QUESTION #1: Is it Authentic? (If Not, How do I Authenticate/Identify the Evidence?)
Is the item the “Real McCoy”? Is it what you say it is? To establish that an item is “authentic,” think about the problem from the standpoint of how you determine whether anything you come in contact is “real” versus being a “fake,” or if it has somehow been “altered” or “changed.” The more “generic” an item of evidence is, the greater the level of care and proof required to establish it is “real.” The more unique or one-of-a-kind an item of evidence is, the easier it will be to prove that it is what you say it is. Legal cases typically discuss whether an item of evidence is “fungible” versus “non-fungible.” A “fungible” item of evidence is something that is generic in character, such as a white powdery substance.
For fungible items, such as blood and drugs, an adequate foundation requires that the whereabouts of the item be shown from the time it came into the possession of the party (or state) until it is admitted into evidence at trial. Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993). A proper foundation requires that a witness identify the item, and the item is relevant to the disposition of the case. Id. The party presenting the evidence must lay an adequate foundation by providing reasonable assurances that the evidence was undisturbed as it passed from the custody of one person to the next (the chain of custody). Id. If the party presenting the item presents evidence that strongly suggests the exact whereabouts of the evidence at all times, that is sufficient. Id.; Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992)(positive identification is not required). A reasonable probability that it is what you say it is will normally be sufficient to have the item admitted into evidence. Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994). Once a reasonable probability is shown, any other factual issues only impact the exhibit’s evidentiary weight, not it’s admissibility. Malone v. State, 700 N.E.2d 780, 782 (Ind. 1998).
On the other hand, for non-fungible items, like guns and vehicles (which typically have unique serial numbers or VINs), the party presenting the evidence need only show that the item is what it is purported to be, and that it is in a substantially unchanged state from the time it was first collected. Trotter v. State, 559 N.E.2d 585, 591 (Ind.1990).
A similar problem arises with documentary evidence such as letters, notes or wills. Who authored the document? Has the document been changed or altered? The degree of proof required to establish authenticity is only slight. Once established, the document may be presented to the finder of fact. Pate v. First Nat. Bank of Aurora, 63 Ind. 254 (1878). Once this initial threshold is met by the proponent of the evidence, any disputes go to the weight the evidence is to be accorded by the jury, as opposed to its admissibility.
Authenticity typically is established by the person who first found the item. You must establish that it is the same item that originally came into that person’s possession, and that it is unchanged and has not been altered. With a generic/fungible item of evidence, care must be taken to seal it up in a tamper-proof container that has a unique means of identification (evidence number assigned and dated by the person who originally secured the evidence); and a secure storage/retrieval method must be used to hold it. (e.g., evidence clerk or custodian who has held the item of evidence in a restricted area). If anyone removed the item of evidence for purposes of testing, that person may be required to provide testimony as well to explain what if any changes in the item occurred as part of the testing process.
Indiana Rules of Evidence 901(Requirement of Authentication or Identification), 902 (Self-authentication) and 903 (Subscribing Witness’ Testimony Unnecessary) directly address issues of authenticity and provide examples of how to authenticate various items of evidence this with or without a sponsoring witness. Examples of authenticity under Indiana Rule of Evidence 901 include: 1) testimony of witness with knowledge; 2) non-expert opinion on handwriting; 3) comparison by trier of fact or expert witness; 4) distinctive characteristics; 5) distinctive characteristics taken in conjunction with circumstances; 6) voice identification; 7) telephone conversations; 8) public records or reports; 9) process or system, and 10) methods provided by statute or rule.
Indiana Rule of Evidence 902 provides a list of various classes of documents that are self-authenticating, which include: 1) domestic public documents under seal; 2) domestic public documents not under seal; 3) foreign public documents; 4) certified copies of public records; 5) official publications by a public authority; 6) newspapers and periodicals; 7) trade inscriptions, signs, tags, or labels; 8) acknowledged documents; 9) commercial paper and related documents; 10) presumptions under Acts of Congress; 11) certified domestic records of regularly conducted activity, and 12) certified foreign records of regularly conducted activity.
Indiana Evidence Rule 903 provides the means by which notarized or acknowledged documents may be admitted without calling the witness who notarized the document. This Rule provides:
“SUBSCRIBING WITNESS’ TESTIMONY UNNECESSARY. The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.”
A notarized document with an appropriate acknowledgment and seal is prima facie evidence of authenticity. Indiana Code 34-37-1-5. Under I. C. 34-37-1-5, when a document is under seal and signature of an out-of-state notary public, it shall be received as presumptive evidence of the document’s authenticity. Usually authentication of an official record requires the officer having custody of the record to attest, by either testimony or through a certification, that it is a true and accurate copy of an official original record. Liberty Nat. Bank and Trust Co. v. Payton, 602 N.E.2d 530, (Ind. Ct. App. 1992).
Contracts or other documents upon which an action is based and attached to the party’s complaint or cross/counterclaim are considered authentic unless the document’s authenticity is challenged in a verified response to the claim or complaint. See Ind. Rule of Trial Procedure 9.2. This rule provides “[w]hen any pleading … is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading… and “shall be taken as part of the record.” When such a document is included in or filed with the pleading, execution of such instrument, endorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit. I encourage all to thoroughly review this rule anytime such a claim is based upon a written instrument.
