Marshalling Evidence

Marshalling Evidence Tribunal Quality Evidence Comparing Tribunals, Trials & Hearings Expert Witnesses & Scientific Evidence

The StateJudicial System State Supreme Court State Courts of Appeals State Courts of Original Jurisdiction Small Claims Inferior Courts

Special Federal Courts Federal District Courts The FederalJudicial System U. S. Supreme Court U. S. Court of Appeals

Jurisdiction • Jurisdiction is • Political entity, nation, state, or local subdivision • The power and authority of a government to regulate activities • Constitutional permission to exercise governmental power • Jurisdiction and e-commerce • New area of legal concern • Old law is being rewritten to reflect new technology

Pleadings Pretrial discoveries Trial Post-trial activities Appeals Conduct of Civil Trials Pretrial activities

Litigation in the U.S. Legal System • Common Dispute Resolution Process • Differentiation of Criminal & Civil Litigation • Adversarial Process • Parties are responsible for proof of their claims • Parties determine which witnesses to call & when to object to opposing evidence • Role of attorneys

Prelitigation Concerns • Who are the Parties to be Sued? • Who are the plaintiffs • What is the Basis of the Suit? • Legal Theory • When will the Litigation Begin? • Statutes of Limitation • Where could the Litigation Take Place? • Jurisdiction & Venue

Pretrial Activities & Discovery Procedures • Depositions -- Testimonies Given by Witnesses under Oath • Examinations • Inspection of Records & Documents • Electronic documents • Interrogatories -- Questions Submitted to the Opposing Party & Answered under Oath • Pretrial Conference -- Move toward Trial or Settlement

Agency Functions • Executive Powers • Policymaking, investigation, enforcement • Legislative Power • Promulgate rules & regulations • Judicial Power • Hearings & adjudication • Checks & Balances: • From separation of each agency’s three functions • Legislative, Executive & Judicial Controls

Investigations • Violation Reports Trigger Investigation • Witnesses Questioned • Documents Requested • Third Parties Questioned & Submit Documents or other (electronic) Records • Direct Monitoring • Testing, plain view, inspections • Records Retention Policies

Administrative Subpoenas • Subpoenas Not Self-Executing • Recipient May Refrain from Testifying or Compliance • But Consequences if Uncooperative • Administrative Subpoena: Ct. Enforcement 1) Has Legitimate Purpose for Investigation 2) Inquiry is Relevant to Purpose 3) Information not already in Possession 4) Proper Administrative Steps Followed

Facilities Inspections • Warrant Req’d: Search of Pvt. Property: • 4th A: no unreasonable searches/seizures • Administrative probable cause required • Federal magistrate issues warrant • Exceptions: • Emergency conditions • Consent • Activities in plain view • Long history of pervasive regulation • Firearms, liquor, food, prescription drugs

Administrative Adjudication • Pre-Trial Process: • Investigation, Complaint & Notice, Ltd Discovery • Trial-Like Adjudication • Opening & Closing Remarks • Fact determinations: • evidence presented, witnesses examined/cross-examined • Application of Law/Regulations • Decision or Order • Appeal Through Agency & Judicial Review

ADR Advantages over Litigation • Takes Less Time and Cost • Can Select Decision Maker & the Place for Dispute Hearing • Non-Adversarial Process & Inf. Methods • Parties are Actively Involved • Each Party Can Benefit from Resolution • Generally More Confidential

Litigation Advantages over ADR • Longer Time Frame May be Advantageous • Each Party Obtains Valuable Information about the Other Party • The Rule of Law Governs the Dispute • Can Establish a Precedent • Preferred for New & Complicated Cases • More Public Accountability of Parties • Principles Become Precedent & Public Policy

Arbitration • Arbitrator/Arbitration Panel • When Selected? • Prior to dispute, usually by contract • After dispute arises, to settle outside litigation • How Selected? • Is arbitration fair & balanced? • Decision Usually Binding & Final • Very limited appeals • Mandatory Court Annexed Arbitration growing in Several States

Mediation • Non-Binding • Supervised by Independent Third Party Mediator • Persuades Disputing Parties to Settle • Focuses attention on issues, quells emotions, urges concessions on unreasonable demands, proposes compromises, helps find common ground • Conciliation Similar but without Proposing • Popular in Labor & Employment Disputes

Court-Annexed Mediation • Part of the Pretrial Litigation • Mediation Panel (usually) of 3 Persons • Panel’s Decision is a Judgment if Parties Accept the Award • If any Party Rejects the Award • Go to trial • Consequences of rejection of the award

