Posted by Richard A. Cook
“Practice… We talkin ’bout practice.” – Allen Iverson 2002
Just like Allen Iverson of the Philadelphia Sixers, no one likes to practice, but it is necessary if your witness and you are going to stay in sync. In order for your witness examination to be credible and persuasive, both the questioner and the witness must be on the same page. Otherwise, the testimony will come across like two ships passing in the night. The only way to get a smooth and flawless examination is for the questioner and witness to know exactly what is expected by the other. Obviously, the most important witness is usually your own client. Any run-through with your client is privileged as attorney-client communications because you are providing legal advice about how to handle their direct examination. (IRE 501 and I.C.34-1-14-5 and I.C. 34-1-60-4.) I would videotape the client’s testimony and allow them to see it so they can critique their own the delivery of their testimony.
Make sure you give the witness or your client copies of any earlier statements/depositions and, if possible, have them return to the scene of the incident to check it, note landmarks and refresh their recollection. If at all possible, you should try to meet with the witness or client at the scene of the incident so that you can discuss the scene and make sure you’re both talking about the same thing. If this is not possible, an acceptable substitute is to conduct a virtual tour of the scene utilizing Google maps or Google Earth.
Emphasize to the client or witness that accuracy is the most important thing. This requires that they clearly understand the question and avoid any exaggerations or opinions. They should stay factual in their descriptions. When a witness or client slides into opinions, they enter dangerous territory. They are prone to guess, speculate, exaggerate or just plain get it wrong.
My own favorite saying is: “Don’t take a good case, try to make it a great case, and turn it into a bad case.” The first rule I learned when as an insurance defense attorney was to let a plaintiff exaggerate all they want. There is nothing that undermines a claim or gives rise to the all-popular defense mantra of “secondary gain” than needless exaggeration.
The flip side of this is to water down answers with qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when they actually know the facts. Make sure your client or witness avoids using such terminology. It is better to show that you don’t know or recall than to guess or speculate. Also, pay attention to clients who raise the pitch of their voice at the end of sentences. It makes them sound tentative or like they are checking with you on whether their answer is correct. You should only raise the pitch of your voice at the end of a sentence when you are asking a question.
Once again, the primary rule is to answer truthfully and accurately.
Posted by Richard A. Cook
In addition to the hurdles imposed for dealing with hearsay and opinions, writings, recordings and photographs have to be properly authenticated as being true and accurate representations of what they depict or have documented. When you cannot obtain a broad stipulation that an item of evidence is admissible, then you need to address the requirements of authenticity. Below are some of the rules to be considered in meeting these threshold requirements:
Rule 1001. Definitions
For purposes of this Article the following definitions are applicable:
(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. “Photographs” include still photographs, x-ray films, videotapes, and motion pictures.
(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately is an “original.”
(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by facsimile transmission, or video tape or by other equivalent techniques which accurately reproduces the original.
Rule 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute. An electronic record of the Indiana Bureau of Motor Vehicles obtained from the Bureau that bears an electronic or digital signature, as defined by statute, is admissible in a court proceeding as if the signature were an original.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Rule 1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;
(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, such party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing; and such party does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.
Rule 1005. Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.
Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
Rule 1007. Testimony or Written Admissions of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by a written admission, without accounting for the nonproduction of the original.
Rule 1008. Functions of Court and Jury
Whenever the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question of whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised whether (1) the asserted writing ever existed, or (2) another writing, recording, or photograph produced at the trial is the original, or (3) other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
Typically, writings and recordings require authentication. Indiana Rules of Evidence 901, 902 and 903 outline a number of ways this can be done with and without a sponsoring witness. These rules provide:
Rule 901. Requirement of Authentication or Identification
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 30 years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method or authentication or identification provided by the Supreme Court of this State or by a statute or as provided by the Constitution of this State.
Rule 902. Self-Authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic public documents. The original or a duplicate of a domestic official record proved in the following manner: An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy. Such publication or copy need not be accompanied by proof that such officer has the custody. Proof that such officer does or does not have custody of the record may be made by the certificate of a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.
(2) Foreign public documents. The original or a duplicate of a foreign official record proved in the following manner: A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position:
(a) of the attesting person; or
(b) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation.
A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown:
(i) admit an attested copy without final certification; or
(ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.
(3) Official publications. Books, pamphlets, or other publications issued by public authority.
(4) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(5) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(6) Acknowledged documents. Original documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(7) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(8) Presumptions created by law. Any signature, document, or other matter declared by any law of the United States or of this state, to be presumptively or prima facie genuine or authentic.
(9) Certified domestic records of regularly conducted activity. Unless the source of information or the circumstances of preparation indicate lack of trustworthiness, the original or a duplicate of a domestic record of regularly conducted activity within the scope of Rule 803(6), which the custodian thereof or another qualified person certifies under oath (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity, and (iii) was made by the regularly conducted activity as a regular practice. A record so certified is not self-authenticating under this subsection unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.
(10) Certified foreign records of regularly conducted activity. Unless the source of information or the circumstances of preparation indicate lack of trustworthiness, the original or a duplicate of a foreign record of regularly conducted activity within the scope of Rule 803(6), which is accompanied by a written declaration by the custodian thereof or another qualified person that the record (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity; and (iii) was made by the regularly conducted activity as a regular practice. The record must be signed in a foreign country in a manner which, if falsely made, would subject the maker to criminal penalty under the laws of that country, and the signature certified by a government official in the manner provided in subsection (2) above. The record is not self-authenticating under this subsection unless the proponent makes his or her intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.
