REAL AND PHYSICAL EVIDENCE

REAL EVIDENCE
Actual physical evidence addressed directly to the factfinder without testimony. May be direct,
circumstantial, original, or prepared (demonstratives).

Admissibility Issues
● Have a proper foundation:
○ Witness testimony that the W recognizes the obj. as what the proponent claims to be); or
○ Evidence that the object has been held in a ​substantially unbroken chain of possession
(chain of custody rule for fungible items such as blood or drugs)
● If object’s condition is significant, must be in the substantial same condition as at trial;
● Balancing test for probativeness applies to determine if prejudice may outweigh the probative value

Examples of Real Proof

● Photographs, diagrams, maps, or other reproductions
○ Items for explanatory purposes are not admitted into evidence;
○ Admissible for illustrating testimony, but must be authenticated
● Child’s race in a paternity suit;
● Exhibition of injuries in personal injury/criminal cases, provided that no unfair prejudice would result;
● Jury view of the scene
○ Jurors may leave the courtroom and view places at issue in a civil/criminal case; factoring
changes of the premises
● Demonstrations or experiments
○ Conditions must be substantially similar to the one in the original event
○ Demos of bodily injury not allowed where the demos would unduly dramatize the injury

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PHYSICAL EVIDENCE

Authentication
A writing or any secondary evidence of its content will not be entered into evidence unless the proponent
can authenticate the writing so that the jury finds it is genuine.

Type of Physical Evidence Method of Authentication

Admissions Writing may be authenticated that the party against who the it is
offered has either admitted its authenticity or acted upon it as
authentic

Eyewitness Testimony Writing can be authenticated by a witness who saw it executed or

heard if acknowledged

Handwriting Verifications Show the genuineness of the handwriting of the author by:
● Opinion of a ​nonexpert with personal knowledge​;
● Expert ​who has ​compared handwriting samples;​ or
● The jury​ through ​comparison of samples

Ancient Documents May be authenticated by proving:

● It is at least 20 years old;
● In such condition free from suspicion as to authenticity; and
● Found in a place where such a writing would be kept

Reply Letter Authenticated by proving it was written in response to a

communication sent to the claimed author

Photographs Show correct representation of the facts; witness familiar with the
scene is a sufficient foundation. Camera operator required to testify
camera was properly working if nobody else can authenticate

Medical Imaging Must show the process used is accurate; imaging machine was in
working order; that the operator was qualified to operate it; and show
chain of custody to show x-ray was not tampered

Authentication of Oral Statements:

Need to authenticate the speaker’s identity before the oral recording is admissible

Voice Telephone

● Can be ID’d by anyone who has heard the
voice at any time before, including after
litigation has begun and for hearing the
voice for the sole purpose of testifying (like
an expert);
● But must have personal knowledge of the
voice
● Witness testimony that he recognized the
other party’s voice;
● The speaker had knowledge of certain facts
that only a particular person would have;
● The witness called a particular person’s
number and a voice answered as that
person or that person’s residence;
● The witness called a business and spoke
with the person answering the phone about
matters pertaining to the business

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Self-Authentication
Some documents ​do not​ require extrinsic authentication because they are reliable themselves to show
genuineness:
● Domestic public documents bearing a seal; similar official foreign public documents; certified copies
of public records; or official publications;
● Newspapers and periodicals;
● Trade inscriptions;
● Acknowledged documents; and
● Commercial paper and related documents; and business records, electronically generated records,
and data copied from an electronic device

THE BEST EVIDENCE RULE

Requires the ​original​: To prove the terms of a writing, must produce the ​original writing​. ​Secondary
evidence​ of the writing is admissible only if the original is ​unavailable​.

Application
Applies Does Not Apply

● The writing is a ​legally operative or ● Fact to be proved has existence ind. of

dispositive instrument​; or
● The ​knowledge of a witness​ concerning a
fact results from having read something
writing (oral testimony can be given);
● Writing is of minor importance to issue;
● (Highly tested) Does not apply to
summaries of voluminous records​; more
convenient for proponent to present a ​chart
or a summary​;
● Public records

Original versus Secondary Evidence

Original Evidence Secondary Evidence

Definition The writing itself or any copy that
is intended by the person
executing it to have the same
effect as the original
Evidence that is not an original,
which is admissible only if a
satisfactory explanation is given
for non-production, such as:
1) Loss or destruction;
2) In poss. of a 3rd pty.
o/side jdx & unattainable;
3) In poss. of the adversary
who fails to produce

Form Incls. ​duplicate copies​ by mech. Handwritten copies, notes, oral

means, such as photocopies testim. as to contents of original

Judge’s Determinations On the ​admissibility​ of On the ​admissibility​ of the oral

duplicates and copies testimony regarding the original

Jury’s Determination Whether the original existed; if a Whether the evidence offered
writing, recording, or photograph correctly reflects the contents of
produced at trial is an original the original