Just BER and Jury

Question 1

Rule 901. Authenticating or Identifying Evidence

Answer 1

To satisfy the requirement of authenticating or identifying an item of evidence:

1. Party only needs “sufficient to support a finding” to show its legit
2. To show the evidence “is what the proponent says it is”

It Does not:

• -Guarantee it is what it is
• -Opposing party can challenge identity of evidence
• -Can challenge it was tampered with
• -Establish compliance with other evidentiary rules

Question 2

Evidence that requires extrinsic information for authentication

Answer 2

(1) Testimony of a Witness with Knowledge.
(2) Nonexpert Opinion About Handwriting.
(3) Comparison by an Expert Witness or the Trier of Fact.
(4) Distinctive Characteristics and the Like.
(5) Opinion About a Voice.
(6) Evidence About a Telephone Conversation.
(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.
(7) Evidence About Public Records.
(8) Evidence About Ancient Documents or Data Compilations.
(9) Evidence About a Process or System.
(10) Methods Provided by a Statute or Rule.

Know:
Nonexpert handwriting
Distinctive Characteristics
Voice
Evidence about telephone

Question 3

Best Evidence Rule FRE 1001-8

Answer 3

To prove the content of a document, you should provide that document itself.

Duplicates generally allowed, so long as no genuine question re authenticity. (ie has to be a mechanical, photographic, chemical, or electronic process.)
Can be admitted to the same extent as original unless
1. Authenticity is uncertain
2. Unfair to admit

Question 4

FRE 1004 other evidence of content (exception to BER)

Answer 4

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.

Question 5

Rule 1007. Testimony or Statement of a Party to Prove Content

Answer 5

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

Question 6

Rule 1005. Copies of Public Records to Prove Content

Answer 6

The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met:

1. the record or document is otherwise admissible; and
2. the copy is certified as correct in accordance by a custodian or is testified to be correct by a witness who has compared it with the original.

Question 7

When does BER apply?

Answer 7

Best evidence rule applies when a party is offering evidence trying to prove content.
Doesn’t apply if trying to prove a fact that could be shown with multiple types of evidence–no obligation even if one is available

Question 8

Rule 606. Juror’s Competency as a Witness basics

Answer 8

During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that

(1) occurred during the jury’s deliberations;
(2) the effect of anything on that juror’s or another juror’s vote; or
(3) any juror’s mental processes concerning the verdict or indictment.

The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

Question 9

Key Legal Principle: We don’t want jurors impeaching their deliberative process. Why Maintain a Black Box?

Answer 9

• Legitimacy
• Finality
• Efficiency
• Protect jurors (though jurors can talk to lawyers, public after verdict; just won’t legally matter unless fits rare exceptions noted in rule)

Question 10

Ways to Peek Into the Box (Jury rules)

Answer 10

• 606(b) only bars juror statements raised after the verdict
• 606(b) bars only juror testimony
• 606(b) allows testimony about outside influences or extraneous prejudicial info (PAY ATTENTION TO THIS)
• 606(b) allows testimony about clerical errors

Question 11

Jury issues removal

Answer 11

Bad juror? Could act on that

Letter from juror? Nope, after the verdict and not admissible

Question 12

Rule 606. Juror’s Competency as a Witness Exceptions

Answer 12

(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.

Question 13

Race in 606(b) claims

Answer 13

Supreme Court reverses: 6th Am. Exception when “racial animus a significant motivating factor in juror vote to convict” (Rule not auto bar in racism situation, but trial court still has considerable discretion

Question 14

Tanner jury case

Answer 14

Jurors drinking still not admissible

Question 15

Jury Experiments

Answer 15

The jury can’t do improper experiments, but they are allowed to manipulate any evidence that they are given.