Ancient Document in Law of Evidence

Second, the proponent must prove when a document has been “prepared”. The Advisory Committee has determined that a document is “prepared” or created when the information is recorded. For example, the old document rule could apply to a scanned copy of a paper document created in 1995, although the digitization may have been done after 1995. On the other hand, if the content of this 1995 document is modified or modified in 2000, the rule of the old document may apply to the original text of the 1995 document, but not to the amendments made in 2000. An article by Carey Busen and Gilbert Keteltas of Baker Hostleter raises interesting points about the proposed amendments to Rule 803(16). They note that the changes address a concern that does not yet exist and that could impact an opponent`s choice of courts if they have the ability to choose between jurisdictions that operate under the traditional rule for old records or the new federal rule. Many States have similar rules, but may limit the application of the doctrine to certain types of documents such as device instruments (mainly transfers, deeds and wills) and require that the documents be even older. The “old document” exception to the hearsay rule is itself old – the rule existed at common law, and the federal rules of evidence have long had an exception for records that were at least 20 years old. The rule was originally issued because (1) a party may not be able to find witnesses with personal knowledge of the facts in documents older than 20 years, making the document the only evidence available to prove those facts to a jury; and (2) there is good reason to believe that the documents are trustworthy because they were not prepared in light of this dispute.

The wording of amended Federal Rule of Evidence 803 (16), which came into force on December 1, 2017, is simple: “A statement in a document prepared before January 1, 1998 and whose authenticity has been established” is not excluded from the hearsay rule, whether or not the applicant is available to testify. In the law of evidence, an old document refers to both a means of authentication for documentary evidence and an exception to the hearsay rule. Under the U.S. Federal Rules of Evidence (“FRE”), a document is considered authentic if it: Second, remember that it is a change to the federal rule. Many states have not yet changed their own old document rules to have a similar date. At this stage, only 3 of the 49 states with old document rules have a similar deadline to 1998. The rest always follows a rolling period of 20 years and, in some cases, 30 years. In a case where old records play an important role, the parties should review the state rule before deciding whether the federal or state rule is more useful for admitting the records. The old document rule is one of the methods available to authenticate evidence as part of the process under the Federal Rules of Evidence. Aside from the new deadline of January 1, 1998, what should practitioners consider when trying to use the old document rule to authorize documents? First of all, it is important to be aware of possible “hearsay in hearsay” problems. Fed. R.

Evid. Section 805 provides that hearsay in hearsay – documents that are themselves hearsay and contain statements that are also hearsay – may be permitted if each part of the combined statements corresponds to an exception to the rule against hearsay. Newspapers, for example, often pose the problem of “hearsay in hearsay”: both the article itself and the quoted statements from the journalist`s sources are hearsay and must therefore fall within one of the exceptions listed for hearsay. A declaration in a document drawn up before 1 January 1998 whose authenticity has been established. As any lawyer learns in the first year of law school, hearsay is usually inadmissible as evidence because a person`s statements about what someone else has said are often unreliable. But lawyers also learn during their first year of law that there are various exceptions for hearsay, including the exception for “old documents.” The first requirement is whether there is a physical modification or marking that indicates that the document is not what its sponsor claims. Courts often find that the second requirement is met if the proponent provides an adequate explanation of the location of the document. For the third requirement, the courts generally rely on the date indicated on the document.

If the document is not dated, the courts may use extrinsic evidence based on the content of the document. With respect to certification, an “old document” is a document that can be considered authentic without a witness testifying to the circumstances of its creation, since its age indicates that it is unlikely to have been falsified in anticipation of the dispute in which it was introduced. Product liability lawyers may need to be creative to prove events that took place long ago. Although the old document rule is often not used enough, it can be an effective way to obtain critical evidence before a jury. Others argue that concerns about the increased use of older, unreliable ISEs may be exaggerated, as hearsay statements in older documents must still meet the requirement in Rule 602 that the person making the statement has personal knowledge of the subject matter of the return. In the law of evidence, a document that qualifies as an exception to the hearsay rule and is considered self-authenticating because it is older than a certain age (usually twenty years), in a condition that makes it free from any suspicion of authenticity, and that has been found in a place where such a writing would likely be preserved. According to the rule, if a document (1) is more than 20 years old; (2) is regularly on his face without signs of obvious changes; and (3) is in a place of nature keeping or in a place where it would be expected to be found, and then it is determined that the document is prima facie certified and therefore eligible.