Physical Evidence Flashcards
Two types of Scientific Sciences:
(1) Hard Sciences – chemistry, math, biology…
(2) Soft Sciences – psychology, sociology, etc
Hard Sciences
Head v. Lithonia Corp
Rule of Law
Under Federal Rule of Evidence 703, an expert may base his or her opinion on inadmissible facts that could be reasonably relied upon by experts in the particular field in forming the opinion.
Facts
Barbara Head (plaintiff) sustained an injury when a light manufactured by Lithonia Corporation, Inc. (Lithonia) (defendant) fell and hit her on the head. Head brought a products-liability suit against Lithonia. At trial, Head introduced the testimony of her neurologist, Dr. Michael Haugh, as an expert witness. Haugh testified that each of Head’s clinical tests was normal, except for a topographical brain-map test that he described. Over Lithonia’s objection, Haugh opined that, based on the topographical brain-map test, Head had post-concussive syndrome resulting from being struck by the light. On cross-examination, Haugh stated that the topographical brain-map test was subject to controversy in the field of neurology, and that the American Academy of Neurology had not accepted this technique. The jury found in favor of Head. Lithonia appealed, arguing that the reliability of Haugh’s testimony had not been properly established.
Issue
May an expert base his or her opinion on inadmissible facts that could be reasonably relied upon by experts in the particular field in forming the opinion?
Holding and Reasoning (Moore, J.)
Yes. Under Federal Rule of Evidence 703, an expert may base his or her opinion on facts that are otherwise inadmissible at trial, as long as the facts are of a type reasonably relied upon by experts in the particular field when forming an opinion. Under this rule, the expert’s opinion itself need not be generally accepted in the relevant field, but the basis of his or her opinion must be accepted. A trial court has the discretion to make this threshold determination of the trustworthiness of the expert’s opinion. In this case, the district court abused its discretion by admitting Haugh’s opinion on Head’s diagnosis without a proper foundation of trustworthiness. Because Head’s other clinical tests were normal, Haugh’s opinion was based solely on the topographical brain-mapping test. However, Haugh did not provide any evidence that the topographical brain-mapping test underlying his opinion was generally accepted in the field of neurology. Thus, Haugh should not have been permitted to base his opinion on this test. Accordingly, the judgment of the district court is vacated, and the case is remanded for a new trial.
Soft Sciences:
United States v. Powers
Rule of Law
To be admissible under the Daubert standard, expert testimony must consist of scientific knowledge and assist the trier of fact in understanding the evidence or determining a fact at issue.
Facts
Grady Powers (defendant) was charged with aggravated sexual abuse of a minor in connection with raping his daughter. At trial, Powers sought to introduce the expert testimony of Dr. Anthony Sciara. Sciara had created a profile of incest abusers, which indicated that 40 percent of incest abusers had characteristics of a fixated pedophile. Sciara planned to testify that Powers did not exhibit the psychological profile of a fixated pedophile. According to Powers, this was relevant and would assist the jury. The district court excluded Sciara’s testimony under the admissibility standard set forth in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Specifically, the district court found that Sciara’s testimony was not relevant to the fact at issue, which was whether Powers had abused his daughter. Powers was convicted, and he appealed.
Issue
To be admissible under the Daubert standard, must expert testimony consist of scientific knowledge and assist the trier of fact in understanding the evidence or determining a fact at issue?
Holding and Reasoning (Williams, J.)
Yes. To be admissible under Daubert, expert testimony must (1) consist of scientific knowledge and (2) assist the trier of fact in understanding the evidence or determining a fact at issue. The second prong of this test is another way of saying that the expert testimony must be relevant to an issue at trial. In this case, the district court did not abuse its discretion in excluding Sciara’s testimony, because the testimony was not relevant to an issue at trial. Powers did not carry his burden of establishing a substantial connection between Sciara’s testimony and Powers’s defense. Sciara’s testimony that Powers was not a fixated pedophile was not directly relevant to the issue at trial, which was whether Powers had abused his daughter. Further, Sciara’s testimony that 40 percent of incest abusers exhibit characteristics of a fixated pedophile would only have been relevant to a determination that Powers was not among the 40 percent of incest abusers. This testimony was not sufficiently relevant to Powers’s defense to meet the Daubert standard, and thus was properly excluded. Significantly, Powers did not present testimony that people who are not fixated pedophiles are less likely to commit incest abuse. This testimony might have been sufficiently relevant to be admissible. For the foregoing reasons, Powers’s conviction is affirmed.
