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Evidentiary Foundation

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Evidentiary Foundation

Perhaps the most fundamental issue for the introduction of evidence at a hearing or trial is properly laying an evidentiary foundation. Substantive evidence is not admitted unless a foundation is first laid. Foundation includes showing the witness has the necessary knowledge to testify about an event or matter, whether the witness is a fact witness or an expert, and that physical evidence is what a party purports it to be. Notwithstanding the fact that every trial lawyer should know how to lay a foundation, the reported cases show that trial lawyers are unable to introduce necessary evidence to establish a claim. This presentation will assist the younger attorney in understanding foundation and the use of the rules for getting evidence admitted. More advanced attorneys will also benefit from review of the rules and pertinent caselaw.

Transcript

- Hello, my name is John Snow. I'm with the law firm of Parsons Behle & Latimer, and we're located in Utah, Nevada, Idaho, and Montana, and I'm in the Salt Lake City office of Parsons Behle, and what I do for a living is litigation, and therefore, I have a little bit of knowledge about the significance of foundation, which is what this presentation concerns. When you think about foundation, a lot of lawyers think of it as a tedious process that you have to go through to get evidence before the jury or the trier of fact, and so, we sometimes become very mechanical in the way we present foundational evidence, but in fact, foundational evidence can demonstrate to the trier of fact how significant that a piece of evidence may be and how reliable a piece of evidence may be, and therefore, instead of looking at foundation, in terms of, you have to do it and it's a requirement, but it's a technical, tedious process that should be done as quickly as possible. That was probably a long explanation for, simply, that it is not going to the substance of the issue and therefore not helpful to the trier of fact and understanding the issues, and treating foundation as a way to demonstrate the significance of what the jury is about to hear, and sometimes you can make that point with the question asking of the witness to give a notice to the jury or the trier of fact that what they're about to hear is significant to a letter piece of evidence. For example, I wanna talk to you about this letter. Before we get into the letter though, I want to show where it came from, and how it exists, and let the jury know that they're about to hear something that will lead to a conclusion, and foundation when it is not laid, and you have the foundation objection. Take that as the opportunity to lay it out fully, and the other side has raised the issue and it's going to appear or can appear to the jury that you're accommodating the other side and laying out the information that they're about to hear, even though you don't think it is, and it probably isn't much related to the substance of the testimony that is going to be heard or the document that's gonna be seen by the trier of fact. My point, simply, is foundation, although tedious, can be used effectively to demonstrate the importance, significance, reliability of a piece of evidence that the jury is about to hear. Evidentiary foundation is required of all evidence, whether it's testimonial evidence, whether it's physical evidence, whether it's demonstrative or illustrative evidence. The evidence to lay the foundation must be proffered. Although the rules specifically provide that you can tie in foundation to a piece of evidence at a later date, and when you are dealing with that situation, make sure you've put in your trial notes or your trial day notes that you must lay the foundation, or if you're opposing the introduction of the document, remind yourself, when the other side rests, move to exclude the evidence that was proffered without the foundation. One way or the other, you wanna make sure it either gets in before you rest your case or that it is specifically excluded before you rest your case, and some people might wanna balance whether or not it's really worthwhile to bring up an issue again, if they haven't laid the foundation, you wanna let it go. As opposed to reminding the jury of a particular fact, or instance, or event that might be somewhat harmful. So, you do wanna balance where you're going with the objection of foundation to evaluate whether or not it's going to help you more or less. Merely because you can make the objection, doesn't always mean that's a good idea to do so. Sometimes objections are best left alone so that you do not raise an issue that will have a greater impact or could have a greater impact on the jury because you're talking about it. So, I wanna review a couple of the preliminary rules that apply to laying foundation, and the first rule that deals with foundation, and these are the federal rules is rule 104 about preliminary questions. The court must make the initial decision, obviously, as to whether or not a witness is qualified, whether or not there's a privilege or the evidence is admissible at all, and that means that, their foundation, is it hearsay? And so, this is where the court initially makes that evaluation. Now, the court can make that evaluation without consideration of the rules of evidence themselves. The judge can hear hearsay evidence or any other type of information that may not be relevant or admissible on its own, but does become relevant for the determination of the admissibility of other evidence, and relevance, of course, will depend on the fact, and whether or not something is going to be introduced. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support of finding that the fact does exist. The court may admit it, again, on condition that at some point later in the case of the plaintiff or the defendant, it will be tied into the evidence that's being offered. Courts are permitted to conduct foundational hearings outside of the jury. Now, one of the things that you can use in this regard are motions in limine. If you have a question about what the other side is going to do, or as importantly, what you are going to do with the piece of evidence that may be subject to various objections or inadmissibility for various reasons like 403 objections, because it's duplicative or it's unduly prejudicial under rule 403, file your own motion in limine. If you wanna make sure you can get the evidence in or to resist the other resides evidence that you anticipate that they are going to introduce into evidence. The motion in limine doesn't is a valuable tool in setting the tone for the trial itself and limiting or making sure it's clear what can and cannot be admitted during the trial itself. You want the trial to go smoothly, generally, and so, having these types of evidentiary issues decided before the trial are beneficial to the jury, because there will not be as many, we'll see in a few minutes, where the jury leaves the trial court room and goes into the jury room, why the lawyers spend an hour and a half debating whether or not something's admissible. Those kinds of issues can be resolved before the trial through a motion in limine. So, when you're doing your trial work and you're anticipating what you're going to introduce, consider what objections you would make to your own evidence, as well as considering what the other side is going to put into evidence and what you can object to, to keep it out, then file a motion in limine if it seems appropriate. Frequently, the judges are going to defer motions in limine with the idea that, let's see how the evidence comes in and then we can make the motion, but the advantage of making the motion in limine is you've at least alerted the court to the issue so that when it does arise, the court will be ready to respond. You've already briefed it in the motion limine, so it doesn't have to be re-briefed or even really re-argued if you've done an effective job, but other than to hit the high points. So, consider motions in limine with respect to foundation, or for that matter, any other type of issue that could conclude the preclusion of evidence. and merely because the judge allows the evidence to come in, rule 104 makes it clear that you still may introduce evidence that goes to the weight or credibility of the evidence. You can always attack the evidence as unreliable. Another issue that can arise in multiparty litigation is addressed in rule 105, where it limits evidence that is not admissible against one party or for other purposes. For example, things will come in to show notice, but not the substance of what is contained in a document. So, it's admitted for the limited purpose of showing notice, but not for the truthfulness of the matters contained in the document, and that's one of the ways that you can use rule 105. Another way is where there are multiple parties, and one of the multiple parties has sent an email or correspondence to the plaintiff, or to the opposition, and admitted certain facts before the litigation started, and the plaintiff for that other party's attorney wants to introduce that particular document or piece of correspondence. This rule makes it clear that it can still come in, but it is limited to the other party or the single party who wrote the document or transmitted the correspondence. It's not admissible for all parties, and in connection with... You can run into this with motions for summary judgment and multi-part litigation where one party files a motion and the resisting party brings in a document that really is not relevant as to your client, because it was between another party on your side of the table and the opposition. It is not admissible for those purposes, but obviously it happens at trial as well, but keep in mind that you can use it in motion practice, or you can use it at trial to keep information out. The rule of completeness is rule 106, and this rule provides that, when part of a document or recording is put into evidence, but in fairness, other parts of the document should be considered at the same time, you can make this objection or request of the court that the remainder of the document be introduced under rule 106. An example would be where they are reading parts of a deposition, but omitting the context for what they're reading, and I'm talking about your opposition. You can require that the prior parts of the deposition that are being read to the jury be introduced at that point or at that time. Now this is something that should be addressed during pretrial process where you know that somebody is going to use a deposition as substantive evidence and the federal courts require, state courts may or may not, in the sense that they're standard pretrial orders, but make sure that where you know have a deposition that may be used, that the parties exchange beforehand, the content of the deposition that will be used so that all parts are read to the jury at the right time, and there's not a lot of haggling actually, during the process of reading the transcript to the jury. Rule 601 makes it clear that everybody is competent to testify unless otherwise provided, and that means that they don't have mental capacity or they didn't witness the event. They just heard about the event, but the general rule under 601 is every person is competent to be a witness, but there aren't a number of exceptions to that rule, and let's see, a need for personal knowledge is 602, which goes to what I was just saying, personal knowledge is the foundation. For example, a witness that has asked what happened in an accident would first have to be established to the foundation that they were present when the accident occurred and that they were observing the event when it occurred, as opposed to, they were there, but they didn't actually witness anything because they were consumed by something else that was going on at the same time, and were only told what happened. Of course, they're not competent to testify because they do not have personal knowledge of the events. Of course, this rule does not apply to expert witnesses who are frequently asked to make or give opinions based upon assumptions and, or what they read in the testimony or from other sources. When dealing with any type of evidence, it has to be identified. Generally, this is in terms of a document, that you need to identify