Remember, agreeing or stipulating that a document is authentic does not necessarily mean the item is admissible. You need to address all of the issues that affect a document’s admissibility, so please read on.
QUESTION #2: Is it Hearsay?
When I took evidence in class over 30 years ago, my professor cautioned that the “Hearsay Rule” and the “Rule against Perpetuities” in real property class were two of the most difficult concepts to master. My daughter, who is in law school now, advises that the “Rule against Perpetuities” is not even taught in law school anymore. On the other hand, if you are going to try cases you need to understand and quickly recognize what hearsay is. The way I break it down is as follows:
a. Was the statement (oral or written) first made outside of the courtroom? If the statement is being made for the very first time in the courtroom, then it is not hearsay. If the witness is repeating something that was said outside of the courtroom, or the document being tendered as an exhibit was drafted outside of the courtroom, then you need to ask the next question.
b.Is there a statement of fact being conveyed? If the statement is a question or a command, then it is not hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ind. R. of Evid. 801(c). Only declarative statements of fact can be hearsay (i.e. the car is red). A “question” or a “command” is neither true or false.
c.Does the statement only have evidentiary value at trial if it is true? For example, a false statement made to a victim by a con man in a fraud case is not being offered because it is true. In fact, it is being offered because it is false to show the “effect of the hearer”. Therefore, it is not hearsay.
d.Does the statement fall outside of the definition for non-hearsay as a prior statement by a witness subject to cross-examination? For example, if the statement is not considered an admission by party-opponent offered against them (i.e. their own statement; a statement of another adopted by the party; a statement by an authorized spokesperson, employee or agent; or that of a co-conspirator in furtherance of the joint scheme) then it is non-hearsay by definition. Indiana Rule of Evidence 801(d).
If you answered “yes” to each of these questions, then you have hearsay and need to look for an exception to the hearsay rule under Indiana Rules of Evidence 803 (hearsay exceptions; availability of declarant immaterial), 804 (hearsay exceptions; declarant unavailable), 806 (attacking and supporting credibility of declarant) or 807 (residual or catchall exception).
Another rule that can impact the admissibility of a hearsay statement, that is often overlooked, is Indiana Rule of Evidence 1007 which deals with testimony or written admissions of a party. Rule 1007 provides:
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.
This rule can be very powerful in situations where you take a Trial Rule 30(B)(6) deposition of a party or a corporate representative. If they summarize written policies or the content of documents, recordings or photos, then you can dispense with using the original.
QUESTION #3: Is There a Proper Foundation?
These are usually preliminary questions of fact to the admissibility of a document or statement. In a bind, the Indiana Rules of Evidence provide some assistance in establishing an item’s authenticity or other foundational prerequisites. Rule 104(a) of the Indiana Rules of Evidence allows a court to consider matters outside of the record presented to the jury. Under Rule 104(a) you can sometimes establish foundational requirements outside of the presence of the jury. This portion of the Rule provides:
(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. [Emphasis Added].
This means, theoretically speaking, that the court is free to suspend the Rules of Evidence in making foundational determinations, and could theoretically rely on otherwise inadmissible information in assessing whether an item meets the foundational requirements. Foundation is needed to establish:
1.Authenticity. Is it the “Real McCoy”? Does it have a proper chain of custody?
2.Competency, expertise or qualifications to render a lay or expert opinion or testify in general (i.e. a person cannot appreciate the significance of their oath to tell the truth). See Indiana Rules of Evidence 701 and 702.
3.The requirements of a hearsay exception.
4.The truth and accuracy of a depiction through the use of a copy, duplicate, photograph, x-ray, diagram, recording, video, printout, etc.
5.The validity of the procedure and results of forensic testing or examinations. (DNA, blood typing, fiber/hair analysis, fingerprints, handwriting identification, etc.).
QUESTION #4: Is it Relevant?
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ind. R. of Evid. 401. It does not have to win the case to be admissible, it just has to have a tendency to help your case or hurt the other side’s case. All relevant evidence is admissible, except as otherwise provided by the United States or Indiana constitutions, by statute not in conflict with these rules, by these rules or by other rules applicable in the courts of this State. Evidence that is not relevant is not admissible. Ind. R. of Evid. 402.
QUESTION #5: Should the Evidence be Excluded?
