Deck 11: Documentary Evidence

Question 1

Distinguish among documentary evidence, oral testimony, and real evidence. Give an example of each.

Answer 1

Documentary evidence refers to any written or recorded evidence that is presented in court, such as contracts, emails, letters, or photographs. This type of evidence is tangible and can be reviewed by the judge and jury. An example of documentary evidence would be a signed contract between two parties.

Oral testimony, on the other hand, is evidence given by a witness who speaks under oath in court. This can include their personal account of events or their observations. An example of oral testimony would be a witness recounting what they saw during a car accident.

Real evidence is physical evidence that is presented in court, such as a weapon, a piece of clothing, or a vehicle. This type of evidence can be examined and analyzed by the court. An example of real evidence would be the actual weapon used in a crime.

In summary, documentary evidence is written or recorded evidence, oral testimony is evidence given by a witness, and real evidence is physical evidence. Each type of evidence plays a crucial role in the legal process and can be used to support or refute a case.

Question 2

Do rules of evidence, with respect to relevancy, competency, and materiality, apply to documentary evidence as they apply in the case of oral testimony? What other tests are peculiar to the use of documentary evidence?

Answer 2

Yes, the rules of evidence regarding relevancy, competency, and materiality apply to documentary evidence just as they do to oral testimony. Documentary evidence must be relevant to the case at hand, competent (meaning it must be authentic and not hearsay), and material to the issues being litigated.

In addition to these standard tests, there are other considerations that are peculiar to the use of documentary evidence. For example, the best evidence rule requires that the original document be presented in court, rather than a copy, unless certain exceptions apply. The authentication of documentary evidence also requires that its origin and integrity be established, often through the testimony of a witness who can verify its authenticity. Furthermore, the admissibility of documentary evidence may be subject to the rules of hearsay, which can impact its use in court proceedings.

Overall, while the basic principles of relevancy, competency, and materiality apply to both oral testimony and documentary evidence, there are additional tests and considerations that are specific to the use of documentary evidence in legal proceedings.

Question 3

What is meant by the statement that documentary evidence is not admissible until it has been authenticated? Must evidence that is introduced to authenticate a document be direct evidence? Explain.

Answer 3

The statement that documentary evidence is not admissible until it has been authenticated means that any written or recorded evidence, such as a document or a recording, cannot be used as evidence in a legal proceeding until its authenticity has been verified. This is to ensure that the evidence presented is reliable and can be trusted as accurate.

Evidence introduced to authenticate a document does not necessarily have to be direct evidence. Direct evidence is evidence that directly proves a fact, such as an eyewitness account. In the case of authenticating a document, indirect evidence can also be used, such as testimony from a witness who can verify the document's origin or chain of custody. Other forms of indirect evidence could include expert testimony or forensic analysis to confirm the document's authenticity.

In summary, the authentication of documentary evidence is a crucial step in the legal process to ensure the reliability and trustworthiness of the evidence presented. While direct evidence can be used to authenticate a document, indirect evidence can also be utilized to establish its authenticity.

Question 4

What is meant by self-authentication? Explain Federal Rule 902, and give examples of evidence conforming to this rule. List five types of writings that are considered self-authenticating under Rule 902 of the Federal Rules of Evidence.

Question 5

Unless documents are self-authenticating, a foundation must be established for admissibility. There are four methods of proof. Name three of them. How is the foundation established?

Question 6

What is the rationale for admitting evidence from official records and public documents even though the person who made the documents is not testifying?

Question 7

Death certificates and certified autopsy reports are generally received in evidence as public records. What parts of such reports may be challenged?

Question 8

What is the best evidence rule? Why have the courts adopted it? What are the provisions of Federal Rule 1002?

Question 9

What proof must be offered in court as a condition of the admissibility of secondary evidence rather than the best evidence? Give some examples of secondary evidence.

Question 10

What are the provisions of Federal Rule 1003? How does this differ from traditional state rules? Has this provision been adopted by any states? What is a "duplicate"?

Question 11

What is the rationale for authorizing the use of summaries of material in documents rather than the documents themselves? What is meant by laying a proper foundation for the use of summaries?

Question 12

What is the basis for the rule that generally excludes medical and other scientific treatises as independent evidence of the theories and opinions expressed therein? Have any states adopted a contrary view?

