Chapter 3 Sources of Evidence Physical Evidence 89

Chapter 3 Sources of Evidence: Physical Evidence 89

Authentication and the General Evidence Flowchart

FRE 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

FRE 901. Authenticating or Identifying Evidence (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

901 Examples • A Witness with Knowledge • Evidence about Ancient • Nonexpert Opinion on Handwriting Docs or Data • Comparison by an Expert or Trier Compilations of Fact • Evidence about a Process • Distinctive Characteristics and the or System Like • Methods Provided by a • Opinion About a Voice Statute or Rule • Evidence About a Telephone Conversation • Evidence About Public Records

Authentication of Physical Evidence

Steps to Authenticating Evidence 1) Mark Exhibit (or Premarked) 2) Hand Exhibit to Opposing Attorney for Inspection 3) Hand Exhibit to Authenticating Witness 4) Lay the Foundation for its Admission 5) Offer Exhibit into Evidence 6) Wait for Objection 7) If no Objection, ask for Ruling on Admissibility 8) With court’s permission, hand exhibit to judge (in a bench trial) or publish to the jury (or have witness read from the exhibit)

Authentication of Documents

Authentication of Documents United States v. Saadey p. 93

United States v. Saadey p. 96

Authentication of Documents United States v. Collado p. 96

United States v. Collado p. 96

Voice Identification and Telephone Conversations

Voice Identification and Telephone Conversations United States v. Espinoza p. 101

United States v. Espinoza p. 101

Electronic Mail

Electronic Mail United States v. Safavian p. 103

United States v. Safavian p. 103

Internet Data

Internet Data Internet and Email Evidence by: Gregory P. Joseph, Esq. p. 104

Authentication of Demonstrative Evidence

Maps, Charts, and Diagrams

Photographs

Photographs United States v. Soto-Beniquez p. 112

Predicate for Proving a Photograph Rule 901(a) provides that the proponent must provide evidence to support “a finding that the item is what the proponent claims it is. ” Translation for photographs: The photograph accurately represents the scene depicted in the photograph at the time the photograph was taken.

There is often a misconception among students (and occasionally lawyers) that a photograph may only be authenticated by the photographer. The rule does not have any such requirement. As an example, there is no indication in the Soto-Beniquez case that the testifying officer took the photograph. Only – that he could authenticate the photograph. Consider this when discussing the Taylor case.

Photographs United States v. Taylor p. 112

Computer Animations and Simulations

Computer Animations and Simulations Bray v. Bi-State Development Corporation p. 112

Bray v. Bi-State Development Corporation How are the protections sought by the rule accomplished in this case? Does authentication as permitted by the court result in reliability of the evidence? Assume the evidence was admitted – but the authentication “shaky” at best. As an advocate against the computer generated evidence, what would you argue to a jury? p. 112

Self-Authenticating Exhibits

FRE 902. Evidence That Is Self-Authenticating The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted: 1) Domestic Public Documents That Are Sealed and Signed 2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified 3) Foreign Public Documents 4) Certified Copies of Public Records 5) Official Publications 6) Newspapers and Periodicals 7) Trade Inscriptions and the Like 8) Acknowledged Documents 9) Commercial Paper and Related Documents 10) Presumptions Under a Federal Statute 11) Certified Domestic Records of a Regularly Conducted Activity 12) Certified Foreign Records of a Regularly Conducted Activity

The “Best Evidence” Rule

FRE 1002. Requirement of the Original An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

FRE 1003. Admissibility of Duplicates A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

FRE 1004. Admissibility of Other Evidence of Content An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith; (b) an original cannot be obtained by any available judicial process; (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or (d) the writing, recording, or photograph is not closely related to a controlling issue.

What is a Writing, Recording or Photograph Seiler v. Lucasfilm, Ltd. 9 th Circuit p. 121

Seiler v. Lucasfilm, Ltd. FRE 1001: (a) numbers, or their equivalent set down in any form. p. 121

When are the Contents of a Writing, Recording or Photograph at Issue? United States v. Bennett 9 th Circuit p. 125

GPS Data

Originals, Duplicates and Secondary Evidence

When are the Contents of a Writing, Recording or Photograph at Issue? United States v. Gerhart 8 th Circuit p. 130

Copy of a Bank Check

The Admissibility of Summaries

FRE 1006. Summaries The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Summaries Intended to make it easier for the fact-finder to understand digest large amounts of information.

The Rule of Optional Completeness

FRE 106. Remainder of or Related Writings or Recorded Statements If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

The Rule of Optional Completeness Beech Aircraft v. Rainey United States Supreme Court p. 135

End of Chapter 3