§ 4.02 THE AUTHENTICATION OF PRIVATE WRITINGS

• Jurisdiction: North Carolina

§ 4.02 THE AUTHENTICATION OF PRIVATE WRITINGS

[1] WRITINGS CAN ALSO RAISE ISSUES OF BEST EVIDENCE AND HEARSAY

There are several well-settled techniques for authenticating private writings. These techniques are alternative methods of establishing the writing's authenticity.

The reader should develop the habit of automatically thinking of a trilogy of doctrines—authentication, best evidence, and hearsay—whenever a document is used in the courtroom. Whenever a document is used, the proponent will have to authenticate it. If the document's terms are in issue, the proponent will have to comply with the best evidence rule. Finally, when the proponent wants to use the document's contents as substantive evidence, the proponent will probably have to show that the document falls within a hearsay exception. In short, the proponent offering a document will often have to lay three separate foundations—authenticity, best evidence, and hearsay. The proponent should thus consult Chapters 8 and 10 as well as this chapter.

[2] TESTIMONY OF A WITNESS WHO OBSERVED THE DOCUMENT'S EXECUTION

The proponent can use direct evidence. If a witness previously observed the writing's execution and presently recognizes the document executed, the witness's testimony is sufficient authentication. Federal Rule of Evidence 901(b)(1) sanctions authentication by "[t]estimony that an item is what it is claimed to be."

This technique is ideal for writings such as letters, promissory notes, and checks that bear only a single signature.

The following are the elements of the foundation:

1. Where the witness previously observed the document's execution.
2. When the witness observed the execution.
3. Who was present.
4. What happened—the writing's execution.
5. The witness presently recognizes the exhibit as the document previously executed.
6. How the witness recognizes the document.

Assume that one issue in a commercial case is whether the defendant signed a certain check. The defendant's acquaintance, Mr. Bucher, observed the defendant sign the check. The plaintiff is the proponent.

P WHERE were you on the afternoon of February 4, 2017? (1), (2)

W I was at the defendant's house.

P WHO was there? (3)

W It was just me, the defendant, and his wife, Ruth.

P WHAT, if anything, happened while you were there? (4)

W The defendant was writing out some checks to pay his month's bills.

P Your Honor, I request that this be marked plaintiff's exhibit number seven for identification.

J It will be so marked.

P Please let the record reflect that I am showing the exhibit to the opposing counsel.

J It will so reflect.

P I request permission to approach the witness.

J Permission granted.

P Mr. Bucher, I now hand you plaintiff's exhibit number seven for identification. WHAT is it? (5)

W It's one of the checks the defendant signed that afternoon.

P HOW do you recognize it? (6)

W Well, the defendant handed it to me and asked me to take a look at it. I recognize the signature and other writing on it.

P HOW long did you have to examine it? (6)

W About a minute or so.

P HOW carefully did you examine it? (6)

W Closely enough to recognize it now.

P WHAT characteristics of the exhibit are you relying on as the basis for your identification? (6)

W I remember the amount of the check, the payee, the defendant's rather peculiar signature, and the color of the check.

P Your Honor, I now offer plaintiff's exhibit number seven for identification into evidence as plaintiff's exhibit number seven.

J It will be received.

P I request permission to hand the exhibit to the jurors for their inspection.

J Permission granted. Ladies and gentlemen of the jury, plaintiff's exhibit number seven has been admitted into evidence. I have determined that at this point in the proceeding, you may view the exhibit. I am going to hand the exhibit to Mr. Asture, the bailiff. He is going to hand it to Ms. Grant, the first juror in front. She may now view the exhibit, and then in turn all of you may inspect it as well.

[3] TESTIMONY OF A WITNESS FAMILIAR WITH THE AUTHOR'S HANDWRITING STYLE

Even if the proponent cannot locate a person who observed the writing's execution, the proponent may be able to find someone familiar with the author's handwriting style. It is true that courts usually prohibit opinion testimony by lay witnesses; but, as we shall see in Chapter 9, the admissibility of lay opinion testimony on handwriting style is a recognized exception to the general prohibition. The primary problem of proof for the proponent is establishing that the witness is sufficiently familiar with the author's handwriting style to recognize that style. If the witness possesses the requisite familiarity, the witness qualifies as a skilled lay observer as to the author's handwriting. Ideally, the witness will have observed the author sign his or her name on several previous occasions. It is sufficient if the witness has seen the author's signature under reliable circumstances. For example, one corporate executive's secretary may have seen documents bearing the signature of another executive of the same corporation on hundreds of prior occasions. Even if the witness has never seen that second corporate executive sign a document, the witness is sufficiently acquainted with the executive's handwriting style. Federal Rule of Evidence 901(b)(2) recognizes this authentication technique. The Rule permits authentication by means of "[a] nonexpert's opinion that handwriting is genuine, based on familiarity with it that was not acquired for the current litigation."