Physical Evidence
Any evidence that is not witness testimony!
Two categories:
(1) REAL evidence – created by event that is the basis of the lawsuit
(2) DEMONSTRATIVE evidence – created for litigation to illustrate or explain
witness testimony
Authentication/Identifying Evidence:
FRE 901: 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
(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.
(b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) 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.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.
(10) 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.
United States v. Saadey
Rule of Law
Under Federal Rule of Evidence 901(b)(3), an expert opinion is not necessary when authenticating a document via a handwriting comparison to an already authenticated document. A factfinder, including a jury consisting of lay persons, may identify and compare signatures in order to authenticate an unknown signature.
Authentication through chain of custody
This is needed for items that fungible (not distinctive) or easily altered
Proponent must prove that the item was in a continued care of one or more persons
from the time taken into custody until the time of trial.
There can be gaps, court has the discretion on those gaps
United States v. Collado
Rule of Law
A party may authenticate an item of evidence by establishing a chain of custody during which the item was not altered.
Facts
Officers Wheeler and Venditto were chasing Francisco Collado (defendant), seeking to arrest him. During the chase, Collado dropped a bag that contained packets of cocaine and heroin. Wheeler yelled at Venditto to pick up the bag and continued chasing Collado. Venditto picked up the bag and took it to the police station, where he filled out a seizure report and placed the bag in a seized-evidence safe maintained by the Special Investigations Bureau (SIB). Detective Purro of the SIB retrieved the seizure report and the bag from the safe the next day. The SIB conducted tests on the contents of the bag and held the bag until trial. Collado was charged with possession of cocaine and heroin with intent to distribute. The prosecution introduced the bag into evidence over Collado’s objection. Purro testified that the standard operating police procedure for evidence seized after hours was to fill out a seizure form and place the evidence in the safe. Collado was convicted. Collado appealed, arguing that the prosecution failed to properly authenticate the bag containing the drugs as the bag dropped by him during the chase.
Issue
May a party authenticate an item of evidence by establishing a chain of custody during which the item was not altered?
Holding and Reasoning (Cyr, J.)
Yes. A party may authenticate an object by establishing (1) a chain of custody of the object and (2) that the object was not altered while in the chain of custody. A party may establish a chain of custody through the testimony of the custodians and by demonstrating that proper standard operating procedures were followed. In this case, the district court did not abuse its discretion by admitting the bag of drugs into evidence. The prosecution established a chain of custody during which the bag was not altered. This chain began when Venditto picked up the bag immediately after it was dropped by Collado, and ended when the bag was presented at Collado’s trial. After picking up the bag, Venditto brought the bag directly to the SIB safe, which was proper police procedure. The next morning, Purro retrieved the bag from the safe. The bag remained under police control until it was presented at trial, and Collado did not present any evidence that the bag was altered after it was picked up by Venditto. In sum, the prosecution established a chain of custody sufficient to authenticate the bag containing the drugs as the bag dropped by Collado. Accordingly, Collado’s conviction is affirmed.
Authenticating Physical Evidence methods
● FRE 901(b)(1) – testimony of witness with knowledge
● FRE 901(b)(2) – non-expert opinion that handwriting is genuine
● FRE 901(b)(3) – comparison with authenticated specimen by expert or trier of fact
● FRE 901(b)(4) – distinctive characteristics
Voice Identification and Phone Conversations
United States v. Espinoza
Rule of Law
A party’s proffered testimony of a witness’s telephone conversation may be conditionally admitted based on circumstantial evidence that the other person on the telephone call is who the party claims it is.
