Evidence class 7. Authentication and Best Evidence. Lay opinion review.
Evidence class 7
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Lay witnesses may give an opinion but it must be: 1. rationally based upon the witness’ perception; and 2. helpful to the jury in deciding an issue in the case; and 3. not based on scientific, technical or other specialized knowledge within the scope of R. 702
Opinions on ultimate issues
Both lay and expert witnesses may give opinions on ultimate issues although experts are limited in criminal cases in terms of opinions on the defendant’s mental state. Limits on opinions on ultimate issues are the same kind of limits that apply to an analysis of whether the opinion is helpful (e.g. is it just choosing sides, is it using a legal “term of art” incorrectly, etc.)
Review – Attack experts by arguing:
2. not helpful opinion;
3. theory or technique in question is not reliable;
4. theory/technique not accurately applied in this case;
5. theory or technique is not relevant - i.e. not suffic’ly connected to facts of the case
6. theory may be valid, but conclusions reached are such a stretch that they are not admissible b/c of 403
Experts may rely upon evidence that is inadmissible as long as it is the type of evidence that experts in the field would use (can’t get into evid inadmissible evidence through an expert unless judge determines that it’s prob value outweighs its risk of prej)
When you think evidence, think
Have to prove something is what you say it is -That is what authentication is - building the foundation to prove the evid is what you say it is – (e.g. if you are saying this is the gun used in the killing, you must be able to prove it was THE gun)
Key question for authentication
What is the evidence being offered to prove? (This tells you what kind of foundation you must lay)
What does the term “lay a foundation” mean?(need to know this to understand issues with regard to authentication)
No one correct way to authenticate
Can find books with checklists for authentication (see G&W ). However there is no one correct way to authenticate evidence.
To figure out what you need to do to authenticate evid, need to ask self - what is being offered to prove (i.e. why is it relevant)? What form is it in? What do I (proponent) need to do to show that the evid is what I say it is?
What are the different roles of the judge and jury when it comes to authenticity issues?
Objects & other evid may be either real evid or demonstrative evid. “Real” evidence - actual thing involved in the case; The brass knuckles used in the fight; the heroin seized from the defendant; the tire that exploded;
What is demonstrative evidence?
Evidence may be both real and demonstrative
Real evid may also be demonstrative - e.g. - this is THE gun (thus REAL evid)and this is what defendant did with the gun ( demonstrative)
Why does it make a difference as to whether evidence is introduced as real or demonstrative?
Authenticating “real” evidence
For a tangible object involved in the case – what do you need to do to authenticate it? (distinctive object) vs. non-distinctive object)
Why do you need to show evidence is in materially the same condition as at the time of the incident?
What is chain of custody?
When would you need to show a chain of custody?
Why would you need to show a chain of custody?
LOCKHART p. 332
What is the contested evidence?
What is the defendant’s argument?
What is the gov’t’s argument?
What’s the holding and why?
Products liability case; toaster exploded. My witness is on the stand and says, “this is the toaster that exploded; I recognize it b/c I was there and it has the same burn/melt marks as the one that exploded” Have I authenticated it?
I want to introduce the pot an officer seized from the defendant when he was arrested: the witness is the cop - she says: “this is the bag of pot I seized from the defendant.”. Enough?
Key = relevant and will assist the jury in understanding witness’ testimony. Foundation: Must show that it is an accurate representation of whatever it is supposed to be illustrating (although buzz words for courts are “fair and accurate”) and that it is helpful to the jury’s understanding (or would assist witness in explaining testimony to jury)
Problem on p. 343
Answer that problem
What if another witness testifies the picture is not a fair/accurate representation of the stop sign at time of wreck
Authenticate this picture – offered to show the driver’s view
Surveillance Camera Photos
Assume it is an ATM robbery - if someone was watching the whole robbery - want to use videotape to help illustrate their testimony - how would you authenticate what is on the tape?
What if no eyewitness, how would you authenticate the videotape?
X-ray problem - p. 347
Answer the problem
Problem on p. 351 -
Problem on p. 354
Problem on p. 356 -
One of you calls me and the government wants to show you spoke with me.
Q: Did you call Professor Curcio on Sept 18? Ans: (yes)
Q: Did you talk to her? Ans: (Yes);
Q: How did you know it was her that you were talking to? Ans:[?] (Enough?)
Someone who hasn’t ever had me for a class or heard me talk wants to testify about a conversation they had w/me.
Q: Did you call Prof Curcio on 9/18 (yes)
Q: Did you talk to her (yes)
Q: How do you know it was her? Ans: (I dialed # listed for her in campus directory and when she answered she said, “Andi Curcio”). Enough?
Government’s witness wants to testify as follows:
“On September 25, I received a call - this is what the person said, ‘Hi, this is Andi Curcio. I want to talk to you about these drugs I have been dealing’ ” Can you authenticate this? Ask question to see?
Witness’ testimony: “I overheard a conversation btwn Prof. Curcio and someone else while I was in the bathroom. “
Q: How did you know it was Curcio? Ans: She was talking about teaching her evidence class and then began talking about the drug deal. Enough?
