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Practice Points

June 5, 2016

Summaries of Western Union and Moneygram Records Properly Admitted

Frederick Coleman, Jerry Brown, Darrion Capers, and Nicholas Clark were convicted of drug offenses after a jury trial. United States of America v. Brown, et al., ____ F.3d ____, 2016 WL 2789425.


The government’s theory was that Coleman and Brown obtained the cocaine in Chicago, cooked it into crack with the help of the runners at different locations in Kewanee, Illinois, and Chicago, and had members of the conspiracy transport the drugs from Chicago to Kewanee. The conspiracy sometimes sought assistance from customers and sometimes compensated those customers with crack. The conspiracy’s members used Western Union and MoneyGram to circulate money among sellers, purchasers, and wholesalers, often handing cash to family members, friends, or customers and directing that they conduct a transfer. The government had obtained through subpoenas the records of the two companies showing wire transfer transactions between the defendants and others allegedly involved in the conspiracy.


Before trial, the defendants learned that the government intended to use the MoneyGram and Western Union records in its case-in-chief. They filed a motion in limine, which was denied. They objected again at trial. The lead investigator in the case, Inspector Nicholas Welgat, created summary exhibits from the subpoenaed records. The summaries grouped transactions by sender and listed the amount of money sent, the date of the transaction, the sender’s name and address, the recipient’s name, and the agency from which the funds were sent. The exhibits included the sender’s phone number and recipient’s address for some transactions. The government witnesses testified that the summary exhibits were generally consistent with their recollections of the drug transactions in which they had engaged with the defendants, and the government later moved to admit the actual exhibits through Inspector Welgat.


The district court admitted the exhibits as summaries of business records. Federal Rule of Evidence 1006 allows a proponent of evidence to use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court, provided that the proponent makes the content available to the other party. Federal Rule of Evidence 803(6) allows admission of hearsay documents that record a “regularly conducted activity” where (a) the records are made at or near the time of the activity by—or from information transmitted by—someone with knowledge; (b) the records are kept in the course of a regularly conducted activity of a business, organization, occupation, or calling; (c) making the record is a regular practice of that activity; (d) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification; and (e) neither the source of the information nor the method or circumstances of preparation indicate a lack of trustworthiness. Federal Rule of Evidence 902(11) identifies certified domestic records of a regularly conducted activity as self-authenticating where the custodian or other qualified person does the certifying in compliance with a federal statute or Supreme Court rule.


On appeal, the defendants maintained and that the involvement of a third party in creating the MoneyGram and Western Union records—namely, the customer making the wire transfer—removed those records from the ambit of Rule 803(6). Third-party involvement, however, is not inevitably fatal. In United States v. Emenogha, 1 F.3d 473,484 (7th Cir. 1993), the court found that additional sources of corroboration can cure the hearsay problem that a third party’s involvement in creating a business record introduces. There, the defendant argued that bank records of drug-money transactions purportedly conducted by him were inadmissible because an imposter might have been impersonating him at the bank.


The court found this argument unavailing because the bank president testified that he recognized the defendant as a customer, and the bank’s regular practice was to request an identification and account number before completing a transaction.


The appeals court found no abuse of discretion in the district court’s decision to admit the Western Union and MoneyGram records. The court agreed with the defendants that certification alone would not be enough; a Rule 902(11) certification cannot overcome Rule 803(6)’s requirement that the records must be trustworthy. And a government witness testified that Western Union and MoneyGram did not require identification for transfers of less than $1,000, meaning that one form of corroboration was not present for at least some of the transactions. But the record contained more than certifications. There was testimony of witnesses about their recollections of actually conducting the transactions, and that testimony filled any gap left by the certifications.


The court of appeals recognized that the records and the testimony were not fully consistent: Some witnesses testified that the summaries included some transactions that they recalled conducting and some that they did not. Any inconsistencies go to the weight of the evidence, not its admissibility. See United States v. Keplinger, 776 F.2d 678, 693 (7th Cir. 1985) (“The determinations whether a proper foundation has been laid for application of the business records exception to a particular document and whether the circumstances of the document’s preparation indicate untrustworthiness are within the discretion of the trial court.”); United States v. Towns, 718 F.3d 404, 410 (5th Cir. 2013) (finding no abuse of discretion in admission of pharmacy drug purchase records, noting that a driver’s license was required for the purchases and a signature was obtained for many of them, and “Towns was free to make arguments at trial that he was not the actual purchaser of the drugs, but accuracy does not control admissibility.”).


According to the appeals court, the government’s use of summary charts that were not fully corroborated by their witnesses may have been “sloppy,” but the evidence was reliable enough to reach the jury. Any further discounting was for the jury to make.


Take away: This case provides insight into introducing summaries of business records into evidence.


Michael R. Lied, Howard & Howard Attorneys PLLC, Peoria, IL


May 20, 2016

Failure to Follow California Court's Order Results in Terminating Sanction

“It is the imperative duty of an attorney to respectfully yield to the rulings of the court, whether right or wrong.” Hawk v. Superior Court, 116 Cal. Rptr. 713, 725 (Ct. App. 1974) (emphasis in original).


Osborne v. Todd Farm Service is a reminder to attorneys that trial courts have the power to issue terminating sanctions when attorneys fail to heed this rule. In Osborne, the trial court dismissed the plaintiff’s case with prejudice after her counsel repeatedly violated the trial court’s orders excluding evidence. The court of appeals affirmed the trial court’s judgment of dismissal.


The plaintiff was a stable maintenance worker at the Ojai Valley School. In May 2010, she was injured after falling 11 feet to the ground while trying to move a hay bale from the top of a stack of hay bales. The defendant Todd Farm Service sold and delivered the hay bale to the Ojai Valley School. In the months preceding Ms. Osborne’s accident, Todd Farm Service purchased hay from three suppliers, including co-defendant Berrington Custom Hay Stacking and Transport, Inc. (Berrington), a Nevada company. Todd Farm Service also purchased hay from two California suppliers. Todd Farm Service kept the hay from the three suppliers in the same barn, and it did not segregate the hay bales by supplier. Todd Farm Service did not maintain records showing the origin of the hay bales it delivered to a particular customer. Ms. Osborne alleged that Berrington manufactured the hay bale involved in her accident.


Prior to trial, the defendants filed several motions in limine. Motion in Limine No. 2 sought to prohibit the plaintiff from testifying that she could determine which hay bales were from Nevada and which hay bales were from California by looking at the color and texture of the hay. The defendants sought to exclude this testimony on the ground that the plaintiff failed to timely designate herself as an expert witness. Motion in Limine No. 4 sought to prohibit the plaintiff from testifying that: (1) Todd Farm Service’s delivery person told her the hay bale involved in her accident was from Berrington; and (2) she saw the delivery person with a receipt which indicated the hay bale was from Berrington. The defendants sought to exclude these statements because they were hearsay. The trial court granted both motions in limine, and warned counsel, “[t]here should be no reference to Berrington paperwork or mention the name ‘Berrington’ by the delivery people.”


At trial, the plaintiff’s counsel disregarded the trial court’s rulings. In his opening statement, the plaintiff’s counsel told the jury that the hay bale that caused Ms. Osborne’s injuries came from Berrington, and Ms. Osborne knew it came from Berrington because she saw a delivery receipt indicating the hay was from Berrington. The plaintiff’s counsel also stated that the plaintiff could tell by the color and texture of the hay that it was from Nevada. The defendants’ counsel objected during the opening statement, and the trial court instructed the jury to disregard counsel’s statements.


During the plaintiff’s direct examination, her counsel repeatedly asked her whether her supervisor told her the origin of the hay. The defendants’ counsel objected each time. The trial court repeatedly warned the plaintiff’s counsel that he was violating the court’s order. The plaintiff’s counsel re-argued the motions in limine twice, and each time he requested the trial court change its prior ruling. The trial court refused to do so. The plaintiff’s counsel continued to ask the plaintiff questions about the origin of the hay, to which she testified that the hay came from Berrington.


At this point, the trial court excused the jury and stated the line of questions was “flagrant misconduct” in violation of the trial court’s rulings. The defendants’ counsel requested the trial court dismiss the case with prejudice as to all defendants. The plaintiff’s counsel asked the trial court to instruct the jury to disregard the testimony instead. The trial court ordered the case dismissed with prejudice against all defendants, “[a]s a sanction against both [plaintiff’s counsel] and [the plaintiff] for flagrant and repeated violations of the Court’s order . . . .” The plaintiff appealed.


The appellate court held that the trial court did not err in dismissing the action with prejudice. The court reiterated that a trial court has the inherent authority to control proceedings before it. This authority includes the power to impose a terminating sanction upon a party that willfully violates the trial court’s orders. The court of appeals reviews a trial court’s order imposing a terminating sanction under the abuse of discretion standard. Here, the record clearly indicated that the plaintiff repeatedly and knowingly violated the trial court’s orders excluding evidence about the origin of the hay bale involved in the plaintiff’s injury. As such, the trial court did not err in imposing a terminating sanction. The court affirmed the judgment of dismissal and awarded costs to the defendants.


Thomas Whiteside, Littler Mendelson, P.C., Irvine, CA


April 1, 2016

Hearsay Exception for Recorded Recollections: Pitfalls to Avoid

Rule 803(5) of the Federal Rules of Evidence operates as an exception to the hearsay rule, provided the requirements governing the rule as to the “recorded recollection” are satisfied. The rule is as follows


Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge.


If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.


While the literal text of the rule might prompt philosophical reflection regarding whether the record complies with subpart (c), and how one might go about proving “accuracy” when the witness does not remember enough about the matter to testify fully and accurately, courts have taken a pragmatic approach in applying the rule. See Priester v. Texas, No. 08-13-00278-CR, 2015 Tex. App. LEXIS 10165, *28–*29 (Tex. Ct. App. 8th Dist. Sept. 30, 2015) (even where a witness displayed an inconsistent or spotty memory, the court allowed the state to read the witness’s prior grand jury testimony into the record, as the witness’s recollection would only be partial).


Still, counsel will not be able to establish a proper foundation when the witness cannot vouch for the accuracy of the statement because she does not remember making it, meaning that it cannot be shown to “accurately reflect[] the witness’s knowledge” at the time the witness offers her testimony. Kubsch v. Neal, 800 F.3d 783, 793–94 (7th Cir. 2015) (applying Indiana law, but describing outcome as consistent with federal evidentiary rules and those applicable in other states).


What about a situation where the witness made a statement to another person, and that other person was the one who took notes of the conversation? Even if it was not contemporaneously “adopted by” the witness, courts have found that it is admissible, provided that the witness testifies that the record is accurate. Bostwick v. Watertown Unified School District, Case No. 13-C-1036, 2015 U.S. Dist. LEXIS 46495 (E.D. Wis. April 9, 2015); see also United States v. Williams, 951 F.2d 853 (7th Cir. 1993). This result appears to be at odds with the express terms of the rule, but many courts have permitted this evidence nonetheless. If the witness is not present to testify at all, however, this hearsay exception will not apply. Arizona v. Havatone, No. 1 CA-CR 14-0223, 2015 Ariz. App. Unpub. LEXIS 1298 at *27 n.7 (Ariz. Ct. App. Oct. 27, 2015) (statement from a deceased witness not admissible).


Counsel should also consult Rule 612 when considering this type of evidence. That rule gives an adverse party certain rights when a writing has been used by a witness to refresh his memory, at or before the party offers the testimony into evidence. For example, counsel can demand to inspect the writing, may cross-examine the witness about it, and may introduce in evidence any other portion that relates to the witness’s testimony.


Notwithstanding the exception to the hearsay rule provided for recorded recollections, another common problem in these types of documents is hearsay within hearsay. This can be important because the really objectionable (or critically important, depending on your circumstances) evidence might still be kept out of trial altogether under that rationale.


Ryan W. Babcock, Freeman Mathis & Gary, Atlanta, GA


April 1, 2016

NY State Institutes New Rule Regarding Use of Expert Testimony on Summary Judgment

In December 2015, the New York State Legislature passed an amendment to CPLR 3212(b), governing the use of expert testimony in support and opposition to summary judgment motions. The newly amended section reads:


Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of Section 3101 was not furnished prior to the submission of the affidavit.


This amendment was specifically intended to overrule a line of cases decided by the Appellate Division, First and Second Departments, of New York that had held that it was within the discretion of the trial court to decide whether to consider an affidavit of an expert on summary judgment when that expert had not been part of the pretrial discovery process. See Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dep’t 2008).


The sponsor memo submitted along with the bill explained part of the perceived need for this amendment—“the multitude of different Judicial District, County, and individual judges' rules addressing the timing of expert disclosure, many of which may be at odds with CPLR 3101(d)(1)(i) [the rule on expert disclosure] or which do not require disclosures of expert information before the filing of a notice. Another factor complicating the timing of expert disclosure is the continuing practice in certain counties to permit routine post-note of issue disclosure.”


Nonetheless, this presents a practical problem for the practitioner. As the rule is now written, a party may choose to submit affidavits of expert witnesses in support of (or opposition to) a summary judgment motion that the party has purposely failed to disclose during discovery, and it is not within the power of the trial court to disregard such affidavit. This is true even if the party presenting the affidavit of an undisclosed expert purposely disregarded the trial court’s scheduling order.


Helene R. Hechtkopf, Hoguet Newman Regal & Kenney, LLC, New York, NY


February 18, 2016

Appellate Court Weighs in on Statute of Limitations for Spoliation Claim

Nicholas A. Skridla filed a 42-count fourth amended complaint [Author’s note:  42 counts?  Really?] for damages arising from an automobile accident involving his wife and son, Margaret E. Skridla and Maxamillian Skridla, on December 3, 2009. Skridla v. General Motors Company, 2015 IL App (2d) 141168.

Margaret and Maxamillian were injured on December 3, 2009, when their stopped vehicle was rear-ended by an automobile driven by Dana Fanara. Margaret’s injuries led to her death on January 24, 2012; Maxamillian survived.

The plaintiff filed his fourth amended complaint, adding Auto Owners, Fanara’s automobile liability insurance carrier, as a defendant. The plaintiff alleged that Auto Owners undertook an investigation of Fanara’s vehicle, inspecting all damage to the vehicle, and, after completing its investigation, sold the vehicle for salvage. The plaintiff alleged Auto Owners failed to download the vehicle’s sensory diagnostic module and also deprived the plaintiff of any opportunity to download it, thereby destroying evidence as to Fanara’s speed and braking prior to rear-ending the vehicle occupied by Margaret and Maxamillian. An exhibit attached to the plaintiff’s response to Auto Owners’ motion to dismiss the spoliation counts indicated that Fanara’s vehicle was sold to the salvage company on January 21, 2010.

There is conflicting opinion in the Illinois Appellate Court as to the appropriate statute of limitations for a cause of action for spoliation of evidence. In Babich v. River Oaks Toyota, 377 I11. App. 3d 425 (2007), the plaintiff filed product-liability and negligent-spoliation claims against the defendants. The court noted: “[i]t is well settled that Illinois courts do not recognize negligent spoliation of evidence as an independent cause of action.”  Rather, negligent spoliation is “a derivative action that arises out of other causes of action, including a negligence cause of action.”  Therefore, the same statute of limitations applies to a negligent-spoliation action as applies to the underlying cause of action.

In this case, the plaintiff’s spoliation-of-evidence counts, with the exception of his wrongful- death spoliation count, all arose from underlying actions for personal injuries to another, survival, personal injury to Maxamillian, loss of consortium, and family expenses due to injuries to Margaret and Maxamillian. Because these claims are actions “deriving from injury to the person of another,” they are subject to commencement within the same period of time as actions for damages for injury to such other person. Thus, the two-year limitations period applies to these personal injury actions.

The two-year limitations periods of the underlying actions also applied to the plaintiff’s derivative spoliation actions.  The plaintiff’s personal-injury claims accrued on the date of the accident, December 3, 2009; his wrongful-death claim accrued at the time of Margaret’s death, January 12, 2012. However, a wrongful-death claim, like a spoliation claim, is derivative of the action the decedent had in his lifetime.

As long as the decedent’s claim was not time barred at the time of his death, the wrongful death statute provides the claimant with a two year statute of limitations which begins running from the time of death. The limitations period for a spoliation claim would seem to work similarly: as long as the underlying claim was not time-barred at the time of the destruction of the evidence, the limitations period for the spoliation claim begins running from that time. Here, by the plaintiff’s own admission, Fanara’s vehicle was sold for salvage on January 21, 2010. The plaintiff did not argue that he discovered the destruction on any other date. Thus, the plaintiff had two years from January 21, 2010, or until January 21, 2012, to file his spoliation claims. Those claims were not filed until February 9, 2014.

The plaintiff raised a concern that unfairness to a plaintiff could result if the limitations period for a spoliation claim began to run on the same day as the limitations period for the underlying claim. According to the appeals court, it had alleviated this concern by suggesting that the limitations period for a spoliation claim begins to run not on the same day as that for the underlying claim, but on the day of the destruction of the evidence (or the day that the plaintiff discovers it), provided that the underlying claim itself was not time-barred on that day. Here, the destruction of Fanara’s vehicle occurred only seven weeks after the accident. Thus, even if the limitations period for the plaintiff’s spoliation claims began to run on the day of the accident, the plaintiff still had nearly two full years to file those claims. No unfairness resulted.

The lesson, at least for Illinois litigants, is to monitor the possible spoliation of evidence and to timely bring the applicable claim.

Keywords: trial evidence, litigation, spoliation

Michael R. Lied, Howard & Howard Attorneys PLLC, Peoria, IL


February 9, 2016

Court Should Have Admitted Expert Testimony on Eyewitness Identification

In People v. Eduardo Lerma, 2016 IL 118496, the issue was whether the circuit court abused its discretion when it denied defendant’s motion to allow expert testimony concerning the reliability of eyewitness identifications.

The case arose from the murder of Jason Gill, who was shot to death while sitting on the front steps of his Chicago home. On the night of the shooting, Gill was sitting on the steps with a friend, Lydia Clark. A man dressed all in black approached Gill’s house, pulled a gun, and began shooting at Gill and Clark. Though the man was wearing a hooded sweatshirt, Clark later testified that the hood was down at the time of the shooting.

The first eyewitness identification was by Gill. Gill’s father, Bill Johnson, asked Gill who had shot him. Both Clark and Johnson testified that Gill said that “Lucky” had shot him. Multiple witnesses testified that defendant, who lived across the street from Gill, was commonly known by the nickname “Lucky.” In addition, Gill’s mother testified that Gill and defendant had been friends for several years, that defendant often spent time in Gill’s home.

The other eyewitness identification was made by Clark. Clark testified that, on the evening of the shooting, she was with Gill on the unlit front steps of Gill’s home.

Clark heard Gill say, “Lucky shot me.” When the police arrived, Clark told them that “Lucky” had shot Gill. The next morning, Clark went to the police station, where she was shown a photo lineup of six Hispanic males, one of whom was defendant. From the photographs, Clark identified the defendant as the shooter. One day later, in a one-person show-up, Clark again identified defendant. In open court, and no less than five times, Clark pointed to and specifically identified defendant as the man who shot Gill. Clark testified that she knew defendant only by his nickname, “Lucky.” Clark testified that, in the six months to a year before the shooting, she had seen defendant on the porch across the street from Gill’s house approximately ten times.

The defendant filed a pretrial motion in limine to allow Dr. Solomon Fulero, an attorney and licensed psychologist, to testify as an expert on the topic of memory and eyewitness identification. Defendant argued that Dr. Fulero’s testimony would aid the jury by identifying and explaining several common misperceptions that exist concerning the accuracy and reliability of eyewitness identifications. The trial court denied defendant’s motion.

Before his trial began, the defendant filed a motion to reconsider the denial of his motion in limine.

The defendant cited the New Jersey Supreme Court’s then-recent decision in State v. Henderson, 27 A.3d 872 (N.J. 2011), which comprehensively reviewed the current state of scientific research concerning the reliability of eyewitness identifications. The trial court denied defendant’s motion to reconsider.

At trial, the evidence of defendant’s guilt consisted solely of two eyewitness identifications. Gill’s eyewitness identification was admitted under the excited utterance exception to the hearsay rule. Clark’s identification was admitted as well.

Midway through trial and after the state had presented the eyewitness testimony set forth above, defense counsel renewed defendant’s motion to call an eyewitness identification expert. Because Dr. Fulero had since passed away, defense counsel this time tendered to the trial court a report authored by Dr. Geoffrey Loftus, a professor of psychology at the University of Washington and widely published and globally recognized expert in the field of human perception and memory.

The trial court stated that it was denying defendant’s motion to present Dr. Loftus’s testimony. The jury ultimately convicted defendant of first degree murder. The case reached the Illinois Supreme Court.

The court noted a dramatic shift in the legal landscape, as expert testimony concerning the reliability of eyewitness testimony has moved from novel and uncertain to settled and widely accepted.

The reason for this trend is that, although findings of the sort described in Dr. Fulero’s and Dr. Loftus’s reports are now “widely accepted by scientists,” those same findings “are largely unfamiliar to the average person, and, in fact, many of the findings are counterintuitive.”

The court believed that such research is well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony.

There was no question that this was the type of case for which expert eyewitness testimony was both relevant and appropriate. The only evidence of defendant’s guilt was the eyewitness identifications made by Clark and Gill.

Several factors that both Dr. Fulero and Dr. Loftus identified as potentially contributing to the unreliability of eyewitness testimony were either present or possibly present in the case. These included the stress of the event itself, the use and presence of a weapon, the wearing of a partial disguise, exposure to post-event information, nighttime viewing, and cross-racial identification.

The court next considered whether the trial court abused its discretion in denying the defendant’s request to admit Dr. Loftus’s expert testimony. The court held that it did. The trial court denied defendant’s request primarily based on the trial court’s personal conviction that “it is a fact that persons *** are less likely to misidentify someone they have met or know or seen before than a stranger,” as well as the trial court’s belief that expert testimony of this sort would both “generate *** a referendum on the efficacy of identification testimony generally” and “operat[e] as [an] opinion on the credibility” of the eyewitnesses themselves.

The problem with the trial court’s reasoning was that, even if it was defensible as to Dr. Fulero’s expected testimony, it was not as to Dr. Loftus’s expected testimony. Dr. Fulero’s report did not specifically address identifications made by witnesses who were acquainted with the accused prior to the crime. Neither did Dr. Fulero’s report specifically address the scope of his testimony and whether he would comment or offer an opinion on the credibility of Clark’s identification in this case. Dr. Loftus’s report did address both of these matters directly, and it contradicted both of the trial court’s previous assumptions about what Dr. Fulero would say on these points.

In relying on its own personal beliefs about how eyewitness identifications function as the primary basis for denying the admission of Dr. Loftus’s testimony, the trial court not only ignored the explicit contents of Dr. Loftus’s report but also effectively substituted its own opinion on a matter of uncommon knowledge for that of a respected and qualified expert.

Here, the trial court denied defendant’s request to present relevant and probative testimony from a qualified expert that spoke directly to the State’s only evidence against him, for reasons that were both expressly contradicted by the expert’s report and inconsistent with the actual facts of the case.

The trial court’s decision excluding Dr. Loftus’s testimony was not harmless beyond a reasonable doubt. First, there was no question that the error contributed to the defendant’s conviction.

Second, it could not be said that the other evidence in the case overwhelmingly supported the defendant’s conviction.

Third, the excluded testimony from Dr. Loftus was neither duplicative nor cumulative of other evidence.

The Illinois Supreme Court affirmed the judgment of the appellate court, which had reversed the judgment of the trial court.

Keywords: trial evidence, litigation, HSBC Bank USA, Rowes, Supreme Court Rule 216

Michael R. Lied, Howard & Howard Attorneys PLLC, Peoria, IL


November 18, 2015

Court Denies Defendants' Bid to Have Requests to Admit Admitted

HSBC Bank USA, National Ass’n v. Rowe, 2015 IL App (3d) 140553 presented issues regarding requests to admit. HSBC Bank USA (HSBC) filed a complaint to foreclose a mortgage against Scott and Nanci Rowe (the Rowes). Pursuant to change to HSBC’s motion, the trial court struck the Rowes’ affirmative defense of lack of standing. The court also denied the Rowes’ motion to deem their requests for admissions admitted.