Facts
Joseph Espinoza (defendant) was charged with transporting child pornography. The prosecution called Clifford Holdren as a witness. Holdren testified, over Espinoza’s objection, that he would receive child pornography by calling a phone number and asking for “Joe.” A man identifying himself as Joe would answer, and Holdren would order the pornography from Joe. Holdren stated that he had never met Joe and did not know what Joe looked like. The prosecution also presented evidence that Espinoza’s fingerprint was found on an invoice to Holdren for child pornography. Espinoza was convicted. Espinoza appealed, arguing that Holdren should not have been permitted to testify about the telephone conversations.
Issue
May a party’s proffered testimony of a witness’s telephone conversation be conditionally admitted based on circumstantial evidence that the other person on the telephone call is who the party claims it is?
Holding and Reasoning (Staker, J.)
Yes. A party’s proffered testimony of a telephone conversation between a witness and another person may be conditionally admitted based on other, circumstantial evidence that the other person on the telephone call is who the proffering party claims it is. This means that the witness’s testimony does not need to be sufficient on its own to authenticate the identity of the other person on the call. Under Federal Rule of Evidence 104(b), evidence may be introduced conditionally, subject to the admission of additional, related evidence. In this case, the district court did not abuse its discretion by admitting Holdren’s testimony regarding the telephone conversations with “Joe.” Although Holdren’s testimony might not be sufficient on its own to authenticate the identity of Espinoza as Joe, the conditional admission of the testimony was not improper, because there was additional circumstantial evidence in the form of Espinoza’s fingerprint on the child-pornography invoice. The introduction of the fingerprint tended to establish that Espinoza was personally involved in the shipment of child pornography to Holdren, which helped to substantiate the authentication of the identity of Espinoza as “Joe.” For these reasons, Espinoza’s conviction is affirmed.
Authenticating Email
United States v. Safavian
Rule of Law
Emails may be authenticated under Federal Rule of Evidence 901 using the same methods as for traditional paper documents.
Facts
David Safavian (defendant) was charged with obstruction of justice during an investigation of his boss, lobbyist Jack Abramoff. The prosecution sought to admit approximately 260 emails to or from Safavian into evidence. Many of these emails contained the “@” symbol, which was indicative of an email address. Additionally, many of the email addresses contained the names of the individuals connected to those addresses, such as “David.Safavian@mail.house.gov” and “abramoffj@ftlaw.com.” Some of the emails did not contain any characteristics identifying the sender or recipient by name, such as emails to or from “MerrittDC@aol.com.” However, the bodies of many of the emails contained the name of the recipient or sender in the greeting or signature, and the contents of the emails also indicated in other ways that they were to or from the particular recipient or sender. For example, many of the emails discussed Safavian’s and Abramoff’s work or Abramoff’s restaurant. Safavian objected to the introduction of the emails, arguing that the emails could not be properly authenticated under Federal Rule of Evidence (FRE) 901.
Issue
May emails be authenticated under Federal Rule of Evidence 901 using the same methods as for traditional paper documents?
Holding and Reasoning (Friedman, J.)
Yes. Emails may be authenticated under FRE 901 in the same ways as traditional paper documents, including by examining the email’s distinctive characteristics and by comparing the email with other items that have already been authenticated. The key factor for authenticating emails, much like traditional paper documents, is that a jury must be able to reasonably find that the email is what the proponent claims it is, including that the email is to and from the alleged individuals. In this case, the emails at issue have been properly authenticated under FRE 901 and are thus admissible. Many of the emails have been authenticated based on their distinctive characteristics, including the “@” symbol and the names of the recipient and sender contained in the email address or the body of the email itself. Some emails to or from unidentifiable email addresses, including “MerrittDC@aol.com,” can be authenticated by allowing the factfinder to compare the email address to other emails to or from the address that do contain distinguishing characteristics in the emails themselves, such as names. For each of these various methods of email authentication, there is sufficient evidence upon which a jury could reasonably find that the emails are to and from the individuals alleged by the prosecution. Even when certain emails in an email chain appear to be out of chronological order, such as when an email response to a question is embedded in the body of the previous email, this goes to the weight of the evidence rather than its admissibility. Accordingly, Safavian’s objection to the introduction of the emails is overruled.