What if was a tape recording of my voice? Witness hadn’t heard me talk before but sometime btwn recording and trial, heard my voice. “I know her voice b/c I heard it when she testified yesterday. It is the same voice as on this recording.” Enough?
What are the four ways you can authenticate someone’s handwriting?
Non-expert familiar with it before litigation (not in anticip of litig)
Jury/trier of fact comparison
Casebook prob. Page 358 & 360
Authentication by context
Remember that if the evidence does not fit neatly into one of the cookbook formulas for authentication, you can often authenticate by context - i.e. – you can use the circumstances to prove the thing is what you say it is – see e.g. examples in G&W note 8
Rule 902 – self-authentication
Self-authenticating - means that you don’t require outside (i.e. extrinsic) evidence to show the thing is authentic - e.g. if introducing official publications (statutes/regs) - no need to show authentic; same w/newspapers and periodicals, trade inscriptions (product labels); acknowledged documents (docs signed by notary public); also commercial paper.
Idea is that the authenticity of certain things is taken as sufficiently established without extrinsic evidence
Authenticating business records
Recent amendment to rules now allows for certain business records - those of regularly conducted activity - to be authenticated with a written declaration of its custodian - the certification has to set forth the thingswritten on btm of p. 366;
If something is self-authenticating - does that mean that your opponent cannot contest its authenticity - e.g. - you introduce a newspaper article; can your opponent still claim you doctored the article and it isn’t the actual article that appeared in the newspaper?
If there’s a question about authenticity - who gets to decide if evid is authentic - judge or jury?
Summary of authentication
There are a lot of types of evidence we did not talk about authenticating, e.g. demonstrations, reenactments, displays of body parts, computer simulations, experiments, reconstructions drawings, charts. models — — for all - remember you have to figure out what it is you are saying it is and then show why the thing you are introducing is what you say it is.
It’s a slander case and the plaintiff claims that I (Prof. Curcio) sent an email to student A saying “Student B is the laziest student I have ever had. I think she cheated on the civ pro exam and I am watching her like a hawk.” Student B - the plaintiff - wants to introduce the email. I, the defendant, deny that the email was ever written and claim it was fabricated by Student B in order to get me in trouble b/c I gave Student B a bad grade last year.
What would Student B have to do to authenticate the email?
What would I do to try and prevent it from getting into evidence
When we say best evid rule, we are really talking about Rules 1001-1008. The term best evidence is a misnomer and many courts/commentators are now calling it the original writing rule - Reason why the term Best Evidence is a misnomer: A proponent is not required to put on their “best” - i.e., most persuasive evidence — rules of evidence not going to dictate to lawyers how to present their cases - if you want to put on less convincing evidence and risk losing, not providence of rules of evidence to dictate otherwise.
When is Best Evid Rule an Issue
Party often has a # of choices in terms of proof - e.g. I could prove I paid my car mechanic by my testimony, “ I know I paid him for the repairs, I remember doing it”. Or, I could prove it by offering a receipt - - “I know I paid because I have a receipt which says so.” In which case do I need to worry about the best evidence rule?
When do you have a Best Evidence Issue
The core concept in the best evid rule is that it only comes into play when a party is trying to prove the content of a writing, recording, etc. This usually happens in two situations:
1. Where the substantive law makes the content of a writing, recording or photo controlling on a particular issue - WHEN MIGHT THE WRITING ITSELF BE THE THING TO BE PROVED?
Policy when substantive law says the writing controls
When the substantive law gives legal significance to the writing (e.g. libel; contract; deed) we must see the writing because what it (the writing) says is what governs under the substantive law. In that case, it does not matter what the parties think the writing says – what is critical is what the written document actually says.
When proving something through a writing
Second situation in which best evidence issue arises is when a party as a matter of strategy relies on the content of a writing, recording, photo etc to prove a point relevant to the litigation even though proof of such content is not required by substantive law - e.g. - the hypo about paying the car mechanic by showing the receipt-
Policy underlying the best evidence rules is that writings have central position in law; when contents of writing at issue, great risk of error w/oral testimony; avoid hazards of inaccurate & incomplete duplication; it also prevents fraud
Rule 1001 – defining a writing
Writings and recordings defined very broadly - to embrace essentially every memorial that preserves written and spoken language — e.g. artwork, drawing, designs.
What is the original
Rule 1001 - original is the writing/recording at issue in the litigation - again we have that question - what is the evidence being offered to prove?
If what’s at issue is photocopied documents that contain fraudulent statements, then for purposes of the best evid rule what is the original - the actual original or the photocopied docs?
If you are talking about a contract for your house and you sign 5 contracts, which is the original?
General rule is that we require an original (but see Rule 1003 – in most cases a duplicate is admissible to the same extent as an original).
Duplicates – Rule 1003
What is the rule as to when we allow duplicates?
Why do we usually allow duplicates in lieu of an original?
What are the two situations in which we don’t allow duplicates?
Rule 1004 – when an original is excused
What are 4 situations in which an original is excused?
