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5. Which of the following would NOT be a sufficient basis for admitting the letter into evidence?
A plaintiff sues a defendant for breach of a promise made in a letter allegedly written by the defendant to the plaintiff. The defendant denies writing the letter.
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Lay opinion is permissible and often essential to identifying handwriting, although a foundation must first be laid to establish familiarity with the handwriting. Moreover, the witness's familiarity with the handwriting must have not been acquired for purposes of the litigation. Specifically, under FRE 901(b)(2), a non-expert may express an opinion that «handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.» An expert witness or the trier of fact (e.g., jury) may also determine the genuineness of a writing by comparing the questioned writing with another writing proved to be genuine. Fed. R. Evid. 901(b)(3).
C is correct. Although a lay witness is allowed to offer an opinion to identify and authenticate handwriting, to do so, the witness's familiarity with the handwriting must have not been acquired for purposes of the litigation. A non-expert who familiarized himself with the defendant's writing for the purpose of authenticating it at trial is not allowed to authenticate the letter.
A is incorrect. A lay witness may properly authenticate a letter if that witness is familiar with the signature and can identify it on the letter. See Fed. R. Evid. 901(b)(2). As such, this is not the least effective basis for admitting the letter into evidence.
B is incorrect. It is permissible for the trier of fact to authenticate a piece of writing by comparing it with other specimens that have been authenticated. This includes identifying the signature of a person, as in this case.
D is incorrect. Under FRE 901(b)(3), a writing can be properly authenticated by evidence that the writing was done in response to another genuine piece of writing from the same parties.