Authenticating Demonstrative Evidence
Ex. maps, charts, diagrams, tables,, summaries, photos, animations, etc.
Common methods:
● FRE 901(b)(1) – Testimony of witness with knowledge
● FRE 901(b)(4) – Distinctive characteristics
● FRE 901(b)(9) – Evidence describing process or system and showing it produces
accurate results
Authenticating Demonstrative Evidence
Authenticating Photos
US v. Soto-Beniquez: An eyewitness testifying that a photograph accurately depicts something the eyewitness saw and matches a contemporaneous written description suffices to authenticate a photograph.
US v. Taylor: Yes. Photographs may be admissible as probative evidence, rather than solely as demonstrative evidence to support a witness’s testimony, so long as sufficient evidence is provided to show that the photographing and reproduction process is reliable. This evidence of the reliability of the photographing and printing process may be used to authenticate the photograph. In this case, the district court did not abuse its discretion by admitting the photographs of Hicks and Taylor at the bank. The photographs were admissible, even though there was no testimony that the photographs accurately depicted the inside of the bank at the time the photographs were taken. In fact, testimony regarding the photographs was impossible, because all of the potential witnesses were locked inside the vault. However, the photographs were admissible in their own right. The prosecution presented testimony that the photographing and film development process were reliably conducted, and this evidence of reliability was sufficient to authenticate the photographs. Accordingly, the defendants’ convictions are affirmed
Authenticating Demonstrative Evidence :
Authenticating Computer Animations and Simulations
Bray v. Bi State
Yes. The proponent of a computer-generated simulation must produce evidence describing the process used to create the simulation and demonstrating that the process produces an accurate result. Trial courts have discretion to determine exactly how a proponent may accomplish this, and there is no specific formula for authentication that must be followed. Examples of how a proponent may properly establish the accuracy of a computer-generated simulation include demonstrating that the computer was functioning properly, that the equations and other inputs into the computer were complete and accurate, and that the computer program is generally accepted in the applicable scientific community.
Self-Authenticating Exhibits
FRE 902: “The following items of evidence are self-authenticating; they require no
extrinsic evidence of authenticity in order to be admitted…. (1)-(14)
Remember:
● Sealed and/or certified public documents
● Trade inscriptions
● Newspapers/periodicals
● Business records
(1) Domestic Public Documents That Are Sealed and Signed.
(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.
(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.
(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.
(10) Presumptions Under a Federal Statute.
(11) Certified Domestic Records of a Regularly Conducted Activity.
(12) Certified Foreign Records of a Regularly Conducted Activity.
(13) Certified Records Generated by an Electronic Process or System.
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File.
Best Evidence Rule
FRE 1002: An original writing, recording, or photograph is required in order to prove its content
unless these rules or a federal statute provides otherwise
● Applies to writings, recordings or photographs. FRE 1001: In this article:
(a) A “writing” consist of letters, words, numbers, or their equivalent set down in
any form
(b) A “recording” consists of letters, words, numbers, or their equivalent recorded
in any manner
(c) A “photograph” means a photographic image or its equivalent stored in any
form
● Applies when proof of content is material
* In those situations need an original (unless a duplicate or other evidence is ok)
Best evidence does not apply if someone was there and heard or witnessed the same evidence that was recorded or written
When it does apply: witness’ knowledge is solely based on having read document
Does not apply to the testimony when they say there was a contract or recording
Seiler v. Lucasfilm
Rule of Law
The best evidence rule, Federal Rule of Evidence 1001-1008, requires that the originals of drawings be submitted in evidence.
