Documentary Evidence

Evidence is often used in a trial to prove a fact. The trier of facts, usually a jury or the judge, must weigh each piece of evidence and determine its veracity.

This Findlaw article explores documentary evidence, what it is, and how to challenge it in court.

Understanding Evidence

Although many people associate evidence with criminal trials and proceedings, many legal proceedings use evidence. Practitioners use different types and forms of evidence to establish facts in a proceeding.

Types of Evidence

Two primary types of evidence include:

• Documentary evidence
• Demonstrative evidence

Documentary Evidence

Documentary evidence is often conflated with physical evidence because it is often evidence that people can see, touch, or feel. Here is a list of types of documentary evidence:

• Forensic evidence
• Wills
• Text messages
• Leases
• Public documents
• Book
• Medical records
• Computer printout
• Memoranda
• Written statements (i.e. affidavit)

The opposite of physical evidence is testimonial evidence. Testimonial evidence is oral testimony offered as evidence, often under oath. Through their attorney, any party to the case can elicit oral testimony by asking a witness questions. Witness testimony is one type of testimonial evidence.

Demonstrative Evidence

Demonstrative evidence is evidence that demonstrates or illustrates witness testimony. Courts will admit demonstrative evidence that fairly and accurately reflects the witnesses' testimony. Demonstrative evidence must also have probative value. Examples of demonstrative evidence include crime scene photos and maps.

Challenging Documentary Evidence

Attorneys on both sides of a trial or hearing can challenge a document's admissibility. Here are ways to challenge a document's admissibility in court:

• Parol evidence rule
• Authentication
• Best evidence
• Hearsay

Parol Evidence

The parol evidence rule prohibits admission of certain evidence about the terms of a written agreement. It assumes that the language included in a signed agreement reflects the final and complete agreement of the parties. This rule could bar evidence of any earlier agreements not included in the final written agreement. Exceptions to the parol evidence rule are issues of substantive law rather than pure evidentiary matter.

Authentication

Authentication shows the court that a piece of evidence is what it claims to be. Authentication of documentary evidence is similar to other real evidence. The failure to properly authenticate a document could result in the court denying its admissibility.

Authenticating Documentary Evidence

Here are a few ways to authenticate documentary evidence:

• When a party testifies, on the record, to its existence 
• When a witness with personal knowledge confirms what the document contains
• When a witness confirms handwriting or other aspects of the document

An example of authentication is an accountant who testifies to the existence of a tax return.

Self-authenticating Documents

Some documents are self-authenticating under the Federal Rules of Evidence (FRE). These include:

• Acknowledged documents to prove the acknowledgment
• Certain commercial paper and related documents
• Certificates of the custodians of business records
• Certified copies of public records
• Newspapers
• Official documents
• Periodicals
• Trade inscriptions

Best Evidence

Attorneys use the best evidence rule to deny the admissibility of copies or replications of certain documents. Under this rule, an attorney offering the contents of a written document must produce the original document.

The FRE permits the use of mechanically reproduced documents unless:

• One of the parties raises genuine questions about the accuracy of the copy
• A party shows that its use would be unfair

Also, the FRE permits the admission of summaries or compilations of lengthy documents as long as parties can examine the originals.

Hearsay

Hearsay is an out-of-court statement offered to prove the truth of the statement. Documents are hearsay if they contain statements that meet this definition. The court cannot admit it as evidence if the document does not meet an exception to the hearsay rule.

Learn More About Documentary Evidence from an Attorney

Whether you or a loved one is a defendant or witness in a criminal case, they face a high likelihood of giving documentary evidence. A qualified criminal defense attorney can help. They are experts in criminal procedure and can offer sound legal advice. Speak to an experienced local criminal defense attorney today.