MBE EVIDENCE: Authentication & Expert Testimony

tangible evidence : ______ ______ and ______ ______

documentary evidence, physical objects

Evidence that is representative or illustrative of an object or situation (e.g. animation of a car crash)

demonstrative evidence

All evidence must be proven genuine before it may be admitted. The proponent must establish that the object is what they are claiming it to be.

authentication

The final decision as to whether the evidence is authenticated rests with the ______ FRE 901(a)

jury

When is authentication not necessary? Parties have ______ ______ ______ ______ or Party granted a written request for admission

stipulated to the facts;

When is authentication not necessary? Parties have stipulated to the facts; or Party granted a ______ ______ ______ ______

written request for admission

Testimony by a custodian of the records Testimony by a person who prepared or created the document Testimony by a person who witnessed the signing of the document Testimony by an expert witness qualified to render an opinion on the issue Showing the trier of fact a comparison of the unauthenticated evidence with an authenticated specimen

examples of methods of authentication

Evidence that is so self-evident, it requires no extrinsic evidence of authenticity in order to be admitted. (e.g., notarized document) FRE 902

self-authenticating evidence

What types of evidence are self-authenticating? Commercial paper; Certified copies of public records; Official publications purporting to be issued by a public authority; Newspapers and periodicals; Trade inscriptions; Notarized documents; Anything that a federal statute declares to be authentic; Certified records of a regularly conducted activity; Certified records or data ______ ______

electronic device

What types of evidence are self-authenticating? Commercial paper; Certified copies of public records; Official publications purporting to be issued by a public authority; Newspapers and periodicals; Trade inscriptions; Notarized documents; Anything that a ______ ______ declares to be authentic; Certified records of a regularly conducted activity; Certified records or data generated/cop

federal statute

What types of evidence are self-authenticating? Commercial paper; Certified copies of public records; Official publications purporting to be issued by a public authority; ______ ______ ______; Trade inscriptions; Notarized documents; Anything that a federal statute declares to be authentic; Certified records of a regularly conducted activity; Certified records or data generated/cop

Newspapers and periodicals;

What types of evidence are self-authenticating? Commercial paper; Certified copies of public records; Official publications purporting to be issued by a public authority; Newspapers and periodicals; Trade inscriptions; ______ ______; Anything that a federal statute declares to be authentic; Certified records of a regularly conducted activity; Certified records or data generated/cop

Notarized documents;

What types of evidence are self-authenticating? Commercial paper; Certified copies of ______ ______; Official publications purporting to be issued by a public authority; Newspapers and periodicals; Trade inscriptions; Notarized documents; Anything that a federal statute declares to be authentic; Certified records of a regularly conducted activity; Certified records or data generated/cop

public records;

What types of evidence are self-authenticating? Commercial paper; Certified copies of public records; Official publications purporting to be issued by a public authority; Newspapers and periodicals; Trade inscriptions; Notarized documents; Anything that a federal statute declares to be authentic; Certified records of a ______ ______ ______ Certified records or data generated/cop

regularly conducted activity;

What types of evidence are self-authenticating? Commercial paper; Certified copies of public records; Official publications purporting to be issued by a public authority; Newspapers and periodicals; ______ ______; Notarized documents; Anything that a federal statute declares to be authentic; Certified records of a regularly conducted activity; Certified records or data generated/cop

Trade inscriptions;

How can a physical object be authenticated? Personal knowledge: Testimony of a witness with personal knowledge that the item is what it’s claimed to be; Distinctive characteristics: by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item (e.g. engraved initials on the gun); ______ ______ ______ FRE 901(b)(1) and FRE 904(b)(4)

chain of custody

Personal knowledge: Testimony of a witness with personal knowledge that the item is what it’s claimed to be; Distinctive characteristics: by the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item (e.g. engraved initials on the gun); Chain of custody FRE 901(b)(1) and FRE 904(b)(4)

physical object can be authenticated

Proves that the item in court has not been materially altered or tampered with. Every witness who handled the object must testify and state: When the witness took custody of the evidence and from whom/where; Precautions taken to preserve the evidence; That the item was not substituted, nor tampered with while in their custody; and When the custody of the item was relinquished and to whom (e.g. for fingerprint testing)

authentication by chain of custody

Do reproductions (e.g. diagrams) have to be authenticated by the creator?

no

How are reproductions (e.g. diagrams) authenticated? Testimony of a witness with personal knowledge that the item is what it’s claimed to be

personal knowledge

Testimony by anyone who witnessed the scene depicted in the photo and can attest to its accuracy

photo authentication

What are the three ways to authenticate handwriting? Testimony of lay person who was familiar with the handwriting before litigation began Comparison by a ______ ______ Comparison by trier of fact: jury can compare side-by-side specimens

qualified expert

What are the three ways to authenticate handwriting? ______ of lay person who was familiar with the handwriting before litigation began Comparison by a qualified expert Comparison by trier of fact: jury can compare side-by-side specimens

Testimony

What are the three ways to authenticate handwriting? Testimony of lay person who was familiar with the handwriting before litigation began Comparison by a qualified expert Comparison by ______ ______ ______ jury can compare side-by-side specimens

trier of fact

Does having a signature on a piece of writing prove that the document is written by the person who signed it?