By way of background, on July 30, 2013, the Rowes served HSBC with requests for admission of facts and of genuineness of documents pursuant to Illinois Supreme Court Rule 216. HSBC, having been granted an extension, filed its response to the Rowes’ requests on September 27. In its response, HSBC objected generally to the request on the grounds that the Rowes had not complied with Supreme Court Rule 216. Specifically, HSBC asserted that the Rowes had not sent the requests as a separate document, as required by the rule.

HSBC also objected individually to each request to admit the genuineness of documents and all but 2 of 22 requests for admission of fact. HSBC objected to each request to admit the genuineness of documents as vague, confusing, or not reasonably calculated to lead to the discovery of relevant evidence. HSBC objected to the requests for admissions of facts on the same grounds. Many objections in HSBC’s response were followed by the phrase, “[w]ithout waiving said objection,” followed by HSBC’s response to the request in the form of a denial or admission. HSBC’s responses were not sworn.

On February 24, 2014, the Rowes filed a motion to deem the requests admitted. The Rowes argued that because HSBC’s responses were not sworn and were otherwise nonresponsive, Supreme Court Rule 216 dictated that the requests be deemed admitted. The trial court denied the motion, as well as a subsequent motion to reconsider. The Rowes appealed.

The Rowes argued that the trial court abused its discretion in denying their motion to deem their requests for admissions admitted. The Rowes contended that HSBC’s responses to the requests did not comply with Illinois Supreme Court Rule 216(g) and were otherwise nonresponsive and made in bad faith. The Rowes maintained that this required the trial court to deem the requests admitted.

Rule 216(c), however, only requires a sworn statement where a party denies the matters for which admission is requested. Written objections need not be sworn to by the responding party. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 355 (2007). The plain language of the rule states that the party to whom the requests to admit are directed must serve upon the requesting party either a sworn statement denying the matters of which admission is requested or written objections, which need not be sworn.

The Rowes also contended that HSBC’s response was not made in good faith. The Rowes maintained that HSBC’s blanket objections rendered the responses wholly nonresponsive, and argued that the requests for admission should thus be deemed admitted pursuant to Supreme Court Rule 216(c). A party has a good-faith obligation to make a reasonable effort to secure answers to requests to admit from persons and documents within the responding party’s reasonable control. Where a party responds to requests for admissions in the form of objections to those requests, it is the duty of the requesting party to raise the issue of the objection in a motion before the trial court. Indeed, Supreme Court Rule 216(c) itself states that any objection to a request or to an answer shall be heard by the court upon prompt notice and motion of the party making the request.

The court of appeals said that the Rowes’ claim that HSBC responses were nonresponsive and made in bad faith had substantial merit. The Rowes requested that HSBC admit the genuineness of five documents, attaching each of those five documents to their request. HSBC objected to two of these requests as vague, and objected to the remaining three requests as both vague and confusing. The court failed to see how such simple requests could be categorized as either. However, any insufficiency in HSBC’s objections would not be cause to treat Rowes’ requests as admitted.

Given the shortfalls of HSBC’s responses, the Rowes’ proper remedy would have been to promptly bring a motion in the trial court challenging the propriety of the objections. Instead, the Rowes sought to have the requests deemed admitted, despite the outstanding objections. The court was unaware of any case law that supported the contention that a trial court could forego ruling on objections and simply deem the matters objected to admitted. Indeed, such a position would run counter to the Illinois Supreme Court’s stated policy goal of adjudicating cases on their merits rather than on technicalities. Accordingly, the trial court did not abuse its discretion in denying Rowes’ motion to deem requests for admission admitted.

Requests to admit can be a valuable way to narrow the issues. This case reminds us that it is important to carefully follow the applicable rules.

Keywords: trial evidence, litigation, HSBC Bank USA, Rowes, Supreme Court Rule 216

Michael R. Lied, Howard & Howard Attorneys PLLC, Peoria, IL


October 21, 2015

Phone Passcodes Protected by Fifth Amendment

The Securities and Exchange Commission (SEC) sued Bonan Huang and others in Securities and Exchange Commission v. Huang, 2015 WL 5611644 (E.D. Pa. September 23, 2015), seeking penalties, disgorgement, and equitable relief. The SEC alleged that the defendants traded certain retail stocks based on material nonpublic information available to the defendants while they worked as data analysts for Capital One Bank (Capitol One). Capitol One provided the defendants with smartphones but allowed them to create and set their own passcodes to access the smartphone. Capitol One owned the smartphone and any corporate documents on the smartphones. Capitol One requested its employees to not keep records of their personal passcodes for security reasons. Upon leaving Capitol One, the defendants returned their smartphones. Capitol One provided the smartphones to the SEC, but the SEC could not access the data on the smartphones because it did not know the passcodes. The defendants apprehended an imminent threat of prosecution but had not yet been convicted.

The SEC moved to compel production of the defendants’ passcodes. The SEC argued the defendants, as former Capitol One data analysts, were corporate custodians in possession of corporate records, and as such could not assert their Fifth Amendment privilege in refusing to disclose their passcodes. The defendants disagreed they were corporate custodians and argued that providing the passcodes to the phones was “testimonial” in nature and violated the Fifth Amendment.

The SEC claimed the “corporate records” cases governed the analysis. See Bellis v. United States, 417 U.S. 85 (1974); Braswell v. United States, 487 U.S. 99 (1988). In Bellis, a partner of a dissolved law firm was subpoenaed to appear and testify before a grand jury and to bring all partnership records within his possession. He appeared but refused to bring the records and asserted his Fifth Amendment privilege against compulsory self-incrimination.

The United States Supreme Court rejected the privilege, relying on the “collective entity” doctrine. The doctrine prevents an individual from relying upon the privilege to avoid producing records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally. Here, though, the defendants pointed to more recent cases. In In re Grand Jury Duces Tecum Dates March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012), the Eleventh Circuit found a person accused of possessing child pornography could assert his Fifth Amendment privilege to avoid decrypting a hard drive.

The court of appeals did not focus on whether the privilege applied to underlying documents but on whether the acts of decryption and production were testimonial. The court of appeals held decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. The decryption and production therefore were testimonial and within the scope of the Fifth Amendment.

The defendants also pointed to United States v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich. 2010) where the government subpoenaed all passwords associated with the defendant’s computer. The district court found that revealing the password was akin to providing the combination of a wall safe—an act deemed to be testimonial by the Supreme Court. The district court denied the government’s request to compel defendant to produce his computer passcodes.

The SEC’s reliance on the content of the documents was also misplaced. In re Grand Jury persuaded the court that it should not look at the underlying documents to determine whether the act of producing a passcode was testimonial. By relying on the corporate records cases of Bellis and Braswell, the SEC would have the Court focus on the nature of the documents allegedly contained in the phone rather than what the SEC requested, which were passcodes to the phones. This would require intrusion into the knowledge of the defendants and no one else. There was no evidence that Capitol One assigned or kept track of the defendants’ passcodes. To the contrary, the Capitol One asked employees not to keep records of their passwords for safety reasons.

Because the Court found the passcodes were not corporate records, it did not need to reach the issue of whether the defendants were corporate custodians. The SEC also argued that any incriminating testimonial aspect to the defendants’ production of their personal passcodes already was a foregone conclusion because the SEC could show the defendants were the sole users and possessors of their respective work-issued phones. The Court found the SEC’s argument missed the mark.

In In re Grand Jury, the court of appeals refused to apply the “foregone conclusion” doctrine because the government could not meet its burden of showing with reasonable particularity what if anything, was hidden behind the encrypted wall. While the government need not identify exactly the underlying documents sought, categorical requests for documents the government anticipated are likely to exist would not suffice. Here, the SEC argued only possession of the smartphones and that the defendants were the sole users and possessors of their respective work-issued smartphones. The SEC did not show the existence of any requested documents on the smartphones. Merely possessing the smartphones was insufficient if the SEC could not show what was actually on the device.

The SEC had no evidence that any documents it sought were actually located on the work-issued smartphones, or that they existed at all. Thus, the foregone conclusion doctrine was not applicable. Since the passcodes to the defendants’ work-issued smartphones were not corporate records, the act of producing their personal passcodes would be testimonial in nature and the defendants properly invoked their Fifth Amendment privilege. Therefore, criminal defense lawyers and lawyers representing public employees must be vigilant to assert the Fifth Amendment privilege to avoid waiver of this powerful tool.

Keywords: trial evidence, litigation, smartphone, passcodes, Fifth Amendment, privacy, SEC, Bonan Huang

Michael R. Lied, Howard & Howard Attorneys PLLC, Peoria, IL


August 28, 2015

Juror Affidavit Alleging Jury Misconduct Not Admissible

In United States v. Leung, ___ F.3d ___, No. 13-10242 (9th Cir. Aug. 6, 2015), the Ninth Circuit affirmed a district court’s ruling that an affidavit alleging other jurors had discussed evidence and made up their minds about a defendant’s guilt before the start of deliberations was inadmissible under Federal Rule of Evidence 606(b).

Shiu Lung Leung was an executive of a Taiwanese company. The court sentenced to twenty-four months after a jury found him guilty of violating the Sherman Antitrust Act for his role in a price-fixing scheme involving technology used in LCD monitors and television displays. Four months after the jury’s verdict, Leung filed a motion for a new trial and an evidentiary hearing. The motion was based on an affidavit from one juror which stated: (1) several other jurors regularly talked about evidence during breaks in the trial; and (2) at least three jurors had already made up their minds that Leung was guilty before deliberations began. The district court ruled that the affidavit was inadmissible under Rule 606(b), and denied Leung’s motion for a new trial without an evidentiary hearing.

The Ninth Circuit addressed two issues on appeal. First, the Ninth Circuit briefly addressed the government’s argument that Leung’s motion for a new trial was time-barred. Federal Rule of Criminal Procedure 33(b) provides that a motion for a new trial for “any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” This 14-day deadline can be extended under Federal Rule of Criminal Procedure 45(b)(2) because Federal Rule of Criminal Procedure 33 is non-jurisdictional. See Eberhart v. United States, 546 U.S. 12, 19 (2005.) After the trial, the district court told Leung’s counsel to “go ahead and file your [new trial] motions whenever you want to.” Thus, the Ninth Circuit concluded that the district court had granted an open-ended extension for Leung to file a motion for a new trial. As such, Leung’s motion was timely.

The Ninth Circuit’s opinion in United States v. Leung focused on the second issue on appeal, which was “whether the juror affidavit entitled Leung to a new trial or an evidentiary hearing.” Relying on two Supreme Court cases, Tanner v. United States, 483 U.S. 107 (1987) and Warger v. Shauers, 135 S. Ct. 521 (2014), the Ninth Circuit held that Leung was not entitled to a new trial or an evidentiary hearing based on the juror affidavit because it was inadmissible under Rule 606(b), which provides that

[d]uring an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or 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.

Rule 606(b) contains three exceptions, including an exception allowing a juror to testify about whether “an outside influence was improperly brought to bear on any juror . . . .” Fed. R. Evid. 606(b)(2)(B).

In Tanner, the Supreme Court concluded that Rule 606(b) barred the admission of a juror affidavit alleging that jurors “drank alcohol, smoked marijuana, ingested cocaine, conducted drug deals, and periodically slept throughout a complex criminal trial.” The Ninth Circuit pointed out that the Supreme Court in Tanner emphasized that the internal versus external distinction is “not based on whether the juror was literally inside or outside the jury room when the alleged irregularity took place.” Instead, it is based on the “nature of the allegation.”

In Warger, the Supreme Court held that Rule 606(b) does not permit an exception for testimony about juror bias or dishonesty during voir dire because “Rule 606(b) ‘simply applies’ in any proceeding in which a party seeks to set aside a jury verdict.” As such, the Supreme Court concluded that a juror’s allegation that another juror admitted to harboring bias against one of the parties during jury deliberations was barred by Rule 606(b).

The Ninth Circuit reasoned that “parsing how jurors considered the evidence or their mental states while hearing testimony is exactly what Tanner and the plain text of Rule 606(b) seek to prevent.” The Ninth Circuit emphasized that Rule 606(b) “exists for good reason—it protects jurors from harassment and maintains the integrity and finality of jury verdicts.” The Ninth Circuit was not persuaded by Leung’s argument that the affidavit was evidence of juror bias and dishonesty during voir dire, as opposed to evidence of the internal affairs of the jury. The Ninth Circuit noted that the affidavit did not contain any evidence of juror deceit or bias. At most, it suggested that some jurors failed to keep their promise to follow all the court’s instructions. Further, if the Ninth Circuit were to accept Leung’s argument, a party would be entitled to a mistrial any time a juror violated a jury instruction. For example, jurors taking their notepads home at the end of the day or “sneak[ing] a peek at their email during the day” would be grounds for a mistrial. Finally, the Ninth Circuit noted that violations of jury instructions may be remedied during trial by additional jury instructions, dismissing jurors, or declaring a mistrial. Rule 606(b) also does not prohibit admission of nonjuror testimony about alleged violations. As such, a post-verdict juror affidavit alleging jurors violated a district court’s instructions is “too little, too late.”

The Leung decision offers two takeaways: (1) Rule 606(b) “is a powerful shield against the efforts of litigants to overturn verdicts” based on juror testimony or affidavits alleging juror misconduct; and (2) litigants seeking to overturn a jury verdict based on improper conduct of the jury must rely on nonjuror testimony and evidence to prove jury misconduct.

Keywords: trial evidence, litigation, Federal Rule 606(b), juror affidavit, jury misconduct, jury, inadmissible evidence, Leung


Thomas J. Whiteside, Littler Mendelson P.C., Irvine, CA



July 1, 2015

Subsequent DNA Match Extends Criminal Statute of Limitations

On August 1, 2003, an armed man wearing a ski mask entered the Madison County Federal Credit Union. He ordered the only customer, Ray Novak, to get down on the ground, and said that he was robbing the Credit Union. Novak, who was Assistant Chief of Police, rose and drew his revolver. Novak announced that he was police and ordered the robber to surrender. A gunfight followed. Novak fired three shots, one of which struck the robber, causing him to bleed. The robber fled, and was not arrested.

At the scene, Steven First, the Police Department laboratory director, collected a receipt covered with fresh blood. A DNA profile was created, but no suspect matched the DNA profile and the case became “cold.” On December 27, 2010, the Indiana State Police Laboratory sent a DNA analysis report to the Police Department. There had been a “hit” in the Combined DNA Index System (CODIS), and the previously unidentified DNA sample matched to Pascal Sylla.

A two-count indictment was issued on July 16, 2013, charging Sylla with attempted bank robbery and discharging a firearm during a crime of violence. Sylla moved to dismiss the indictment and argued the pre-indictment delay violated his Fifth Amendment due process rights. The district court denied his motion.

After a jury found him guilty, the district court sentenced Sylla to 420 months’ imprisonment. An appeal followed. On appeal, Sylla argued that the federal tolling statute, 18 U.S.C. section 3297, was unconstitutionally vague as applied to his case. 18 U.S.C. section 3297 reads:

In a case in which DNA testing implicates an identified person in the commission of a felony, no statute of limitations that would otherwise preclude prosecution of the offense shall preclude such prosecution until a period of time following the implication of the person by DNA testing has elapsed that is equal to the otherwise applicable limitation period.

According to the court of appeals, even assuming the vagueness doctrine applied to section 3297, Sylla’s challenge failed because application of that provision to his case was straightforward. On December 27, 2010, DNA evidence “implicated” Sylla as the person who attempted to rob the Credit Union. Ordinarily, the five-year statute of limitations applicable to bank robbery would have expired on August 1, 2008; however, under section 3297’s plain terms, the DNA match on December 27, 2010, extended the limitations period for an additional five years from that date.

The court of appeals rejected Sylla’s constitutional challenge to section 3297. United States v. Sylla, _ F. 3d _, 2015 WL 3895440 (7th Cir. 2015).

Keywords: trial evidence, litigation, DNA, Pascal Sylla, bank robbery, firearm, section 3297, statute of limitations

Michael R. Lied, Howard & Howard Attorneys PLLC, Peoria, IL


July 1, 2015

Google Earth Image Was Not Hearsay

In United States v Lizarraga-Tirado, the court of appeals addressed the issue of whether a Google Earth satellite image and a digital “tack” labeled with GPS coordinates was hearsay. The answer? It depends. In this case it was not.

The defendant was arrested near the United States-Mexico border and charged with illegal reentry as a previously removed alien who “entered and was found in the United States.” At trial, the defendant denied that he had entered the United States before his arrest. Because it was a dark night in a remote location, he insisted that the arresting Border Patrol agents must have accidentally crossed the border into Mexico before arresting him.

The arresting agents, Garcia and Nunez, testified that they were very familiar with the area and were certain they arrested him in the United States. Garcia also testified that she contemporaneously recorded the coordinates of the defendant’s arrest using a handheld GPS device. To illustrate the location of those coordinates, the government introduced a Google Earth satellite image. After conviction, the defendant appealed.

The court of appeals noted that Google Earth superimposes certain markers and labels onto the images, such as names of towns and locations of borders. It also offers ways for users to add markers of their own. A user can type GPS coordinates into Google Earth, which automatically produces a digital “tack” at the appropriate spot on the map, labeled with the coordinates. A user can also manually add a marker by clicking any spot on the map, which results in a tack that can be labeled by the user.

The satellite image introduced at trial included a digital tack labeled with a set of GPS coordinates. Garcia testified that the GPS coordinates next to the tack matched the coordinates she recorded the night she arrested the defendant. On that basis, she believed that the tack marked approximately where she was on the night of the defendant’s arrest.

The exhibit corroborated the agents’ testimony that the defendant was arrested while in the United States. The defendant’s lawyer could not cross-examine Garcia about the creation of the satellite image or the tack because Garcia had not generated them.

On appeal, the defendant claimed that both the satellite image on its own and the digitally added tack and coordinates were impermissible hearsay. The appeals court first considered whether the satellite image, without any labels or markers, was hearsay. While the court had not addressed that specific question, it had held that a photograph is not hearsay because it makes no “assertion.” A photograph merely depicts a scene as it existed at a particular time. The same is true of a Google Earth satellite image. Because a satellite image makes no assertion, it is not hearsay.

The tack and coordinates, presented a more difficult question. Unlike the image itself, labeled markers added to a satellite image do make clear assertions. If the tack is placed manually and then labeled with a name or GPS coordinates, it is hearsay.

Because there was no evidence at trial as to how the tack and its label were put on the satellite image, the appeals court had to determine whether the tack was computer-generated or placed manually.

The court took judicial notice that the tack was automatically generated by the Google Earth program. By looking to “sources whose accuracy cannot reasonably be questioned”—here, the program—the court could accurately and readily determine that the tack was placed automatically. The court accessed Google Earth and typed in the GPS coordinates, which resulted in an identical tack to the one shown on the satellite image admitted at trial.

A tack placed by the Google Earth program and automatically labeled with GPS coordinates is not hearsay. The hearsay rule applies only to out-of-court statements as “a person’s oral assertion, written assertion, or nonverbal conduct.” Fed. R. Evid. 801(a). Here, the relevant assertion was not made by a person; it was made by the Google Earth program.

The program analyzes the GPS coordinates and, without any human intervention, places a labeled tack on the satellite image. Because the program makes the relevant assertion—that the tack is accurately placed at the labeled GPS coordinates—there is no “statement,” as defined by the hearsay rule.

Admittedly, a machine might malfunction, produce inconsistent results or have been tampered with. But such concerns are addressed by the rules of authentication, not hearsay. Authentication requires the proponent of evidence to show that the evidence is what he claims it is. Unfortunately for the defendant, his lawyer did not raise an authentication objection.

When faced with an authentication objection, the proponent of Google-Earth-generated evidence would have to establish Google Earth’s reliability and accuracy. That burden could be met, for example, with testimony from a Google Earth programmer or a witness who frequently works with and relies on the program. It could also be met through judicial notice of the program’s reliability.

However, as noted, the defendant did not raise an authentication objection at trial, nor did he on appeal. The hearsay objection was properly overruled. Because the satellite image and tack-coordinates were not hearsay, their admission also did not violate the Confrontation Clause. U.S. v. Lizarraga-Tirado, ___ F.3d ___, 2015 WL 3772772, (9th Cir. 2015).

Keywords: trial evidence, litigation, Google Earth, GPS coordinates, hearsay, Lizarraga-Tirado, illegal entry, Mexico border, satellite image

Michael R. Lied, Howard & Howard Attorneys PLLC, Peoria, IL


March 27, 2015

California's Child Sexual Abuse Reports Are Not Protected

In January, the California Court of Appeals affirmed the conviction of a defendant on one count of continuous sexual abuse of a child in violation of California Penal Code § 288.5(a). In doing so, the court of appeals held that the trial court correctly ruled that the defendant’s incriminating statements to a staff member at a psychiatric hospital could be used by the prosecutor for impeachment purposes.

People v. Anthony Wyatt Cannata, 183 Cal. Rptr. 3d 351 (Cal. Ct. App. 2015) involved a stepfather accused of sexually abusing his stepdaughter. The abuse came to light when the stepdaughter told her friends, and then her mother, that the defendant had been sexually abusing her since she was 10 years old. After the defendant found out about the allegations, he drove to his brother’s house and expressed a desire to commit suicide. Police arrested the defendant at his brother’s home and took him to a hospital because of his suicidal ideations. During his psychiatric evaluation, the defendant disclosed to the psychiatrist that he had engaged in child sexual abuse. The psychiatrist suspended the evaluation and brought in a nurse to witness the defendant’s statements. The defendant then disclosed to the psychiatrist and the nurse that he had engaged in oral sex and other acts of child sexual abuse with his underage stepdaughter. Afterwards, the nurse made a telephonic report, followed by a written report, to law enforcement pursuant to California’s Child Abuse and Neglect Reporting Act (CANRA), which requires certain individuals, including psychiatrists and nurses, to report suspected child abuse to authorities.

At trial, the prosecutor filed a brief arguing that the defendant’s statements to the nurse should be admitted to impeach him if he chose to testify at trial. The defendant moved to exclude from evidence any statements he made to the nurse, even for impeachment purposes. The trial court ruled that the defendant’s statements would be admissible for impeachment purposes if he testified; however, they could not be admitted if he chose not to testify. The defendant chose not to testify because of the trial court’s ruling. The jury ultimately convicted him. On appeal, the defendant argued, inter alia, that the trial court improperly forced him to choose between testifying on his own behalf and maintaining the confidentiality of his statements to the nurse which were protected by the psychotherapist-patient privilege.

The court of appeals found that the trial court reached the right conclusion, but for the wrong reasons. The trial court adopted a federal court’s analysis of the common law marital privilege in finding that the prosecutor could impeach the defendant with an otherwise privileged communication. See United States v. Nicholas, 594 F.Supp.2d 1116 (C.D. Cal. 2008). The court of appeals determined that this was improper because, like California’s lawyer-client privilege (Cal. Evid. Code § 954), the physician-patient privilege (Cal. Evid. Code § 994), the marital communications privilege (Cal. Evid. Code § 970), and the clergy-penitent privilege (Cal. Evid. Code. § 1033) are all statutory privileges. The psychotherapist-patient privilege encompasses 19 statutes in the California Evidence Code, several of which set forth exceptions to the privilege. See Cal. Evid. Code §§ 1010–1027. The court of appeals noted that the California Supreme Court has held “that the psychotherapist-patient privilege must be construed broadly, and any exception to it must be construed narrowly.” People v. Anthony Wyatt Cannata, 183 Cal. Rptr. 3d 351, 358 (Cal. Ct. App. 2015) (emphasis in original). The court of appeals reasoned that “no provision [of the California Evidence Code] would allow an otherwise privileged communication between a psychotherapist and patient to be admitted into evidence for impeachment purposes merely because the patient elects to testify at trial.” Id. at 1123. The court of appeals ultimately concluded, however, that the defendant’s statements were admissible “because the information reported to authorities pursuant to CANRA is expressly exempt from the psychotherapist-patient privilege for purposes of ‘any court proceeding or administrative hearing’ . . . .” Id. at 360. Therefore, the statements were excluded from the psychotherapist-patient privilege in the first instance, and the privilege would not have prevented the statements from being introduced into evidence.

