Evidence class 7

1. Evidence class 7 Authentication and Best Evidence

2. Lay opinion review • 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

3. 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.)

4. Review – Attack experts by arguing: • 1. unqualified; • 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

5. Expert review • 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)

6. When you think evidence, think • Best Evidence • Authentication • Relevance • Privilege • Hearsay

7. AUTHENTICATION – • 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)

8. Key question for authentication • What is the evidence being offered to prove? (This tells you what kind of foundation you must lay)

9. query • What does the term “lay a foundation” mean?(need to know this to understand issues with regard to authentication)

10. 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?

11. Query • What are the different roles of the judge and jury when it comes to authenticity issues?

12. Real evidence • 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;

13. Demonstrative Evidence • What is demonstrative evidence?

14. 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)

15. query • Why does it make a difference as to whether evidence is introduced as real or demonstrative?

16. 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)

17. query • Why do you need to show evidence is in materially the same condition as at the time of the incident?

18. query • 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?

19. 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?

20. Hypo • 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?

21. Hypo • 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?

22. Demonstrative/illustrative Evidence • 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)

23. 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

24. Authenticate this picture – offered to show the driver’s view

25. 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? • www.youtube.com/watch?v=fjJqvtromEE • What if no eyewitness, how would you authenticate the videotape?

26. X-ray problem - p. 347 • Answer the problem

27. Voice I.D. • Problem on p. 351 - • Problem on p. 354 • Problem on p. 356 -

28. More hypos • 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?)

29. hypo • 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?

30. hypo • 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?

31. hypo • 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?

32. hypo • 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?

33. Handwritings • What are the four ways you can authenticate someone’s handwriting? • Expert • Non-expert familiar with it before litigation (not in anticip of litig) • Jury/trier of fact comparison • Context

34. problems • Casebook prob. Page 358 & 360

35. 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

36. 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

37. 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;

38. query • 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?

39. query • If there’s a question about authenticity - who gets to decide if evid is authentic - judge or jury?

40. 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.

41. Final hypo • 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

42. BEST 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.

43. 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?

44. 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?

45. Property deed

46. 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.

47. 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-

48. More policy • 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

49. 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.

50. 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?