Evidence Foundations 7 - Documentary Evidence and Authentication

Documentary Evidence in Court

Relevance and Admissibility

  • Documentary evidence, like all evidence, must be relevant to be admissible.
  • It must pertain to a fact at issue and help prove or disprove that fact.
  • Example: In a contract dispute, the contract itself is relevant.

Authentication

  • Before a document is admitted, it must be authenticated.
  • Authentication means proving that the document is genuine and not a forgery.
  • The party presenting the document needs to provide enough proof that a reasonable juror could believe it's authentic.
  • Parties can stipulate to authenticity, but often won't.

Example: Shane's Snake Sales

  • Scenario: Shane is on trial for illegal snake sales, and the prosecution wants to use a notebook labeled "snake sales by Shane" as evidence.
  • The notebook contains a list of names, snake breeds, and dollar amounts.
  • The prosecution must authenticate the notebook.
  • Circumstantial evidence can be used for authentication.
  • Example: Shane's grandma can testify that she saw the notebook in Shane's room and he identified it as his snake sales ledger.

Important Note

  • Authentication does not automatically make a document admissible.
  • Other rules of evidence, such as the prohibition against hearsay or the best evidence rule, may still bar the document.

Special Authentication Rules for Handwritten Documents

  • The party offering a handwritten document must prove it was written by the alleged author.
  • Methods of authentication:
    • Non-expert witness with past familiarity of the handwriting (e.g., Shane's grandma).
    • Expert witness comparing the writing to a known sample.
    • Jury comparison with a known sample.

Ancient Documents

  • Under the Federal Rules, a document at least 20 years old may be considered an ancient document.
  • Requirements:
    • Must be at least 20 years old.
    • Condition must not raise suspicion.
    • Must be found where such a writing would typically be kept.
  • These documents require no further authentication.
  • Example: A 30-year-old receipt from a grandfather's filing cabinet found in a folder labeled "purchase receipts".

Reply Letter Doctrine

  • A writing can be authenticated by proving it was written in response to a communication sent to the claimed author.
  • Example: Shane's grandma sends a letter to Shane about his pet queen Isabella, and receives a reply. The reply letter does not need further authentication.

Photos and Recordings

  • Under the Federal Rules of Evidence, photos and recordings are writings.
  • Photos can be authenticated by a witness familiar with the content who identifies them as fair and accurate depictions.
  • The photographer doesn't usually need to testify.

Unattended Cameras

  • For events captured by unattended cameras (e.g., security cameras):
    • Proof that the camera was properly operating is needed
    • Proof that the images came from that camera is also needed.

Self-Authenticating Documents

  • Certain documents authenticate themselves; they are presumed genuine without further evidence.
  • Examples:
    • Notarized documents.
    • Certified copies of public records.
    • Newspapers and periodicals.
    • Government documents bearing a government seal.

Best Evidence Rule (Preference for Original Document Rule)

  • If you want to prove the terms of a writing (documents, photos, recordings), you must present the original in court.
  • Secondary evidence (handwritten copy, witness testimony) is only admissible if there's a valid reason for not having the original.
  • Applies in two main situations:
    • When the writing is legally operative (creates rights/obligations), such as a contract or will.
    • Where a witness's knowledge comes from reading the writing rather than personal knowledge.

Example: Rosa's Medical Records

  • Rosa wants to prove she has high blood pressure in a med mal suit.
  • If Dr. James testifies about her blood pressure history from her medical chart, the original chart must be produced (best evidence rule applies).
  • If Dr. James personally monitored Rosa's blood pressure, he can testify from personal knowledge, and the chart isn't required.

Duplicates

  • Exact duplicates (photocopies, electronically generated printouts) are admissible to the same extent as originals.
  • Exception:
    • If circumstances make the duplicate unfair.
    • If a genuine question is raised about the original's authenticity.

Excuses for Not Having the Original

  • Valid reasons for submitting secondary evidence:
    • Loss or destruction of the original.
    • Original is outside the jurisdiction and unobtainable despite reasonable effort.
    • Adversary possesses the original but fails to produce it after due notice.

Situations Where the Best Evidence Rule Doesn't Apply

  • When the fact to be proved exists independently of the document.
    • Example: Birth of a baby or a person's death; testimony of someone with knowledge is sufficient without needing a birth or death certificate.
  • When the issue is of minor importance (collateral).
  • Where there are voluminous records.
    • Example: A summary of thousands of complaints is acceptable instead of presenting each individual complaint.
  • Official public records.
    • Copies of public records are acceptable if certified as correct by an authorized person.