The Cannata decision offers two takeaways. First, since California’s privileges are codified in the California Evidence Code, cases analyzing common law privileges are of limited value. Second, communications that are reported by health care providers pursuant to the CANRA may be used at trial for any purpose—not just impeachment—because the CANRA exempts them from the physician-patient privilege and the psychotherapist-privilege in “any court proceeding or administrative hearing.” Cal. Penal Code § 11171.2(b).

Keywords: trial evidence, litigation, California, child sexual abuse, CANRA, Cannata

Thomas J. Whiteside, Littler Mendelson, Irvine, CA


January 29, 2015

Can a Witness Identify a Voice Without Understanding the Language Spoken?

Last week, the Ninth Circuit affirmed a district court’s ruling that a lay witness can properly identify a person’s voice in a recording even though the lay witness does not understand the language spoken in the recording.

In United States v. Ortiz, __ F.3d __, No. 13-30361 (9th Cir. Jan. 23, 2015), the defendant appealed his conviction for various drug charges on the ground that the district court erred in admitting the lay opinion testimony of his probation officer identifying the defendant’s voice in intercepted phone calls. The defendant challenged the admission of the testimony because the probation officer did not speak Spanish (the language spoken in the intercepted phone calls) and had only heard the defendant speak English.

In finding that the government had met its burden for authenticating the defendant’s voice in the intercepted phone calls, the Ninth Circuit emphasized the low threshold for voice identification. Federal Rule of Evidence 901(a) states that “[t]o 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.” Rule 901(b)(5) provides an example of evidence that satisfies this requirement: “An opinion identifying a person’s voice . . . based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” An identifying witness only needs to be minimally familiar with the voice he identifies.

The Ninth Circuit found that the probation officer had the required familiarity to authenticate the defendant’s voice under Rule 901(b)(5) because: (1) she had spoken to the defendant in-person and over the phone during the six months she was his probation officer; (2) she had met the defendant in-person approximately ten to fifteen times, with some conversations lasting an hour; (3) some of the recorded phone calls included words spoken in English, including the word “all right,” which the probation officer testified the defendant used frequently; (4) the probation officer listened to recorded calls in English that the defendant made from prison in which he self-identified by name; and (5) the probation officer testified she was “pretty certain” the voice in the intercepted phone calls was the defendant’s. The Ninth Circuit found that the defendant’s challenges went to the weight—rather than the admissibility—of the probation officer’s testimony. Therefore, the district court properly instructed the jury that “[i]t is up to you to determine whether that is [the defendant] on [the Spanish calls].”

Based on the Ortiz decision, as long as a lay witness is familiar with a person’s voice, the lay witness does not need to understand the language spoken to identify the voice.

Keywords: litigation, trial evidence, admissibility, authenticate, identify, recording, phone call

Thomas J. Whiteside, Littler Mendelson, P.C., Irvine, CA


November 25, 2014

First Chair Without Gray Hair

On Monday, November 17, 2014, the Trial Evidence and Young Advocates Committee presented the Roundtable "First Chair Without Gray Hair." Clients often turn to the more seasoned partners to represent them in front of a jury, but in route to becoming a seasoned partner, those lawyers had to get through their very first trial.


This Roundtable featured young trial lawyers and a United States District Court judge who will discuss lessons learned, mistakes made, and tips and tricks for young lawyers trying their first cases. Here are the 20 most common trial mistakes observed in federal court, in

  1. 1. Treating motions in limine as obligatory pretrial filings.

  2. 2. Failure to submit a trial brief. Although not required in jury cases, submission of a trial brief is appreciated by the Court, and can help lay the groundwork for evidentiary arguments during trial.

  3. 3. Failure to  aggressively work  with opposing counsel  to  reach stipulations  on admissibility of evidence and/or limiting objections to exhibits.

  4. 4. Putting little or no thought into requested voir dire.

  5. 5. Confusing opening statement with closing argument.

  6. 6. Failing to achieve an appropriate "pace" for the presentation of evidence.

  7. 7. Presenting witnesses whose testimony has not been adequately rehearsed.

  8. 8. Improper or inadequate use of demonstrative exhibits.

  9. 9. Failing to properly refresh a witness' recollection.

  10. 10. Failing to properly impeach with prior testimony.

  11. 11. Not having a primary theory, and back-up theory, of admissibility for every piece of evidence and/or each exhibit to be offered.

  12. 12. Inadequate understanding of the Federal Rules of Evidence.

  13. 13. Instructing witnesses when answers are not responsive to the question (instead of objecting as non-responsive, and moving to strike).

  14. 14. Lack of familiarity with the hearsay rules and exceptions.

  15. 15. Failure to give adequate attention, prior to trial, to proposed jury instructions.

  16. 16. Getting too fancy with exhibits (e.g., "busy" demonstrative charts or animations).

  17. 17. Ending examinations on a sustained objection.

  18. 18. Not really believing that "less is more" (and otherwise wasting the jury's time).

  19. 19. Trying to do too much on cross-examination.

  20. 20. Using cheesy stories in closing argument.

Judge Timothy D. DeGiusti, United States Distric Court, Western District, OK


September 29, 2014

Supreme Court Upholds (but Curtails) Securities Fraud Class Actions

Securities law plaintiffs’ attorneys breathed a sigh of relief when the Supreme Court issued its highly anticipated decision in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II), 134 S. Ct. 2398 (2014), on June 23, 2014. The Halliburton II decision did not fundamentally change the landscape of securities fraud class action lawsuits (which it had the potential to do), but it did resolve a prior circuit split with a predictable compromise. The Court upheld the plaintiff-friendly fraud-on-the-market presumption established 25 years ago in Basic Inc. v. Levinson, 485 U.S. 224 (1988), but clarified that the presumption is rebuttable early on in the case—i.e.,at the class certification stage instead of being relegated to the merits stage of the case.

The opinion of the Court succinctly explained the issue before it as follows:

Investors can recover damages in a private securities fraud action only if they prove that they relied on the defendant’s misrepresentation in deciding to buy or sell a company’s stock. In Basic Inc. v. Levinson, we held that investors could satisfy this reliance requirement by invoking a presumption that the price of stock traded in an efficient market reflects all public, material information—including material misstatements. In such a case, we concluded, anyone who buys or sells the stock at the market price may be considered to have relied on those misstatements.

We also held, however, that a defendant could rebut this presumption in a number of ways, including by showing that the alleged misrepresentation did not actually affect the stock’s price—that is, that the misrepresentation had no “price impact.” The questions presented are whether we should overrule or modify Basic’s presumption of reliance and, if not, whether defendants should nonetheless be afforded an opportunity in securities class action cases to rebut the presumption at the class certification stage, by showing a lack of price impact.

Halliburton II, 134 S. Ct. at 2405 (citation omitted). Without the presumption, plaintiffs would need to show “proof of individualized reliance from each member of the proposed plaintiff class[,] effectively . . . prevent[ing plaintiffs] from proceeding with a class action, since individual issues then would have overwhelmed the common ones.” Basic, 485 U.S. at 242. However, with a nod to stare decisis and finding no special justification to overturn its own precedent, the Court refused to give in to the pressure of numerous amicus curiae claiming that the presumption serves as the foundation of a “massive multibillion-dollar [litigation] industry.” See, e.g., Brief for Former SEC Commissioners and Officials and Law Professors as Amici Curiae in Support of Petitioners at 3, Halliburton II, 134 S. Ct. 2398 (Oct. 11, 2013) (No. 13-317).

By ruling that the presumption was rebuttable before certification, though, the Court tactfully allowed plaintiffs a path toward class certification status while still providing a powerful weapon to the securities defense bar to stave off certification and the hefty settlements that come with it. The Court then vacated the Fifth Circuit’s judgment, Erica P. John Fund, Inc. v. Halliburton Co. (Halliburton I), 718 F.3d 423 (5th Cir. 2013), because it did not allow Halliburton to present evidence rebutting the reliance presumption at class certification.

In a concurrence in the judgment only—penned by Justice Thomas and joined by Justices Scalia and Alito—Justice Thomas explained that, although he agrees that the Fifth Circuit’s judgment should be vacated, he (and Justices Scalia and Alito) would have done so by eliminating the Basic presumption entirely. Justice Thomas argued that the presumption is based on a “questionable understanding of disputed economic theory and flawed intuitions about investor behavior.” Halliburton II, 134 S. Ct. at 2420 (Thomas, J., concurring in judgment). But the opinion of the Court noted that any flaws in the economic theory relied upon for the presumption are accounted for by defendants’ ability to rebut the presumption when the particular economic assumptions do not apply.

Looking to the reception of the Halliburton II decision, defendants would have preferred to have the Basic presumption eliminated, or at least modified to place a higher initial burden on plaintiffs through requiring them to show actual—instead of presumed—price impact; plaintiffs would have preferred for rebuttal only at the merits stage, preserving for them the substantial settlements that usually quickly follow class certification. While neither side can call the Halliburton II decision a clear win, there is one group that certainly can—lawyers.

This ruling is likely to result in complex and hard-fought battles at the class certification phase of the litigation, a point underlined by the separate concurrence by Justice Ginsburg—with which Justices Breyer and Sotomayor joined—noting that discovery at the certification stage would have to be expanded to allow for possible rebuttal. Halliburton II, 134 S. Ct. at 2417 (Ginsburg, J., concurring). Because the Halliburton II decision did not eliminate the practical ability for plaintiffs to bring class actions but also did not relegate the battle of rebutting the reliance presumption until after probable settlement, the true winner here appears to be the lawyers bringing and defending securities fraud class actions, all of whom will have to conduct extensive discovery—including expert analysis—prior to certification resolution and prior to the settlements that typically have followed class certification decisions.

Keywords: litigation, trial evidence, securities fraud, class action, reliance, fraud-on-the-market, presumption

David J. Marmins and Rebecca I. Lunceford, Arnall Golden Gregory LLP, Atlanta, Georgia


June 25, 2014

Divergent Approaches to Authenticating Social Media Evidence

Addressing an issue of first impression, the Mississippi Supreme Court in Smith v. State, 136 So.3d 424 (Miss. 2014), held that evidence introduced by the state to authenticate photocopies of Facebook messages was insufficient. The state of Mississippi introduced Facebook messages purporting to contain conversations between the defendant and his wife regarding their marital problems and the defendant’s problems with his 17-month-old stepdaughter. The defendant was convicted of capital murder for the death of his stepdaughter and appealed his conviction, in part, because the Facebook messages were admitted. Under Mississippi Rule of Evidence 901(a), the authentication requirement “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Once a party makes a prima facie case of authenticity, the evidence goes to the jury for the ultimate determination regarding the evidence’s authenticity. 

To authenticate the Facebook messages, the defendant’s wife testified that she and her husband wrote letters to each other on Facebook, and that the photocopies were messages they had written to each other. The Mississippi Supreme Court held that the state failed to make a prima facie case that the profile that sent the messages actually belonged to the defendant and that the messages were actually sent by him. The Mississippi Supreme Court cited to the susceptibility of social media accounts for nonusers to gain access and the ease with which a Facebook account can be created as concerns for the authentication of social media evidence. Overturning the previous ruling by the Mississippi Court of Appeals on this issue, the Mississippi Supreme Court ruled that the trial court abused its discretion by admitting the evidence, but concluded that the error was harmless beyond a reasonable doubt and affirmed the defendant’s conviction. 

Two months before the Smith decision, the Delaware Supreme Court in Parker v. State, 85 A.3d 682 (Del. 2014), rejected the higher standard for authentication of social media evidence used by the Maryland Court of Appeals and adopted the Texas approach. The Maryland Court of Appeals focused on the concern that social media evidence could be fake, altered, or posted by another using the alleged creator’s profile. Griffin v. State, 19 A.3d 415 (Md. Ct. App. 2011). In Tienda v. State, 358 S.W.2d 633 (Tex. Crim. App. 2012), the Court of Criminal Appeals of Texas held that a proponent can authenticate social media evidence using any type of evidence so long as a jury could reasonably find the evidence is authentic. In the Texas approach, the jury, not the trial judge, resolves issues of fact when the authenticity of social media evidence is challenged, and this approach is a lower hurdle than the Maryland approach. The Delaware Supreme Court affirmed the trial court’s adoption of the Texas approach and held that the trial court did not abuse its discretion admitting Facebook posts that were authenticated by witness testimony and circumstantial evidence. Delaware also noted that courts in Arizona and New York have adopted the Texas approach.

Keywords: litigation, trial evidence, social media, authentication, FRE 901

Jennifer B. Routh, Nexsen Pruet, Columbia, SC


May 27, 2014

FRE 2014 Amendments: Clarifying Certain Hearsay Exceptions


One of the bedrock rules of evidence in the American judicial system is that hearsay—an out-of-court statement offered for the truth of the matter asserted—is generally inadmissible.  See Fed. R. Evid. 802.  The Federal Rules of Evidence (FRE) provide exceptions to the hearsay rule and, on April 25, 2014, the Supreme Court submitted to Congress four amendments to the FRE clarifying some of those exceptions. The FRE amendments will become effective on December 1, 2014 unless Congress enacts legislation to reject, modify, or defer the rules.  See 28 U.S.C. §§ 2074–75.

Rule 801(d)(1)(B):  Prior Consistent Statements
Rule 801(d)(1) excludes some statements from the hearsay rule if the declarant testifies at trial.   In particular, Rule 801(d)(1)(B) currently excludes a declarant’s prior statement that “(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.”  In other words, Rule 801(d)(1)(B) currently allows a witness’s prior consistent statement to be admitted substantively for the purpose of rebutting a charge of recent fabrication or improper influence or motive, but a witness’s prior consistent statement remains admissible only for rehabilitation if it is offered to explain a prior inconsistency or rebut a charge of faulty recollection. See Fed. R. Evid. 801(c)(2).

The 2014 amendment to Rule 801(d)(1)(B) will allow a prior consistent statement to be admitted substantively ineither scenario. It will provide that a statement is not hearsay if it:

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground . . . .

This amendment makes sense.  It “does not make any consistent statement admissible that was not admissible previously—the only difference is that prior consistent statements otherwise admissible for rehabilitation are now admissible substantively as well.”  Rep. of the Judicial Conference Comm. on Rules of Practice & Procedure, App. D, at 7–8 (Sept. 2013).  The distinction between offering a prior consistent statement substantively or for rehabilitation has little practical effect.  The witness has already testified, so the statement will not add new content to the proponent’s case.  This amendment is thus significant in how trial attorneys conceptualize admissible evidence, but it is unlikely to impact the conduct of trials.

Rules 803(6), (7), and (8): Business Records, Absence of Business Records, and Public Records

Rules 803(6), (7), and (8) provide exceptions to the hearsay rule for records of a regularly conducted activity (often called business records), the absence of a business record, and public records, respectively.  These rules state that business and public records are admissible once the proponent has established certain requirements tending to prove their authenticity, as long as no other circumstances indicate a lack of trustworthiness.  See Fed. R. Evid. 803(6)(E); 803(7)(C); 803(8)(B).

The trustworthiness subsections in the current  rules, however, do not identify which party bears the burden of proving a record’s trustworthiness or untrustworthiness. Although almost every court that has decided the issue has ruled that the opponent bears the burden of proof on this issue, see, e.g., Shelton v. Consumer Prods. Safety Comm’n, 277 F.3d 998, 1010 (8th Cir. 2002), a few courts have ruled that the proponent bears this burden, see, e.g., United States v. Dowdell, 595 F.3d 50, 72 n.18 (1st Cir. 2010).  The amendments resolve any conflict and clarify the rules, amending them as follows:

(6) Records of a Regularly Conducted Activity . . .
(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

(7) Absence of a Record of a Regularly Conducted Activity . . .
(C) neither the opponent does not show that the possible source of the information nor or other circumstances indicate a lack of trustworthiness.

(8) Public Records . . .
(B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.

Placing the burden of proof on the opponent of a record is logical.  The proponent has already established that the record satisfies certain criteria tending to prove its reliability; it is thus appropriate to require the opponent to prove any circumstances of untrustworthiness to keep the record from being admitted into evidence.

Keywords: litigation, trial evidence, FRE 2014 amendments, prior consistent statements, business records, Rule 801(d)(1)(B), Rules 803(6), 7), and (8)

Christopher J. Walsh, Ropes & Gray LLP, Boston, MA


April 7, 2014

Are Exceptions to the Hearsay Rule Outdated?


On February 13, 2014, the U.S. Seventh Circuit Court of Appeals affirmed the convictions of felon in possession of a firearm and felon in possession of ammunition after calling into question the validity and usefulness of the present sense impression, Fed. R. Evid. 803(1), and excited utterance, Fed. R. Evid. 803(2), exceptions to the hearsay rule. U.S. v. Boyce, 742 F.3d 792 (7th Cir. 2014). Notably, the concurring opinion by Judge Posner called for the replacement of the formalistic hearsay exceptions with a more practical, case-by-case hearsay analysis.

By way of background, immediately after being battered by the defendant, the defendant’s girlfriend ran to a neighbor’s house and called 911 requesting police assistance. When asked by the 911 operator if any weapons were involved, the girlfriend answered affirmatively “yes” that the defendant had a weapon in his possession. The responding officers arrived and witnessed the defendant retrieving and tossing a handgun into a nearby yard. The defendant was arrested and three .357 bullets were later recovered from Boyce’s pant pockets. At trial, the defendant’s girlfriend did not testify, but the 911 call recording and transcript, which was a major piece of evidence for the prosecution, was admitted into evidence over objection under the present sense impression and excited utterance exceptions to the hearsay rule.

On appeal, the Ninth Circuit initially questioned the reasoning and basis of the hearsay exceptions.  Stating that the present sense impression was based on the “folk psychology of evidence,” the Ninth Circuit found it difficult to take the exception “seriously” since witnesses are capable of “spontaneous lies in emotional circumstances.”  Further, the Ninth Circuit quoted other secondary sources on evidence that found that “the entire basis for the [excited utterance] exception may . . . be questioned” because of the “distorting effect of shock and excitement upon the declarant’s observation and judgment.” 

Nonetheless, the Ninth Circuit found no abuse of discretion in the district court’s decision to admit the 911 call under the present sense or excited utterance exceptions to the hearsay rule.  The Ninth Circuit outlined the requirements of the present sense impression and indicated that it likely applied in this case, without “definitely deciding” whether it failed as a proper exception since the statement was admissible as an excited utterance. To qualify as an excited utterance, the proponent is required to demonstrate that: (1) a startling event occurred; (2) the declarant made the statement under the stress of the excitement caused by the startling event; and (3) the declarant’s statement related to the startling event. The Ninth Circuit found all three requirements were met because the domestic battery was a startling event; the call was made just after the event when she was still under the stress of the excitement caused by the domestic battery; and the statement related to the domestic battery because it “described a threat posed by the man who battered her.”

In his concurring opinion which sought to “amplify” the majority’s opinion, Judge Posner questioned the validity of such formalistic hearsay rule exceptions. First, Judge Posner found the present sense impression’s rationale lacking because “immediacy” has been long subjected to subjective interpretation and “[e]ven real immediacy is not a guarantor of truthfulness.” Further, he questioned whether the exception was grounded in sound psychology since it was entered into the American legal system long before there was even a field for cognitive psychology.

Next, Judge Posner found even less support for the excited utterance exception since even a non-psychologist can find a lack of confidence or reliability in an unreflective utterance provoked by excitement. Noting that the Advisory Committee Notes to Fed. R. Evid. 803(2) admit to the exception’s criticisms, Judge Posner found that the exception “rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.”  Not wanting to leave an impression that he would see a reduction in the amount of admissible hearsay evidence, Judge Posner concluded by stating that the hearsay rule is “too complex” and “archaic” such that trials would be better served with a simple rule, similar to Fed. R. Evid. 807, which would admit hearsay evidence (1) when it is reliable, (2) when the jury can understand its strengths and limitations, and (3) when it will materially enhance the likelihood of a correct outcome.

Keywords: litigation, trial evidence, excited utterance, present sense impression, hearsay rule, exceptions, witness testimony, reliability

Daniel "Danny" J. Dysart, Frilot L.L.C, New Orleans, LA


January 21, 2014

Attorney's Declaration of Hours Worked by Paralegal Insufficient to Support Award


A recent Ninth Circuit opinion underscores that any declarations submitted in support of a request for attorney fees must be based upon personal knowledge. In Muniz v. United Parcel Service, Inc., ___ F.3d ___, 2013 WL 6284357 (9th Cir. Dec. 5, 2013), a plaintiff asserting an employment discrimination claim against United Parcel Service (UPS) prevailed at trial and sought to recover attorney fees. In support of the request for fees, the plaintiff’s lead attorney submitted a declaration attesting to the hours he had worked on the case, and to the hours his paralegal had worked on the case. He also submitted a spreadsheet tallying his paralegal’s hours. The paralegal did not submit her own declaration. The district court awarded the plaintiff approximately $700,000 in attorney fees, including more than $55,000 in paralegal’s fees. In a narrowly focused appeal, UPS contested only the award of fees with respect to the paralegal.  UPS argued that portion of the award constituted an abuse of discretion by the district court, in part because the award of paralegal’s fees was based on inadmissible hearsay.

Even though the lead attorney’s declaration stated that (1) he had personal knowledge of the paralegal’s hours expended and tasks performed; (2) he watched her tabulate her hours; (3) the spreadsheet showed her hours; and (4) the hours listed in the spreadsheet reflected those the paralegal had actually worked, the Ninth Circuit nevertheless agreed that the statement as to the paralegal’s hours constituted hearsay. The court explained:

Hearsay is a statement by someone who does not testify at a hearing and which is offered to prove the truth of the matter asserted in the statement. Fed. R. Evid. 801(c). Here the matter asserted in the statement is the hours expended by [the paralegal] in this case and contained in the spreadsheet. We are satisfied that the only reasonable interpretation of [the lead attorney’s] declaration is that [the paralegal] provided this information to him. It was therefore hearsay and the district court’s conclusion to the contrary clearly mistaken.

The court rejected the plaintiff’s argument that the district court’s error was harmless.  Therefore, it remanded the case to the district court with instructions to reconsider the award of paralegal’s fees and to determine whether any hearsay exception applied.

Keywords: litigation, trial evidence, attorney fees, hearsay, Fed. R. Evid. 801(c)

Shawn J. Gebhardt, Winston & Strawn LLP, Chicago, IL


January 20, 2014

Illinois Appellate Court Rules in People v. Richardson


In People v. Richardson, 995 N.E.2d 477 (Ill. App. Ct. 2d Dist. 2013), the Illinois Appellate Court considered whether lay witness opinion evidence that a defendant was wearing body armor while committing a crime was properly admitted at trial. Defendant Jaron R. Richardson was convicted of the crime of unlawful possession of a weapon by a felon, with a statutory enhancement to a Class X felony for committing the offense while wearing body armor. At trial, the court permitted two police officers to testify about their observations of Richardson after his arrest, during the booking process. One officer testified that Richardson “was wearing a bullet-proof vest.”  Another officer testified that Richardson’s vest had “trauma plates” to protect vital organs and a special insert covering the center of the chest, whose purpose was “to stop bullets.”  One opined that the vest was best described as “soft body armor.”  Both officers agreed that Richardson’s vest was like the ones they wore every day.