The foundation is very simple; the elements are:

1. The witness recognized the author's handwriting on the document.
2. The witness is familiar with the author's handwriting style.
3. The witness has a sufficient basis for familiarity.

Like Rule 901(b)(1), Rule 901(b)(2) can readily be applied to writings such as letters, checks, and promissory notes that bear only one signature.

Now vary the original hypothetical. Assume that the witness, Mr. Bucher, did not observe the check's execution but is familiar with the author's handwriting style:

P Your Honor, I request that this be marked plaintiff's exhibit number seven for identification.

J It will be so marked.

P Please let the record reflect that I am showing the exhibit to the opposing counsel.

J It will so reflect.

P I request permission to approach the witness.

J Request granted.

P Mr. Bucher, I now hand you plaintiff's exhibit number seven for identification. WHAT is it?

W It seems to be a check.

P WHO signed the check? (1)

W I'd say that the defendant signed it.

P WHY do you say that? (2)

W I recognize the defendant's handwriting style on the check.

P HOW well do you know the defendant's handwriting style? (3)

W Very well.

P HOW did you become familiar with his handwriting style? (3)

W We've been friends for years.

P HOW many years? (3)

W About 10.

P HOW often have you seen the defendant sign his name? (3)

W Tens, maybe hundreds. We work for the same company, and I've often been present when he's written out a note and put his signature on it.

P Your Honor, I now offer plaintiff's exhibit number seven for identification into evidence as plaintiff's exhibit number seven.

J It will be received.

P I request permission to hand the exhibit to the jurors for their inspection.

J Permission granted.

[4] THE REPLY LETTER DOCTRINE

The courts assume that the mails are reliable. Given that assumption, the courts have developed the so-called reply letter doctrine. Suppose that the witness sent a letter to a certain person. In the due course of mail, the witness receives a letter. The letter purports to be signed by the person to whom the witness sent the first letter, and the contents of the second letter refer to or purport to respond to the first letter. The courts generally hold that this fact pattern creates a sufficient circumstantial inference that the second letter is authentic.

This foundation contains several elements:

1. The witness prepared the first letter.
2. The witness placed the letter in an envelope and properly stamped the envelope.
3. The witness addressed the letter to the author.
4. The witness mailed the letter to the author.
5. The witness received a letter.
6. The letter arrived in the due course of mail—the time that it would normally take for a letter to travel from the place of dispatch to the intended destination.
7. The second letter referred to the first letter or was responsive to it.
8. The second letter bore the name of the author.
9. The witness recognizes the exhibit as the second letter.
10. The witness specifies the basis on which he or she recognizes the exhibit.

Our fact situation is a contract case. The plaintiff wants to prove that the defendant, a sole proprietor, sent a letter containing an express warranty of the goods' condition. The plaintiff had not had previous dealings with the defendant, and, hence, cannot recognize the defendant's handwriting style. The witness is the plaintiff. The plaintiff has just testified that he had a telephone conversation with the defendant. The plaintiff's attorney is the proponent.

P WHAT did you do after this telephone conversation? (1)

W I decided to send the defendant a letter requesting some specific assurances and warranties about the goods.

P HOW did you do that? (1)

W I typed it up on my computer, printed it out, and then signed it.

P WHAT did you do with it after you signed it? (2), (3), (4)

W I stuck it in an envelope. I stamped the envelope, addressed it, and stuck it in the mail.

P WHERE did you get the defendant's address? (3)

W Out of the telephone book.

P WHEN did you mail the letter? (4)

W I think it was that afternoon. Yes, it was Monday afternoon.

P WHAT happened then? (5)

W I got a reply letter.

P WHEN did the letter arrive? (6)

W The following Monday.

P HOW often have you exchanged letters with people in Atlantic City? (6)

W I've done it hundreds of times in the course of business.

P HOW long does it usually take to get a...