The Mini-Trial • Informal Presentation of the Evidence to Various Types of Forums • EX: to Senior Management • Mock Jury & Judge may attend for realism • May Invite Independent Advisor • Abbreviated Discovery Process

Private Trials • Rent-a-Judge • Pioneered in CA • Spreading slowly to some other states • Retired Judge with Expertise • Parties Agree that Decision will be Binding • Usually Applies the Law • Held Anywhere, Anytime, Confidential • Judgments Enforced if Parties Agree (usually beforehand)

Non-Judicial Tribunals • Internal Investigations • SRO, NGO • SH Inspection Privileges • FOIA

Factors Relevant to Selection from Among Dispute Resolution Methods • Is the decision binding? Can it be reviewed? • How is the decision maker selected? Does he/she have expertise on the subject? • What is the nature of the decision ? • Is the process public or private? • How time consuming and costly is the process?

Varying Roles of Expertise Legislation Regulation Litigation

Some key emerging expertises • Statistics, multiple-regression • Survey Research • Estimation of economic damages • Epidemiology • Toxicology • Engineering practice • DNA • Medical diagnosis & treatment • Environmental & workplace exposure • Employment issues

Evidence Admissibility Relevance Authentication Admissibility

Direct vs. Circumstantial Evid • Direct evidence: statement by witness of direct sensory observation • Proves existence of some fact without inference or presumption • Circumstantial evidence: evidence from which the proof of a material fact is inferred • Not based on witness’ personal knowledge • Additional reasoning required to reach proposition to which inference is directed

Relevance: FRE Rule 401 Definition of ‘‘Relevant Evidence’’ • ‘‘Relevant evidence’’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Relevance: FRE Rule 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible • All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Relevance: Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time • Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay • Relevant evid excluded if prejudicial, balaincing probative value against harm likely • EX: emotional, time waste

Relevance • Trial court judges have wide lattitude • Subject to trial attorney exceptions & appeal • Object to admission as arguably irrelevant • Object to exclusion because arguably relevant • Relevance vs. Materiality • Relevance: evidence is relevant to a proposition or point • Materiality: proposition or point is material to an issue at trial, has legal significance to case • EX: electric lawn mowing, wet grass & bare feet-relevant to contributory negligence • Immaterial if issue at trial is thrown broken blade • FRE Now Merges Materiality into Relevance

Relevance • Relevance is not inherent but contextual • Exists only in relation between item of evidence & matter requiring proof • Either in witness’ Experience or from Science • Applied logically to factual proposition

Authentication • FRE Rule 901. Requirement of Authentication or Identification • (a) General provision.—The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. • A/K/A “Laying the Foundation” • Test: sufficient proof that a reasonable juror could find authentic • eVid inadmissible as not authentic if source of info or method or circumstances of preparation lacks trustworthiness

Why Authentication? • Cannot accept proffered evid at face value • Exception for Self-Authentication • Initial proof of accuracy & not forgery • Judge rules, opposing counsel may move • Particularly important for exhibits & docs (e-) • But there is no guarantee against fabrication • Ultimately an outcome of adversarial trial process • Authentication defined: • Genre, verifying authorship, integrity, completeness, correctness, validity, faithfulness to original, meaningfulness, suitability for intended purpose

Authentication How? • Accomplished in Pre-Trial Discovery • Request for Admission of genuineness • Stipulation • Production authenticates as to claimed status • Interrogatory • Deposition • FRCP 26(a) list not objected to

Authentication How? • Accomplished at trial • Request: marked for identification as Exhibit# • Witness sponsored • Offering as exhibit • Permitting adverse counsel to examine or object • Submitting to judge requesting to examine • Court ruling on admissibility • Permitted jury to hear it read, displayed or passed to

Authentication How? FRE Rule 901(b) Some EXs • Testimonial sponsor with knowledge • Chain of Custody • Handwriting (lay vs. expert opinion) • Distinctive characteristics (ltr-head) • Voice ID • Telephone calls • Public reports & records • Ancient Documents • Tape Recording • Photos, Videotapes, Xrays • Computer Output

Chain of Custody • Authentication, Foundation or Predicate • Addresses implication & risk that broken chain suggests opportunities for falsification, alteration, deterioration, mis-ID or tampering • Typically triggered by objection to admission where chain allegedly broken or uncertain • Most useful for fungible evid, lack distinctive characteristics • EX: counterfeit currency, car key, computer file • Not normally necessary if identifiable by distinctive