the document before it can be introduced into evidence. So, it is authenticated as a simple process that you ask of a witness, but, for example, is laying foundation for a business record that you're with the company that keeps these records, you're involved in the keeping of these records. These particular records were prepared in the ordinary course of business. What is, the ordinary course of business that results in the preparation of these documents, trying to show how reliable they are, and then you've laid the foundation, and you then have them tell you what it is specifically, meaning you then go to the substance of what is contained in the documents. That also applies to, not only evidentiary or testimonial of evidence, but it certainly applies to any other type of document or tangible piece. For example, with demonstrative evidence, that it is what it purports to be a recreation of an event or a picture of an event, or a video of what would've happened if they would've been there and videoing at the time of the event. Rule 901 is not an all inclusive list of how you authenticate or identify evidence, but it gives you examples of identification of an authentication and identification of exhibits, and therefore, it's helpful when you have something that falls outside the scope of the examples of 901 to analogize from what is contained in this rule and, or review pertinent case law, which has already perhaps, done the analysis that you're looking for, but some of the examples that are contained in 901 are testimony of a witness with knowledge. Clearly, they can authenticate and identify the accident or the event that they're testifying to that an item is what it purports to be. Non-expert testimony about handwriting. You can lay the foundation to show that a person is intimately familiar with the handwriting of someone like a decedent or anyone for that matter, and that they can identify the writing as that of another person, but you have to show that they have a basis for that by showing familiarity with the writing. One or two instances of seeing the writing probably is not sufficient, but having spent a significant amount of time reviewing documents prepared by or written by a party that's unavailable or somebody who's denying the existence of a document, then you can testify, if you have the familiarity about whose hand the document is prepared in. Comparison by an expert witness or a trier of fact. You can do a comparison with an authenticated specimen by a witness or a trier of fact comparisons such as, whether or not the documents are the same or the photographs are the same, or the videos are the same, or that any fact is what it purports to be. Distinctive characteristics is another way of identifying or authenticating a document or tangible evidence using the appearance context, or substance internal patterns, or other distinctive characteristics of the item taken together. For example, that you are speaking with somebody over the phone who has not identified themselves, but in the conversation, they refer to something that only that person would know, and so, the listener of that conversation is able to say this distinctive characteristic, this is just an example, identifies the person as the person that they are claiming it to be on the other line of the phone conversation. You can also have opinions about a voice, whether it's mechanical, or electronic transmissions, or anything else, but a person who is familiar with the speaker and knows the voice can lay the foundation, can, in fact, identify the speaker, whether it's electronic or... Well, it would have to be electronic. Evidence about phone conversations. Other ways to prove it other than having the speaker identify an event that only they would be familiar with is that you're also looking for any other self-identification. For example, you call the number that you've been given by this person, and they answer the phone, and they show awareness of who's making the phone call and other characteristics of the conversation that would make it pertinent to identification of the other person on the phone. When you're calling a business and a transaction is completed over the phone, you can generally assume you called the right number, and the evidence will be permitted to show that. Public records are almost self-authenticating. If it is recorded, and an officer of the agency is able to identify it as such, or you have it certified, or you have some other testimonial basis for concluding the document is what it purports to be. Ancient documents do come into play from time to time. For example, a contract that is old, and maybe there's only one signature on it, where the parties have operated under the contract for a significant period of time, but you don't have the actual document itself, but the document is over 20 years old, is in a condition that does not create suspicion about its authenticity, and it was found in a location where you would assume it would be kept, like where a decedent keeps all their business records, and these business records were found, or this document was found, where those business records were located. 30 years is a rule changed. Actually, the common law rule was 30 years, but in any event it's somewhat arbitrary, whether it's 20 or 30, but nonetheless under the rules, it's 20 years. Evidence of a process or a system. And one of the ways that this can come into play, and does, is with electronic signatures, where you have, for example, employee manuals that have to be signed by the employee before they start or commence employment, and you've given them an identification number, and they have to use the identification number to sign into the system to sign the document, and the reason for that is to show that there is a system in place or a process in place that gives a reasonable high degree of assurance that the person who is purportedly signing the electronic signature is who they purport to be. This kind of process has become... Or this kind of evidence is becoming more and more common because of the fact that people are using electronic signatures more and more with both the federal, and most states having electronic signature acts, and now with notary acts as