Presenting to the Judge and Jury
Before going in to the specific issues, some broad concepts for presenting evidence are helpful. It is important to remember that trials are complex matters that can be in parts dull and intimidating to a juror. As such, thinking about how to present evidence, both the admissibility of the evidence but also format, order, and style is a good idea. The evidence should be prepared ahead of time and reviewed (especially if using technology) to ensure it is clear and persuasive. If using paper copies, have too many copies, not too few.
Evidence should also be used to advance your theme and strategy at trial. The idea of overwhelming evidence is nice in practice, but can to a juror appear as just too much information if not presented in a clear and concise theme. The strategy should be to present the evidence necessary to enforce your theme of the trial, while presenting evidence needed to contradict the opposing counsel’s theory. This includes witnesses as well as documents. It is good to realize that every witness and document can support your case, but also leaves open issues for attacks by opposing parties. In considering tangential or repetitive evidence, as Robert Browning said “Well, less is more.”
A. Authenticating Exhibits
The basic procedure for authenticating exhibits requires that the exhibit be marked for exhibit. Odds are it will be pre-marked, which can raise issues for the jury if you introduce documents out of order or have gaps, so it is worth planning ahead your theme to avoid large gaps. Opposing counsel and the witness, as well as the Court, must have copies or be able to see the exhibit. The witness should then be asked the questions needed to authenticate the exhibits (which will be discussed below). Finally, you move for the exhibit to be admitted into evidence and, hopefully, you have considered the likely objections and are prepared to defend the admissibility of the exhibit.
It is important to remember that the exhibit, after being admitted, should be shown to the jury or else the effort of authentication fails to serve the primary purpose.
Federal Rule of Evidence 901 (which is materially similar to Pennsylvania and New Jersey) states that authentication requires: “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). The Rule then provides ten examples, but states that it is “not a complete list”:
· “Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.”
· “Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired by the current litigation.”
· “Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.”
· “Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”
· “Opinion About a 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.”
· “Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to: (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.”
· “Evidence About Public Records. Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept.”
· “Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it: (A) is in a condition that creates no suspicion about its authenticity; (B) was in a place where, if authentic, it would likely be; and (C) is at least 20 years old when offered.”
· “Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.”
· “Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.”
Fed. R. Evid. 901(b).
“A document may be authenticated by direct proof and/or by circumstantial evidence. Proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.” In re F.P., 878 A.2d 91, 94 (Pa. Super. Ct. 2005). A common example of such proof would be for signed mortgage documents to have a witness present confirm that they witnessed a party sign the document and the driver’s license review matched the one copied when the documents were signed.
Authentication becomes more difficult when the condition of the exhibit is important. In this case, a common method is to provide evidence of chain of custody to demonstrate when the exhibit was obtained (such as a sample of defective stucco) and report where it was stored. Some gaps in chain of custody do not inevitably taint the sample: “It is not necessary to prove the sanctity of an exhibit beyond a moral certainty. Physical evidence can be admitted with gaps in the chain of custody.” 1A Pa. Admissibility of Evidence T4 (3d ed.).
Demonstrative exhibits such as photographs, diagrams, or models also raise unique issue of authentication requiring a witness with personal knowledge testify that the exhibit accurately depicts what it claims to depict. As such, a demonstrative exhibit can be authenticated by an eyewitness and does not require the creator or photographer, but will need someone with familiarity.
Finally, in Pennsylvania a recent issue came up in Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014), regarding authentication of text messages. In this case, the Pennsylvania Supreme Court affirmed the Superior Court who concluded that it is insufficient to simply say a text came from someone’s phone, but requires: (1) first-hand corroboration testimony from the author or sender confirming the sending of the text; or (2) circumstantial evidence from a witness with knowledge of the sender identifying the sender through distinctive characteristics or references to contemporaneous events; or (3) any other evidence that could demonstrate who is the sender. Commonwealth v. Koch, 39 A.3d 996, 1002 (Pa. Super. Ct. 2011). The court noted that this analysis will be “case-by-case” leaving it open as to how to prove a text from a number came from the owner of that number or not.
