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
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.)
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)
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)
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?
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;
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?
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)
“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?
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?
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
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
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?
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.
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 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.
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
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?
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?
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?
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?
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?
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 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?
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.”