well. for electronic signatures, it's becoming a more used process, and so, knowing how to lay the foundation for getting in the process is helpful, and there's a number of cases that explain it, but basically, what you're doing when you're discussing the process or system, is showing that it's reliable and that it's going to identify the person. It's going to show what it purports to show because the process in the system is reliable and it's secure. So, when you're laying foundation for that, you'd wanna show that, in fact, it's been reliable, it has been reliable, you've never had an issue with it, how the system works, why it is a secure system, why it can't be hacked, and then the burden would, obviously, shift to the person's claiming that the signature is not theirs, at some point, when you've gone through that process. The same is also true with storing of data on a computer. How does that all work? When you're trying to show data that has been stored for a period of time on a computer, that it was there, how do you show that it was there during the time period and wasn't altered? You can show the process of storage and the security systems that were available, and that you have the ability to determine whether or not the system has been hacked at some point. With respect to public documents and other evidence, there is self authentication under rule 902. 902 provides various ways of self-identifications. For example, with domestic public documents that are sealed and signed, and the seal purports to be of an agency that has that power, and the signature is that of a person who is authorized by the agency to fix the signature, or that you don't have documents that are sealed, but they are signed and certified. They are also subject to admission. Foreign public documents, that is a little bit tricky, and you notice that I haven't put a lot of information on it because it doesn't come into play very... At least I don't know that I've ever had a situation where that has been an issue in a trial. Generally, the parties can stipulate to a lot of this stuff anyway, and in the pretrial, in your pretrial orders, where you list the exhibits and any objections, it's generally not an issue, but be aware there is at least a rule, if you have a problem with foreign public documents, on how to get it admitted. Of course, certified copies of public records are going to be admissible, as long as the certification is, in some authorized way, following statutory provisions. Let's see, official publications, a book, pamphlet, or upload publication issued by a public authority. For example, the Internal Revenue Service issues publications on rulings, on tax issues. Those would be official publications. The FDIC issues publications on bank regulations that are considered official publications. Now, they may be admitted as what they are, what they purport to be. That doesn't necessarily mean that the publication is substantively correct in all instances where you have a pamphlet or other publication, trying to describe a process by, for example, the FDIC saying these are how banks do certain types of transactions. The fact that the FDIC says so in a publication doesn't mean that's the only way they do it, or the necessarily the correct way, and you can always have evidence to contradict those types of things. This is just for admission. The same with newspapers or periodicals, and the reason why you would do, for example, a newspaper or periodical, and have it introduced is for notice, like you're trying to point out with asbestos litigation, that it was well known in a certain time period that asbestos in these certain products were dangerous and that any person manufacturing this product would've known, and you can go to the literature that was available at the time, both in newspapers or periodicals, that shows that it's a well known fact, at this time period, subject to your litigation, that the information was publicly available. Trade inscriptions, and the like are, excuse me, again, trade descriptions, and the like, are an ordinary course, again, when it is what it purports to be, and you can lay the foundation to show that. One of the things about the best evidence rule is where you hear it by a lawyer who really doesn't understand it, where they make the objection the best evidence rule, and it's, frequently, they're saying that there's other evidence that could prove the issue that would be more reliable. That's not what the best evidence rule is. The best evidence rule is limited solely, to the contents of a document, or recording, or, perhaps, photographs, but it's when you're using a document, you have to use the original of the document, as opposed to a copy of the document, and in the first case, and I cite it only because they cited McCormick on this who defines the best evidence rule as improving the terms of a writing, where the terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than serious fault of the proponent, in that, meaning the person who's trying to get the document into evidence. It is not a rule of evidence in the sense that it is absolutely always followed, and indeed, as you'll see in a minute, there are numbers of exceptions to this rule. One of which is you can always use a copy if there's no dispute regarding authenticity of the underlying document. The best evidence rule, as we understand it, is now codified in the rules of evidence, starting with rule 1001, which we'll talk about in a minute. You don't have to look at the case law. Well, you do, if you're interpreting the rule, but the rule itself is, generally, going to be the starting point, and the rule is not intended as an exclusionary rule. It is merely a rule of preference operating as a special exception to the rules of testimonial preference, and the rule of testimonial preference is that testimony is always preferred. Live testimonial is always preferred over any other type of evidence, including video evidence and deposition evidence or any other type of evidence, because you can evaluate the witness and the trier of fact can evaluate the witness and make decisions, and it's deemed more reliable because testimonial evidence can be cross-examined. So, this is an exception to a