On appeal, Richardson argued that the trial court erred by admitting the police officer’s lay opinion testimony that the vest in question was “body armor.” Richardson contended that the court allowed the officer to usurp the jury’s function on an ultimate issue in the case. Similar to its Federal Rule counterpart, Illinois Rule of Evidence 701 permits lay opinion testimony if the witness’s opinions “are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge.” The court concluded that the officer’s testimony was properly admitted because his opinion was based on his examination of the vest, as well as his experience of wearing similar vests every day. Additionally, he had explained to the jury his basis for believing the vest was body armor. Furthermore, because the vest itself was admitted into evidence, the jury could draw its own conclusion about the nature of the garment. Therefore, the court rejected Richardson’s argument, and affirmed his conviction. 

In support of its conclusion, the court cited a number of cases from Indiana, Ohio, Virginia, and Texas, in which officer testimony that a defendant’s garment was a “bullet-proof vest” or “body armor” was admitted without objection and deemed sufficient to support a conviction. None of these cases, however, involved a direct challenge to the admissibility of such testimony, so the Richardson court appears to have tread new ground.

Keywords: litigation, trial evidence, lay opinion, body armor, witness testimony

Shawn J. Gebhardt, Winston & Strawn LLP, Chicago, IL


November 12, 2013

Controversial "Reptile" Strategy Crawls into Courtroom


A tactic known as the “Reptile” strategy has made its way from litigation literature, to law school books, to the courthouse, and is projected to remain a major trial evidence issue for years to come. See e.g.,Fifteenth Motion in Limine, Jahnke v. Encana Oil & Gas, et al., 9th J.D.C. Fremont, Wyoming, Case No. 38686.

The book Reptile: The 2009 Manual of The Plaintiff's Revolution lays out the specifics of this trial and discovery tactic. One goal of the “Reptile” strategy is to portray each case to shift the jurors’ brains into survival mode, compelling the juror to put his or her and the community’s interest over logic or the specific facts of a given case.

The strategy requires demonstrating a particular safety rule and demonstrating a defendant violated the rule, which put the plaintiff and community in needless danger. Opponents of the strategy contend it is a veiled attempt to get in evidence or testimony otherwise forbidden by the golden rule, which prohibits evidence or instruction which asks the jurors to depart from neutrality and decide a case based on potential harms and losses that could have occurred within the community, including each juror and his or her family members. Opponents also argue the strategy encourages jurors to decide cases in a vacuum and to possibly ignore other proximate causes of the instant injury or harm, such as comparative negligence, discovery of a defect, assumption of risk, improper use, misuse, intervening causes, alterations, or conduct of third parties.

Proponents counter that opponents of the strategy overlook that jurors must consider relevant community safety threats in the context of a “reasonable person” standard in reaching their decisions. They go on to allege community safety is a key component of the punitive damages analysis, i.e., whether the conduct posed an extreme danger to the community.

A recent report on the issue cites to over 85 motions filed by defense attorneys motioning to exclude evidence employing this reptilian strategy. Recent motion practice solidifies this emerging strategy and the increasing litigation relating to its propriety in the courtroom.

Keywords: litigation, trial evidence, "Reptile" strategy, trial tactic, survival mode, jurors, threats, safety rule, danger, community , evidence, testimony, discovery, reasonable person standard

Katie L. Dysart, Baker, Donelson, New Orleans, LA


September 3, 2013

Emotional Distress Case Raises Questions of Relevance in Social Network Postings


Giacchetto v. Patchogue-Medford Union Free Sch. Dist., 2013 U.S. Dist. LEXIS 83341 (E.D.N.Y. May 6, 2013), questions the relevance of social network postings to emotional distress damages and rejects the view that the “private” section of a plaintiff’s Facebook account is discoverable only if the plaintiff’s “public” Facebook activity contains information that undermines the plaintiff’s claims.

The plaintiff, a school teacher, sought emotional distress damages under the ADA from the defendant school district, based on allegations that, once she disclosed her attention-deficit/hyperactivity disorder (ADHD) diagnosis, she was mocked by other employees and transferred to a different classroom and grade level. The school district moved to compel production of all records from the plaintiff’s Facebook and other social networking accounts.

The magistrate considering the motion held that Rule 26(b)(1)’s relevance standard applied to the defendant’s social media requests the same way it applies to traditional discovery materials.  In so holding, the magistrate expressly rejected the approach taken by a number of courts that the “private section of a Facebook account” is not discoverable absent a “threshold evidentiary showing that the plaintiff’s public Facebook profile contains information that undermines the plaintiff’s claims.” The magistrate reasoned that the standard applied in these cases produced “results that are both too broad and too narrow.” That is, a plaintiff should not have to turn over private Facebook postings, which may not contain relevant information, merely because public postings undermine the plaintiff’s claims. But the plaintiff should be required to produce relevant “private” information, regardless of the content of the “public” section of the plaintiff’s account.

Applying this “traditional relevance analysis,” the magistrate denied the school district’s request for all records from the plaintiff’s social media accounts, reasoning that “a plaintiff’s entire social networking account is not necessarily relevant simply because he or she is seeking emotional distress damages.” In so holding, the magistrate expressly rejected a line of authority allowing broad discovery of a plaintiff’s social network postings simply because emotional distress damages are sought, and accordingly permitted defendant access only to postings that either reference the plaintiff’s claimed emotional distress or an alternative potential stressor.

Keywords: litigation, trial evidence, relevance, social network postings, emotional distress, private information, Facebook

John C. deMoulpied, Barack Ferrazzano Kirschbaum & Nagelberg LLP, Chicago, IL


July 11, 2013

Supreme Court Guts the "Right to Remain Silent"


At issue in Salinas v. Texas, U.S. Supreme Court, No. 12-246 (June 17, 2013) was the continued vitality of the oft-cited doctrine there is no talismanic formula or ritualistic incantation that an individual must satisfy in order to invoke and exercise their Fifth Amendment right to remain silent in the face of police interrogation.

The Supreme Court, in a 5-4 decision without a majority opinion, has cleared up the “ambiguity” of decades of law adhering to this principle by holding that a ritualistic incantation is very much necessary in order successfully to invoke one’s Fifth Amendment rights in all but two narrowly defined circumstances, so much so that merely exercising one’s right to remain silent by—drum roll, please—simply remaining silent in the face of a police interrogation conducted after one is identified as a suspect in a crime at a police station is inadequate, such that a suspect’s unelaborated silence in the face of police questioning is itself admissible as evidence of his or her guilt.

According to the Court’s opinion, Salinas was questioned by police during the course of a murder investigation. After initially cooperating with police and answering their questions, Salinas clammed up when asked whether he thought ballistics tests conducted on his personal shotgun might show a match with shell casings found at the crime scene. Salinas was subsequently indicted and tried in Texas state court. During Salinas’s trial, and over his objection, the prosecution used Salinas’s failure to answer the investigators’ questions as probative evidence of guilt. Salinas was convicted, and both the Texas court of appeals and Texas Supreme Court rejected his arguments on appeal that the use of his silence as evidence of guilt violated the Fifth Amendment of the U.S. Constitution. 

The Supreme Court affirmed Salinas’s conviction. Justice Alito, joined by Justice Kennedy and Chief Justice Roberts, stressed that a party seeking to invoke the Fifth Amendment generally must affirmatively claim the privilege, subject to only two specific exceptions: (1) that a defendant need not take the stand at his own criminal trial to invoke the privilege; and (2) where the failure affirmatively to invoke the privilege is the result of governmental coercion. 

According to these justices, allowing one to invoke the privilege merely by standing mute in the face of police interrogation would be “insolubly ambiguous” and difficult to reconcile with cases allowing interrogation to continue of a suspect or other individual even if he or she initially refuses to answer questions. Justices Thomas and Scalia, concurring in the result, would actually have gone even further, arguing that referencing an accused’s silence or refusal to answer as an indicia of guilt (or even as the basis for an adverse presumption) does not constitute a violation of the right against self-incrimination. According to Justices Thomas and Scalia, the Court’s prior precedence prohibiting a prosecutor or judge from commenting on a defendant’s failure to testify should not be extended beyond the narrow confines of that decision because the case law “lacks foundation in the Constitution’s text, history, [and] logic.”

In dissent, Justice Breyer, joined by Justices Ginsberg, Sotomayor, and Kagan, stressed Supreme Court precedence and an “underlying practical rationale” that seem to preclude evidence and commentary at a criminal trial of “the fact that he stood mute or claimed his privilege in the face of accusation” (citing Miranda v. Arizona, 384 U.S. 436, 468 n. 37 (1966)). Of particular significance to the dissent was their concern that the majority ruling puts suspects in a seemingly impossible predicament during police interrogation of both speaking and remaining silent and seems to demand that ordinary citizens appropriately invoke a “ritualistic formula” in order to effectively invoke their Fifth Amendment rights, a scenario the Court suggests was rejected “more than half a century ago” in Quinn v. United States, 349 U.S. 155, 164 (1955).

Moreso, the dissent argues that cases requiring an express and affirmative invocation of one’s Fifth Amendment right (as suggested by the majority) “are cases where (1) the circumstances surrounding the silence (unlike the present case) did not give rise to the inference that the defendant intended by his silence to exercise his Fifth Amendment right; and (2) the questioner greeted by the silence (again unlike the present case) has a special need to know whether the defendant sought to rely on the protections of the Fifth Amendment.” (emphasis in original.) 

For the dissent, the circumstances in play in the case at hand—including interrogation by police officers of someone identified as a suspect at a police station about a patently incriminatory subject matter—“give rise to a reasonable inference that Salinas’s silence derived from an exercise of his Fifth Amendment rights” and arise in circumstances lacking “any special reason that the police had to know, with certainty, whether Salinas was, in fact, relying on the Fifth Amendment.” 

Finally, the dissent noted that many, indeed most, Americans are aware that they have a constitutional right not to incriminate themselves by answering questions posed by the police during an interrogation conducted in order to figure out the perpetrator of a crime,” yet may not know exactly how (or even whether) they are supposed to invoke that right verbally.

Keywords: litigation, trial evidence, Fifth Amendment, right to remain silent, police interrogation

Kent A. Lambert, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, LA


July 11, 2013

Kentucky to Decide Applicability of Same-Sex Marital Privilege


In the context of an upcoming murder trial, Commonwealth v. Bobbie J. Clary, Case No. 11-CR-003329 (Jeff. Cty. KY), a Kentucky court is poised to address the applicability of the state’s spousal privilege to same-sex couples, married under the laws of Vermont some nine years before. Under Kentucky Rule of Evidence 504, one spouse has the right to refuse to testify against the other as to events occurring after the date of their marriage (as well as to prevent one’s spouse from providing such adverse testimony), as well as more generally to preclude testimony as to confidential communications occurring within the marital regime. Like all privileges, the marital privilege in Kentucky is subject to exceptions, such as where one spouse is accused of a crime against the other spouse or a child within the couple's household. In articulating such exceptions, courts generally seek to balance the purpose of enhancing and preserving the marital relationship with the exclusion of valuable and useful evidence. 

Because Kentucky does not recognize same-sex unions, the question becomes whether (and, if so, how) the court will value the enhancement and preservation of a same-sex union unrecognized under state law relative to the exigencies of the pending murder case. At least one state court in Maryland confronted with the same issue ruled in favor of applying that state’s spousal privilege in similar circumstances.

The case presents an interesting early insight into the impact of the U.S. Supreme Court’s recent decisions regarding same-sex unions.

Keywords: litigation, trial evidence, same-sex unions, marital privilege

Kent A. Lambert, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, LA


July 11, 2013

Sixth Circuit Addresses "Rule of Completeness" for Coconspirator Out-Of-Court Statements


In United States v. Parenteau, No. 12-3176, 2013 WL 3214934 (6th Cir. Jun. 27, 2013), the defendant appealed a multi-count criminal conviction, including a count for obstruction of justice. In part, the defendant complained that the district court improperly allowed portions of taped conversations between the defendant and an avowed coconspirator under Fed. R. Evid. 801(d)(2)(E) (governing statements of coconspirators) to substantiate the obstruction of justice charge without allowing the defendant to introduce other, exculpatory portions of the same taped conversations, which the defense contended violated the rule of completeness set forth in Fed. R. Evid. 106. The Sixth Circuit found that Rule 106 had no application:

This rule “allows a party to correct a misleading impression created by the introduction of part of a writing or conversation by introducing additional parts of it necessary to put the admitted portions in proper context.” But the rule does not allow a party to admit evidence that is otherwise inadmissible . . . Here, Parenteau loses on both points: the admitted portions of the tapes were not misleading (he does not argue otherwise), and the portions he says should have been admitted were inadmissible hearsay. . . . The district court did not abuse its discretion in admitting the recordings.

Keywords: litigation, trial evidence, Rule of Completeness, coconspirators

Kent A. Lambert, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, LA


July 10, 2013

D.C. Court Weighs In on Post-Trial Challenge to Jury Verdict Based on Racial Bias


In Kittle v. United States, 65 A.3d 1144 (D.C. Ct. App. 2013), the court was confronted with a letter submitted by an African American juror shortly after the conviction of an African American defendant on three of nine criminal counts. In the letter, the juror expressed frustration with the length of deliberations in the case, which the juror attributed to overt racism on the part of several other jurors. The letter was provided by the court to counsel in the case, and the defendant subsequently moved for a mistrial. The trial court denied the motion, finding no basis for concluding from the letter that the verdict was tainted by racial bias.

On appeal, the D.C. Court of Appeals concluded that a trial judge does have discretion to hear allegations of juror racial bias, citing to United States v. Villar, 2009 WL 3728787 (1st Cir. 2009), which reached a similar conclusion under Fed. R. Evid. 606(b).  The D.C. Court of Appeals then went on to conclude that the trial judge did not abuse its discretion in declining to pursue the instance before it any further:

First and most importantly, the trial judge reasoned that, the verdict itself was nuanced; appellant was convicted of three counts, acquitted on three counts, and granted a mistrial on the remaining six counts, which were the most serious. If the verdict had been affected by racial bias, the trial court reasoned, it is arguably likely that appellant would have been convicted of all counts. Second, Juror 237's letter expressed frustration with delays in deliberations caused by her fellow jurors' racist sentiments, but did not call the verdict into question by suggesting that the verdict should be reconsidered. Third, during deliberations, the jury submitted 13 notes to the judge—none of which indicated a concern with racial bias. Finally, when defense counsel and the prosecutor met with the jurors after the verdict to discuss the trial, none of the jurors mentioned to either counsel that racial prejudice affected the verdict.

Keywords: litigation, trial evidence, jury verdict, racial bias, trial judge

Kent A. Lambert, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, LA


July 10, 2013

Court Rules on Admission of Prior Inconsistent Statement


In Barron v. State, __ So.3d __, Case No. 2011-01422, 2013 WL 2402916 (Miss. Ct. App. Jun. 4, 2013), a murder trial, the Mississippi court of appeals was called upon to address the appropriateness of the trial court’s admission of a critical prior inconsistent statement by the only eyewitness to the crime. The prior inconsistent statement was elicited through the testimony of a friend of the eyewitness, who attested to a description of the murder allegedly provided to her by the eyewitness a day after the crime that was materially different from that provided by the eyewitness at the murder trial. The prior statement was avowedly admitted under Mississippi Rule of Evidence 801(d)(1)(A) (which is substantively similar to Fed. R. Evid. 801(d)(1)(A)), for all purposes, including to prove the truth of the matter asserted, rather than merely for purposes of impeachment, even though the prior statement was not given under oath.

Affirming the lower court's evidentiary ruling, the court of appeal found that even though the testimony was in fact inadmissible as non-hearsay under Mississippi Rule 801(d)(1)(A), because it would nonetheless have been admissible solely for purposes of impeachment in any event, the admission of the statement—without any limiting instructions—was not a prejudicial error.

Keywords: litigation, trial evidence, prior statement, admissibility, eyewitness testimony, non-hearsay

Kent A. Lambert, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, LA


July 10, 2013

"The Gates of Hell Cemetery" Nickname at Issue in Kentucky Case


In Anglin v. Commonwealth of Kentucky, Case No. 2011-CA-000985, 2013 WL 2257829 (Ky. Ct. App. May 24, 2013), the Kentucky court of appeals was confronted with a challenge to the lower court's decision to allow testimony over the defense’s objection referring to the cemetery where the alleged criminal acts at issue occurred by its local nickname—“The Gates of Hell Cemetery”—despite the defense’s offer of a stipulation as to the location of the cemetery where the alleged crime occurred.

Upholding the lower court’s decision, the Kentucky court of appeals found that the location of the cemetery needed to be established to confirm venue, and that in doing so it was appropriate to refer to it by the name it is commonly known by. The defense’s offer to stipulate to the location of the cemetery did not alter the analysis. 

Keywords: litigation, trial evidence, stipulation as to location, cemetery

Kent A. Lambert, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, LA


June 12, 2013

Importance of Securing a Non-Waiver Order under
Rule 502(d)

A short but sweet discovery order from the Southern District of New York highlights the importance of securing a non-waiver order pursuant to Federal Evidence Rule 502(d) that is not limited to just inadvertently produced privileged information. In Brookfield Asset Management, Inc. v. AIG Financial Products Corp., No. 09 Civ. 8285 (S.D.N.Y. Jan. 7, 2013), Magistrate Judge Frank Maas held that certain portions of draft AIG board minutes remained privileged even though those portions could be read when the corresponding metadata was reviewed. Magistrate Judge Maas had two reasons for his holding.  First, he ruled that a finding of waiver was not warranted even though the redacted portions of the draft minutes remained visible through the metadata. Second, he ruled that even if this failure had resulted in a waiver, the Rule 502(d) stipulation and order agreed to by the parties would have protected against any waiver and kept the draft minutes privileged. The court stated:

Third, even if AIG or its counsel had dropped the ball (which they did not), the parties at my urging had entered into a Rule 502(d) stipulation which I so ordered on February 11, 2011. See Fed. R. Evid. 502(d). That stipulation *** contains one decretal paragraph, which provides that “Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege . . . .” Accordingly, AIG has the right to claw back the minutes, no matter what the circumstances giving rise to their production were.

Keywords: litigation, trial evidence, non-waiver order, Federal Evidence Rule 502(d), privileged information, discovery

Jay A. Yurkiw, Porter, Wright Morris & Arthur LLP, Columbus, OH


June 12, 2013

Federal Judicial Center Publishes Updated Benchbook

In March 2013, the Federal Judicial Center published the sixth edition of the Benchbook for U.S. District Court Judges. For the first time, the Benchbook includes a section on civil case management, including how to address e-discovery issues. The Benchbook also adds new jury instructions regarding the use of social media and electronic devices by jurors during trials.

The updated Benchbook reflects the impact that technology and e-discovery are having on pretrial litigation and trials. Although the current draft amendments to the Federal Rules of Civil Procedure are still a ways off from being approved, the Benchbook has included recommendations for addressing e-discovery issues which incorporate key concepts found in those draft amendments as well as in existing local federal court initiatives.

Keywords: litigation, trial evidence, Federal Judicial Center, Benchbook for U.S. District Court Judges, e-discovery

Jay A. Yurkiw, Porter, Wright Morris & Arthur LLP, Columbus, OH


November 6, 2012

Text Etiquette in the Courtroom

Professor Colin Miller, editor of the EvidenceProf Blog, recently collected three cases concerning the admission and use of text messages at trial.

In Gulley v. State, 2012 WL 4712207 (Ark 2012), the Arkansas Supreme Court addressed the use of corroborative testimony, circumstances, and “distinctive characteristics” pursuant to Arkansas's version of Fed. R. Evid. 901(a) and 901(b)(1) and (4) to authenticate text messages purportedly sent by a murder suspect. In that case, testimony from an employee of Verizon Wireless, which maintained the cell-phone account associated with the device that sent the disputed text messages, coupled with testimony from witnesses that either corroborated facts or information mentioned within the emails or established that voice calls were placed by the defendant from the same phone number close in time to the text message at issue, could suffice to authenticate a text message as having been sent by the defendant. Notably, based on these holdings, the supreme court found it unnecessary to reach the defendants principal argument that the mere fact that text messages came from a number assigned to the defendant was of itself insufficient to authenticate the text as having been sent by the defendant. Another issue left unaddressed by the court (because it found it had not been properly preserved at trial) was whether the text messages at issue should have been excluded because they were obtained in violation of the federal Stored Communications Act, 18 U.S.C. § 2701 et seq. (which requires the use of a search warrant rather than a prosecutor’s warrant in connection with criminal proceedings) and/or in violation of the defendant’s constitutional due process and illegal search rights.

In State v. Wilkerson, 2012 WL 4867697 (N.C. App. 2012), a North Carolina intermediate appeals court again relied on that state's version of Fed. R. Evid. 901(b)(4) to uphold the authentication of a text message based on the contents and substance of the email, coupled with circumstantial evidence, including eyewitness testimony attesting to the defendant’s use of a cell phone at a time close to the text message and at a place consistent with expert testimony relying on cell-tower data tracking the location of the phone, as well as related expert testimony tracking the cell phone from the defendant’s home to the location he was seen using a cell phone and back to his home within the relevant time frame.

Finally, in Funches v. State, 2012 WL 436635 (Nev. 2012), the Nevada Supreme Court addressed the application of the present sense impression and excited utterance exceptions to the hearsay rule under Nevada's version of Fed. R. Evid. 803(1) and (2) to text messages from a witness to a violent crime sent the morning after. While concluding that texts sent hours after the crime had occurred (and after the witness had gone to sleep) did not fit under the present sense impression exception to the hearsay rule, the same text messages did fit under the excited utterance exception based on the witnesses testimony that she was still under the stress of having witnessed the bloody aftermath of the crime.


Keywords: litigation, trial evidence, Arkansas Supreme Court, text messages, admissions, Stored Communications Act, witness testimony


Kent A. Lambert, Shareholder and Vice-Chair, Business Litigation Practice Group at
Baker, Donelson, Bearman, Caldwell & Berkowitz, PC


August 30, 2012

Stealing Property Not Close Enough to Stealing Trade Secrets

The U.S. Court of Appeals for the Sixth Circuit recently affirmed the exclusion of key 404(b) evidence in the prosecution of husband and wife engineers for the alleged theft of General Motors’s trade secrets. See United States v. Qin, No. 2:10-cr-20454 (6th Cir. July 20, 2012).

Former GM employee Shanshan Du and her husband, Yu Qin (a non-GM employee), were charged with wire fraud, conspiring to possess and possessing GM’s trade secrets, and other related charges. Id.at 1. After employing the three-step analysis outlined in United States v. Jenkins, 345 F.3d 928, 936 (6th Cir. 2003), the Sixth Circuit rejected the government’s proffer of 404(b) evidence related to the husband’s alleged misappropriation of his own employer’s resources and property. According to the court, the proffered evidence was “highly prejudicial” and “of a fundamentally different character” than the charged offenses, such as the theft of GM’s trade secrets. Thus, it was properly excludable under Rules 404(b) and 403. See id. at 9.

Keywords: litigation, trial evidence, Sixth Circuit, trade secrets


August 6, 2012

Receipts Must Be Authenticated to Be Entered as Evidence

Moore v. Charter Foods, Inc., 5:11-CV-150-JMH, 2012 WL 1313342 (E.D. Ky. 2012), a personal injury case, provides support for authentication of a receipt either by testimony from someone with personal knowledge about how the receipt was kept and where it was found or by testimony from a witness with personal knowledge about the underlying transaction the receipt documents.

The plaintiff, Moore, alleged that he contracted Salmonella after eating at two Taco Bell restaurants on May 28, 2010. The plaintiff fell ill on or about May 31, 2010, and suffered severe gastrointestinal symptoms. He was later diagnosed with Salmonella. To support his claim that he had eaten at a Taco Bell in London, Kentucky, he produced a drive-through receipt dated May 28, 2010, from that Taco Bell. In his deposition, the plaintiff testified that his friend, Judy Duerson, found the receipt, either in her home or in his, and gave it to him after he fell ill because she thought the receipt might be important. During his deposition, the plaintiff also could not remember if he ate at the London Taco Bell on May 28, 2010. The owners of the London Taco Bell moved for summary judgment arguing that the plaintiff could not establish that he ate at the London Taco Bell because, among other reasons, he could not demonstrate the authenticity of the receipt.