No

Proponent must: Establish a valid chain of custody; Show that the machine was working properly; Show that an accurate process was used; and The operator of the machine was competent to operate it

x-ray authentication

How do you authenticate a wiretap or recording technology? Proponent must show: Recording device was capable of recording the conversation; Operator of the device was qualified to operate it; No changes have been made and recording was preserved in the manner shown to the court (i.e. chain of custody); Recording is authentic and correct; Identify of the speakers; and The conversation wa

wiretap/recording authentication

How do you authenticate ancient documents? Presumed authentic if: Document is at least 20 years old; Document is unsuspicious in its appearance; Found in a place natural for such a document FRE 901(b)(8)

ancient document authentication

How do you authenticate someone’s voice? By testimony of anyone who is familar with the voice (doesn’t need to be familiar with the voice before litigation began)

voice authentication

How do you authenticate statements made during a telephone conversation? Evidence showing the proponent called the number assigned to the person or business, and the person or business identified themselves upon answering FRE 901(b)(6)

telephone authentication

Best Evidence Rule only applies to situations where  ______ ______ are at issue.

material terms

What are the only 2 situations in which the Best Evidence Rule applies? ______ of the writing are being ______ (e.g. contents of a will or photo); or Witness relies on contents of the original during his/her testimony

Terms proven

The Best Evidence answer on the MBE is usually ______

wrong

no genuine question as to the original’s authenticity (FRE 1003); originals are lost or destroyed and not by the proponent acting in bad faith (FRE 1004(a)); Original cannot be obtained by any available judicial process (FRE 1004(b)); Party against whom the original was going to be used had control of the original

duplicates admissible

if they are based on first-hand knowledge and: Rationally based on the witness’s perception; Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and Not based on scientific, technical, or other specialized knowledge FRE 701

when lay opinions are admissible

Can you ask a non-expert witness what someone might have been thinking?

No

Witness is qualified to be an an expert by knowledge, skill, experience, training, or education; Witness’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; Testimony is based on sufficient facts or data; Testimony is the product of reliable principles & methods; and Expert has reliably applied the principles and methods to the facts of the case

requirements for expert testimony

on Facts or data that expert has been made aware of or personally observed; Facts that were presented to the expert at trial (e.g. hypothetical question); or Facts that experts in the field would rely on to form an opinion; FRE 703

expert’s opinion can be based

What are the only 2 situations in which the Best Evidence Rule applies? Terms of the writing are being proven (e.g. contents of a will or photo); or Witness ______ ______ ______ ______ ______ ______ during his/her testimony

relies on contents of the original

Who decides whether expert testimony is admissible?

judge

What are the Daubert factors? Used to determine whether the expert’s methods are scientifically valid.

Daubert factors

Daubert factors? The court weighs: Whether the method has been tested; If the method has been subject to peer review and publication; The ______ ______ of the technique; The existence of standards controlling the technique’s application; and General acceptance in the relevant scientific community

error rate

Daubert factors? The court weighs: Whether the method has been tested; If the method has been subject to peer review and publication; The error rate of the technique; The existence of standards controlling the technique’s application; and ______ ______ in the relevant scientific community

General acceptance

Daubert factors? The court weighs: Whether the method has been tested; If the method has been subject to ______ ______ ______ ______ The error rate of the technique; The existence of standards controlling the technique’s application; and General acceptance in the relevant scientific community

peer review and publication;

Daubert factors? The court weighs: Whether the method has been tested; If the method has been subject to peer review and publication; The error rate of the technique; The existence of ______ controlling the technique’s application; and General acceptance in the relevant scientific community

standards

Daubert factors? The court weighs: Whether the method has been ______; If the method has been subject to peer review and publication; The error rate of the technique; The existence of standards controlling the technique’s application; and General acceptance in the relevant scientific community

tested;

An expert can rely upon inadmissible evidence to support their conclusions but the expert cannot disclose the evidence to the jury unless the court finds that the ______ ______; of disclosure substantially outweighs its ______ ______ FRE 703

probative value, prejudicial effect.

Can an expert state their opinion without testifying to the underlying facts or data?

Yes

May an expert be required to disclose facts or data that lead them to their conclusion in a cross examination

Yes

Can experts give opinions on legal conclusions?

No

Can an expert give an opinion on an ultimate issue in a case? Yes, except for whether D had the ______ ______ ______ for the crime

requisite mental state

Can the court appoint expert witnesses? Yes,

Yes

Can court-appointed expert witnesses be deposed by any party?

Yes

Can court-appointed expert witnesses be called to testify by any party?

Yes

Can court-appointed expert witnesses be cross-examined by any party?

Yes

Must court-appointed expert witnesses advise the parties of any findings the expert makes?

Yes