There are a number of reasons an item could be excluded, assuming a timely and specific objection is made. The following is a checklist of such reasons:
a.Irrelevant. See I.R.E. 401 and 402 (Relevancy).
b.Violates the Best Evidence Rule. I.R.E. 1002 (Requirement of Original).
c.Privileged Evidence. I.R.E. 501, and I.C. 34-46-3-1. (Attorney-Client, Work Product, Official Information, Deliberative Process/Self-Critical Analysis, Husband-Wife, Minister-Penitent, Doctor-Patient, Psychologist, Accountant, Insured-Insurer, News Source, Confidential Informant, Trade Secrets, Self- Incrimination, Mental Health Records, etc.).
d.Improper Conclusion or Opinion. (I.R.E. 701 and 702).
e.Hearsay. (I.R.E. 801, 802, 803, 804, 805, and 806).
f.Cumulative, Repetitive, Unfairly Prejudicial, Misleading or Confusion of the Issues. (I.R.E. 403).
g.Competency or Lack of Firsthand Knowledge. (I.R.E. 601, 602, 605, 606).
h.Lack of Foundation.
i.Parole Evidence Rule/Four Corners Doctrine. (Dicen v. New Sesco, Inc., 839 N.E.2d 684, 688 (Ind. 2005) and I.C. 26-1-2-202.)
j.Deadman’s Statute. (Ind. Code 34-45-2-4).
k.Statute of Frauds. (I.C. 26-1-2-202, IC 32-21-1-1, Requirement of written agreement).
l.Improper Impeachment. (I.R.E. 613).
m.Subsequent Remedial Measures. (I.R.E. 407).
n.Irrelevant, Settlement Discussions. (I.R.E. 408).
o.Irrelevant, Evidence of Liability Insurance. (I.R.E. 411).
p.Irrelevant, Payment of Medical Expenses. (I.R.E.409).
q.Irrelevant, Withdrawal of Pleas or Offers. (I.R.E. 410).
r.Irrelevant, Evidence of Past Sexual Conduct. (I.R.E. 412).
s.Irrelevant, Evidence of Bad Acts. (I.R.E. 404 and 608).
t.Irrelevant, Evidence of Character. (I.R.E. 405).
u.Irrelevant, Evidence of Prior Conviction. (I.R.E. 609).
v.Irrelevant, Evidence of Religious Beliefs or Opinions. (I.R.E. 610).
w.Failure to Disclose Evidence as part of Discovery or Pretrial Conference Proceedings. (Ind. T.R. 16 and 26(E)).
x.Unrecorded Statements During Custodial Interrogation. (I.R.E. 617).
y.Involuntary or Coerced Statement in Violation of Due Process. Fifth and Fourteenth Amendments to U.S. Constitution; Indiana Constitution, Article 1., Sec. 15.
z.Violation of Miranda and Right to Counsel. Fifth, Sixth and Fourteenth Amendments to U.S. Constitution; Indiana Constitution, Article 1., Sec. 13 and 14.
aa.Product of an Improper Search and Seizure. Fourth and Fourteenth Amendments to U.S. Constitution; Indiana Constitution, Article 1., Sec. 11 and 15.
QUESTION #6: What is the Proper Way to Introduce the Item into Evidence?
Check with the court reporter or other attorneys to learn of any idiosyncrasies the presiding judge has concerning the presentation of exhibits and approaching a witness during the examination. When in doubt, ask for permission before approaching a witness. The following is a suggested procedure for admitting documentary evidence:
a.Have the exhibit marked (if not pre-marked) in advance of the trial.
b.Approach opposing counsel’s table and allow them to examine the exhibit prior to approaching the witness if the exhibit was not disclosed in advance.
c.Seek permission from the court to approach the witness.
d.Show the witness the exhibit, and ask him to identify it for the record without disclosing its content.
e.Establish the document’s authenticity and any foundational prerequisites for purposes of satisfying objections under the hearsay rule or the rules governing opinions.
f.Tender the exhibit for admission into evidence and address any objections.
g.Obtain a ruling from the court on the item’s admissibility.
h.If the ruling is adverse, try to remedy the objection.
i.If the court continues to deny admission of the exhibit, then make an offer of proof outside of the presence or hearing of the jury and have the exhibit made part of the record as part of your offer to prove. (I.R.E 103).
j.If admitted, ask permission to have the exhibit shown or published to the jurors.
k.If the jurors are allowed to review the exhibit, wait until their review is finished before asking any further questions so their attention is not divided.
You should run through these questions any time you are preparing for a trial. You should find case law or rules to support your position on admissibility and make note of them in your witness outline or exhibit list. If you are sure a matter will become contested, have extra copies of your case law, statute or rules so that they can be provided to the court and opposing counsel.
Finally, during the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.
What is a trial notebook? Well, my trial notebook represents 30+ years of knowledge I have gained through legal research, review of advance sheets and hard knocks in the courtroom. It covers jury selection issues, jury instruction, motion in limine topics, trial procedure and evidentiary issues. I focus on issues that could come up unexpectedly during a trial where it is difficult to conduct legal research. For years,I kept a three-ring binder with lettered tabs from A to Z. I used re-enforced three-ring paper and made notes on matters. When I come across an issue which might arise during a trial, I make a note and file it under the subject heading and index it under the proper lettered tab. I have been slowly transferring this information to an electronic trial note book. I use Microsoft OneNote and an iPad application called “Outline” which allows me to create various tabs and alphabetize the topics. Below is an example of a note I have listed alphabetically under “P” in my trial notebook:
Privilege – Work Product – I.D. of Witness Statements
An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.
In my trial notebook, I concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict, as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.