The law, or rules, of evidence govern articles of truth in legal proceedings. These articles are essentially the proof presented in a case. The law of evidence determines which articles or items can be presented in a legal proceeding and is very important as these articles are used to affect the legal decision, or outcome, of a case. A special type of evidence is documentary evidence.
Evidence is considered documentary evidence when it is reviewed for its content in terms of documentation rather than for its physical properties. Documentary evidence is often misunderstood to mean only written documents. It is certainly true that written documents can be presented as documentary evidence, but the term encompasses many more forms of recorded information. Some examples of documentary evidence include:
• Official documents (i.e. contract, will)
• Business records
• Invoices and billing statements
• Public records (i.e. newspapers, periodicals, court documents)
• Web pages
• Voice recording
• Video recording
• Written witness description or confession
• Other recorded documentation
Documentary evidence should not be confused with physical evidence. To be considered documentary evidence, an exhibit must be admitted for its content in terms of documentation. That is, the content rather than a physical property is being examined. At times, an article may present both physical and documentary evidence. For example, if a threatening letter with a fingerprint was found at a crime scene, the fingerprint would be a physical property and thus physical evidence. The content of the letter, however, would be documentary evidence.
Documentary evidence may be considered in a civil or criminal matter. For documentary evidence to be admissible in court, a foundation must be laid prior to presentation of the article as evidence. Failure to do so could cause the evidence to be ruled inadmissible. When laying the foundation, council must consider factors such as identification and authentication, relevance and no undue prejudice, hearsay and the best evidence rule.
When laying the foundation for the introduction of documentary evidence, the evidence must be identified and authenticated through one or more means. Such means include witness testimony, handwriting analysis, voice analysis, distinctive characteristics, public filing or other means of confirming authenticity. Documentary evidence must also be relevant to be admissible. It can be used as direct or circumstantial evidence, but its use must also not cause undue prejudice. That is, documentary evidence is not admissible if the prejudicial factors outweigh its value as evidence or if its admission is intended to cause shock, to mislead, or to confuse the issues.
Many documents also contain some level of hearsay. Conversations in business records, for example, may be recorded by a third party at the time of the transaction. These types of documents must be examined carefully to determine if they meet hearsay exemptions prior to introduction. Finally, to be admitted, documentary evidence must meet the best evidence rule. In most cases for documentary evidence to be admissible, the original must be presented under the “best evidence rule.” Now that file copying is commonplace, the best evidence rule is less important than it once was. However, the opposing party may still raise an objection under this rule. Generally, copies or reproductions are unacceptable as evidence as they raise doubt about the existence or authenticity of the original document.
When the foundation has been successfully laid, documentary evidence is admitted as an exhibit. Testimony may be given to familiarize the judge or jury with the exhibit, but is not documentary evidence in and of itself. Testimony cannot alter the content of the documentary evidence but is rather used to authenticate it. Documentary evidence may be used to present documentation of an object – such as an injury – rather than the object itself. Some examples of documentary evidence exhibits include:
• Medical bills as proof of damages in a personal injury case
• Threatening emails sent to a victim in a protection order case
• Bank statements in a tax evasion case
• Voice recordings of a person discussing the details of a crime
• A diagram of a defective automotive parts in a civil injury case
Documentary evidence can be admitted to meet the burden of proof in a court proceeding. The guidelines governing documentary evidence are in place to ensure that the evidence is trustworthy and relevant to the issues at hand.
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