The court found that the “Plaintiff does not have first-hand knowledge of where the receipt was found” and concluded “there is no indication that the receipt can be authenticated as evidence of a purchase made by Plaintiff.” In addition, the court noted that no one had personal knowledge of the purchase at the London Taco Bell. Consequently, because no one had first-hand knowledge of where the receipt was found or of the purchase that the receipt allegedly documented, the receipt could not be authenticated.

Keywords: litigation, trial evidence, personal injury, receipts


August 6, 2012

Best-Evidence Rule Doesn't Apply with Doubts on Authenticity

Rainess v. Est. of Machida, 81 So. 3d 504, 512 (Fla. 3d Dist. App. 2012) involves the distribution of assets in an individual retirement arrangement (IRA) account and provides guidance about the application of the best-evidence rule.

In 1998, Keiko Machida opened an IRA worth more than $1.5 million. On opening the account, Machida completed and submitted a beneficiary-designation form. Machida later married Errol Rainess in 2001 and died shortly thereafter. When the bank was notified of Machida’s death, it discovered that it had lost the beneficiary-designation form. The bank did, however, locate a computer entry that read, “REC SIGNED SIMP PRIMARIES ERROL RAINESS HUSBAND 50%, HIDEKAZU YAMASHITA NEPHEW 50%.” Based on this entry, the bank took the position that Rainess was entitled to 50 percent of the IRA and that the other 50 percent should be distributed to Hidekazu Yamashita, Machida’s nephew. Rainess, on the other hand, claimed entitlement to the entire fund, relying on what he claimed was a photocopy of the designation form that listed Rainess as the IRA’s sole beneficiary.

At trial, the bank presented testimony from a former IRA department supervisor who examined the document and concluded that it was both incomplete and ambiguous. He testified that if a form like this had been submitted to the bank, it would have been rejected, and a notation would have been placed on Machida’s file. The bank also presented testimony from an expert who concluded that the document provided by Rainess was a forgery.

Rainess argued that the alleged photocopy satisfied the best-evidence rule, and the notation in the bank’s computer system was secondary evidence that should not be considered. The court held that the beneficiary-designation form was a document that gave rise to legal rights, and under the best-evidence rule, if an original writing is provided, it precludes consideration of secondary evidence about the contents of the writing. A photocopy of the original document also precludes consideration of secondary evidence.

The court determined that the best-evidence rule did not apply to the alleged photocopy, however, because there was a genuine question about its authenticity. According to the court, the former bank employee’s testimony that any IRA beneficiary-designation form received by the bank that looked like the one presented by Rainess would have been rejected and noted in the client’s file raised a genuine issue of fact.

The testimony of a forensic document examiner that the document provided by Rainess had some attributes suggesting it was forged also raised an issue of fact. The court concluded that enough questions of fact were raised that the best-evidence rule did not apply. The court also pointed out that the document provided by Rainess was still admissible for the fact finder to weigh against the secondary evidence provided by the bank.

Keywords: litigation, trial evidence, best-evidence rule


August 6, 2012

Press Release Is Hearsay Without Authenticating Website

Residential Funding Co., LLC v. Thorne, 2012 ___ Ohio ___ 2552 (6th Dist. June 8, 2012), a challenge to a foreclosure action, provides guidance about the authentication of a press release and whether it is admissible as evidence for the truth of the matter asserted.

Residential Funding Co., LLC, foreclosed on Gary Thorne’s home. During the litigation, Thorne alleged that affidavits Residential Funding submitted in support of its motion for summary judgment were fraudulently signed by “robo-signers.” In support of this position, he presented an October 6, 2010, press release from the Ohio attorney general’s office about the filing of a lawsuit against GMAC that accused GMAC of “filing fraudulent affidavits to mislead courts in hundreds of Ohio foreclosures.” The press release further detailed that “[t]he fraud came to light after a GMAC employee, Jefferey Stephan of Sellersville, Pa., testified in a foreclosure case out of Maine that from 2006 to 2010, he signed thousands of affidavits without verifying the content.”

In determining whether the press release could be authenticated, the court first stated that some federal courts have held that a press release is a self-authenticating official publication under Fed. R. Evid. 902(5). The court identified that a common thread among the federal cases finding press releases self-authenticating was identification of government websites posting the document that the court could visit to determine authenticity for itself. Because the press release offered by Thorne did not identify a website where it was found, the press release was not self-authenticating. The court also noted that it had searched the Ohio attorney general’s website and had not been able to locate the press release.

The court also determined that the press release was inadmissible hearsay. “The press release stated that Stephan testified he signed thousands of affidavits without verifying the content.” The court stated that Stephan’s testimony was a first layer of hearsay that might be a non-hearsay admission by a party opponent, but the court found that the press release itself did not fall into any of the hearsay exceptions. According to the court, the only possible exception was rule 803(8), which excludes from hearsay certain types of records from public agencies. The court analyzed several federal court decisions and concluded that, under the Federal Rules of Evidence, “a press release is admissible under the hearsay exception for public records and reports.” However, the court stated that Ohio’s version of the 803(8) exception is narrower than the federal rule because it does not contain a provision including as a hearsay exception “factual findings resulting from an investigation made pursuant to authority granted by law.” The court concluded that a press release does not fall under the Ohio version of 803(8) and should be treated “more akin to a newspaper article, and is therefore inadmissible hearsay.”

Keywords: litigation, trial evidence, hearsay, press releases


July 19, 2012

Iowa Allows Civil Jury Questioning

A recently implemented rule in Iowa state courts now permits jury questioning of certain witnesses in civil cases. Effective July 1, 2012, the new rule is similar to those implemented by other courts and makes Iowa one of a number of states to allow such questioning by jurors.

Jury questioning in civil matters is the universal norm in the federal circuits. The Iowa rule sets specific procedures for the submission of jury questions to witnesses. Under the new rule, at the close of questioning by counsel, the trial judge has the discretion to allow jurors to submit questions for the witnesses. If allowed, the questions must be approved by the judge and then shown to counsel for possible objections before being submitted to any witness. Jurors are not permitted to discuss questions or answers among themselves prior to beginning their official deliberations. A majority of the states now have in place similar rules and procedures.

Keywords: litigation, trial evidence, Iowa, civil jury questioning


July 19, 2012

Judicial Admission in Pleadings Is Binding Even if False

Thurman v. Bayshore Transit Mgmt., Inc., 203 Cal. App. 4th 1112 (4th Dist. Feb. 27, 2012), a labor-code violations case, provides guidance about the effect of admissions in a pleading on a trial.

Bus drivers and their union brought suit against city-transit contractors for labor-code meal and rest-break violations. The plaintiffs’ complaint admitted that the defendants had provided meal periods, as required, since July 2003. The trial court ruled that the plaintiffs were not bound by this admission, stating, “The court declines the invitation to elevate pleading form over the facts as they emerged at trial. To do so would give dignity to the ‘gotcha’ theory of litigation.” In addition, the trial court in fact found that the defendants had not met their obligations under the labor code to provide all required meals.

The appellate court determined that the trial court erred when it allowed the plaintiffs to deviate from the judicial admission in the pleadings. According to the appellate court, a judicial admission in a pleading is different from evidence but still binding on a party because “[i]t is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues.” The appellate court further stated that “[b]ecause an admission in the pleadings forbids the consideration of contrary evidence, any discussion of such evidence is irrelevant and immaterial.”

In response to the trial court’s concern that holding the plaintiffs to their pleadings “would give dignity to the ‘gotcha’ theory of litigation,” the appellate court stated that holding the plaintiffs to their judicial admission would not “elevate pleading form over the facts as they emerged at trial” because a party can always move to amend pleadings to cure any judicial admissions. In fact, the appellate court suggested that the amendment of pleadings to cure errors that result in a judicial admission should be freely allowed, but failure to do so means that the trial court must treat the fact as admitted. The court also noted that the defendants had prejudicially relied on the admission in the pleading.

Keywords: litigation, trial evidence, admissions, labor code


July 19, 2012

Spoliation Inference Not Possible with Absence of Evidence

Ramsey v. Gamber, 2012 WL 851228 (11th Cir. Mar. 15, 2012), a negligence case involving a football player’s re-injury while allegedly following a trainer’s instructions, sheds light on when a spoliation inference is permissible.

Austin Ramsey played football for Auburn University. He injured his spine while lifting weights. Following successful orthopedic surgery, Ramsey returned to regular football training. Gamber, Auburn’s head football trainer, put together a rehabilitation schedule with the help of Auburn’s strength coach. The training program was verbally approved by the team physician. “However, no copy of the plan was introduced into evidence and none was found in Ramsey’s medical chart.”

During a weight-room session during Ramsey’s rehabilitation, one of the weight-room coaches instructed Ramsey to perform squats and “box step ups” while wearing a 50-pound weighted vest and holding two 35-pound dumbbells. According to Ramsey, the weight-room coach told Ramsey that the exercises were “on the list.” While performing the exercises, he re-injured his back and needed additional surgery that ended his football career.

Ramsey sued Gamber for creating a rehabilitation plan that caused his re-injury, because weightlifting had been prohibited by Ramsey’s surgeon but Gamber had included weightlifting on the plan. The district court granted summary judgment on all of Ramsey’s claims.

According to the appellate court, Ramsey “introduced no evidence showing that Defendant Gamber breached a duty he owed to Ramsey,” and “Ramsey has produced no evidence that Gamber included the injury-causing exercises in Ramsey’s exercise regimen. . . . Rather, Gamber testified that he had not authorized Ramsey to exercise with weights on the day he was re-injured.”

Ramsey claimed that the missing rehabilitation plan entitled him to an adverse inference of Gamber’s negligence and at least created a material issue of fact for a jury, but the appellate court found that no adverse inference could occur in the absence of evidence that someone destroyed the written plan.

Keywords: litigation, trial evidence, Eleventh Circuit, negligence, spoliation inference


July 19, 2012

Circuit Court Balances Probative Value, Prejudicial Effects

Whitehead v. Bond, 680 F.3d 919 (7th Cir. 2012), provides guidance about how to balance the probative value of evidence with its potential prejudicial effect.

Daniel Whitehead was stopped for a traffic violation. When Chicago police officers found crack cocaine in his car, he attempted to flee. His mother, Sarah Whitehead, who lived nearby, was told by a neighbor, “you have to get down to the corner,” and “they’re killing your son.” When Sarah Whitehead arrived at the scene, she claims she was accosted by the officers, arrested for no reason, and “placed in the prisoner wagon for five to ten minutes before releasing her.” Sarah Whitehead brought a Section 1983 action against the Chicago police officers for false arrest and excessive force.

Before trial, Whitehead moved to exclude evidence of events that preceded her arrival. “The district court (over the plaintiff's objection) admitted testimony concerning events that took place before Whitehead’s arrival on the scene, but agreed with plaintiff that charges or guilty pleas as to Daniel . . . should be excluded.” After a four-day trial, the jury returned a verdict in favor of the officers. The district court then denied Whitehead’s motion for a new trial. She appealed.

In considering Whitehead’s appeal, the appellate panel first stated the familiar rule that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” but that use of the evidence needs to be balanced with the risk of unfair prejudice. The court stated that the balance is achieved using “a sliding scale approach: as the probative value increases, so does our tolerance of the risk of prejudice.” The panel also stated that “one measure of relevance is whether its exclusion would leave a chronological and conceptual void in the story.”

The first category of evidence that Whitehead sought to exclude was testimony about Daniel’s actions before she appeared on the scene. However, the appellate panel found that this testimony was critical to giving a full picture of what happened, because the

testimony explained why Whitehead’s neighbor said, “They’re killing your son,” why Whitehead hurried to the scene and inquired about her son, why approximately eighteen police officers were there, and why a sizeable crowd had gathered. This background information allowed the jury to put Whitehead’s, the officers’, and the crowd’s conduct in context. That made it relevant.

In addition, the testimony was relevant “because it tended to make the [police officers’] testimony that the crowd was hostile more believable,” which explained why the “officers had reasonable grounds to promptly maintain control of the crowd.”

The second category of evidence that Whitehead sought to exclude was evidence that crack cocaine was found in Daniel’s car. The Seventh Circuit panel found this evidence more problematic and stated that it had “minimal probative value in relation to the danger of unfair prejudice.” The panel, however, determined that any error was harmless and noted that “[t]he district court could have given a limiting instruction to help alleviate any unfair prejudice, but Whitehead didn't request such an instruction and so none was given.” In addition, the parties told the jury that the case was not about Daniel and his conduct, and Whitehead was allowed to present evidence that she was a professional with a steady job.

Finally, Whitehead sought to bar testimony that the neighborhood where the events occurred was a high-crime area. The appellate panel first stated that the foundation was laid to give this testimony because the officers involved testified that they had patrolled the neighborhood for a number of years and no other statistics about crime were required. The panel then found that the testimony was relevant because “[t]he officers could reasonably consider the characteristics of the area in assessing the situation and deciding what action to take to maintain control [of the crowd].” The panel agreed that the evidence was prejudicial but did not find it unfair because the jury also heard testimony that the neighborhood was mostly made up of “good hardworking homeowners and retired citizens.”

Keywords: litigation, trial evidence, probative value, prejudicial evidence, Seventh Circuit


June 20, 2012

Florida Court Examines What Makes Expert Opinions Helpful

Clena Investments, Inc. v. XL Specialty Ins. Co., 2012 WL 266422 (S.D. Fla. Jan. 30, 2012), an insurance-dispute case, provides guidance about when opinions in an expert’s report are reliable and helpful to the trier of fact.

Clena Investments sued XL Specialty Insurance when XL denied Clena’s claim for damages to the roof of its building from Hurricane Wilma. XL retained EFI Global to investigate the causes of damage to Clena’s property, and EFI concluded that the bulk of the damage to the building was “normal long term deterioration caused by wear and tear.” EFI also attributed some of the damage to improper installation and other causes. “In response to EFI’s report, Clena engaged Vandin Calitu to review and opine on EFI’s report and on the probable cause of the damage to the Property.”

XL filed a motion to strike Calitu’s report. XL challenged Calitu’s opinion that the “probability that Hurricane Wilma damaged the Property is much higher than the probability that Hurricane Frances inflicted the damages.” The magistrate first stated that the fact that EFI and Calitu undertook similar processes for evaluating the property, evaluated similar evidence, and that neither performed mathematical calculations to reach their conclusions, while “not dispositive on the question of the sufficiency of Calitu’s process, where EFI and Calitu—both engineers—undertook essentially the same process . . . does suggest that the methodology enjoys at least some acceptance in the engineering community.”

The magistrate then analyzed two aspects of Calitu’s opinion that Hurricane Wilma was most likely the cause of damages. First, the magistrate examined Calitu’s opinion “that Hurricane Wilma most probably caused the damage to the property” based on a six-factor test. The court found that use of the test was unreliable because Calitu admitted that the six-factor test that was not “generally accepted within the engineering community.” Thus, the court concluded that the test “enjoyed no scientific basis.”

Second, the magistrate examined Calitu’s opinion “that Wilma most likely inflicted the damage to the Property” because, “had the roof had its current level of damage before Wilma hit, Wilma would have ripped the roof-membrane off the Property.” The magistrate found that Calitu’s opinion was reliable because “Calitu’s experience as an engineer and his visual inspection of the Property provide the basis under this analysis.”

More specifically, Calitu testified that, as a result of his training and experience, he knows where to look and what to look for when inspecting a property for damage, and, as a professional engineer, he understands the import of cracks and holes that an untrained person would not. He further appreciates the impact of high winds on property, having to take these effects into account when building to ensure Hurricane Code compliance.

Finally, the magistrate held that Calitu’s opinions were helpful to the triers of fact because Calitu had knowledge and training that enabled him to opine about how the condition of the roof before Hurricane Wilma affected whether the hurricane would have caused the roof to blow off. Calitu’s testimony was also helpful because he had specialized knowledge and training to determine whether damage to the property was caused by Hurricane Wilma.

Keywords: litigation, trial evidence, expert reports, insurance


June 20, 2012

Facebook Photos Allowed if They Have Probative Value

Johnson v. Ingalls, 944 N.Y.S.2d 654, 656 (2012), a personal-injury case, explains that photographs from a social-networking site are admissible as evidence if their probative value about damages the plaintiff suffered outweighs their potential for prejudice.

The plaintiff brought suit against the defendant for injuries she suffered when she “jumped or fell” from a vehicle driven by the defendant. The plaintiff suffered a fractured skull as a result of the accident and “claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, that her anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication.”

Before the trial, the trial-court judge conducted an in camera review of photographs obtained from the plaintiff’s Facebook page and excluded the majority of them as “unduly prejudicial, cumulative or insufficiently probative.” However, the trial court allowed around 20 of the photos for use during cross-examination of the plaintiff.

The photos admitted were taken over a 1½-year period beginning shortly after the accident. They depicted plaintiff attending parties, socializing and vacationing with friends, dancing, drinking beer in an inverted position referred to in testimony as a “keg stand,” and otherwise appearing to be active, socially engaged and happy. They further revealed that plaintiff consumed alcohol during this period, contrary to medical advice and her reports to her physicians.

After a trial, the jury returned a verdict for the defendant. On appeal, the plaintiff contended that photographs obtained from her Facebook page were improperly admitted into evidence because they were unduly prejudicial. The appellate court began its review of the trial court’s decision by stating that the “discretion of trial courts in rendering evidentiary rulings is broad.” The appellate court held that the “photographs had probative value with regard to plaintiff's claimed injuries, their evidentiary value was properly balanced against their potential for prejudice, and we find no abuse of discretion.”

Keywords: litigation, trial evidence, personal injury, social networking, photographs


June 13, 2012

Hearsay Within Hearsay Admissible in Malpractice Case

Konop v. Rosen, 425 N.J. Super. 391 (App. Div. 2012), provides guidance about when a notation in a physician’s report, which is hearsay within hearsay, is nonetheless admissible as an exception to the hearsay rule. The opinion also examines the application of Rule 104(a) to the admissibility analysis.

The plaintiff, Adele Konop, filed a malpractice suit after she suffered a perforated colon during a colonoscopy performed by the defendant, Dr. Ellen J. Rosen. The plaintiff’s expert, Dr. Meyer N. Solny, opined that Rosen deviated from accepted medical standards by failing “to ensure that the patient was adequately sedated and not moving during the procedure and by [failing] to stop the procedure when excessive patient movement occurred.” Solny’s opinion rested exclusively on a notation that appeared in a hand-written consultation report prepared by Dr. Victor S. Flores on the plaintiff’s admission to the hospital following the colonoscopy.

While Flores could not remember exactly who he spoke with when preparing the report, he testified that he “typically obtained his information from his ‘supervisor, [his] senior, and [his] attending.’”

In the consultation report, after noting plaintiff’s age and the fact that her colon had been “accidentally perforated,” Flores wrote: “Pt. has tics and was moving too much at time of procedure. Dr. Rosen was performing the procedure and called surgery for poss. Laparotomy.”

Rosen, however, denied ever telling anyone that the plaintiff was moving too much during the colonoscopy or that she called for a surgical consult while “performing” the procedure.

Rosen moved to bar the notation as inadmissible hearsay. The trial-court judge held a Rule 104(a) hearing and determined that the notation was inadmissible hearsay and granted summary judgment is Rosen’s favor. The plaintiff appealed.

The appellate court began its analysis by stating that Flores’ notation was hearsay within hearsay because the report itself was hearsay and the notation was likely based on Flores’ conversation with another doctor. The court then determined that the consultation report itself was a business-record exception to the hearsay rule. The business-record exception exists when three conditions are satisfied: “First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.” In this case, the report was made in the regular course of business because “Flores testified that he would routinely prepare consultation reports as part of his duties at the hospital.” The court also noted that the sources of information in the report were “Flores’ supervisors, superiors or the attending physician, McLean, none of whom were likely to supply untrustworthy information given the context.”

Next, the appellate court noted that the findings of medical experts contained in otherwise admissible medical records are excluded under New Jersey law if they are “diagnoses of complex medical conditions.” The rationale for this rule is that “medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question.” In this case, because the notation was a factual statement, not an opinion or complex diagnosis of a medical condition, it was not subject to exclusion.

Finally, the court analyzed whether the notation, which was itself hearsay based on Flores’ alleged conversation with the defendant, fell under an exception to the hearsay rule. The appellate court quickly dismissed the argument that the notation was an exception as a “past recollection recorded” because it was not a statement that Flores, who was not present during the colonoscopy, would have made while testifying. The court also dismissed the argument that the statement was an exception because it was the type of evidence routinely relied on by an expert.

Ultimately the appellate court found that the statement was admissible as a “statement offered against a party which is . . . the party’s own statement.” To reach this conclusion, however, the appellate court needed to deal with Rosen’s denial of having made the statement. According to the court, the admissibility of the statement rested on the purely factual question of whether the plaintiff could “demonstrate that the notation accurately reflected a statement made by defendant.”

When the “condition” for admissibility is purely a factual determination as to whether the hearsay statement was made by an adverse party, the issue should be submitted to the jury to determine whether the condition was fulfilled. This is particularly true when the disputed fact “is so closely tied to an ultimate issue in the case.”

The appellate court found that there was significant circumstantial evidence that Rosen made the statement. The appellate court also stated that, “[u]ndoubtedly, there is significant contrary evidence” because Flores “can[not] directly attribute the statement to defendant, who denies not only making the statement but also that plaintiff was ‘moving too much’ during the procedure.” Consequently, the appellate panel determined that the evidence should be admitted and the jury should “have the opportunity to assess defendant’s testimony and credibility.”

Finally, the appellate court notes that “[i]f the case proceeds to trial, the judge must provide a limiting instruction that the disputed notation may only be considered if the jury finds by a preponderance of the evidence that defendant made the statement.”

Keywords: litigation, trial evidence, hearsay, exception to the hearsay rule, malpractice


June 6, 2012

Business Records and a Lesson on Laying a Foundation

Of course a hospital’s business manager with 28 years of experience is competent to testify that patient charges are “ordinary and customary.” This is especially true when evidence is also presented that the charges are comparable to those of other hospitals in the area. Or so you would have thought. However, a trial court in Pemiscot County, Missouri, held otherwise. St. Francis Medical Center v. W. Edward Reeves, 356 S.W.3d 813 (Mo. App. 2012). There, during a bench trial regarding unpaid medical bills, the court sustained an objection that the sole witness was unqualified to testify from her own knowledge as to the reasonableness and necessity of the bills because she was not a licensed medical physician. Exclusion of this evidence resulted in a judgment against the hospital.

This was a contract case, not a medical malpractice case. The contract being enforced was an admissions document, signed by the patient, which stated that the patient agreed to pay the hospital “in accordance with its regular rates and charges for services and goods at the time rendered.” On appeal, the hospital argued that its business manager laid the foundation necessary to admit the records and was qualified as someone with “knowledge of the value of the services rendered, the amount paid, and outstanding balance.” The appellate court agreed, reversing the judgment and remanding with the direction to receive said evidence into the record and give it whatever weight the court deems appropriate. The lesson learned is this: Don’t take the art of laying a foundation for granted.

Keywords: litigation, trial evidence, business records, contracts


June 6, 2012

First Circuit Allows Videos from News Broadcasts

Notable for New Lawyers

In a case alleging the use of excessive force by Federal Bureau of Investigation (FBI) agents, the First Circuit Court of Appeals considered whether video clips recorded from local newscasts and offered as evidence by the FBI were properly authenticated and complied with the best-evidence rule. Asociacion De Periodistas De Puerto Rico v. Mueller, 2012 WL 1699915 (1st Cir. May 16, 2012).

