Documentary Evidence

Evidence contained in or on documents can be a form of real evidence. For example, a contract offered to prove the terms it contains is both documentary and real evidence. When a party offers a document into evidence, the party must authenticate it the same way as any other real evidence, either by a witness who can identify the document or by witnesses who can establish a chain of custody for the document.

Ways to Challenge Documentary Evidence

When people deal with documentary evidence, it is a good idea to consider these four potential pitfalls, which could be used to challenge a document's admissibility in court:

1. Parol evidence
2. Authentication
3. Best evidence
4. Hearsay

Parol Evidence

The parol evidence rule prohibits the admission of certain evidence concerning the terms of a written agreement. It operates on the assumption that whatever is included in a signed agreement contains the final and complete agreement of the parties. It therefore could bar evidence of any agreements made before or at the same time as the actual written agreement, which were not included in the final written agreement. There are exceptions to the parol evidence rule and it is usually considered an issue of substantive law, rather than a pure evidentiary matter. However, it can come into play to bar documentary evidence indicating the presence of additional agreements.

Authentication

Authentication is essentially showing the court that a piece of evidence is what it claims to be and documentary evidence can be authenticated similar to other real evidence. However, the failure to properly authenticate a document could result in the court denying its admissibility. A document can be authenticated when a party admits in the record to its existence or when a witness with personal knowledge confirms that the document is what it claims to be or confirms handwriting or other aspects of the document.

Some types of documents are essentially 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

The best evidence rule can be used to deny the admissibility of copies or replications of certain documents. Under this rule, when the contents of a written document are offered in evidence, the court will not accept a copy or other proof of the document's content in place of the original document unless an adequate explanation is offered for the absence of the original. The FRE permits the use of mechanically reproduced documents unless one of the parties has raised a genuine question about the accuracy of the copy or can somehow show that its use would be unfair. Also under the FRE, summaries or compilations of lengthy documents may be received into evidence as long as the other parties have made the originals available for examination.

Hearsay

Documents can be considered hearsay if they contain statements made out of court (and not under oath) and where they are being used in court to prove the truth of those statements. While there are many exceptions to the general rule prohibiting hearsay, if a document does not meet an exception, the court can prevent its admission as evidence.

Learn More About Documentary Evidence from an Attorney

If you're involved in a criminal case, either as a defendant or as a witness, you may be required to produce certain documents for use as evidence. If you have questions about the legal implications of this, or have related questions about your case, you should speak with a skilled criminal defense attorney in your area.