rule, and the best evidence rule forces a party to produce the original writing if it's available, and when the terms that writing are material and must be proven, but, as I indicate, there are exceptions. The best evidence rule actually starts in rule 1001 of the rules of evidence, and it defines various terms, like a writing consists of letters, words, numbers, or their equivalents set down in any form. A recording consists of letters, words, numbers, or their equivalent recorded in any matter. A photograph means a photographic image or it's equivalent. The original of a writing and recording is the original. I mean, I don't know how else you would say that. Now, when you're dealing with electronic information, there is an issue because you can't see field touch, smell, taste, electronic leak, stored information. So, therefore it's the printout that is considered the original, or any other way you can make the data that is stored, readable or seeable. That is the original, and duplicate means any counterpart produced by a mechanical, photographic, chemical, electronic, or any equivalent process or technique. So, we have the basic understanding of what is original and what is duplicate. Writing, recording, and photograph are all clearly defined. So, why does rule 102 require an original? It says an original writing, recording, or photograph is required in order to prove its content, unless there are these rules or a federal statute provides otherwise. Now with respect to a photograph, the photograph itself is always of something else, and, like you're taking a picture of an area where there was an accident, where there was construction going on, and you take a photo of the intersection where the accident occurred to show how it existed. However, the circumstances, since the accident have changed. The photograph taken of the area is still the original. It may not be admissible because it's not relevant, because, no longer, it can show, or it can't show the conditions as they existed at the time of the incident. They only can show circumstances at a later date. Now, if you're just trying to show the intersection and for nothing else, just to show east, west, north, and south or something that did exist, then it could be limited or omitted for a limited purpose, as we talked about a few minutes ago. So, a photograph is generally going to be the original. However, with the today's technology, with electronic and digital photographs, they can be altered, and when they are altered, the photograph that you can print out is no longer the original, and so, if there is a dispute regarding the authenticity of the photograph, and the photograph is material, the original is required, so, prior to manipulation, if you can do so. The same is true with a writing or recording, but the photograph, I thought, presented some unique issues. Now, admissibility of duplicates, as I indicated, a duplicate is always admissible to the same extent as an original, unless there is an issue raised regarding the authenticity or the circumstances of creation of the duplicate, that makes it unfair to admit the duplicate. For example, with a will, you may have a person that claims that the will was a holographic will, and that it is that the writing of the person, but they don't have the original. There is a question about the handwriting. The court determines that there's not sufficient evidence to admit the copy. The duplicate is not admissible. So, you have to rely on the original, which if you don't have, you don't prove your case very well. So, that's where you can run into issues with authenticity. Another issue I had in the case at one point, that was kind of interesting, is the father conveyed property to his children. One of his children's a little more greedy than the others and what he had done, and he was a real estate agent or broker. So, he did have some idea of what he was doing, but he cut and pasted three different deeds together to make it appear that he had a larger parcel and a right of way which he did not otherwise have put it into a document and then put the document, and the document was found where it should have been found in the business records of the father, which was then dead, and so, there was a dispute over what was intended to convey and what was to be conveyed between the siblings. The way it was proven not to be an original was that, although the guy was pretty good at copying these three documents, we had a document examiner demonstrate that the margins were different, that the margins didn't line up, and that was the primary piece of evidence to show that this was not a reliable document, and we were able to keep it out of evidence, which will add to other issues, but regardless, that's one of the ways that the best evidence rule can come into play. An original is not required, and other evidence of the content of a writing, recording, or photograph is admissible, and this is rule 104, where first, the originals are lost or destroyed, and not by the proponent acting in bad faith. So, if the originals can't be found and the person who's offering the document or the copy of the document, or some other evidence of the document is not the one responsible acting in bad faith in destroying or losing the document, then you can use alternative evidence to prove the content of the original document. The original document is not available by judicial process, meaning that you can't get a subpoena served on the person who has actual possession or otherwise retrieve the document through ordinary judicial channels. The party against who the original is being offered has control of the document, was put on notice that the document would be needed, whether it's by pleadings or otherwise, and that the original would be subject to proof at trial or hearing, and then fails to produce the document. This rule probably should never ever be an issue in that with discovery in cases where you've asked for the document to be made available, and you would be able through the other party and you would be able to subpoena or otherwise require that party to produce the document at the trial. You can also get an order of the court requiring that the document be produced at trial, but in the