Chain of Custody • Factors in chain of custody • Potential commingled items w/ similar appearance • Sponsor failed to ID uniquely &/or adequately record • Establishing Chain from Seizure to Production • Witness describes initial recovery of item(s) • Others describe handling, transfer & receipt • Precautions taken to preserve evid • Proof item not changed, substituted or tampered • Each, as link in unbroken chain, testify to chain’s integrity & item’s unchanged condition • Not all breaks require inadmissibility: seriousness & reasonability of safeguards

Chain of Custody: EDD • eData easily altered, files appear fungible • Chain of Custody eData Log is Crucial: • Every step documented throughout process • Proper copying, transporting & storage • Demonstrates that no alteration occurred • All media secured throughout

Hearsay • Hearsay Rule: Oral or Written Hearsay is Inadmissible • FRE 801 Hearsay Definition - Statement offered in evidence to prove the truth of the matter asserted. • ‘‘statement’’ is (1) an oral or written assertion or • (2) nonverbal conduct of a person, if it is intended by the person as an assertion. • Includes eData, some non-verbal • FRE 802. Hearsay Rule • Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. • Prohibits witness from relating the word of another person w/o exceptional circumstances

Hearsay Rationale • Reasons: Reliability Generally Untestable • Unreliability of out of court declarant cannot be tested by confrontation & cross-exam • Perception • Memory • Sincerity • Narration • Confrontation Cl, 6th A. • In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against …

Hearsay Exceptions • Major Exceptions: • Not Hearsay: not offered for truth of contents • EX: offered to prove only that something was said (defamation) such as effect on listener or reader • Excited Utterance • Dying Declaration • Business records • Reasons: • Specific to each exception, but generally heightened reliability & lower risks over general hearsay risks of memory, perception, sincerity & narration

Burden of Proof • Burdens: proof= production/going forward + persuasion • “tipping point” to adjudicate in favor of one or other party • Civil: Plaintiff • Preponderance • Sometimes: clear & convincing, greater weight • Criminal: Prosecution • Beyond Reasonable Doubt • Defendant: any/all defenses • Appeal: arbitrary, unreasonable, capricious • Evid admission/exclusion: abuse of discretion • Regulatory: unsupported by “substantial evid”

Testimony • Lay • Sensory Perception, Facts • Ltd as to Opinion (w/in general experience) • Expert • Inference derived from Scientific Evidence • Proof of expertise & domain’s discipline • Sponsorship • Context, Foundation, Predicate, Chain of Custody

Types of Experts in CyberForensics • Considerable potential overlap • EDD Specialist • Discovery & processing of eData • Assess or Convert opposing party records • Computer Forensics Expert • Location, recovery, discovery, generation, storage & disclosure of EDD • Advise lawyers • Testify on recovery techniques & product • Electronic Info. Processing Consultant • Post-Harvesting advice on effective/efficient search, extraction, conversion, presentation

Rule 701. Opinion Testimony by Lay Witnesses • Witness not testifying as expert • Testimony may be opinion or inference • Limited to: • rationally based on witness’ perception • helpful to clear understanding of the witness’ testimony or the determination of fact in issue, & • not based on scientific, technical, or other specialized knowledge otherwise w/in 702 • W/in common experience, personal knowledge, overall impression • EX: observed a drunk, emotion, physical condition, speed, size, color, shape, (in)sane, ID • Distinguish: “ran a red light” vs. “should not have entered intersection

Rule 702. Testimony by Experts • Witness qualified as an expert by knowledge, skill, experience, training, or education • If scientific, technical, or other specialized knowledge will assist trier of fact • To understand evidence or determine a fact in issue • May testify as opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied principles and methods reliably to facts of the case.

Rule 705. Disclosure of Facts or Data Underlying Expert Opinion • Expert may testify & give reasons therefore without first testifying to underlying facts or data • Opinion or inference • Exception: court may require expert to sponsor data or report • On cross-exam, expert may be required to disclose underlying facts or data

Trilogy Observations • Jury, not judge, must evaluate conflicting expert & scientific evidence • Judge is gatekeeper on rigor, cross-exam, judge instr. & BofP also key • Formal Daubert hearings not always necessary • Kumho too difficult for judges to distinguish scientific from other technical disciplines

Some key emerging expertises • Statistics, multiple-regression • Survey Research • Estimation of economic damages • Epidemiology • Toxicology • Engineering practice • DNA • Medical diagnosis & treatment • Environmental & workplace exposure • Employment issues • CyberForensics

Marshalling Evidence