The plaintiffs, a group of journalists, brought claims involving excessive force against several FBI agents. The FBI defendants submitted video clips from material aired during local news broadcasts. The plaintiffs argued that the film clips may not be relied on in deciding this case because they were not properly authenticated and because they violate the best-evidence rule, Fed. R. Evid. 1001(2).

The First Circuit Court of Appeals began its analysis of the authentication issue by stating that “[a]uthentication is a straightforward concept requiring a ‘reasonable probability’ that the item in dispute is what its proponent claims.” The proponent of the document does not need to rule out all possibilities that the document is something other than what it claims. Rather, the evidence must be “sufficient to allow a reasonable person to believe the evidence is what it purports to be.”

The court described the clips as being from “multiple news programs” with “locally-known television personalities” all showing “the same incident from different camera perspectives.” The video clips were accompanied by a declaration of the general manager of a company the FBI hired to collect clips from local news broadcasts stating that the recordings provided to the court were “true and correct copies” of the original clips aired on local news programs. According to the First Circuit, these facts taken together suggest “these are actual news clips with footage form the scene” and were properly authenticated.

While the plaintiffs did not dispute that the copies were accurate, they alleged that the videos were incomplete and extensively edited. In response, FBI agents who had been at the scene testified that the videos were an accurate representation of what occurred. The First Circuit Court of Appeals dismissed the authentication challenge based on the allegation that the videos were incomplete or edited by stating that the plaintiffs could have argued against admissibility based on undue prejudice, but “there is no serious basis for disputing the authenticity of the videos.”

The plaintiffs also challenged the admissibility of the video clips under the best-evidence rule. While the best-evidence rule “requires the use of an original writing, recording, or photograph,” a copy of a video recording is a “duplicate” that is admissible like the original. Citing Fed. R. Evid. 1001 and Fed. R. Evid. 1003 Advisory Committee’s Note. The plaintiffs argued that the advisory committee note contains an exception for copies that leave out important material. The First Circuit characterized this argument as a repackaging of the plaintiffs’ authentication attack, and the appellate court again stated that issues of the videos being incomplete does not mean they do not accurately depict the scenes they purport to depict, and, therefore, there is no reason to exclude them based on the best-evidence rule.

Keywords: litigation, trial evidence, best-evidence rule, authentication


June 6, 2012

Expert Witness in Probate Case Never Spoke to Deceased

In a probate case, the Court of Appeals of Ohio considered whether the admission of a psychiatrist’s expert-witness opinion violated Ohio Rules of Evidence 703 and 705, which deal with the same subject matter as Federal Rules of Evidence 703 and 705 but take very different positions. In re Estate of Lucitte v. Kenneth Lucitte, slip copy, 2012-Ohio-390 (Ohio. Ct. App. 2012).

After Louise Lucitte’s death, her brother, Earnest, filed a complaint against her other brother, Kenneth, along with Kenneth’s son and daughter in-law. Earnest asserted that Louise was incompetent and under undue influence when she made several hundred thousand dollars’ worth of inter vivos transactions benefitting the defendants. Earnest sought to have the probate court declare those transfers invalid and impose a constructive trust.

At trial, the defendants presented testimony from multiple witnesses, including Louise’s primary-care physician, that Louise had the capacity to make her own decisions until the very end of her life. Earnest’s principle witness was a Dr. Burke, a psychiatrist retained as an expert witness who testified that, in his opinion, Louise had not had the capacity to make her own decisions for at least three years before her death. The expert witness never met Louise while she was alive and based his decision on medical records and other documents, including attorney letters, court documents, and letters and affidavits of the parties and other witnesses. After hearing testimony from the fact and expert witnesses, the jury found that the disputed transfers from Louise to the defendants were the result of undue influence, and the court ordered the defendants to return those transfers to the estate.

The defendants appealed, arguing that Dr. Burke did not lay the proper foundation under Ohio Rule of Evidence 705 for the opinion testimony that Louise was incompetent and susceptible to undue influence every moment from 2004 until her death and that Dr. Burke did not base his opinion on facts or data perceived by him or admitted into evidence in violation of Ohio Rule of Evidence 703. The appellate court found that Dr. Burke “specifically testified that he primarily relied upon the medical records to form his opinion,” but that he also reviewed nonmedical record evidence that was not all identified or authenticated. Consequently, the appellate court held that these nonmedical records could not form the basis for any opinions because they violate Rule 703, which requires an expert’s opinions to be based on “only his own perception or facts and evidence in the record.” However, the court also held that this was harmless error because “all of the references to the evidence that Dr. Burke made were facts in the medical records.”

In summary, the appellate court found that Ohio Evid. R. 705 was satisfied because the “testimony was sufficiently supported by references to the evidence in the record,” and the court found that Ohio Evid. R. 703 was satisfied because all “specific facts and data were admitted into evidence” and the defendants “stipulated to the authenticity and admissibility of certain medical records prior to trial.”

Keywords: litigation, trial evidence, probate, Ohio, expert witnesses


June 6, 2012

Personal-Injury Case with No Physical Evidence Reversed

In a personal injury case, the Court of Appeals of Mississippi considered the admission of opinion evidence. Mitchell v. Barnes, 2010-CA-00036-COA (¶¶ 2, 3, 5, 16-26, 29-34) (Miss. Ct. App. 2012)

The plaintiff and the defendant were involved in an automobile accident. When a police officer arrived at the scene of the accident, she conducted an investigation that did not appear to include any physical evidence, relying instead on interviews. She concluded that the defendant was easing into the roadway in a car and clipped the plaintiff’s motorcycle, causing the accident, although she did not issue a citation. The plaintiff’s testimony largely matched the officers, and he also produced an expert in accident reconstruction to testify. This expert did not rely on any physical evidence, but rather on an undocumented interview with the police officer from more than a year after the accident. The defendant objected that the expert had insufficient data to support his conclusions, but the court admitted his testimony over the objection. The jury returned a verdict for the plaintiff and the defendant appealed the admission of the testimony of the expert and the police officer.

The court of appeals initially noted that the trial court did not conduct a Daubert evidentiary hearing, ruling that the issue should be dealt with at trial during cross-examination. The appellate court then discussed the trial court’s “gatekeeping responsibility” to evaluate the reliability of proffered expert testimony before its admission and the fact that the cross-examination approach would not meet that responsibility. The opinion then examined the expert testimony and found many ways in which it was inadequately supported, including the lack of physical evidence, imprecision and arbitrariness in the data that he used in calculations, and reliance on personal recollections of others long after the time of the accident. After this, the court ruled that the trial court erred in admitting the testimony, both because it neglected to act as a “gatekeeper” and because the testimony itself was unreliable and unsubstantiated.

The court of appeals then turned to the testimony of the police officer, who was never identified or tendered as an expert witness. After noting that she was permitted to testify to the details of an accident that she had not witnessed, the appellate court found that such testimony required knowledge beyond that of an average adult and, therefore, was expert, not lay, testimony. It found that she could give such testimony on remand only after being qualified as an expert witness. Finally, the court of appeals disposed of the case by reversing and remanding.

Keywords: litigation, trial evidence, testimony, expert witnesses, personal injury


June 6, 2012

Personal Journal Violates Best-Evidence Rule

In a family-law child custody case, the New York Supreme Court, Appellate Division, considered when a journal is admissible in court under the past recollection recorded exception to the hearsay rule. Saperston v. Holdaway, 940 N.Y.S.2d 728 (2012).

The family-court judge granted the parties joint custody of their child and designated the father as the primary residential parent. In reaching its conclusion, the trial court relied on the father’s journal, which had been admitted into evidence. The mother appealed the ruling, arguing that the journal was impermissible hearsay that should not have been admitted into evidence or relied on by the trial court.

The appellate court began its analysis by stating that there is no question that the journal constitutes hearsay. The appellate court then analyzed whether the journal was an exception to the hearsay rule as a past recollection recorded. According to the court, a past recollection recorded must relate to matters the witness observed and that were “fairly fresh when recorded or adopted.” In addition, a past recollection recorded is only available as evidence when the witness is “presently unable to recall the facts of the matter.” In this case, the journal failed on both counts. The father did not testify that he could not recall the events recorded in the journal. And “although the father testified that he made the entries contemporaneously with the events contained therein, a review of the journal reflects that the father later added commentary and/or observations on the events discussed.”

The appellate court was also concerned that “the journal contains alleged re-creations of texts and e-mails between the parties, which were not produced.” Consequently, the journal also violated the best-evidence rule.

In summarizing its ruling, the appellate court held that, while counsel for the father “could have utilized the journal to refresh the father’s recollection as to specific dates or events, the court erred in allowing the admission of the entire document in evidence.” Finally, the appellate court rejected the argument that the admission of the journal was harmless because it “contains numerous prejudicial ‘notes’ concerning the father’s impressions of the mother and justifications for his conduct, and the court referred to the journal in its decision.”

Keywords: litigation, trial evidence, family law, hearsay


June 6, 2012

Deposition Allowed Despite Death Before Cross-Examination

Trascher v. Territo, 2011–2093, pp. 1–2 (La. May 8, 2012), an interlocutory appeal of a motion in limine, examines the admissibility of incomplete depositions taken to perpetuate testimony.

Joseph Trascher, recently diagnosed with asbestosis and not expected to live much longer, petitioned for an ex parte order to perpetuate his testimony for an anticipated suit against former employers. The order was granted, and, in cooperation with the lawyers for his expected defendants, a deposition was scheduled. Shortly after the deposition began and before any cross-examination, Trascher was unable to continue due to fatigue, and the deposition was recessed. Trascher died before the deposition was able to be continued. Later, Trascher’s wife and daughters filed suit on wrongful death and survivorship claims. Eventually, the defendants moved for an in limine order to preclude admission of the deposition into evidence, as no defendant had been able to cross-examine Trascher. The trial court ruled that the deposition was admissible. The defendants appealed the denial of the motion in limine.

The Louisiana Supreme Court began by expressing the importance of the right to cross-examine witnesses. It then turned to the statute allowing for depositions to perpetuate testimony, reading the language of the statute (“a deposition . . . may be used against any party who was present or represented at the taking of the deposition”) to include a requirement that the party must have been allowed to cross-examine the witness. As there was no such opportunity, the court ruled that the deposition was inadmissible under that statute. The court then reviewed the admissibility of the deposition under exceptions to the hearsay rule. The court first rejected admission as a “dying declaration,” holding that statements made during a terminal illness do not qualify, as death isn’t sufficiently imminent. A small portion of the deposition, answering the question, “And today how do you feel?” was then deemed admissible under the “state of mind” exception. Finally, the court also examined the “residual” hearsay exception, noting the official comments that limit this exception to “truly extraordinary circumstances.” The court found this exception inapplicable, ruling that the deposition did not contain sufficient indicia of trustworthiness. In conclusion, the court affirmed in part, reversed in part, and remanded for trial.

This case also resulted in a dissenting opinion, where the majority was taken to task for changing the statute to include a requirement for cross-examination. The dissent also notes that most other jurisdictions permit the admission of partial depositions under similar circumstances, citing several cases, mostly in federal courts. Finally, the dissent contends that the legislature expressly granted the courts discretion over whether or not to admit such depositions.

Keywords: litigation, trial evidence, deposition, testimony, hearsay rule


April 30, 2012

Uncontradicted Testimony Must Still Be Given Weight

In Hamilton v. Hojeij Branded Food, Inc., No. 11-AA-332, 2012 WL 1215317 at *1–5, *7, *11 (D.C. April 12, 2012), an appeal of a denial of a claim for unemployment compensation benefits, the District of Columbia Court of Appeals considered the proper weight to give uncontradicted testimony.

After a series of absences from and a late arrival at work, Hamilton was fired. A claims examiner denied her claim for unemployment compensation benefits, and she appealed the decision to an administrative law judge. Hamilton testified as to the reasons for her absences and claimed that all of them were beyond her control. The employer presented no evidence to rebut her claims. The administrative law judge, however, determined that Hamilton had engaged in misconduct and was therefore ineligible for unemployment compensation benefits. She then appealed that ruling to the court of appeals.

While citing precedent cautioning against appellate fact-finding, the court of appeals recognized that there is “a rebuttable presumption that each witness, including [a] part[y], has sworn to the truth.” It also noted that testimony that has not been contradicted or discredited may not be ignored by the fact-finder. The court discussed the possibility that even uncontradicted testimony could be disregarded if it was found to not be credible, but the court found that there were no indicia of lack of credibility in this case. The court finally concluded that the administrative-law judge failed to give sufficient weight to Hamilton’s uncontradicted testimony and reversed.

Keywords: litigation, trial evidence, District of Columbia, uncontradicted testimony


April 30, 2012

Federal Circuit Denies Settlement Negotiations Privilege

In In re MSTG, Inc., Misc. No. 996, 2012 WL 1155736 (Fed. Cir. Apr. 9, 2012), a mandamus case in the course of a patent action, the Federal Circuit considered, as a matter of first impression, the existence of a settlement negotiations privilege.

MSTG sued several cellular providers for patent infringement, eventually settling with all but AT&T. Several of the settlement agreements involved the granting of licenses to the patents at issue to the defendants. In the course of discovery, MSTG produced these settlement agreements. AT&T sought further discovery into the negotiations that produced the agreements. Eventually, the district court entered an order compelling MSTG to produce the negotiation documents. MSTG then petitioned the Federal Circuit for a writ of mandamus to vacate the order.

The Federal Circuit declined to invoke Rule 501 of the Federal Rules of Evidence to recognize a settlement negotiations privilege. The court cited several factors identified by the Supreme Court that weigh against the finding of such a privilege, including the lack of an equivalent privilege at the state level, Congress’s failure to create such a privilege when drafting Rule 408 of the Federal Rules of Evidence, the dubious nature of the purported public good such a privilege would serve, and the quantity of exceptions that would be necessary for such a privilege. These factors, in addition to the protections available under the Rule 26 discovery process, led the court to deny recognition of a settlement negotiations privilege.

Keywords: litigation, trial evidence, settlement negotiations privilege, Federal Rules of Evidence, Federal Circuit


April 30, 2012

Are Photos Taken a Year Later Helpful to Juries?

Lambert v. Coonrod, 2012 IL App (4th) 110518 (4th Dist. March 5, 2012), a mortgage foreclosure case, involves the question of whether pictures of an accident scene taken a year after the accident are helpful to the jury or unduly prejudicial.

“In August 2009, Richard [Lambert] filed a complaint in negligence against Coonrod after an October 2008 fall with injury on Coonrod’s property. Richard alleged he was helping Coonrod with a project that required him to reach for a light above him. While mounting a coil spool, Richard fell backward and landed on the spool.” At trial, Coonrod offered into evidence photos of the scene of the accident. Richard objected because the photos were taken a year after the accident, and they showed a ladder and other items that were not present at the time of the accident. The trial court allowed the pictures.

The appellate court stated that the decision of whether to admit a photograph was within the sound discretion of the trial court, so long as a witness who has personal knowledge of the subject matter depicted in the photograph testifies that the photographs are a fair and accurate representation of the subject matter at the relevant time. According to the appellate court, the decision of whether to allow photographs requires balancing the tendency of the photographs to help determine a fact in question with any possibility that the photographs are misleading or prejudicial.

In this case, the court found that the defendant was able to identify that the pictures were a fair and accurate representation of the scene of the accident and the layout of the shed, although not the particular items present at the scene at the time of the accident. The court found that the fact that the pictures showed a ladder that was not available at the time of the accident was not unduly prejudicial because the jury was able to understand that the ladder wasn’t there at the time of the accident, the defendant testified that he purchased the ladder after the accident, and the court admonished the jury that the photos were being admitted to show the layout of the accident scene and not to concern itself with the items depicted in the photos.

Keywords: litigation, trial evidence, photographs, admissibility


April 30, 2012

Illinois Court Clarifies Exception to Hearsay Rule

People v. Peterson, 2012 IL App (3d) 100514-B, ¶¶ 7–8, 10–12, 21, 24–25, an interlocutory appeal in a criminal case, provides clarification on the contours of the forfeiture by wrongdoing exception to the hearsay rule.

In this case, the defendant is accused of murdering his third wife. The state sought to admit into evidence 14 statements by his third and fourth wives under both a recently amended provision of the Code of Criminal Procedure and the common-law doctrine of forfeiture by wrongdoing (which had been adopted by the Illinois Supreme Court in 2007). After a hearing, the trial court found that the state proved by a preponderance of the evidence that the defendant murdered his third and fourth wives with the intent to make them unavailable as witnesses. The trial court also found that six of the statements contained sufficient “safeguards of reliability” and could be admitted into evidence, while the remaining eight did not and should be excluded. The court’s order addressed only the statutory provision and not the common-law doctrine, later stating that it believed the statute (which requires “safeguards of reliability”) to be a codification of the common-law rule (which does not) and therefore controlling.

The appellate court ruled that, due to separation of powers, the supreme court, not the legislature, is the ultimate authority in matters relating to the admission of evidence. As a consequence, the supreme court’s adoption of the doctrine of forfeiture by wrongdoing trumps the conflicting statute passed by the legislature. The resulting exception to the hearsay rule thus only requires the defendant to have intentionally made the witness unavailable to prevent her testimony. Reliability is not an element of the test, despite the legislature’s attempt to make it one.

Keywords: litigation, trial evidence, hearsay rule, forfeiture by wrongdoing, Illinois


April 30, 2012

Maine Court Provides Guidance on Establishing Facts

Wells Fargo Bank, NA v. deBree, Cum-11-337, 2012 WL 822532 (Sup. J. Ct. of Maine, Mar. 13, 2012), a mortgage foreclosure case, provides guidance about the need for a party seeking to establish a fact by judicial notice to lay an appropriate foundation for the court.

On January 19, 2010, Wells Fargo Bank, NA, filed a complaint for foreclosure against the deBrees. “The complaint alleged that the deBrees were in default of a mortgage note owned by the [b]ank.” The deBrees denied they were in default and denied the allegation that Wells Fargo owned the note because they were “unaware of the truth or falsity” of this alleged fact.

Wells Fargo moved for summary judgment and submitted a supporting affidavit of a “vice president of loan documentation” at the bank. The affidavit stated that the original note was payable to Residential Mortgage Services, Inc., and that Residential Mortgages had assigned the note to Wells Fargo. The assignment, however, stated that the note was assigned to Wells Fargo Home Mortgage, Inc., and not to Wells Fargo Bank, NA. The affidavit did not “address the distinction between the two entities.” Based on the affidavit, the trial court entered summary judgment in favor of the bank.

On appeal, the Supreme Judicial Court of Maine vacated the summary judgment order and remanded. The Supreme Judicial Court found that because the bank did not offer evidence of the relationship between the two bank entities, there was no evidence that the plaintiff owned the note. To cure its evidentiary failure the bank asked the Supreme Judicial Court to take judicial notice of an alleged merger between Wells Fargo Home Mortgage, Inc., and Wells Fargo, NA. The court refused to take judicial notice of the merger because the bank did not ask the district court to take judicial notice of this fact, “[n]or did the bank present any factual foundation upon which either the [district] court or we could take such judicial notice. . . . Thus, even if we were to consider taking judicial notice as requested by the [b]ank, the record before us on appeal is devoid of the necessary foundation for us to do so.”

Keywords: litigation, trial evidence, mortgages, judicial notice


March 30, 2012

Damages Are Based on Potential, Not Actual, Earnings

Andler v. Clear Channel Broad., Inc., 670 F.3d 717 (6th Cir. 2012), provides guidance about when an expert’s testimony about lost earnings is considered overly speculative.

The plaintiff, Andler, was at a campground rented by Clear Channel for a music festival. Andler stepped into a hole and fell, breaking several bones in her feet and eventually developing arthritis in her feet. The arthritis prevented her from continuing her part-time occupation as a child-care worker. Instead, Andler began a career as a manicurist and pedicurist that resulted in an increase in her annual salary during her first two years in the profession.

Andler sued Clear Channel for damages, including loss of earning capacity. To claim lost earning capacity, Andler needed to show “the extent of prospective damages flowing from the impairment.” Clear Channel moved to exclude the testimony of the plaintiff’s expert witness about “loss of earning capacity on the grounds that he used a statistical average salary in calculating Andler’s pre-inury earning capacity that was several thousand dollars higher than Andler’s actual pre-injury annual salary.” The district court granted the motion because the statistical average was “unreasonable speculation.”

On appeal the Sixth Circuit reversed. According to the Sixth Circuit, the measure of prospective damages is “the difference between the amount which the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter.” (Emphasis added.) Further clarifying, the Sixth Circuit stated that the inquiry is between what the plaintiff “could have earned over the course of her working life,” not what she actually earned. Consequently, the key inquiry was lost earnings capacity, not simply lost earnings.

The panel held that a damages analysis incorporating statistical averages is relevant to what a plaintiff could have earned so long as there is no evidence that clearly contradicts the possibility that the plaintiff would have earned as much as the statistical average. The Sixth Circuit pointed out that Andler testified she was working part-time before her injury because she had a young child and that she would have begun working full-time when her child was older. Because this testimony was “not unreasonable as a matter of law,” the expert testimony based on statistical averages should not have been excluded.

Keywords: litigation, trial evidence, expert testimony, speculation, Sixth Circuit, earning capacity


March 30, 2012

It Doesn't Take an "Expert" to Name That Tune

Range Rd. Music, Inc. v. E. Coast Foods, Inc., 668 F.3d 1148, 1151 (9th Cir. 2012), provides guidance about whether testimony must be provided by an expert or if it can be provided by a lay witness.

East Coast Foods owned and operated Roscoe’s House of Chicken and Waffles in Long Beach, California. On several occasions, the American Society of Composers, Authors, and Publishers (ASCAP) contacted East Coast to offer it a license to perform music by ASCAP members at the restaurant. East Coast never purchased a license. ASCAP hired an investigator to go to Roscoe’s House of Chicken and document whether copyright infringement was occurring at the restaurant. The investigator, Scott Greene, visited the restaurant on May 30, 2008. During the visit, Greene identified songs played by the live act performing at the restaurant including “All or Nothing at All,” “It’s Easy to Remember,” “My Favorite Things,” and “Be-Bop,” which are all songs made famous by John Coltrane. Greene identified the John Coltrane songs based on his personal familiarity with them. Greene also identified several songs played by the band based on the band leader announcing the names of the songs. He also identified several recorded songs played at the restaurant by looking at the CD jewel cases on the CD player while the songs played. Greene documented all of this in a report.

ASCAP brought a case for copyright infringement. The district court granted summary judgment on all counts. East Coast appealed. In its appeal, East Coast argued that Greene’s report and a declaration that he completed should not have been admitted. The Ninth Circuit found that the district court did not abuse its discretion by relying on the report and declaration because they were “percipient witness testimony.” The panel held that identifying songs is not expert testimony requiring “scientific, technical, or other specialized knowledge” under Fed. R. Civ. P. 702. Rather, the Ninth Circuit stated, identifying songs is “a reflexive daily process for millions of radio listeners, amateur karaoke singers, and fans of Name That Tune reruns,” which is permitted of lay witnesses under Fed. R. Civ. P. 701.

Keywords: litigation, trial evidence, Ninth Circuit, copyright infringement, expert testimony


March 23, 2012

Fall Itself Not Enough to Show Dangerous Condition

Gomez v. Stop & Shop Supermarket Co., 11-1665, 2012 WL 676376 (1st Cir. Mar. 2, 2012), involves inferences that may be drawn from evidence during summary judgment and the conditions under which an adverse inference instruction is appropriate for alleged spoliation. The First Circuit Court of Appeals affirmed a district court decision dismissing a slip-and-fall case on summary judgment. The plaintiff in this case fell in a grocery store and attempted to build a case without any evidence of the cause of the fall by asserting that the fall, in and of itself, showed a dangerous condition, or alternatively, the lack of evidence about the cause of the fall showed spoliation, which deserved an adverse inference.