event you get to trial and realize you don't have it, and then you give them notice within reasonable time, then you can get it through this, you can use a duplicate through this rule, and then finally the writing, recording, or photograph is not closely radiated to a controlling issue. So, even if there is an issue about authenticity, but it's not really a pertinent issue, then you can go to some other form of proving a lost or missing document. Official records to prove the contents, again, generally, this is not going to be an issue because the public records are going to be somewhat reliable, where you might have issues is with the recording of... Or at least where I'm familiar is, the recording of documents with the recorder's office, and the recorder's office obviously is not a gatekeeper, well, most dates is not a gatekeeper. So, they file what they're provided as long as it has the required recording information on the document, which can be added by a third party. So, you can have issues with copies or documents of public record and proving the content by copy or by the original may be required because of the potential for modification or, well, in fact, this is kind of related to the issue that I was talking about, where the son made changes to the deed to the kids. Summaries rule 106, this is something we've all done or will do, especially in accounting cases or cases where you have significant accounting, where you cannot possibly go through the hundreds of thousands of invoices and show each one of them, and set in trial, and add 'em up, you have your accountant or your expert witness do the math, put it into a summary, and bring it into court, and it's a summary. It's also demonstrative evidence to an extent, but, because it's not the original, it helps the trier of fact understand the facts, but it is a summary, and summaries are admissible, as long as the other documents are made available to the party against whom the summary is going to be used. Now you do have to make available the underlying documentation, but again, this should have all been done with initial disclosures and, or the sponsors to discovery, and then, finally, rule 1007, you can prove the content of a document from a statement by a witness, and one of the things that troubles me when I'm in depositions, and you have a witness asked a question about the content of a writing, record, or photograph, and the part that gives a statement about what it is, and this rule provides a proponent may prove the content of a writing, recording, or photograph by either testimony, deposition, or written statement of the party against whom the evidence is offered. So, when you have testimony from a witness about the content of a document, you then are opening yourself up to having the testimony used to prove the content of the document. I mean, the questions may be legitimate and very well not be objectionable, but this is something to remember to object to in that, the document, the typical objection is the document speaks for itself. It could also be the parole evidence rule, but regardless, making the objection on this may be a non-waivable... I mean, excuse me, a non-curable objection, and therefore has to be made at the deposition, especially if you're dealing with a third party who may not be at the trial, and so, under rule 32 and 30... 32, basically, to the extent that you haven't made an objection, you waive the objection. So, keep that in mind when you have a witness that is testifying about a content of a document. Demonstrative evidence comes into play, not in every trial, certainly, but frequently in trials because demonstrative evidence includes photographs. Photographs are a frequent part of testimony. Summaries, to an extent, can be demonstrative evidence. The value of demonstrative evidence is looked upon favorably by the courts because it allows the trier of fact to have the best possible understanding of the matters before it. There is a distinction and, I mean, we all understand better when we can see it and hear it. So, when you have a testimony, just testifying about a matter with no demonstrative, or support information, or documents, or data, the testimony may be missed misunderstood, but when you have demonstrative evidence that the witness can show to the jury or trier of fact, while they're testifying about what occurred, you're gonna have much higher level of retention and understanding of the testimony, and how many studies are there on that? Millions, hundreds, thousands. There's a ton of studies that show this with respect to memory, and specifically with respect to juries. So, demonstrative evidence should be a must on everybody's trial list, that what can I use demonstrative evidence for to make the point that something is what it purports to be or whatever argument you're trying to make. Because demonstrative evidence can be so powerful though, there is discretion available to the judge to avoid the possibility of abuse of the use of demonstrative evidence, or by using it to provide a more dramatic effect or causing the decision to be made on prejudice, as opposed to fact, or it could be misleading in some fashion. So, the judge does have the discretion as to whether or not to admit or not admit demonstrative evidence, and whether or not the demonstrative evidence will go with the jury into the jury room during deliberations. This first case that I've cited here, Yellow Park Family Dental in the last sentence says, thus, in ruling upon the admissibility of demonstrative evidence, the trial court must be ever watchful to prevent or eliminate that abuse. So, when you're trying to keep demonstrative evidence out, and that should be your goal, if you're on the other side, one of the things you're trying to argue is, that it is abusive to allow it to come in because it is going to cause undue prejudice, or whatever argument you can make, but because demonstrative evidence is so powerful as the opponent, you wanna keep it out. As the proponent, you wanna make sure you can, with a straight face, say it's reliable, it's demonstrative of the facts as they exist. In this Christian versus Cobbler case, it knows that there's two types of demonstrative evidence. The first type