Authentication & Best Evidence Rule - Next Generation Bar Exam

1. What does the best evidence rule of FRE 1002 require?

   An original writing, recording, or photograph to prove its content, unless the rules or a statute provide otherwise.

2. Under FRE 1004, when is an original not required?

   When lost without bad faith, unobtainable by process, held by the opponent after notice, or collateral. Other evidence of the content is then admissible.

3. Under FRE 1006, how may a party prove the content of voluminous writings that cannot conveniently be examined in court?

   By a summary, chart, or calculation, with the originals made available to other parties. The court may order the originals produced in court.

4. Under FRE 901(b)(2), how may a lay witness authenticate handwriting?

   By testifying to familiarity with the handwriting that was not acquired for the litigation. An expert or the jury may also compare the writing with authenticated specimens.

5. Under FRE 901(b)(8), what document qualifies as ancient for authentication purposes?

   One at least 20 years old, in a condition creating no suspicion, and found where it would likely be. The related hearsay exception for ancient documents now covers only documents prepared before January 1, 1998.

6. A witness, without explanation for the original's absence, offers to testify to the terms of a letter that is available and is the subject of the dispute. What objection applies?

   The best evidence rule, because the witness seeks to prove the letter's content without the original. The proponent must produce the original or show why it is excused.

7. Which kinds of evidence are self-authenticating under FRE 902?

   Sealed public documents, certified public records, official publications, newspapers, acknowledged documents, and certified business records. Self-authenticating items need no extrinsic evidence of authenticity.

8. When is a chain of custody needed to authenticate physical evidence?

   When the item is fungible or susceptible to alteration, such as drugs or blood samples. Readily identifiable items can be authenticated by a witness who recognizes them.

9. How may a telephone call be authenticated?

   By identifying the speaker's voice, or by showing the call was made to an assigned number and circumstances identify the person answering. Self-identification by the person answering a properly dialed number is sufficient circumstantial evidence.

10. Under FRE 1003, when is a duplicate admissible to the same extent as an original?

    Unless a genuine question is raised about the original's authenticity or circumstances make using the duplicate unfair. Photocopies and other accurate reproductions are duplicates.

11. Under FRE 901(a), what is required to authenticate an item of evidence?

    Evidence sufficient to support a finding that the item is what the proponent claims it is. Authentication is a conditional-relevance question under Rule 104(b).

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