Question 13

In the case of Wilkerson v. State, the defendant sold drugs to an undercover cooperating witness who was being monitored by police and used an audiocassette recorder to record his transfer of money in exchange for some recreational drugs. The purchaser of the drugs was out of sight of the office for a few moments before the cooperating witness returned to the officer with drugs and the bait money gone. The actual exchange was not seen by the officer, but the audiotape caught the transaction properly. The defendant argued that the tape could not be authenticated because the officer did not hear it in real time and, therefore, the audiotape should not have been admitted. How did the reviewing court rule? Was the audiotape properly authenticated? Can the cooperating witness help authenticate the tape by acknowledging that it was an accurate record of the transaction?

Question 14

In State v. Palermo, the defendant contended that the state improperly authenticated a document that had been written on an iPad and uploaded to a Facebook page, where the contents were relevant to a prosecution for aggravated sexual assault, among other crimes. When the defendant contended that the trial court improperly concluded that the Facebook message was authenticated as having been made by the defendant and was admissible, what were the arguments of the defendant that the Facebook message had not been properly authenticated as having been made by him? What did the trial court consider when determining that the Facebook posting had been properly authenticated as a document and was, therefore, admissible in court against the defendant?

Question 15

In McKeehan v. State, defendant McKeehan was found guilty of robbery with a firearm, grand theft, aggravated assault with a firearm, and kidnapping with intent to commit a felony. All of these crimes were allegedly committed at a Sleep Inn Motel in Orlando. An officer was permitted to orally identify the defendant from a security video at a different motel from where the crimes occurred. The video from the other motel was not shown. On appeal, McKeehan asserted that the trial court committed error in violating the best evidence rule by allowing the state to use oral testimony to prove the contents of a videotape (a writing), rather than with the tape itself. Did the appellate court affirm or reverse based on the admission of the officer's statements? Did this practice violate the best evidence rule? Why or why not? Would the harmless error rule help the government?

Question 16

Examples of documentary evidence that must be authenticated prior to being emitted into trial evidence, include:

A) letters, photographs, and newspapers.
B) digital videotape, text messages, and films.
C) birth records, death records, and marriage records.
D) All of the above may be considered documentary evidence under the rules of evidence.

Question 17

When considering the admissibility of documentary evidence:

A) it is apparent that there is no difference between documentary and real evidence.
B) one must be aware that documentary evidence does not carry as much weight as oral testimony.
C) it is fundamental that documentary evidence meet the same general requirements as to relevancy, competency, and materiality as oral testimony.
D) one is reminded that the courts have held that the hearsay rule does not apply in the case of documentary evidence.

Question 18

Documentary evidence is not admissible until it has been authenticated. This means that:

A) the person making the document must have been under oath at the time it was written.
B) competent evidence must be introduced to show that the writing is genuine and is what it purports to be.
C) competent evidence must be introduced to prove that the document is a government document.
D) it must be typed and under seal.

Question 19

A handwritten document must be authenticated before it can be considered for admission into evidence. In order to authenticate a handwritten document, the party offering the document:

A) may have a person who has sufficient familiarity with the handwriting of the document's purported author offer an opinion concerning the identity of the author of the document.
B) prior to trial and for trial purposes, may have a person study the handwriting of the person who is supposed to be the author and offer an opinion concerning who wrote the document in question.
C) must qualify an expert witness schooled in the art and science of questioned documents to offer an opinion concerning who wrote the document sought to be introduced.
D) may ask that the judge permit the jury to make a comparison between the supposed author's handwriting and the known handwriting sample of the author.

Question 20

Courts and legislative bodies have generally agreed on some basic rules concerning the authentication of documents for use as evidence in criminal cases. Among these is:

A) it is necessary that evidence introduced to authenticate a document be direct evidence.
B) an expert witness may not be cross-examined when his or her testimony is to identify documentary evidence.
C) either direct or circumstantial evidence may be used to authenticate a document.
D) under Federal Rule 901, a document must exist at least 25 years before it can be admitted as an "ancient document."

Question 21

In order for a document to be considered self-authenticating:

A) the party wishing to introduce the document need only to vouch for its authenticity in order for it to be properly admitted into evidence.
B) both parties stipulate to the authenticity of the document and then it will be considered as self-authenticating.
C) some outside evidence, however minimal, is required to consider the document as self-authenticating.
D) there must be proof within the context of the document that indicates its genuine status and that it is what it purports to be.