consists of the displays of direct evidence, usually a person or object in a courtroom. It can also be a summary to an extent, the second type of demonstrative evidence involves exemplars, tests, experiments, and the like, that do not purport to be direct evidence of an object or event that is at issue in the case, but rather, and intended to simulate or illustrate the object or event. Clearly, a photograph falls within the second type of demonstrative evidence. The first type could be the identification of a criminal in a criminal matter. It could be the identification of the gun that was used in a criminal matter. With respect to the second type of demonstrative evidence, it can be a photograph, it can be experiments that are used to demonstrate events like gunpowder burns or fingerprints. One of the areas you see in personal injury cases is the use of animation, and animations can be really beneficial in understanding how something occurred. For example, a traffic accident where you're showing a car passing a truck, the relative speeds, and how the truck was doing something that barred the party doing the passing couldn't get by, or whatever, you can actually visualize it and see it with the animation. So, it's particularly helpful. However, you've got to be able to get the animation in to demonstrate that the party preparing the animation, had the facts that have been proven, or offered, or assumed for purposes of trial, and it will later be proven that they have the speeds right, that they have the characteristics right, that they have the lengths right, that they have everything correct, or the animation's not gonna get into evidence because it can be very misleading, if, for example, the truck was traveling at 60 miles, but in the animation, they have it at 45. For whatever reason, it's not gonna get in because it's gonna dramatically affect whether or not something did or did not occur, but animations are another type of demonstrative evidence, and I've cited a couple of cases that deal with animations, the Rainer case, and this state case from Utah. One of the things though in the State versus Parer case, is that in that case, they used a model, and the argument was being made that the model was not accurate, was not demonstrative of the organ involved, and what the court said is, basically the expert witness can identify it as a human organ or demonstrative of a human organ. No other foundation was necessary because the person testifying, the expert witness said, "This is a kidney. "It looks like a kidney. "It feels like a kidney. "In fact, it could be a kidney," I'm joking a little bit, but it's a kidney. They didn't have to say how it was prepared, from where it was taken. They could identify it without further foundation. So, there is a way to get demonstrative evidence in by just not showing how it was created or what it did, or the chain of custody, but merely putting it in and having the expert confirmed that it is what it purports to be. We've already talked about photographs, but there's a couple of cases here that I note that, for evidence of a photograph or photographic evidence to get admitted, that you need testimony that it is what it purports to be. Now, if it's for limited purpose, then if it depicts that, fine, but if it's to show conditions as they existed some time ago, and that evidence is not available, it doesn't come in for that purpose. Jury instructions are clearly one way to protect abuses from demonstrative evidence, but you also don't want the jury, if you're opposing it, to take it back to the jury room, because they'll give it more weight than you think it deserves. On the other hand, you want your demonstrative evidence to go back. Some of the factors to consider are the foundation for the demonstrative evidence, how reliable it is, the cross examination that was made regarding the preparation or use of demonstrative evidence. The more reliable it is, the more likely it is that the judge will allow it to go back with the jury. Summaries of documents probably should go back to the jury, animations, probably not. Just as a general rule on my view of life and things, because summaries are in lieu of hard, easy to prove facts, animations may not be, and here's a Wisconsin case, and a couple of other cases that deal with the reliability of demonstrative evidence and whether or not the jury can take it back, and again, in this Christian versus Cobbler case, regardless of whether an exhibit that is admitted in evidence is designated as demonstrative or not, though, there is no rule of evidence or trial procedure that authorizes the exclusion of such a rule from the jury's use and consideration. Well, there may not be, but you do have rule 403, to where you can say that the animation is gonna be unduly prejudicial or analogize it to the learned treatises exception, to the hearsay rule. You can read it into evidence, but you can't give it to the jury to take back into the jury room, and the reason for that is because the jury will give it more weight than it perhaps deserves. It gives the advantage to the party whose demonstrative evidence goes back to the jury room. The next topic on foundation is physical evidence. Basically, physical evidence is the article object document, or recording, or anything of substance, and there's two things that you can have. You can have a gun, for example, in a criminal matter. This is the gun, this is how it was at the time. You can have a witness say, "This is it, I saw it. "This is it," or any other object, but on the other hand, if you have something that can be easily modified, for example, cocaine, which could be changed or easily manipulated in some fashion, then you would have to show the chain of custody, where it was obtained, where it was stored, how it was handled, and how it was produced in court. So, you have two different standards depending on the... Or you have two different standards, but you might have overlap there, but it depends on the degree the characteristics of the object can be modified. The more likely modification, the higher the standard is to get it in, and you must lay the proper foundation with the chain of custody. On the other hand, as I stated, if it's something