Facts
Lee Seiler (plaintiff), a graphic designer, accused Lucasfilm (defendant) of copyright infringement with regard to machines called Imperial Walkers depicted in The Empire Strikes Back. Seiler claimed that Imperial Walkers were copied from science fiction creatures he created and published in 1976 and 1977 called Garthian Striders. In 1981, Seiler obtained a copyright on the Garthian Striders, depositing with the Copyright Office “reconstructions” of the originals as they as had appeared in 1976 and 1977. Lucasfilm argued that Seiler did not obtain his copyright until after The Empire Strikes Back was released and there is no evidence that Seiler created the Garthian Striders prior to The Empire Strikes Back. The district court held an evidentiary hearing on the admissibility of the “reconstructions” of the Striders. It found that Seiler had lost or destroyed the original drawings of the Striders in bad faith and under the best evidence rule, the reconstructions were not admissible. The district court granted summary judgment to Lucasfilm. Seiler appealed.
Issue
May “reconstructions” of drawings at issue in a copyright infringement case be submitted in lieu of the original drawings?
Holding and Reasoning (Farris J.)
No. The best evidence rule requires that originals of writings, recordings or photographs be submitted. The original rationale for the rule was the prevention of fraud in days before electronic copying became common. In modern times, the rationale is that human memory is fallible. When the contents of a writing are at issue, there is a greater risk of error in oral testimony than there is in the original or a true copy of the original. This court holds that Seiler’s drawings are writings for purposes of the rule. To hold otherwise would frustrate the purpose of the rule. Therefore, the originals of Seiler’s Striders must be submitted. Seiler claims that The Empire Strikes Back infringes the original drawings of the Striders, but he cannot provide the original drawings to so demonstrate. The “reconstructions” are of no use, since we do not know how similar they are to the originals, were made after The Empire Strikes Back, and Seiler may have intentionally or unintentionally been influenced by The Empire Strikes Back’s Imperial Walkers in making them. Judgment affirmed.
United States v. Bennett
Rule of Law
Under the best-evidence rule, a witness may not testify to the contents of a writing or recording if the original is not produced and the witness did not observe the events described.
Facts
Vincent Bennett (defendant) was charged with importing marijuana into the United States from Mexico. During a search of Bennett’s boat, which was believed to have transported the marijuana into the United States, U.S. Customs Officer Malcolm Chandler found a global positioning satellite (GPS) device. At trial, the prosecution did not introduce the GPS device into evidence. Instead, Chandler testified that the display of the GPS device indicated that the boat had just traveled from Mexico. Chandler was not the custodian of the GPS device and had not taken any photographs or made any records of what he saw on the device. Bennett was convicted. Bennett appealed, arguing that Chandler’s testimony violated the best-evidence rule.
Issue
Under the best-evidence rule, may a witness testify to the contents of a writing or recording if the original is not produced and the witness did not observe the events described?
Holding and Reasoning (Fisher, J.)
No. Subject to limited exception, a witness’s testimony seeking to prove the contents of a writing or recording is not admissible under the best-evidence rule if (1) the original writing or recording is not produced and (2) the witness was not privy to the events described in the contents. Data stored on a computer may constitute a writing, and the proponent may use a readable printout of the data to satisfy the best-evidence rule. In this case, the district court abused its discretion by permitting Chandler to testify to the contents of the GPS device found on Bennett’s boat. The display that Chandler saw on the GPS device constitutes a writing under the best-evidence rule. The prosecution did not produce the original GPS device, and only presented Chandler’s testimony to the contents of the device. However, Chandler did not actually observe Bennett’s boat travel from Mexico into the United States. Thus, Chandler was not privy to the boat’s travel route, but rather only to the contents of the GPS device. Under the best-evidence rule, the prosecution was required to prove the contents of the GPS device using the original image on the device. Because Chandler’s testimony should not have been admitted, Bennett’s conviction is reversed and remanded for further proceedings.
Duplicates and Admissibility of them
Rule 1001: Duplicate
A duplicate means a counterpart produced by mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original
Rule 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.
Rule 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
Summaries
FRE 1006: 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.
● A substitute to presenting every document - a summary is more efficient
● Notice must be given to the other side that the documents will be summarized
● Summary has to be based off documents that are admissible individually
