Documentary Evidence

Attorneys use different types and forms of evidence to establish facts in a proceeding. In a criminal case, the prosecutor may use documentary evidence to paint a picture of your actions around the crime in question. Or, your defense lawyer might use documentary evidence to dispute your involvement.

This article explores documentary evidence and how to challenge it in court. An experienced defense attorney can help you apply these concepts if you face criminal charges.

Types of Criminal Evidence

Evidence is often used to prove a fact in a trial or criminal proceeding. Usually, the jury or judge must weigh each piece of evidence to decide how important it is to the case. Evidence can include documents or oral testimony offered to establish facts in a legal proceeding.

There are many rules for gathering and using evidence in a criminal case. For example, law enforcement must follow the rules to avoid an illegal search or seizure. A suspect also has some protection against providing self-incriminating evidence. 

Attorneys choose from many types of evidence as they build a court case. The two main types of evidence are documentary evidence and demonstrative evidence.

Documentary Evidence

Documentary evidence is often combined with physical evidence because it is often evidence that people can see, touch, or feel.

Types of documentary evidence include:

• 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, meaning it is likely to prove a relevant fact. 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 the admission of certain evidence about the terms of a written agreement. It assumes that the language included in a signed agreement reflects the parties’ final and complete agreement. 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.

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.

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 Rule

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.

Learn More About Documentary Evidence from an Attorney

Whether you or a loved one is a defendant or witness in a criminal case, you 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.