that's readily identifiable, not subject to change or modification, a witness can testify that it is what it purports to be, and at this State versus Evan case, which is in the materials, the court notes pretty much what I was just saying, which is that Montana recognizes two methods of identifying physical evidence, readily identification and change of custody. Those are the two standards and this particular case says that clearly, so I cited it. State versus, I can't pronounce that last name, it's the Hawaiian case, makes the note where a more elaborate foundation is required to identify evidence that is easily substituted, such as marijuana. Physical evidence with unusual characteristics does not require such a foundation. So, you have, there's a number of cases that I've cited that deal with chain of custody, with respect to electronic evidence, one of the things, and this is part five of the outline, is hearsay. It's an out of court declaration. It always is, and I'm talking about social media, I'm talking about email, anything, websites, television, anything that is outside of the courtroom, that's a statement is going to be considered hearsay. When you're dealing with business records, of course, we've already covered this a little bit, so I won't do it again, you have the business records exception order, the ordinary course of preparation exception, but for foundation for electronic information, it's really not that difficult. You just need to know what you're doing, and that is it's very much like a photograph. It is what it purports to be, and this is how it's prepared if you know, but for example, you take a screenshot of a webpage or you do one of those historical searches for webpages, you get the picture of the webpage, as it existed on such and such a date. You can testify how you did it, the reliability of how you found it, and you can show that the website of this particular company at one time mentioned asbestos is being safe and harmless, and then, of course, when they were saying things like that, the Internet didn't exist. So, that really wasn't that good of an example, but some other type of toxin is safe, and they're are touting the product is safe to the public, but in later websites, they change. All you have to do is say, "This is what I saw on the website," and that's sufficient foundation to get the information in. Now, to get it in. Now, the other side may be able to argue that that website that's being utilized, where they are prompting or promoting a particular product was never available to the public, and then they're gonna show that fact. The same with social media pages, Facebook, or any other page that is being utilized, and I wanna go back in summary, and when you're getting ready for trial, or a hearing, or anything else where you're gonna be using evidence, consider not only how you're gonna get your evidence in, but, of course, you should consider that and also consider how you're going to keep theirs out, and I've already talked about motions in limine, so I won't do it again, but another way to prepare a judge for evidentiary issues that may arise is putting forth a trial brief that sets forth, not necessarily, if it's a jury trial, you've got your jury instructions, but in a trial brief that sets forth the evidentiary issues so that the judge can at least refer to it at some point before there was a ruling on something that is significant. Anticipate the information and witnesses that are gonna be needed for the foundation. Make sure you've got 'em lined up, make sure you've subpoenaed the necessary witness, but remember all of these evidentiary issues that you're gonna deal with are gonna be stipulated too. So, get your stipulations taken care of early, so that you know exactly how you're going to get something into evidence with the proper foundation, and learning the foundation is not difficult. With the tangible object, what is the exhibit? Is the witness familiar with the exhibit? How did the witness become familiar with the exhibit? Is the exhibit in the same or substantially same condition as when the witness saw it at the times relevant to the litigation. If signatures are present, does the witness recognize the signatures? The same with photographs. Is it what it purports to be, or a diagram? With summaries, it's an easier foundation. What is this? It's a summary of those invoices, and what did you do? I went through all of the invoices. What did you do from there? I calculated the amounts owing, or I calculated the amounts subject to the invoices. Did you go through and find out who the buyers were? Yes, and the list of buyers is here. Okay, here's the summary of all that information. Move to admit. It's not difficult, but you need to know to do it, and I did that in a very perfunctory faction just now, but as I stated at the beginning, laying foundation can be used as a way to emphasize the significance of a piece of evidence, and if it's coming into evidence, there's gotta be a reason for it. You're not putting in the other side's case. So, you don't wanna downplay your own evidence, and if you're putting it into evidence, it must have some probative value or you wouldn't be putting it in, unless you're just shotgunning. So, lay the foundation in a way that's meaningful, as opposed to perfunctory, and maybe I'm talking about how I looked at foundation a long time ago, when I'm telling you or saying that lawyers look at it as a burden, not as a benefit, but nonetheless, I'm assuming I'm like everybody else, and therefore, a lot of lawyers look at foundation as the burden, and I'm suggesting that you look at it as the potential for benefit and an opportunity for gain in litigation. Well, that concludes my one hour presentation. I was slightly long, but I hope that you got some benefit out of it. Again, my name is John Snow, and I told you what firm I'm with. If you wanna send me an email or talk about any of these issues, I'm happy to do that. I enjoy talking about evidentiary issues, so feel free. Thank you very much.

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JS
John Snow
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Parsons Behle & Latimer

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