Evidence: Basic Predicates/Foundation Heather L. King ( heather@koonsfuller )

1. Evidence: Basic Predicates/FoundationHeather L. King (heather@koonsfuller.com)

6. Trial Institute Basics of Tendering • Mark • Identify • Authenticate • Offer • Authentic does not equal Admissible

7. Prerequisites to Admissibility of Evidence Relevant (FRE Art. IV) Authentic (FRE Art. IX) Not Hearsay (FRE Art. VIII) Original, Duplicate, Content (FRE Art. X) Probative Value vs. Unfair Prejudice, etc… (FRE 403)

8. Prerequisites to Admissibility of Evidence -Relevant (FRE Art. IV) -Authentic (FRE Art. IX) -Not Hearsay (FRE Art. VIII) -Original, Duplicate, Content (FRE Art. X) -Probative Value vs. Unfair Prejudice, etc… (FRE 403)

9. Authenticity (FRE 901(a)) The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be.

10. Authenticity (FRE 901(a)) Evidence sufficient to support a finding that it is what you say it is.

11. Fake Social Networking

12. Social Dummy • “A simple alternative for either fooling your friends or to have access to your own fake social media accounts.” • App that creates and shares fake social posts and statuses.

13. The Wall MachineCreates “Funny Fake Facebook Walls”

20. Fake Documents

23. Replaceyourdocs.com Edit any existing document with details you provide. Add your own transactions, names, dates and addresses to bank statements, utility bills and paystubs. Option to print it from home the very same same. Unlimited changes and modifications until you are satisfied. “Novelty” proof of income documents.

29. Deceptology.com • An online service that automates the process of creating fake documents. • Pay in untraceable bitcoins and order “realistic scans” of passports, ID cards, driver’s licenses, credit cards and utility bills.

31. Photograph/Video Predicate

32. Authenticity (FRE 901(b)(1))Example: It is what you say it is(Direct) Do you recognize this document? -Yes What is it? [Can you identify it for the Court?] -It is a letter that I wrote.

33. Authenticity (FRE 901(b)(1))Example: It is what you say it is.(Direct) When did you write it? -May 18, 2014 Who is the letter directed to? -My husband. Is this the same letter? -Yes.

34. Authenticity (FRE 901(b)(1))Example: It is what you say it is(Cross) You recognize this document? -Yes It’s a letter you wrote? -Yes.

35. Authenticity (FRE 901(b)(1))Example: It is what you say it is.(Cross) You wrote it on May 18, 2014? -Yes. It’s directed to your husband? -Yes. This is the same letter? -Yes.

36. Authenticity (FRE 901(b)(1))Example: It is what you say it is Direct Cross When did you write it? -May 18, 2014 Who is the letter directed to? -My husband. Is this the same letter? -Yes. You wrote it on May 18, 2014? -Yes. It’s directed to your husband? -Yes. This is the same letter? -Yes.

37. Authenticity (FRE 901(b)(1))Example: It is what you say it is.(Cross)/Non-Responsive You wrote it on May 18, 2014? -Yes. My husband was being a rude jerk that day because he wasn’t getting his way.

38. Authenticity (FRE 901(b)(1))Example: It is what you say it is.(Cross) OBJECTION NON-RESPONSIVE Move to strike everything after the word “Yes.”

39. Authenticity (FRE 901(b)(1))Example: It is what you say it is.(Cross)/Non-Responsive

40. Authenticity (FRE 901(b)(2))Example: Layman on handwriting A non-expert’s opinion that hand-writing is genuine, based on a familiarity with it that was not acquired for the current litigation.

41. Authenticity (FRE 901(b)(2))Example: Layman on handwriting-Break it Down- A non-expert’s opinion that handwriting is (1) genuine, (2) based on a familiarity with it (3) that was not acquired for the current litigation.

42. Authenticity (FRE 901(b)(2))Example: Layman on handwriting(Direct) How long have you been married? -25 years. During your 25 year marriage, have you seen your husband sign documents? -Yes.

43. Authenticity (FRE 901(b)(2))Example: Layman on handwriting(Direct) Tell the Court some examples of what you’ve seen him sign. -Checks, letters, contracts, all kinds of things. Are you familiar with his signature? -Yes.

44. Authenticity (FRE 901(b)(2))Example: Layman on handwriting(Cross) You’ve been married 25 years? -Yes. During your 25 year marriage, you’ve seen your husband sign documents? -Yes.

45. Authenticity (FRE 901(b)(2))Example: Layman on handwriting(Cross) You’ve seen him sign checks, letters, contracts, all kinds of things? -Yes. You’re familiar with his signature? -Yes.

46. Authenticity (FRE 901(b)(1))Example: It is what you say it is Direct Cross Give the Court some examples of what you’ve seen him sign. -Checks, letters, contracts, all kinds of things. Are you familiar with his signature? -Yes. You’ve seen him sign checks, letters, contracts, all kinds of things? -Yes. You’re familiar with his signature? -Yes.

47. Authenticity (FRE 901(b)(2))Example: Layman on handwriting I’m handing you what’s already been admitted as Petitioner’s #2, Husband’s waiver of citation contained in the Court’s file. Do recognize the signature on the final page? -Yes Whose signature is that? -My Husband’s

48. Authenticity (FRE 901(b)(3))Example: Expert/Court/Jury Comparison A comparison with an authenticated specimen by an expert witness or the trier of fact

49. Authenticity (FRE 901(b)(3))Example: Expert/Court/Jury Comparison Refer to Exhibit #1 (contains a signature already authenticated as Husband’s) Identify Exhibit #2 Compare the signatures. In comparing the signatures, can you identify the signature on Exhibit #2? Is that the same signature as contained on Exhibit #1

50. Authenticity (FRE 901(b)(5))Example: Voice An opinion identifying a person’s voice– whether heard firsthand or through mechanical or electronic transmission or recording – based on hearing the voice at any time under circumstances that connect it with the alleged speaker.