To prevail in the case, the plaintiff needed to show, among other things, “a dangerous condition and the reasonable foreseeability of that condition.” The plaintiff’s evidence of a dangerous condition was his “testimony that he felt something strange on the floor, that he could not lift his right foot, and that he then ‘fell down in the most spectacular way.’” The plaintiff then tried to tie the sensation of something strange on the floor to a dangerous condition by asserting that there must have been a sticky substance on the floor that caused his fall.

The court found that the plaintiff’s assertion was no more than an assumption, which is “not a substitute for evidence.” According to the court, “people fall for a variety of reasons,” and assuming the cause of a fall was a dangerous condition, which was certainly possible, without competent proof impermissibly elevates the assumption to the level of proof. Because a rational jury could not find that a dangerous condition existed based purely on an assumption, summary judgment was appropriate.

To overcome the lack of evidence about the theoretical “sticky substance,” the plaintiff also “conten[ded] that the defendant either destroyed or intentionally failed to gather evidence of its negligence.” In analyzing this argument, the court first stated that the remedy for spoliation of evidence is well established, saying that “a trier of fact may (but need not) infer from a party’s obliteration of evidence relevant to a litigated issue that the contents of the evidence were unfavorable to that party.” However, before the inference can be drawn, a party must show that evidence must have actually been destroyed and “that the opposing party had notice of a potential claim and of the relevance to that claim of the destroyed evidence.”

The plaintiff tried to show that spoliation occurred based on the established facts that the defendant had an in-store security camera system that, according to a store cashier, covers “a good majority” of the store, and no videotape was produced during discovery. Again the court found that attempting to turn this testimony into evidence that a videotape of the accident was spoiled would involve a conjecture that was not enough on which to base a spoliation claim. In addition, there was testimony from other store employees that the aisle in which the accident occurred was normally not covered by the cameras.

Keywords: litigation, trial evidence, First Circuit, spoliation, conjecture


March 23, 2012

Delusional Statements Still Show State of Mind

Wagner v. County of Maricopa, 10-15501, 2012 WL 718490 (9th Cir. Mar. 7, 2012), involves hearsay evidence and whether a witness may testify about a conversation with a decedent who was delusional at the time of the conversation and made statements about events that were demonstrably false.

Eric Vogel suffered from mental illness from a young age and had little contact with the outside world beginning in second grade. In 2001, at the age of 36, he left his home for no known reason. He was apprehended by police and placed in the Phoenix, Arizona, jail overnight. The next morning he was assessed by a psychiatrist who found him “disoriented, paranoid, and psychotic.” He was then forced to change into his street clothes—a process that he resisted—and was transferred to a psychiatric unit for a week until his mother bailed him out. After he was released, he was in a minor traffic accident with his mother. On hearing that police were coming, he ran four or five miles away from the car and then collapsed and died of acute cardiac arrhythmia.

Vogel’s estate asserted claims under the Americans with Disabilities Act, section 1983, and a variety of state laws. Vogel’s mother and sister sought to testify that Vogel told them he felt he was being raped in jail by the prison workers. The district court did not allow the testimony as impermissible hearsay. The Ninth Circuit, however, reversed after finding that the testimony was not being offered for the truth of the matter asserted—it was demonstrably false that the jail workers tried to rape Vogel—but rather for Vogel’s state of mind. Consequently, the proposed “testimony was admissible not to prove ‘the fact remembered or believed’ but the ‘mental feeling’ of Vogel.” According to the Ninth Circuit, “Exclusion of this evidence was erroneous and fatally prejudicial.”

Keywords: litigation, trial evidence, Ninth Circuit, hearsay, testimony


March 16, 2012

Fifth Circuit Extends Waiver Principles Beyond Rule 609(a)

In United States v. Turner, No. 10-60917, ___ F.3d ___ (5th Cir. March 7, 2012), the Fifth Circuit joined the First Circuit in extending the waiver principles recognized in Luce v. United States, 469 U.S. 38, 43 (1984), under Fed. R. Evid. 609(a) to a Fifth Amendment claim.

The Fifth Circuit concluded that the defendant had to testify at trial to raise and preserve for review a claim addressed to a ruling on an in limine motion that would have allowed federal prosecutors to cross-examine the defendant about a prior state prosecution, had the defendant taken the stand. The Fifth Circuit concluded in Turner that, by ultimately electing not to take the stand, the defendant waived any arguments he might otherwise have had under the Fifth Amendment related to protection from questions relating to the state-court prosecution.

Keywords: litigation, trial evidence, Fifth Circuit, waiver


March 16, 2012

New Evidence No Reason to Exclude Prior Testimony

In Ross v. District Attorney of the County of Allegheny, No. 10-1320, ___ F.3d ___ (3rd Cir. March 6, 2012), the Third Circuit denied habeas relief to a defendant challenging a conviction on a retrial wherein testimony from an unavailable witness from a prior trial related to the defendant’s alleged confession was read to the jury.

Joining five other circuits, the Third Circuit found that the defendant had a full and fair opportunity to confront the witness at the prior trial. The court held that the discovery of new evidence that the testimony about the confession was fabricated was not a basis for excluding the testimony, because any confrontation concerns did not arise by action of the trial court or operation of statute.

Keywords: litigation, trial evidence, Third Circuit, habeas relief, testimony


March 7, 2012

New York Court Discusses Hearsay, Dead Man's Statute

Fireman’s Fund Ins. Co. v. Wilner, 10-CV-597 CBA JMA, 2012 WL 628504 (E.D.N.Y. Feb. 27, 2012), provides guidance about when testimony about a conversation between a witness and a now-deceased person is impermissible hearsay or if it violates New York’s dead man’s statute.

In this case, an insurance company sued the owners and managers of a commercial building to recover losses it suffered paying for fire damage to an insured tenant’s property. The owners of the property were Joe and Ryma Wilner, and the manager of the property was H. Wilner Realty, which was solely owned by Joe and Ryma’s son, Harry. The defendant owners and managers of the building moved for summary judgment on the grounds that an intervening act—the criminal use of a blowtorch by a roofing contractor—relieved them of any liability for the damage.

On March 16, 2009, Patrick Kelly performed roofing repairs on the property at the request of Harry Wilner, the building manager. Kelly used a blowtorch to install rubber roofing, which violated New York penal law. The blowtorch caused the fire that is the subject of this case. Harry Wilner subsequently died in November 2009.

At a December 2, 2010, deposition, Kelly testified that he used the blowtorch at the direction of Harry. The Wilner defendants acknowledged that if Kelly’s testimony was allowed, there would be a question of fact precluding summary judgment. However, they argued that the testimony was inadmissible as hearsay and as barred by New York’s dead man’s statute, N.Y. C.P.L.R. § 4519.

The court first analyzed the hearsay issue. According to the court, two aspects of Kelly’s conversation with Harry must be examined: whether Kelly informed Harry he would use a blowtorch and whether Harry explicitly told Kelly to use a blowtorch. The court found that Kelly’s testimony that he informed Harry he would use a blowtorch was not hearsay “because it is not offered for the truth of any of Kelly’s prior statements.” Rather, “[t]hat testimony is offered only for the effect that those prior statements had on Harry—that they gave him knowledge of the fact that Kelly would use a blowtorch on the roof.”

The court also found that testimony about Harry’s statement to Kelly instructing him to “‘use the blowtorch’ is an imperative—a command that Kelly do something.” The court held that a command is not hearsay because it “does not assert any fact” and so cannot be offered for the truth of the matter asserted.

In analyzing the applicability of the dead man’s statute, the court first stated that the purpose of the statute is to “protect the estate of the deceased from claims of the living who, through their own perjury, could make factual assertions which the decedent could not refute in court.” Consequently, the court held that Harry’s parents, who owned the building that caught fire, could not invoke the dead man’s statute to prevent the testimony because Harry’s estate would not be harmed by an adverse judgment against them.

The court also held that H. Wilner Realty had not met its burden of showing that the dead man’s statute should be applied because it offered no evidence that a judgment against H. Wilner Realty would affect Harry’s estate. H. Wilner Realty had been solely owned by Harry, and, when Harry died, the company ceased to exist. Thus, the court speculated the Dead Man’s Act may apply to testimony about conversations with Harry used against H. Wilner Realty. However, the court stated that it had seen no evidence showing that Harry’s estate would actually be harmed by a verdict against H. Wilmer Realty, and so the court held it would not strike evidence of the conversation from summary judgment briefing.

Keywords: litigation, trial evidence, hearsay, dead man’s statute, New York

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


March 7, 2012

Not All Unfair Prejudice Warrants a New Trial

Doyle v. Denver Dept. of Human Services, 09-CV-03042-WYD-KMT, 2012 WL 652673 (D. Colo. Feb. 29, 2012), an employment discrimination case, provides guidance about when a jury verdict may be overturned if the prevailing party’s attorney makes a statement in front of the jury that violates Federal Rule of Evidence 609(b) because it is unduly prejudicial.

In this case, the defendant’s attorney “opened her cross-examination of [plaintiff] Ms. Doyle with two leading statements/questions in which she disclosed to the jury the fact that Ms. Doyle has a criminal record of a felony conviction for conduct related to having fake money at a casino.” Doyle’s attorney immediately objected “on the basis that the conviction was more than ten years old and any probative value of the evidence was outweighed by the danger of unfair prejudice.” The court sustained the objection because the evidence was unduly prejudicial and because the defendant did not give notice of its intent to use rule 609(b) evidence. The court instructed the jury to disregard the question and gave a curative instruction to the jury.

Following a jury verdict in favor of the defendant, Doyle petitioned for a new trial, and the court denied the request. The court found that the defendant’s counsel had needlessly caused a situation that unfairly prejudiced Doyle; however, the court noted that not all unfair prejudice warrants a new trial and held that this was a case where no new trial was warranted. The court relied on three facts in determining that no new trial was warranted: The actual misconduct involved a single question, the defendant’s attorney immediately objected to the question, and the court gave a curative instruction to the jury. The court also stated that there was ample evidence to support the jury’s conclusion that Doyle had been dismissed from her position for reasons related to her job performance.

Keywords: litigation, trial evidence, Federal Rules of Evidence, employment discrimination

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


March 7, 2012

Eighth Circuit: "Prior Acts" Include Lawsuits

Weitz Co., LLC v. MacKenzie House, LLC, 665 F.3d 970, 974-75 (8th Cir. 2012), a breach-of-contract case, provides guidance about whether Federal Rule of Evidence 404(b) precludes evidence of prior business dealings or prior law suits as impermissible character evidence or whether the evidence is permissible to show “motive, intent, plan, or knowledge.”

In this case, Weitz Co., a general contractor, sued the developer and owner for breach of contract to construct apartment buildings. At trial, Weitz sought to use evidence of two prior construction projects, one of which ended in litigation. The court excluded evidence of the prior construction projects and prior lawsuit. Following a jury trial, the district court entered judgment against Weitz. On appeal, Weitz argued that the district court’s decision to exclude evidence of the two prior construction projects was reversible error.

The Eighth Circuit upheld the district court’s decision to exclude the evidence of the prior construction projects and lawsuit. It held that “prior acts include prior lawsuits” and that evidence of prior acts are inadmissible to prove character under rule 404(b). The Eighth Circuit also noted that rule 404(b) permits evidence “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” but held that a breach-of-contract claim does not put “motive, intent, plan, or knowledge at issue.”

Keywords: litigation, trial evidence, Federal Rules of Evidence, breach of contract, Eighth Circuit

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


March 7, 2012

Case Gives Guidance on Federal Rules of Evidence 702, 403

Somnis v. Country Mut. Ins. Co., CIV. 11-324 RHK/LIB, 2012 WL 116815 (D. Minn. Jan. 3, 2012), provides guidance about when an expert may offer an opinion about a final issue in a case under Federal Rules of Evidence 702 and 403.

In this case, the plaintiff, Somnis, sued his homeowner’s insurance carrier to recover policy proceeds after his house was damaged by a fire. The insurance carrier retained a certified fire investigator, St. Onge, to investigate the cause of the fire. St. Onge was unable to identify an accidental cause of the fire, so he concluded, “In my opinion, this fire is an incendiary fire started by some person on the couch in the basement family room of the house.”

Somnis moved under rule 702 and Daubert to exclude St. Onge from testifying at trial. The trial court found that there was no basis for excluding all of St. Onge’s testimony because Somnis never argued that he was unqualified. In addition, the court noted that “courts repeatedly have found it appropriate for a fire investigator to (1) describe the manner in which he examined a fire scene, (2) explain why he excluded accidental causes for a fire, and (3) offer opinions regarding the location of a fire’s origin.”

The court, however, did exclude St. Onge’s final conclusion that the fire was set by a person because he could not find an accidental explanation. According to the court, a conclusion that a fire was intentionally set because the expert could not identify an accidental cause does not help the jury. The court found that St. Onge’s conclusion that “the absence of an accidental explanation suggests the fire was incendiary” rested on an inference. Because the inference was one the jury could also have made, the court excluded testimony about the final conclusion because expert opinion that “draws inferences or reaches conclusions within the jury’s competence does not provide helpful testimony under Rule 702.”

The court also found that rule 403 prohibited St. Onge from giving his final conclusion that the fire was intentional because it is the jury’s duty to draw reasonable inferences from the data, and allowing the expert to draw those inferences surrenders the jury’s common sense to the expert.

Keywords: litigation, trial evidence, experts, Federal Rules of Evidence, insurance

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


March 7, 2012

Human Resources Interview Is an Exception to Hearsay Rule

Garcia v. Sprint PCS Caribe, CIV. 09-1813 PG, 2012 WL 28070 (D.P.R. Jan. 5, 2012), an employment discrimination case, provides guidance about whether an employer’s records are prohibited hearsay and also about the authentication of documents.

The plaintiff, Garcia, brought various employment discrimination claims against her former employer based on alleged gender discrimination, sexual harassment, a hostile work environment, and retaliatory termination. Garcia filed a motion in limine seeking to strike evidence of employment records Sprint used to support its summary-judgment motions.

The court found that many, if not all, of the employment records were out-of-court statements. However, because the issue in employment discrimination cases is whether the employer’s decision-makers reasonably believed that bad behavior by the employee took place and not whether it actually took place, the court held that the records were not offered for the truth of the matter asserted. Because Sprint was including employment records “to document that as part of its disciplinary procedures, its management and Human Resources Department performed investigations, gathered relevant information and made determinations based on the evaluation of the information collected,” the documents were permissible.

In addition, the court found that interview notes taken by Sprint’s human resources manager during her investigation of Garcia were an exception to the hearsay rule because they were “records of a regularly conducted activity.” In concluding that the records were kept in the ordinary course of Sprint’s business, the court relied on an unsworn statement by the human resources manager stating that Sprint’s human resources department “regularly and continuously investigates and collects pertinent information related to the labor history and performance of its personnel.”

However, the court struck a number of documents proffered by Sprint on authenticity grounds. The court found that a document did not satisfy the 901(a) authentication rule if it was unsigned. Consequently, Sprint did not meet its burden of proving that the unsigned documents were what Sprint claimed they are. Conversely, the court refused to strike portions of a personality test administered by a psychologist because the psychologist was deposed and “certified the authenticity of the same during her deposition.”

Keywords: litigation, trial evidence, employment discrimination, hearsay

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


January 26, 2012

Absent Police Misconduct, Jury Decides Witness Reliability

The reliability of witness testimony in criminal cases has long been considered to fall within the province of the jury. The one exception is suggested police misconduct, which courts have held to trigger a duty on the part of the trial judge to preliminarily screen testimony for reliability before sending it to the jury. The Supreme Court reaffirmed these tenets this month when it held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness’s identification where that identification was not procured under police-arranged suggestive circumstances.

In August 2008, petitioner Barion Perry was arrested for theft and criminal mischief after being found by police at the scene of a car break-in in an apartment building parking lot, based partly on identification from a witness four floors up. That same witness failed to pick Perry’s photo out of a lineup several weeks later. Prior to trial, Perry moved to suppress the identification on grounds that the parking lot scene amounted to nothing more than a one-man lineup.

The New Hampshire courts found otherwise, and the U.S. Supreme Court agreed by an 8–1 vote, ruling that, absent suggestive circumstances arranged by police, due process does not require a judge to screen a witness’s reliability. Coincidentally suggestive circumstances do not suffice to take away what has long been thought the job of the jury. Perry v. New Hampshire, No. 10-8974, 2012 WL 75078 (Jan. 11, 2012).

Keywords: litigation, trial evidence, due process, Supreme Court, witness testimony

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


December 1, 2011

Supreme Court Adopts Amendments to Federal Rules

The Judicial Conference of the United States has reported that the Supreme Court of the United States has adopted the amendments to the Federal Rules of Evidence pursuant to section 2072 of U.S. Code title 28. The chief justice transmitted the amendments to Congress [PDF] on April 26, 2011, and they will take effect on December 1, 2011, unless Congress takes action to reject, modify, or defer them. The amendments shall govern in all proceedings thereafter commenced and, insofar as is just and practicable, all pending proceedings.

The language of the Federal Rules of Evidence has been amended and definitions have been added as part of the general restyling of the rules to clarify, simplify, and make them more easily understood in modern expression and to make style and terminology more consistent throughout. The restyled rules are substantively identical to the existing rules. There was no intent to change any ruling on evidence admissibility.

Keywords: litigation, trial evidence, Federal Rules of Evidence, Supreme Court

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


September 12, 2011

Don't Forget to Offer All Grounds for Admissibility

The Seventh Circuit recently issued a gentle reminder to practitioners seeking to introduce evidence at trial: Don’t forget to make an offer of proof under Fed. R. Evid. 103(a)(2) if the trial court rules your evidence is inadmissible. In Duran v. Town of Cicero, 2011 WL 3444353 (7th Cir. 2011), a federal civil-rights action asserted against police officers and the Town of Cicero, Illinois, by a number of people allegedly injured in a riot occurring after a party to celebrate a baptism, the defendants moved in limine to exclude evidence of a conviction in a prior civil-rights case of the officers and were successful. The plaintiffs unsuccessfully proffered the evidence at trial under one theory of admissibility, Fed. R. Evid. 609(a)(2), but proffered no alternative theories.

On appeal, the plaintiffs urged the Seventh Circuit to find the district court’s ruling in error. The Seventh Circuit ruled that because the crime in question did not involve dishonesty or false statements, exclusion under Fed. R. Evid. 609(a)(2) was appropriate and that it was unable to review the admissibility of the conviction under Fed. R. Evid. 609(a)(1) because the plaintiffs had not advanced the argument at trial.

The moral of the story? If you have multiple grounds for admissibility, you’d better include them all in your offer of proof.

Keywords: litigation, trial evidence, Federal Rules of Evidence, admissibility

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


September 12, 2011

The "Blade" Has Fallen on Snipes's Bid for a New Trial

On September 6, 2011, the Eleventh Circuit Court of Appeals rejected actor Wesley Snipes’s contention that the district court erred in failing to grant him a new trial on income-tax-evasion charges in spite of the fact that a juror contended after the trial had ended that certain jurors had made up their minds to convict before the trial even started. United States v. Snipes [PDF], 2011 WL 3890354 (11th Cir. 2011). The juror contacted Snipes’s attorneys only after the Eleventh Circuit had rejected his appeal on the merits. According to the Eleventh Circuit, the email forwarded to Snipes’s attorneys by the juror could not serve as the valid basis for a new trial because it was not admissible under Fed. R. Evid. 606(b). That rule provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Because the email in question fell outside of the enumerated exceptions in Fed. R. Evid. 606(b), the Eleventh Circuit concluded that the trial court appropriately denied Snipes’ new trial motion.

Keywords: litigation, trial evidence, Eleventh Circuit, Federal Rules of Evidence

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


June 29, 2011

Eleventh Circuit Examines Admission of Lay Testimony

On June 14, 2011, the Eleventh Circuit held that an attorney could provide lay testimony regarding fraudulent transactions based on his own personal knowledge pursuant to Rule 701. United States v. Graham, ___ F.3d ___ (11th Cir.2011).

At the trial for mortgage fraud, a real-estate attorney, Key, who had participated in some of the transactions purported to be the basis for the fraud was permitted to testify not only about the transactions themselves, but also about whether the transactions were fraudulent. Rejecting arguments that the testimony in question should have been excluded because it was expert testimony that did not meet Rule 702 criteria, the Eleventh Circuit stated:

We have held that a witness who has particularized knowledge by virtue of his position in a certain company can give an opinion about the manner in which that company conducts its business, even if the witness is not qualified as an expert under Fed. R. Evid. 702. See Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co. [PDF], 320 F.3d 1213, 1223 (11th Cir. 2003) (“Tampa Bay’s witnesses testified based upon their particularized knowledge garnered from years of experience within the field.”). Key provided some testimony about the kind of conduct he engaged in or personally witnessed during fraudulent mortgage transactions, and he testified about his personal knowledge concerning the conduct of other participants in the mortgage fraud scheme. He did so based on his own experience.

Keywords: litigation, trial evidence, lay testimony, Eleventh Circuit

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


June 29, 2011

Learned Treatises Require Expert's Testimony

Do you need an expert’s testimony for the admission of learned treatises? In a case recently decided by the Eastern District of Virginia, the answer was yes.

In Hogge v. Stephens, 2011 WL 2161100 (E.D.Va 2011), the plaintiff attempted to submit portions of medical articles in opposition to the defendants’ motion for summary judgment. The court found that these documents were inadmissible hearsay, even though the information may have constituted learned treatises under Fed. R. Evid. 803(18), because they had not been authenticated by way of expert testimony. Thus, if you want to throw the book at the opposition, you’d better bring your expert.

Keywords: litigation, trial evidence, learned treatises, expert testimony

—Amy Cashore Mariani, partner, Fitzhugh & Mariani, LLC, Boston, Massachusetts


January 28, 2011

Court Must Resolve Daubert Challenge Before Addressing Class Certification

The plaintiffs alleged that some Honda motorcycles had a design defect such that they failed to damp a side-to-side shaking of the front steering assembly. The plaintiffs moved for class certification, relying on a report prepared by Mark Ezra, a motorcycle engineering expert. Ezra’s report opined that motorcycles should by their design and manufacture exhibit decay of any steering oscillations sufficiently and rapidly so that the rider neither reacts to nor is frightened by such oscillations.

Honda moved to strike the report under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), arguing that Ezra’s “wobble decay” standard was unreliable because it was not supported by empirical testing; was not developed through a recognized standard-setting procedure; was not generally accepted in the relevant scientific, technical, or professional community; and was not the product of independent research. Honda argued that even if the standard itself was reliable, Ezra did not reliably apply it to this case because he only tested one motorcycle and did not account for variables that could affect the wobble decay rate.

The court of appeals held that when an expert’s report or testimony is critical to class certification, a district court must conclusively rule on any challenge to the expert’s qualifications or submissions prior to ruling on a class certification motion. If the challenge is to an expert’s qualifications, the court must compare the area in which the witness has superior knowledge, skill, experience, or education with the subject matter of the witness’s testimony. The court must also resolve any challenge to the reliability of information provided by an expert if that information is relevant to establishing any of the Rule 23 requirements for class certification.

Keywords: litigation, trial evidence, Daubert, motorcycle, Honda

—Michael R. Lied, Howard and Howard Attorneys, PLLC, Peoria, Illinois


January 12, 2011

Tips from the Top: Organize for Efficiency, Professional Appearance

In cases involving documentary evidence, organization is crucial. When you are trying a case by yourself without assistants, it is even more crucial.

Very early in my career, I remember being in trial with a few hundred pages worth of exhibits behind me. I thought I had carefully laid down the documents in a manner that would provide me with easy access. However, they were also easy for my client to access, and the client wanted to look through the documents as well. Unfortunately, the documents became disorganized enough that there was either a delay of 15 to 30 seconds to find a document (an eternity in a courtroom) or I had to go without. The more often I had to look for documents in this manner, the more disorganized the documents got.

