Table of Contents

Chapter 11. Physical Evidence 1

A. Authentication 1

B. The Best Evidence Rule 7

1. Scope and Purpose 8

2. Exceptions 9

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 11. Physical Evidence

Introduction

• Physical evidence is subject to many of the same rules as testimony: documents inadmissible if they contain hearsay; guns inadmissible if they serve only to demonstrate defendant’s violent character. But also two other rules: authentication and best evidence.

  • All physical evidence must be authenticated: party offering evidence must provide sufficient evidence to allow the factfinder to conclude the evidence is genuine.

    • This is form of conditional relevance,

  • Certain physical evidence and certain forms of testimony may be rendered inadmissible by the best evidence rule.

    • This rule has a narrow scope. It requires only that a party seeking to prove the content of a document introduce the original—and even that requirement has significant exceptions.

    • If the content of the document is in the factfinder’s chain of inferences (not at the beginning or end of chain), then the BER applies.

• “Real evidence”: items that allegedly played some role in or were generated by the events in dispute.

• “Demonstrative evidence”: items generated by lawyers (charts, diagrams, photographs) to clarify their point or make it more vivid.

  • Demonstrative evidence is not subject to requirement of authentication of BER.

• Difference between introducing an exhibit and merely marking it: exhibits must be marked for identification even if they are never introduced into evidence but, for example, are only used for refreshing recollection of forgetful witness.

  • Exhibit merely marked but not introduced cannot be relied upon by jury.

A. Authentication

FRE 901. Authenticating or Identifying Evidence

• (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

• (b) Examples. The following are examples only--not a complete list--of evidence that satisfies the requirement:

  • (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

  • (2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

  • (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

  • (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

  • (5) Opinion About a Voice. An opinion identifying a person's voice--whether heard firsthand or through mechanical or electronic transmission or recording--based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

  • (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

    • (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

    • (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

  • (7) Evidence About Public Records. Evidence that:

    • (A) a document was recorded or filed in a public office as authorized by law; or

    • (B) a purported public record or statement is from the office where items of this kind are kept.

  • (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

    • (A) is in a condition that creates no suspicion about its authenticity;

    • (B) was in a place where, if authentic, it would likely be; and

    • (C) is at least 20 years old when offered.

  • (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

  • (10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

FRE 902. Evidence That Is Self-Authenticating

• The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

  • (1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

    • (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

    • (B) a signature purporting to be an execution or attestation.

  • (2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

    • (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

    • (B) another public officer who has a seal and official duties within that same entity certifies under seal--or its equivalent--that the signer has the official capacity and that the signature is genuine.

  • (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester--or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul,...

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