Rule 903. 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.
Writings: Writings and recordings as defined under Ind. Evidence Rule 1001(1), must be authenticated pursuant to Indiana Evidence Rule 901(a) before being admitted. See Bone v. State, 771 N.E.2d 710, 716 (Ind.Ct.App.2002) (reviewing whether data from defendant’s computer was sufficiently authenticated); Blevins v. State (1973), 259 Ind. 618, 627, 291 N.E.2d 84, 89. Questions of authentication of a document arise when their legal significance turns upon their execution, authorship, or content. “When the execution of a document is not in issue, but only … the fact of the existence of a document of such tenor, no authentication is necessary.” 4 Wigmore on Evidence Sec. 2132, at 714.
Whether a document requiring authentication is admissible is within the discretion of the trial court, and will be reversed only on a clear showing of error. Wolfe v. State (1981), Ind., 426 N.E.2d 647, 655. There are a number of ways that authenticity of a writing may be established. Wolfe v. State (1981), Ind., 426 N.E.2d 647 (inculpatory letter written by defendant properly authenticated by signature comparison); Kern v. State (1981), Ind., 426 N.E.2d 385 (inculpatory letter written by defendant properly admitted as self-authenticating); Gadacz v. State (1981), Ind., 426 N.E.2d 376 (memo book referring to “certain dates” when alibi defense offered sufficiently authenticated by showing that book was found in car which was under the exclusive control of defendant); Fair v. State (1977), 266 Ind. 380, 364 N.E.2d 1007 (inculpatory post card allegedly written by defendant sufficiently authenticated; fact that authorship not proven conclusively goes to weight, not admissibility); Blevins v. State (1973), 259 Ind. 618, 291 N.E.2d 84 (notations allegedly made by victim not properly authenticated, but error was harmless where contents of notations were proven through other testimony); Kramer v. State (1974), 161 Ind.App. 619, 317 N.E.2d 203 (letter to defendant offering sale of marijuana sufficiently authenticated “[b]ecause the letter was not the basis of the prosecution and because of the absence of any evidence indicating the letter was fraudulent …” 317 at 207); Millington v. State (1972), 154 Ind. App. 42, 289 N.E.2d 161 (trade school application executed on date of offense when alibi defense offered not sufficiently authenticated). Either non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation or the expert testimony of a questioned document examiner may be used for authentication. Ind. Evid. R. 901.
At the common law and in evidence treatises, the “reply letter doctrine” has long been used to authenticate statements both oral and written. Under the reply letter doctrine, if it can be shown that an inquiry was directed to a particular person, and that in due course an apparent reply was received, which expressly refers to or seems implicitly to acknowledge the earlier inquiry, this circumstantial evidence is sufficient to conclude that the reply was sent by the person to whom the original inquiry was directed. This is because only this person was likely to have received the inquiry, know of it and respond. In a typical case, both the inquiry and reply are by means of letter (or email) sent through the mail, giving rise to the name “reply letter doctrine.” This principle of establishing authorship circumstantially applies equally to a written reply to an oral inquiry, to a telephonic response to an oral or written inquiry, and so on, regardless of whether the U.S. Mails are involved. The essentials are to establish by evidence independent of the reply indications that the author was indeed responding to the inquiry. These points are the necessary predicate underlying the inference that the author of the reply is the person to whom the inquiry was put. See generally 5 C.B. Mueller, Federal Evidence § 518 at 50-51.
Recordings: Voice identification may be required in order to admit a recording. If a telephone call is recorded, the telephone caller’s identity must be established as a foundation for the admission of the content of the telephone call. Ashley v. State, 493 N.E.2d 768, 774 (Ind. 1986); Davis v. State (1928), 200 Ind. 88, 161 N.E. 375 (overruled on other grounds). Sufficient identification has been based on witness testimony that he was familiar with the caller’s voice and recognized it in conversation. Allison v. State (1960), 240 Ind. 556, 166 N.E.2d 171. The identity of the caller need not be proved beyond a reasonable doubt. Any doubt regarding the credibility of the voice identification goes to the weight of the evidence, not its admissibility. Id., Ind., at 564, 166 N.E.2d, at 174. Likewise, opinion testimony and circumstantial evidence can be used to establish the identity of a person involved in a recorded telephone conversation. Ind. Evid. Rule 901(5) & (6). Similar requirements are needed to authenticate audio recordings of persons.
Photographs: The admission of photographs is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of discretion. To be admitted, it must first be established that the photographs are a true and accurate representation of the things they are intended to portray. Bray v. State, (1982) Ind., 430 N.E.2d 1162, 1164; Chambers v. State, (1979) Ind., 392 N.E.2d 1156, 1160. The relevancy is determined by whether a witness would be allowed to describe verbally that which the photograph depicts. Bray, supra; Murphy v. State, (1977) 267 Ind. 184, 195, 369 N.E.2d 411, 416. Testimony of a witness with knowledge that a matter is what it is claimed to be will suffice. Ind. Evid. R. 901(1).