Question 22

In some instances, authenticity is taken as sufficiently established for purposes of admissibility without extrinsic evidence to that effect. This is known as:

A) relevant evidence.
B) secondary evidence.
C) a summary.
D) self-authentication.

Question 23

Rule 902 of the Federal Rules of Evidence lists 10 instances in which extrinsic evidence is not required for authentication. When evidence coming within this category, such as a newspaper article, is introduced:

A) the opposing party is not foreclosed from disputing authenticity by introducing other evidence.
B) the opposing party cannot dispute the authenticity of the document.
C) the contents of the document are considered true and are not subject to challenge.
D) the evidence is admissible even if the contents violate the hearsay rule.

Question 24

In order to introduce a 911 call recording, it must be first authenticated as being the genuine recording. To authenticate a 911 tape, the party offering the audiotape as evidence:

A) should have the 911 operator testify that the call came to his call station as a method of proving its genuine nature.
B) must have expert voice examiners listen and compare the unknown sample of the 911 tape with the sample of the voice that is purported to be the speaker.
C) could have the person who called 911 listen to the tape and identify her voice as the voice that made the emergency recording.
D) prior to trial and for trial purposes, may have a person listen to known samples of the purported subject's voice and compare it to the questioned recorded voice and offer an opinion concerning the identity and authenticity of the unknown voice.

Question 25

Probably the most common method of proving the authenticity of a document is:

A) proof of signing.
B) circumstantial evidence.
C) laying a foundation.
D) comparison of signatures.

Question 26

Official records made by a public officer who was under a duty to keep records of transactions are:

A) ordinarily admissible in evidence even though not verified by the person who actually made the entries.
B) not admissible unless the person who made the entries testifies as to the accuracy of the entries.
C) considered ancient documents and therefore are admissible as genuine.
D) only hearsay and therefore not admissible.

Question 27

A defendant who was in incarcerated at a local jail because he had been arrested on a robbery charge wrote letters to his mother and to his girlfriend that were photocopied by jail security personnel. The letters clearly indicated an intimate knowledge of the charged crime and offered suggestions on how the defendant's girlfriend and mother should construct their testimony in order to help the defendant avoid a conviction. The return address listed the name of the defendant and his inmate number. The letters contained pet names for the girlfriend and clearly indicated that he knew how his mother's house was designed. If the defendant objects that the letters to his girlfriend and mother cannot be authenticated through the above data,

A) the judge should rule that the letters have been properly authenticated because jail personnel saw them, they came from the defendant and had his prison number on them, and information known primarily by the defendant was contained within the letters.
B) the recipients of the letters would have to come to court and testify that they received the letters from the defendant in order to authenticate them.
C) the letters cannot be authenticated because the defendant cannot be forced to take the witness stand, and only he would know who actually wrote the letters.
D) the only way to authenticate the letters would be to have a handwriting expert compare known samples of the defendant's writing with the writing that was contained within the questioned letters.

Question 28

A statement by a coroner contained within a death certificate that the deceased person committed suicide, where there was no witness to the infliction of the wound from which the person died:

A) is an official record and cannot be contradicted by other evidence.
B) is admissible only if certified by the elected coroner.
C) is an opinion of the coroner or medical examiner and can be disputed in the trial of a case involving the question of whether the person committed suicide.
D) may be admitted as a self-authenticating public document since it would contain only objectively correct information and the document could not be contradicted.

Question 29

The rule of evidence that requires that the contents of an available written document to be proven by introduction of the document itself is known as the:

A) authentication rule.
B) "no substitute" principle of evidence.
C) secondary evidence rule.
D) best evidence rule.

Question 30

The best evidence rule:

A) is of recent origin (after 1900).
B) generally requires the production of the original writing unless the offering party demonstrates proper excuse for the failure to present the original.
C) usually requires the production of the best evidence in every case and prohibits the admission of secondary evidence in most all cases.
D) has not been expanded to include computer printouts.

Question 31

Federal Rule 1002 refers to the principle that the original document (except as otherwise provided) must be produced for admission. In accordance with the provisions of this rule, as interpreted:

A) the party who offers a document other than the original must prove fraud.
B) production of the document is not required simply because the document contains facts that are also testified to by a witness.
C) if a witness testifies about matters that are also included in a written document, that document must be authenticated and introduced.
D) the best evidence rule does not apply to photographs, because photographs are not documents.

