Writings and Authentication

1. Writings and Authentication

2. Writings and Authentication • Writing defined: • FRE 1001(1) • Evid. Code § 250 • See also FRE (2)-(4)(defines photos, original and duplicate) and • Evid. Code §§ 255(original) & 260 (duplicate)

3. Writings and Authentication • Generally, three objections to a writing: • 1. authentication • 2. best or secondary evidence rule • 3. hearsay

4. Writings and Authentication • Authentication • When a writing is offered in evidence, the proponent must also offer enough evidence to permit the judge to find that the writing is what the proponent says it is

5. Writings and Authentication • Authentication • Authentication is a rule of relevancy • The role of the judge is limited • The judge must view the evidence in the light most favorable to the proponent • If there is sufficient evidence to allow a reasonable jury to find the writing to be what the proponent says it is, the judge must allow the jury to decide the issue of authenticity of the writing • (“it goes to the weight, not the admissibility”) • FRE 901 and Evid. Code § 1400

6. Writings and Authentication • Authentication • Authentication serves 3 purposes: • Establishes relevance • Assures genuineness • Gives context

7. Writings and Authentication • Authentication • The requirement of authentication applies to all tangible items of evidence • E.g. knife, gun, photos, the defective product, tape recording, video tape, diagram etc

8. Testimony of witness with knowledge; Non-expert opinion on handwriting; Expert testimony on comparison; Trier of fact comparison; Distinctive characteristics; Voice identification Telephone conversations Public records Ancient documents or data Process or system Method approved by statute or rule Writings and Authenticationmethods of authenticating:(FRE 901(b))

9. Witness to execution of writing Acting upon writing as authentic By handwriting evidence by maker By person familiar with handwriting of maker By comparison by factfinder By expert witness comparison By evidence of reply By content By acknowledged writing By official seal Writings and Authentication methods of authenticating: (Evid.Code §§ 1400-1454)

10. Writings and Authentication • Authentication of Photos, Movies, Video Tapes, Audio Tapes, Maps, Diagrams and Computer Reconstructions • Requirement that the item must be an accurate depiction • This requirement is relative to the issue on which it is relevant: • e.g. if diagram is offered to show how many houses are between cite and corner, a rough, not to scale drawing may be admissible • Alternatively, if photo is offered to show view witness had out of the window on to crime scene, where photo taken in spring shows leaves on tree blocking view when crime occurred in winter – photo may not be admissible • Issues may include, time of day, lighting conditions, angle of camera, view of camera lens

11. Writings and Authentication • Authentication of Photos, Movies, Video Tapes, Audio Tapes, Maps, Diagrams and Computer Reconstructions • Probative vs. prejudicial effect, danger of confusion • Gruesome photos • Cumulative • Edited portions of audio or video tapes • Relative scale of diagrams, maps and reconstructions

12. Writings and Authentication • Authenticating Real and Demonstrative Evidence • Real evidence: tangible objects that played a part in the events that are the subject of the trial • Demonstrative evidence: usually visual aids which help finder of fact understand the evidence presented (models, maps, diagrams, charts, photos, video tapes, demonstrations, reasonable facsimiles)

13. Writings and Authentication • Authenticating Real and Demonstrative Evidence • Evidence must be relevant • Probative value must outweigh countervailing factors in FRE 403 or Evid. Code § 352 • Usually, compliance with requirement of authentication will satisfy relevance • Re: demonstrative evidence – relationship between its accuracy and its probative value

14. Writings and Authentication • Demonstrations and Experiments • Must be relevant • Probative value must outweigh prejudice/confusion • DUI FSTs example • DUI FSTs defense video tape example • Accident reconstruction • Firearms identification testing

15. Writings and Authentication • Chain of Custody • A process of authentication of real evidence presented to the finder of fact • E.g. how do we prove that the drugs seized from defendant are the same drugs that were tested by the crime lab and that both of those are the same drugs being offered into evidence now • Describe how chain is kept • Marking method • Gaps in chain go to the weight, not the admissibility unless affirmative evidence of tampering

16. Writings and Authentication • The Best Evidence Rule • FRE 1002: to prove the content of a writing, recording or photo, the original writing, recording or photo is required except as otherwise provided by these rules or Act of Congress • This rule applies only when proponent seeks to prove contents of a writing • This rule means that you cannot prove the contents of a writing by testimony recounting the contents or by use of a copy