Orig’l lost or destroyed
Orig not obtainable
Orig’l in possession of opponent (+ notice)
Tricky rule - Rule 1004
If there is a contract and its terms are in dispute - do you have to produce the original contract?
What if the original was destroyed in the floods by Hurricane Katrina. I don’t have the original, but my lawyer in GA has a copy. Must I produce the copy of the contract or, after I prove the original was destroyed, can I simply testify as to the terms of the contract?
What is the rule for public records?
What is the policy underlying this rule?
If in a deposition or letter written by defendant or if in his trial testimony, the defendant says “contract said that I was supposed to deliver 250 mini-dolls on 9/23” is that sufficient for plaintiff to prove that contract term or must the plaintiff still produce the original contract?
What’s the policy underlying this rule?
In most cases, whether a certain condition has been fulfilled (e.g. whether the rule applies, whether an item is an orig’l, or duplicate; whether all orig’ls have been lost or destroyed; whether destruction was in bad faith; whether can’t get an orig’l etc (see list in 3 G&W) - all those preliminary questions are for the judge. What are the things that are up to the jury?
Defamatory letter hypo
P brings defamation suit against the defendant based on statements made by D in a letter to P’s employer. At trial, the letter is neither produced nor shown to be unavailable; over a Best Evid objection, employer is allowed to testify regarding the contents of the letter. P. Wins; D appeals on Best Evid grounds - Should the defendant’s objection have been sustained? Why/why not? Assuming the testimony about the contents of the letter was accurate, is it likely that the verdict will be overturned?
Obscene films hypo
In prosecution for distribution of obscene films, the prosecutor believes the jury will get sick if they have to watch the films. Thus, she wants to have the arresting officer, who viewed the films, describe them to the jury rather than make the jury watch them. The attorney for the defendant makes best evid objection to officer’s testimony – what ruling?
Plaintiff claims defendant knew it was dangerous to not put on safety valve but decided to omit valve b/c of cost. Doe, a former employee of defendant will say that her supervisor sent her a memo in which she was told that using the valve was expensive and would cut profits. Plaintiff wants Doe to testify that she was sent a memo & through memo was told not to use valve b/c of profit considerations. The company objects on best evidence grounds. What ruling and why?
What if Doe’s proposed testimony was as follows, “I believe the company president realized that using the valve was expensive and would cut profits” The defendant thinks there may be a potential best evid objection - what questions would the def want to ask to lay the foundation for a best evid objection?
Assume plaintiff sent request for production ( rfp) for the memo. The company responds by saying, “we have looked for this memo, but we cannot locate it.” Plaintiff now wants to put on the Doe*s testimony about what the memo said. Def objects on best evid grounds. How should the court rule?
Assume that in response to the RFP, the company says, “ we can*t locate the original, but we have found the duplicate - here it is.” Will the plaintiff be allowed to have Doe testify about contents instead of introducing the duplicate memo?
What if plaintiff sends an rfp for the memo and the company says- “there never was any such memo and because it never existed, we cannot produce it”. Plaintiff wants to put on Doe*s testimony about what the memo said. Objection, best evid rule. What ruling and why?
In a case involving 3 years of financial transactions - state wants to introduce summary chart which details the key transactions - may it do so? Assume that a number of the documents underlying the summary chart could not be authenticated and others contain inadmissible hearsay. Any problem with the summary chart?
Uncensored OJ clip – warning – offensive language
Assume that in OJ’s recent Las Vegas case, the government wants to introduce a duplicate of the tape recording of what happened in the room when OJ went to retrieve his stuff. OJ objects on the grounds that the duplicate is spliced - i.e. - it isn’t authentic b/c it is not actually a recording of the conversation that occurred - what now?
Assume the government cannot produce the original because, through no fault of theirs, it was lost. What are the government’s options as to presenting the evidence that was on the tape recording?
Assume the government has the duplicate tape (original lost through no fault of government). Gov’t just wants the witness who was there to testify about what OJ said. Is that o.k. or do they have to play the tape recording?
Review hypo – identify the evidentiary issues for both sides
David Roy Atchison, a federal prosecutor was arrested getting off a plane in Michigan. In his luggage were a Dora the Explorer doll and petroleum jelly. He had been exchanging email correspondence with an undercover officer who was posing as a mother of a five year old girl. Atchison initiated the online chat Aug. 29 with the officer posing as a mother interested in letting men have sex with her children.
In one email, Atchison described himself as "very much a family man.“ In another email exchange, the “mother” expressed concern that the girl would be hurt. Atchison emailed a reply, “don’t worry, I have done this many times and I am always gentle and loving.” During continuous email exchanges, he expressed a desire to engage in oral, vaginal and anal sex with her fictitious daughter. Money was not part of the discussion.
Atchinson had set up a page on MySpace under the user name “fldaddy04”. On the page, Mr. Atchinson wrote that he wanted to meet “younger girls who like older guys”. The page contained some very explicit details.
After his arrest, Atchinson attempted suicide.
Atchinson has a wife and three children. He is president of and coach for a youth sports association whose programs include cheerleading, basketball, football, soccer and softball. The city manager where he lived described Mr. Atchison as a “dedicated volunteer and a professional attorney.”