1. Stipulations
Stipulations are agreements between parties that must be approved by the Court and then read into the record. The judge will often include an instruction to the jury to take stipulations as an agreement between the parties that should be taken as fact by the jury. For the purpose of authentication, stipulations for documents that can be authenticated, but would require delaying trial with witness presentation on document records or such, can be useful and allow the parties to avoid lengthening a trial over non-contentious issues.
2. Self-Authenticating
Specific categories of documents are considered self-authenticating and do not require extrinsic evidence. However, a party can still contest authentication of a self-authenticating document and evidence of the lack of authentication can be proffered. It would then be a question of fact for the jury to determine if they find the document authentic.
Rule 902 states the following regarding self-authentication:
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. A document that bears:
(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and
(B) a signature purporting to be an execution or attestation.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:
(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and
(B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.
(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.
(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).
(13) Certified Records Generated by an Electronic Process or System. A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule (902(11) or (12). The proponent also must meet the notice requirements of Rule 902 (11).
Fed. R. Evid. 902.
B. Presenting Deposition Records
Entry of deposition testimony is generally allowed concerning a party to the litigation. In such a case, the testimony is read by a surrogate for the introducing party from the witness stand. Furthermore, if a party intends to use deposition testimony, under the Federal Rules of Civil Procedure: “If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may introduce any other parts.” Fed. R. Civ. P. 32(a)(6).
If the deponent is a third party witness, deposition testimony is normally limited to impeachment of that witness and would require showing the transcript to the witness and asking if they recall providing testimony. The one exception is where a third-party witness is unavailable, then the hearsay exception for former testimony may allow testimony so long as the testimony was given in a “lawful deposition” and the opposing party or its “predecessor in interest” had an “opportunity and similar motive to develop it by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1).
C. Introducing Juries to Evidence
There is no hard and fast method for introducing juries to evidence. Some will depend on individual judge’s procedures and the technology available in the courtroom. As pop culture creates an expectation of a certain quality of show, many attorneys feel obligated to use advanced technology especially in high value and complex cases. In doing so, it is very important to know the limitations of the courtroom and to check the presentation prior. Having a computer crash and the delay and awkwardness can be demoralizing for counsel. In many cases, the classic blown up foam boards may be sufficient. It won’t amaze the jurors, but low tech has benefits and will allow you to avoid having IT help present for trial.
D. Providing Jury Notebooks
Some judges prohibit jury notebooks, but if the court allows it, it is a useful tool to consider how to maximize. Initially, the opening statement will allow you to present the theme and highlight the evidence to expect. Basically, the opening serves as the outline that will reinforce to the jury that certain things are where they should be taking notes. Also, learn to highlight certain facts using vocal cues or written charts that will encourage jurors to write down the same information. In addition, use a pacing and list approach to presentation of evidence that makes note taking easier. The jury notebook can be a great asset, but requires you to think about presenting evidence in a way that allows for note taking.
E. Presenting Your ESI: Common Mistakes Made in the Courtroom
ESI or Electronically Stored Information is a wide variety of material from simple communications to metadata and formulas. A full discussion of how to present ESI is a substantial and technical issue that I am not qualified to make. However, some common mistakes that do exist are: (1) assuming that computer systems will work in the courtroom and finding out that the ESI evidence is either not visible or working at all within the technological limits of the courtroom. For example, a power point showing metadata that is seen by jurors by projection on a screen may be way too small to be read; (2) becoming too technical so that less technology friendly jurors feel overwhelmed and do not understand relevance of the information. Prepping the witness who will admit the ESI to explain the more complex issues in a clear way will be essential; and (3) providing too much information. ESI allows a vast web of information that may bury the important information amidst a vast volume of emails, text messages, dates sent, dates viewed, etc.
F. Computer-Aided Displays, Video, and Graphics
Using computer-aided material can allow a counsel to highlight his case and emphasize exhibits in a useful way.There is evidence that the visual evidence is easier to retain than oral evidence, so strong use of visual evidence that assists the testimony is useful reinforcement.However, some mistakes that can be made are to have the computer videos and material take over and the theme of the trial is lost beneath a slick display.Another important issue is to make sure that exhibits are moved into evidence and that demonstrative exhibits can be authenticated.