17. Writings and Authentication • Best Evidence Rule • FRE 1001(3) defines “original” to include: • Counterpart intended, by person executing writing or recording, to have same effect as original; • Printout of computer data, if readable by sight, and shown to accurately reflect data, is an original

18. Writings and Authentication • Best Evidence Rule • FRE 1001(4) defines “duplicate” to mean: • A counterpart produced by the same impression as the original by photographic, mechanical, electronic, chemical or equivalent techniques which accurately reproduce the original; • FRE 1003: “duplicate” admissible unless: • genuine question as to authenticity of original; or • Unfair to admit duplicate under the circumstances

19. Writings and Authentication • Best Evidence Rule • Hypo: plaintiff calls physician to testify about injuries from car accident; Dr. testifies about treatment, including the taking of x-rays; Dr. begins testimony about what x-rays showed. • Objection: failure to comply with best evidence rule • What should ruling be?

20. Writings and Authentication • Best Evidence Rule • So, what does prohibition on use of copy mean?

21. Writings and Authentication • Best Evidence Rule – Exceptions • FRE 1004 • (1) original lost or destroyed (unless by proponent bad faith) • (2)original not obtainable by any judicial process • (3) original in possession of opponent; requires: • notice (that contents of original would be subject of proof at hearing) and • failure (of opponent to produce original) • (4) collateral matter – the writing is not closely related to a controlling issue

22. Writings and Authentication • Best Evidence Rule – Exceptions • FRE 1005 – contents of an official record may be proved by a copy (official entity keeps originals and will only provide copies) • FRE 1006 – summaries of the contents of voluminous documents, written or oral; (original must be available for inspection) • FRE 1007 – if opponent admits contents of a writing, then party does not have to produce the original; admission must be in testimony or deposition or by written admission (unsworn oral admission does not meet Rule 1007)

23. Writings and Authentication • Secondary Evidence Rule • Evid. Code § 1521 – the contents of a writing may be proved by admissible secondary evidence, unless: • A genuine dispute exists concerning material terms of the writing; • Admission of secondary evidence would be unfair; • Subject to § 1523 (bar on oral testimony to prove contents of writing); • Authentication is still required

24. Writings and Authentication • Secondary Evidence Rule • Evid. Code § 1522– additional grounds for exclusion of secondary evidence: • Proponent is in control of original and has not made it available for inspection • Exceptions to this section: • Does not apply to a duplicate • Does not apply to a writing not closely related to controlling issues in the action • Does not apply to a writing in the custody of a public entity

25. Writings and Authentication • Secondary Evidence Rule • Evid. Code § 1523 – generally, oral testimony is not admissible to prove the content of a writing • Exceptions: • Proponent does not have a copy of writing and the original is lost or destroyed (w/o proponent fraud) • Proponent does not have a copy or original, and: can’t get writing by court process or other means, or, writing not closely related controlling issues and it would be inexpedient to require its production • Writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time and evidence sought is only the general result of the whole

26. Writings and Authentication • Secondary Evidence Rule • Evid. Code §§ 1530-1532 – rules applicable to official records – creates presumption of accuracy of writing • Evid. Code §§ 1550-1553 – rules applicable to photographic copies – creates presumption of accuracy of writing • These presumptions serve some of the same functions as authentication

27. Writings and Authentication • Evid. Code §§ 1560-1564 – rules applicable to subpoenas duces tecum – to make it easier for custodians of business records to comply with compelled records requests • Requires custodian of records to provide affidavit attesting to authenticity of records and accuracy of copies provided– affidavit may be received for the truth of the matters stated in the affidavit

28. Writings and Authentication Best and Secondary Evidence Rules: • Remember, in addition to these rules and their exceptions, the requirements of authentication and the hearsay rule apply when one seeks to prove the contents of a writing.

29. Writings and Authentication • Rule of Completeness • FRE 106 – when a writing is introduced by a party, an adverse party may introduce any other part or any other writing which in fairness ought to be considered contemporaneously • Evid. Code § 356 where part of act, statement, or writing offered by one party, the whole on the same subject may offered by opponent (letter read, answer may be given, etc.) • Difference: FRE does not apply to conversations