3) What is a good excuse?
  7. Best Evidence Rule
    When does rule apply?
    Only when a party seeks to prove the contents of a writing. Two principal situations:

    (1) Writing is a legally operative document (writing itself creates legal rights and obligations) (contracts, deeds, mortgages, divorce decrees).

    • (2) Witness testifying to facts learned solely from the writing.
    • (Officer w/o personal knowledge testifying to break in captured on film: We want to see the film itself, not his description of it).
  8. Best Evidence Rule
    What is an original [or acceptable duplicate]?
    Definition of Original

    • The writing itself; or any counterpart intended to have the same effect.
    • (film negatives/prints)

    • Definition of Duplicate
    • Any counterpart produced by mechanical mean that accurately reproduced the original.
    • (photocopy; carbon copy; computer print-outs)

    (Not: handwritten copies; oral testimony)

    Rule for Duplicates

    A duplicate is admissible to the same extent as an original, unless:

    (a) there is a genuine question as to the authenticity of the original;

    (b) it would be unfair to admit the duplicate.

    NY Rule for Duplicates

    • Duplicates are acceptable substitutes only if made in the regular course of business.
    • (Can’t have prepared for purpose of
    • litigation.)
  9. Best Evidence Rule
    What is an acceptable excuse?
    A party need not produce the original (or acceptable duplicate) if the original:

    (1) Is lost and cannot be found with due diligence;

    (2) Has been destroyed without bad faith; or

    (3) Cannot be obtained with legal process.

    Standard is by a preponderance.
  10. Best Evidence Rule
    Escapes from the Rule
    Voluminous records can be presented in summary form, provided the originals are admissible and available for inspection.

    Certified copies of public records.

    Collateral documents if the court, in its discretion, determines that the document is unimportant to the issues in the case.
  11. Best Evidence Rule
    Only writings.

    Only when proving contents.

    Even then, ok to have a duplicate,

    And even if not, all you need is an excuse or escape.

    • IOW, the Best Evidence Rule
    • rarely applies on the bar exam.
Card Set:
2011-06-08 00:20:31
evidence documentary

Evidence-Documentary Evidence
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