Question 32

Secondary evidence:

A) is not admissible in a criminal case.
B) is admissible if it has been shown that the original writing has been lost or destroyed without fraudulent intent on the part of the party offering the writing.
C) could be a carbon copy but not a photostatic copy.
D) means that carbon copies may be used but in no event will a copy of a copy be admissible.

Question 33

If a writing qualifies as a duplicate original:

A) such a writing is not admissible without proof concerning why the original was not available.
B) it may be admissible if properly authenticated but will not carry the same evidentiary weight as the original writing.
C) it may be admitted as evidence to corroborate the original writing only if the original writing has been properly authenticated.
D) it may be admitted as if it were the original writing as long as it has been properly authenticated.

Question 34

In some instances, where documentary evidence is voluminous, summaries may be used. In this event:

A) it is usually not necessary that the records or materials summarized be made accessible to the opposing party.
B) the expert witness who prepared the summary is not subject to cross-examination.
C) it is not necessary to lay a foundation with reference to the admissibility of the originals.
D) it must be shown that the summary accurately summarizes the material involved and does not refer to information not contained in the original.

Question 35

The general rule is that statements from medical and scientific treatises:

A) are admissible as independent evidence of the theories and opinions expressed therein.
B) need not be authenticated if published by a well-known publisher.
C) are inadmissible as independent evidence of the theories and opinions expressed therein.
D) are admissible because authors take an oath to substantiate the assertions made therein.

Question 36

The defendant in Wilkerson v. State, a case in which the defendant was alleged to have delivered a Schedule VI controlled substance (marijuana) to an undercover drug purchaser wired for sound, contended that the audiocassette recording made by the undercover purchaser had not been properly authenticated as genuine and had been erroneously admitted against him. The allegation that the defendant offered was that no person who had spoken on the tape had testified or otherwise authenticated the tape as being the genuine article, but the undercover purchaser testified to the genuine quality of the audiotape recording. The Court of Appeals of Arkansas reviewed the allegation concerning authentication and concluded:

A) if an undercover agent did not see an undercover purchaser at all times during which a cassette recording was made of a drug deal, that the tape contents could not be authenticated.
B) an audiocassette could not be authenticated unless all the persons involved reviewed its contents and testified concerning the genuine quality of the audiotape.
C) the trial court abused its discretion in permitting the admission of the audiocassette recording because there were times during the actual recording that the undercover officer was unable to observe the events that the audiocassette recorded.
D) the undercover officer's testimony sufficiently authenticated the cassette tape because the officer gave the blank tape and recorder to the undercover purchaser and retrieved it from him upon completion of the deal, and the only voices on the tape would have belonged to the defendant and to the undercover agent.

Question 37

In the case of State v. Palermo, the state of New Hampshire prosecuted the defendant for sexual assault and admitted a Facebook message posting that the court held was properly authenticated as having been generated by the defendant. Palermo contended that the Facebook message posting was not sufficiently authenticated. The reviewing court decided that:

A) the prosecution properly authenticated the Facebook-posted message because the defendant had access to the account and to the iPad at the relevant time, and the fact that other persons could have gained access to his open account was insufficient to indicate lack of authenticity.
B) the Facebook-posted message was properly admitted because all Facebook postings are considered to be self-authenticating.
C) the document posted on Facebook should not have been admitted because it could not be properly authenticated when other individuals could have obtained access to the open Facebook account and could have written the message.
D) there was not sufficient evidence that the defendant wrote what was posted to the defendant's Facebook account because the court recognized that almost anyone could hack a Facebook account and add data to it. The reviewing court overturned the defendant's convictions.

Question 38

In McKeehan v. State, defendant McKeehan was found guilty by a jury of robbery with a firearm, grand theft, aggravated assault with a firearm, and kidnapping with intent to commit a felony. All of these crimes were purportedly committed at a Sleep Inn Motel in Orlando. At the trial, an officer was permitted to orally identify the defendant from a security video from a different motel where other crimes had occurred. The video from the other motel was not shown, and the officer's identification of the defendant was important to the state's case. The reviewing court decided that:

A) the state's failure to introduce the original was not an error.
B) the state statute requiring the original video to be admitted has no exceptions.
C) because there was no evidence that the video was taken correctly at the second motel, they were improperly admitted.
D) because the original video should have been admitted, there was a violation of the best evidence rule, and the reviewing court reversed the conviction.