Authentication, Writings, and Real Evidence

Authentication of Writings and Spoken Statements

A writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows the writing is what the proponent claims it is. The proof must be sufficient to support a jury finding of genuineness

Methods of Authentication

Parties my admit the genuineness of a document by the pleadings or by stipulation or by: (1) opponent’s admission; (2) eyewitness testimony; (3) handwriting verification; (4) the reply letter doctrine; (5) the ancient documents exception; (6) photograph requirements; and (7) methods for x-rays, echocardiograms, etc.

Authentication by Opponent Admission

A writing can be authorized by evidence that the party against whom it is offered has either admitted to its authenticity or acted upon it as authentic

Authentication by Eyewitness testimony

Can be authenticated by testimony of anyone who saw the document executed or heard it acknowledged. The testimony can be from anyone; it doesn’t have to be a from a subscribing witness unless required by statute

Authentication by Handwriting Verification

A writing can be authenticated by evidence that the maker’s handwriting is genuine. This evidence may be in the form of: (1) the opinion of a lay witness who has familiarity with the alleged writer’s handwriting in the course of normal affairs; (2) the opinion of an expert who has compared samples; or (3) the fact-finder’s comparison of the writing to other samples

Authentication Reply Letter Doctrine

A writing can be authenticated by evidence that it was written in response to a communication sent to the alleged author

Authentication of Ancient documents

A document can authenticated by evidence that it: (1) is at least 20 years old; (2) is in a condition that creates no suspicion as to authenticity; and (3) was found in a place where such writing would likely be kept. Note that this is separate from the hearsay exception for ancient documents.

Authentication of photographs

Generally, 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 fair and accurate representation of those facts. It is ordinarily not necessary to call in the photographer for authentication; a witness familiar with the scene is sufficient.

Authentication of X-Rays, Echos. etc.

An X-ray and similar documents cannot be authenticated by testimony of a witness that it is a correct representation of the facts. The proponent must show that the process used was accurate, the machine was in working order, and the operator was qualified. A chain of custody must also be established

Authentication of Oral Statements

When a statement is admissible only if said by a particular person, authentication as to the identity of the speaker is required.

Voice Identification

a voice can be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying

Authentication of Telephone conversations

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that: (1) they recognized the other party’s voice; (2) the speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person’s number and a voice answered as that person or that person’s residence; or (4) they called a business and talked with the person answering the phone about matters relevant to the business

Self-Authenticating Documents

Extrinsic evidence of authenticity is not required for: (1) domestic public documents bearing a seal and similar official foreign documents; (2) official publications such as government pamphlets; (3) certified copies of public records or private records on file in a public office; (4) newspapers and periodicals; (5) trade inscriptions and labels; (6) notarized/acknowledged documents; (7) commercial paper, including signatures thereon, and related documents; and (8) business records, electronically generated records, and data copied from an electronic device, so long as the records are certified and the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Best Evidence Rule, Generally

To prove the content of a writing, recording, or photograph (including videos, x-rays, and tangible collections of data), the original document must be produced if its terms are material. Secondary evidence of the document, such as oral testimony, is admissible only if the proponent provides a satisfactory excuse for the original’s absence

When the Best Evidence Rule Applies

Applies where the evidence is offered to prove the content of a writing, most often: (1) where the writing is a legally operative or dispositive instrument; or (2) where the knowledge of a witness concerning a fact results from having read it in the writing

When Best Evidence Does not Apply

The rule does not apply where the fact to be proved has an existence independent of any writing. Any witness with personal knowledge may testify to those facts; a writing also depicting those facts is not required

“Originals” and “Duplicates” under Best Evidence

The original is the writing itself or any counterpart that is intended by the person executing it to have the same effect as an original. This includes the negative photograph or any print of it, or the printout or readable output of ESI. A duplicate is an exact copy of an original made by mechanical means.

Admissibility of Duplicates under Best Evidence

Duplicates are admissible to the same extent as originals, unless: (1) the circumstances make it unfair to admit the duplicate; or (2) a genuine question is raised about the authenticity of the original

Excuses for Non-Production of Original

Valid excuses justifying the admissibility of secondary evidence include: (1) loss or destruction of the original, unless the proponent lost or destroyed the original in bad faith; (2) the original cannot be obtained by any available judicial process (usually in possession of a third party outside the jurisdiction); or (3) the original is in the possession of an adversary who, after due notice, fails to produce the original

Best Evidence Rule Degrees of Secondary Evidence

If secondary evidence is permissible, the type of secondary evidence does not matter in terms of preference for one type over another

Exceptions to the Best Evidence Rule

(1) Summaries of voluminous records; (2) certified public records; (3) writing is collateral to the issue litigated; and (4) the writing is the testimony or written admission of an opponent

Summary of Voluminous Records Exception

The proponent may present the contents in the form of a chart or summary, but the proponent must make the originals or duplicates available for inspection or copying, and the court may order the proponent to produce the records in court.

Testimony or Written Admission Exception to Best Evidence

Where the opponent has given testimony, a deposition, or a written admission about the writing’s contents, the proponent may use this evidence and need not give an excuse for non-production of the original

Functions of the Court and the Jury in Best Evidence Rule

Ordinarily, the court makes determinations of fact regarding admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the FRE reserve the following questions of preliminary fact for the jury: (1) whether the original ever existed; (2) whether a writing produced at trial is an original; and (3) whether the evidence offered correctly reflects the contents of the original

Real Evidence

Real evidence is physical evidence addressed directly to the trier of fact

Authentication of Real Evidence

The object must be identified as what the proponent claims it to be, either by: (1) testimony of a witness that they recognize the object as what the proponent claims it is; or (2) evidence that the object has been held in a substantially unbroken chain of possession. Standard is sufficient to support a jury finding

Condition of Real Evidence

If the condition of an object is relevant, it must be shown to be in substantially the same condition at trial

Reproductions and Explanatory Real Evidence

Relevant photographs, diagrams, maps, or other reproductions are generally admissible. Items used entirely for explanatory purposes are permitted at trial but are usually not admitted into evidence

Maps, Charts, Models, Etc

These are usually admissible for the purpose of illustrating testimony, but must be authenticated by testimonial evidence that they are faithful reproductions of the object or thing depicted

Demonstrations

The court, in its discretion, may permit experiments or demonstrations to be performed in the courtroom. An experiment must be performed under conditions that are substantially similar to those attending the real events. Demonstrations of bodily injury may not be allowed where the demonstration would unduly dramatize the injury

Exhibition of Injuries

Exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude the evidence for unfair prejudice

Jury View of the Scene

The trial court has discretion to permit the jury to view places at issue in the case. The need for the view and changes in the condition of the premises following the events at issue are both relevant considerations