Now, whether the case involves fifty exhibits or a thousand, I have found ways to organize my documents in a manner that ensures that they are at my fingertips when I need them. Likewise, keeping case law that may be relevant to admissibility with your documents, if it is an issue, can pay dividends down the line. Having no delay in the use of your documents creates an organized and professional appearance for the jury and allows you to maintain control of the pace of witness examination.


December 21, 2010

Tips from the Top: Connect with Your Jury

When I was a young law student, I clerked for a summer at one of the federal district courts. It was a great experience and provided some early lessons that have helped me in the years that followed. At one trial before my judge, there was an experienced Ivy League graduate lawyer going up against a new graduate in his first trial. The experienced lawyer represented the plaintiff and had a good factual case. The newer lawyer had a lot of difficult facts to challenge and a client with a handlebar moustache. The newer lawyer won the jury.

I had many takeaways from that trial. First, good lawyering may not win you a case with bad facts, but bad lawyering can certainly lose you a case. The more experienced lawyer made several critical errors that cost his client the case.

During course of the case, it was clear that the experienced lawyer did not know how to properly phrase a question. When doing direct examination, it is important to let your witness tell the story to the jury. Leading your witness, aside from leading to objections, can lead the jury to the conclusion that the witness couldn’t answer those questions without your assistance. Also, with the constant objections, the witness’s testimony becomes disjointed and hard to follow. It also makes your incompetence more central than the witness’s testimony.

The experienced lawyer also did not know how to properly make an objection. He made an objection to almost every other question asked by opposing counsel. More than 90 percent of them were denied. While he did disrupt the flow of opposing counsel’s examination, he also infuriated the jury by wasting their time, something they may have held against his client in his ruling. This was a waste of their time because it was clear that the counsel did not understand evidentiary concepts such as hearsay and relevance, the difference between a leading and non-leading question, or that you can ask a leading question on cross-examination.

At the end of the trial, while giving closing arguments, the experienced lawyer pulled out his laptop, held it on his arm, and literally read his argument directly from his computer, never once even looking up past his screen. Not only was it one of the most boring closing arguments I can recall, it clearly had little impact on the jury. His failure to connect with them on any level was a lesson to be learned.


The Confrontation Clause under Crawford v. Washington and Its Progeny

The Supreme Court’s 2004 decision in Crawford v. Washington almost single handedly resurrected the Sixth Amendment’s Confrontation Clause, which provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” 541 U.S. 36 (2004). It overruled Ohio v. Roberts, which had been the leading Supreme Court decision on the application of the Confrontation Clause for almost a quarter of a century. 448 U.S. 56 (1980). Under Roberts, the Court had permitted the admission of out-of-court statements of a witness who was unavailable at trial if the statement bore adequate “indicia of reliability,” such as the existence of a firmly rooted hearsay exception or other particularized guarantees of trustworthiness. Crawford changed the analysis from whether the statement was reliable to whether the statement was “testimonial.” If testimonial, the statement is now admissible only if the Confrontation Clause is satisfied. Crawford marked the beginning of a new Confrontation Clause jurisprudence.

To read the full article, please see the Winter 2010 issue of Proof, the newsletter of the Trial Evidence Committee.

—James A. Nofi


Seven Tips on Utilizing Demonstrative Evidence at Trial

  1. Demonstrative evidence should clearly or memorably convey a theme or concept.
  2. Demonstrative evidence should focus attention, make evidence accessible, and breathe life into evidence that would otherwise be unacceptably dull and boring.
  3. Technology allows you to replicate the grab-and-go pace that jurors operate in every day.
  4. Anticipate problems and always have a back-up plan, such as an eyewitness who, using photos or drawings, can gain admission of the same evidence.
  5. Make sure you have met your predicates for admissibility; the demonstrative aid must be relevant and the witness must testify that it will help him with his explanation to the jury.
  6. Prepare in advance a response to any Rule 403 objection.
  7. Use summary evidence to distill large quantities of information into usable material for the jury.

To read the full article, please see "Using Demonstrative Evidence to Win" in the Winter 2010 issue of Proof, the newsletter of the Trial Evidence Committee.

—Trey Cox


Tips from the Bench: Always Be Aware of Your Audience

Too often, I see lawyers who are so immersed in their tasks during trial that they completely forget that there is an audience. Of course, I don’t mean the people sitting in the gallery—I mean the jury. Lawyers do things every day in my courtroom that either exclude or ignore the very people they are trying so hard to persuade. Below are just a few ways that I have seen lawyers exclude jurors during trial.

Photographic exhibits. If finances prohibit you from enlarging a photograph, then request permission for the witness to step down and show the jury directly (and as close as the court will allow) what is being shown in the photograph. It is far too late to allow the jury to view photographs after a witness has left the stand, especially where the photographs are used to show locations. In the alternative, ask the witness to mark, legibly and visibly, on the exhibit to give the jury a way to make sense of their testimony. Better yet, make a copy for each juror to keep and to make their own markings that make sense to them. Let jurors have this exhibit during the testimony.

Witness clarity. Some witnesses are reluctant, some are shy, some speak very quickly, and some are just plain mumblers. In all events, it is the questioning lawyer’s responsibility to give the witness cues to make their testimony more understandable for the jury. Make certain that your witness waits for you to complete your question before answering, and make certain that you do not talk over a witness, except in extraordinary circumstances. You can slow down the pace of your questions, increase the volume of your own voice, or simply ask the witness to speak directly into a microphone or to slow down to make it clear to the jury that you are aware that they must be able to hear to understand. Failure to look at the jury during questioning will mean that you will not notice obvious cues if the jurors have difficulty in hearing your witness.

Forgetting that you are being watched. Jurors do not myopically watch only the witness on the stand. They often look at the judge, the gallery, your client sitting at counsel table, and especially you. You are “on” every single minute of every single day during a trial whether you realize that or not. Reacting by making facial expressions, laughing, smirking, and slouching are all important to the jury. I cannot tell you the number of times that jurors have brought to my attention that they were either distracted, annoyed, or insulted because they see these sorts of things going on during a trial. Make certain that your client understands this dynamic, and dedicate yourself to remaining professional at all times. This is not limited to the courtroom either. The way you conduct yourself in the hallways, cafeteria, and security lines will all be remembered by a juror when the time comes to make a decision about whether to accept your arguments.

Repeating information. Resist the temptation to repeat information. If you feel that you must emphasize a certain fact or exhibit, make certain that you do so in different ways. The complaint I hear most frequently from jurors is that lawyers ask the same questions several times over. This makes your audience feel as though you think they are not paying attention. It also causes boredom and inattention. Give the jurors credit—most of them are listening carefully. Respect their abilities and trust them to listen to testimony. So long as they are able to hear and see your witnesses and exhibits, repetition is not necessary.

Self-persuasion of jurors is far more effective and important than any amount of rhetoric that you might use. If jurors understand what your witnesses say and what your exhibits show, often they will persuade themselves regarding the validity of your position. Excluding them or making it difficult for them to understand does not help your case. Only people who feel comfortable about their decision will end up exercising their power. Please don’t forget the jury.


Judicial Conference Sends Changes to Fed. R. Civ. P. 26(a)(2) and Fed. R. Evid. 804(b)(3) to Supreme Court

The Judicial Conference has approved changes to Rule 26(a)(2) of the Rules of Civil Procedure and Rule 804 of the Rules of Evidence. These proposed changes will now be sent to the Supreme Court. 


Proposed Fed. R. Civ. P. 26(a)(2)(C) Would Impose New Obligations on Counsel Regarding "No-Report" Expert Witnesses

In June of 2009, the Standing Rules Committee approved proposed Fed. R. Civ. P. 26(a)(2). If accepted by the Judicial Conference and approved by the Supreme Court, this new rule would obligate counsel to provide detailed disclosure regarding testimony by experts not generally required to prepare reports pursuant to Rule 26(a)(2)(B). In recent years, some judges have required persons such as treating physicians and government investigators to provide expert reports under Rule 26(a)(2)(B) while others have not. If adopted, Rule 26(a)(2)(C) would require counsel to provide for all experts that do not meet the definition of “one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony” both the subject matter to which the expert witness is expected to testify as well as a summary of the facts and opinions to which the expert is likely to testify. The facts that must be recited need be only those that support the opinions. While many attorneys already provide this information in Rule 26(a)(2)(A) disclosures out of an abundance of caution, the proposed rule would crystallize counsel’s obligations regarding disclosure of “No-Report” expert testimony.


Proposed Changes to Fed. R. Evid. 804(b)(3) Make Corroboration a Two-Way Street

At its June 2009 meeting, the Standing Rules Committee adopted a proposed change to Fed. R. Evid. 804(b)(3) that would require both the government and criminal defendants to demonstrate corroborating circumstances as a predicate to admitting an unavailable declarant’s statement against penal interest. While some courts have already extended this requirement to the government, Rule 804(b)(3) imposes it only upon criminal defendants at this time. This amendment would not affect civil matters and has no effect upon statements against pecuniary interest. The proposed amendment is now before the Judicial Conference and, if accepted, will be forwarded to the Supreme Court for adoption later this calendar year.


Tips from the Bench: Advice for Trial Attorneys from Seasoned Trial Judges

Use trial time wisely. A prized asset for any trial court is trial time. This means that the effective use of trial time is essential for all involved and wise counsel will keep this key concept in mind at all times. Thoughtful preparation will help use time most effectively, including considering the order of witnesses and document presentation, flow and thoughtfully developing a story. Question selection and approach is equally important. Do you really need to ask the same question a half-dozen times before the jury “gets it”? When examining an expert about her report, do you really want to spend an hour asking her to paraphrase the report that is in evidence and can be read in a few minutes? And know when to say or ask nothing. Are you asking substantive questions in cross or redirect, or are you simply asking questions because you have the opportunity to do so? Remember, the best way to dismiss or minimize statements made may be to ask nothing in cross or redirect. All involved—including the jury and the court—will appreciate the efficient, effective use of trial time.

Listen. Listen very, very carefully to what a witness says, to what opposing counsel asks and says and to statements by the court. Also listen to what isn’t said. Remember, silence can be far louder than the spoken word. Keep witnesses and opposing counsel true to the record and the facts and correct the record when necessary. Press for answers when evasive or non-responsive answers are given to important questions. Avoiding or evading hard questions may tell the jury that there is no real answer, that there is no good answer or that a witness doesn’t want to answer the question. Each of these alternatives will be helpful (or harmful), depending upon who you represent.

Know the Rules of Evidence. Lawyers and judges spend decades learning and trying to master the rules of evidence, admittedly with imperfect results. That said, a working knowledge of the rules of evidence generally (and anticipating specific, novel evidentiary issues) is essential at trial. Wise counsel will use judgment in deciding what evidence to oppose and when otherwise-objectionable evidence should be admitted. Wise counsel also will consider whether to raise objections outside of the presence of the jury. Even successfully objecting to evidence that leaves a jury wanting to hear the evidence may seriously (or fatally) undercut your case. Simply put, knowing when and how to object, and the grounds for objection, is essential.

The views expressed are those of the author and do not represent those of the Arizona Superior Court.

—Samuel A. Thumma, Judge, Arizona Superior Court, Maricopa County, Phoenix, Arizona


New Rule 502 of the Federal Rules of Evidence Becomes Law

On September 19, 2008 President Bush signed into law S. 2450, which provides a new Rule 502 of the Federal Rules of Evidence. The signed bill is now Public Law 110-322. The House had passed S. 2450 by voice vote on September 8, 2008 and the Senate had unanimously passed S. 2450 on February 27, 2008. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA had previously expressed its strong support for the addition of Rule 502 and had urged members of Congress to promptly pass S. 2450.


Rule 502 Passed by Congress; Awaiting Signature by President Bush

On September 8, 2008 the House of Representatives passed by voice vote S. 2450, which provides a new Rule 502 of the Federal Rules of Evidence. The Senate had unanimously passed S. 2450 on February 27, 2008. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA had previously expressed its strong support for the addition of Rule 502 and had urged members of Congress to promptly pass S. 2450.

According to the Senate Judiciary Committee Report recommending passage of S. 2450, new Rule 502 provides "a predictable and consistent standard to govern the waiver of privileged information. It improves the efficiency of the discovery process while preserving accountability. Furthermore, it does not alter federal or state law on whether information is protected by the attorney-client privilege or work product doctrine in the first instance, but merely modifies the consequences of inadvertent disclosure once a privilege is found to exist." The Report further states that new Rule 502 limits "the consequences of inadvertent disclosure, thereby relieving litigants of the burden that a single mistake during the discovery process can cost them the protection of a privilege. It provides that if there is a waiver of privilege, it applies only to the specific information disclosed and not the broader subject matter unless the holder has intentionally used the privileged information in a misleading fashion. An inadvertent disclosure of privileged information does not constitute a waiver as long as the holder took reasonable steps to prevent disclosure and acted promptly to retrieve the mistakenly disclosed information.” Speaking on the floor of the Senate Senator Patrick Leahy (D-Vt.), the bill's co-sponsor, said, “[t]he new rule would provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of e-mail and other electronic media.”

The legislation is now being forwarded to President Bush for his review and signature. Once finally enacted into law, S. 2450 will apply to all cases filed after the date of its enactment and, insofar as just and practicable, to all cases pending on the date of its enactment.


Tips from the Top: Think Before You Plead

I’ve been involved recently in a case in which several plaintiffs allege lost income, but want to rely solely on their testimony to establish their income before and after the events in question. There are two claims involved in this case – one statutory that requires no evidence of damages, and one tort claim that does. The plaintiffs refused to produce tax returns or even W-2s, and pled the Fifth at their depositions when asked about the preparation and contents of their tax returns.

I moved to preclude them from presenting evidence of economic losses. The judge has now ordered them to produce their tax returns and answer questions about them at deposition or they will be barred from introducing damages evidence at trial. The judge has also informed counsel that any plaintiff who testifies at trial about income exceeding that which is reported on tax returns will be reported to the IRS and the Department of Justice. Some plaintiffs have produced their returns and testified about them, revealing a longstanding pattern and practice of deliberately and willfully underreporting, while others have decided to forego those claims.

The moral of this story? Think about what evidence you need at trial before you determine what claims you assert on behalf of your clients. Failure to do so can even land your clients in jail.


Tips from the Top: Silence May Not Be Golden

I was scheduled to take an employment discrimination case to trial right after Labor Day. The week before, we learned that the human resources representative involved in handling the situation which gave rise to the lawsuit was out on medical leave of absence, and would not be able to testify because of her underlying medical condition. She had been deposed by the plaintiff, but we had asked her no questions at the deposition. Needless to say, her deposition testimony did not read well for purposes of a direct examination at trial. We were lucky – opposing counsel agreed to a motion to continue the trial, and the judge granted it, but it made me question whether my usual and customary practice of asking my own key witnesses no questions at depositions conducted by plaintiff’s counsel is a good one. Had the judge not continued the case, I would have been forced to introduce testimony that did not read well stylistically from a witness critical to my case. While this situation certainly was unusual, I may consider asking a similarly situated witness a few concise questions at deposition for purposes of making sure that I have testimony that reads the way I want it to at trial in the event that the witness is not available due to death, illness, or other factors outside of my control.


Tips from the Top: Trust Your Instincts

A friend of mine shared with me a recent trial experience that imparts a valuable lesson. He has tried hundreds of cases over the past twenty years, accumulating a remarkable track record in the process and honing his trial instincts to a fine point.

While representing a major corporation recently, he tried a case in which he intended to call a mid-level manager of minimal importance to the facts of the case to testify. He knew she was a good witness and he wanted to have all testimony from everyone who had any involvement with the transaction at issue in the litigation appear before the jury. That way, the jury would know the corporation had nothing to hide. The jury knew of her existence through documents and testimony of other witnesses. But the client objected to bringing her in to testify, saying it would be an unnecessary expense because she was located out of state.

Against his better judgment, my friend deferred to his client’s recommendation. Four hours into their deliberations, the jury requested that they be provided with a copy of this employee’s deposition testimony! A day later, they returned a verdict against his client. Though he does not know the exact impact that her testimony would have made, my friend remains convinced that he should have trusted his instincts and called the employee in spite of his client’s reluctance to do so.


Tips from the Top: The Right Hand and the Left Hand

Several years ago, I represented a major retailer in a case brought against it by a customer who claimed he had been injured in one of their stores. My client and I suspected that the plaintiff was malingering and/or exaggerating the degree of his disability. Unbeknownst to me, my client engaged a private investigator to conduct surveillance of the plaintiff. The investigator obtained some wonderful video footage of this man playing pool and doing other things that showed he was much more physically capable than he claimed to be. This footage looked like it was going to make the case – until I learned that the investigator was the other pool player and had encouraged the plaintiff to play pool! This one piece of information turned a valuable piece of evidence into dross. We had to disclose its existence to the other side, but could not use it at trial because of the investigator's wrongdoing. The moral of the story? Make sure that the right hand knows what the left is doing – if your client is at all inclined to utilize the services of a private investigator, make sure that the client manages the investigator.


Tips from the Bench: Advice for Trial Attorneys from Seasoned Trial Judges

Tell a story. How do you keep a jury’s attention, especially when the case you are trying is complex or simply not an interesting one? My advice is to keep it simple. Although bells and whistles can enliven a courtroom, too many distractions can lead to jury confusion and/or impatience. Don’t waste a jury’s time with demonstratives (generally electronic) that can’t be displayed reliably or that relate to unimportant details. Juries want to understand and follow the case, so organize the presentation of your evidence in some recognizable fashion, e.g., chronologically or by issue. While it may be challenging, it should be satisfying (if not downright enjoyable) for a trial lawyer to break her case down to “evidentiary bits” and then refashion them into a coherent story for the courtroom.

Make a record. Lawyers need to remember that they actually have multiple audiences in a trial. Not only do lawyers have a jury in the courtroom, lawyers also have the trial and appellate judges who will review the trial record after the jury has returned its verdict. What a lawyer does in the courtroom doesn’t necessarily translate into a compelling record on post trial review. Perhaps the most common mistake in this regard is the failure of lawyers to correlate their examination of witness with the exhibits being shown to the witnesses. A jury generally can follow such an examination, because the jurors can physically see what exhibit is being displayed for each question. Unlike the jury, a judge reading the trial transcript has to rely on what was said. If a lawyer fails to clearly associate his questions with the exhibit(s) to which the questions relate, there is a substantial risk that the evidence, even if of record, will not be associated with the proper issue and, therefore, will be found deficient.

It’s about the evidence. Trials have often been described as “courtroom dramas” and many lawyers act as though they are the stars of the show. In my world, however, a lawyer’s worst enemy is his ego. A lawyer who demeans opposing counsel or attacks opposing witnesses loses credibility with the jury; a lawyer without credibility can rarely hope to have his evidence viewed as credible.Lawyers need to remind themselves that they are asking a lot from jurors - their time, their attention, their impartial consideration of the record and, ultimately, a favorable verdict. Respect for the process should translate into at least a modicum of humility for the role that lawyers actually play—presenting and explaining evidence. In short, the case is not about the lawyer, the case is about the evidence. The less emphasis you put on evidence that supports your position, the more suspicious a jury will be that, in fact, you have no such evidence.


Rule 502 Passes Senate; Awaiting Vote in House

On February 27, 2008 the Senate unanimously passed S. 2450 which includes new Rule 502 of the Federal Rules of Evidence. Rule 502 addresses the issue of waiver of attorney-client privilege by creating a presumption for the return of inadvertently produced documents. The ABA has previously expressed its support for the addition of Rule 502. Speaking on the floor of the Senate Senator Patrick Leahy (D-Vt.), the bills co-sponsor, said, “[t]he new rule would provide predictability and uniformity in a discovery process that has been made increasingly difficult with the growing use of e-mail and other electronic media.” The legislation has now been referred to the House Judiciary Committee for consideration leading up to a full vote of the House of Representatives.


Smith v. Goodyear Tire & Rubber Co., ___ F. 3d ___ 2007 WL 22007000 (5th Cir. Aug. 2, 2007)

In this products liability action, the Court of Appeals for the Fifth Circuit upheld the District Court for the Southern District of Mississippi’s decision to exclude a polymer scientist from opining as to the cause of a tire tread separation. A rear tire on Plaintiff Smith’s pickup truck burst, causing a serious traffic collision. Smith sued Goodyear and others alleging that the defective design and/or manufacture of the tire caused its tread to separate.

Smith retained Dr. Robert B. Moore, a polymer scientist, who concluded that the tire tread separated because of “improper bonding of the rubber skim layer to the steel belts.” Dr. Moore additionally opined that the separation could have been prevented if a “nylon cap overlay” had been incorporated into the tire’s design.

Despite the fact that Dr. Moore had never worked in or studied the tire industry, had not published any articles regarding tires, nor claimed to be a tire expert or ever testified as one, Smith maintained that Moore’s opinions were simply applications of the fundamental issues of polymer science. In affirming the trial court’s rejection of Moore’s causation opinion, the Circuit Court reasoned that Smith’s argument was “true in some sense, just as it is true that asbestos, heart valves, and cupcakes can all be broken down into their basic atomic particles; but that does not mean an atomic physicist is qualified to testify regarding asbestosis, medical malpractice, or confectionary issues.” Ultimately, according to the Court, it is the science’s application to the subject matter that is paramount, and Smith’s proffered expert had no experience applying principles of polymer science to tires.


State v. Dickens, 175 Md. App. 231 (July 2, 2007)

In this criminal appeal to the Court of Special Appeals of Maryland (Maryland’s intermediate appellate court), the Court rejected Defendant’s argument that several text messages sent to the victim’s mobile telephone before her murder were not properly authenticated. Defendant John Dickens acknowledged shooting and killing his estranged wife, but claimed the act was not premeditated. The State introduced five threatening text messages sent to the victim’s cell phone to establish otherwise.

The Court ruled the State properly authenticated the text messages under Maryland Rule of Evidence 5-901 (derived from F.R.E. 901)—specifically its provisions for authentication by the testimony of a witness with knowledge, (Md. Rule 5-901((b)(1)), and by circumstantial evidence, (Md. Rule 5-901(b)(4)). For example, the victim’s mother testified that the cell number from which one of the messages was sent was the number of a cell phone that belonged to the victim, but which the victim gave to the Defendant, and was possessed by him during the time period the text was sent. The Court also observed that the substance of other text messages, which included a reference to visitation with the parties’ minor child, and a reference to the parties’ wedding vows was sufficient circumstantial evidence to permit the jury to conclude that the Defendant authored the texts.


Heron Interact, Inc. v. Guidelines, Inc., __F.R.D.__, 2007 WL 1991401 (D. Mass. July 2, 2007)

In this discovery dispute, Chief Magistrate Judge Neiman, in the United States District Court for Massachusetts, ordered the production of documents based upon application of Rule 612 of the Federal Rules of Evidence.

Chaco, Heron Interact, Inc.’s principal was designated as a Fed.R.Civ.P. 30(b)(6) witness. In preparation for his deposition, Chaco gathered, created and utilized documents and information to refresh his understanding of events and to prepare his testimony. Heron Interact, Inc. claimed that the documents used by Chaco were subject to the attorney-client privilege and the attorney work product doctrine. Guidelines moved to compel the production of the documents relied upon by Chaco in preparation of and used by him at the deposition. Heron Interact, Inc. filed a cross-motion to strike.

Magistrate Judge Neiman determined that Rule 612 of the Federal Rules of Evidence applies to deposition testimony by operation of Fed.R.Civ.P. 30(c). In applicable part, the rule provides that if a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. Based upon Chaco’s deposition testimony and affidavit filed in opposition to Guidelines, Inc.’s motion nine documents were clearly used by him to refresh his memory when preparing for the deposition. In the court’s opinion, all nine of the documents fell within the “writing[s]” referred to in Rule 612. Since the documents were gathered, created and utilized by Chaco in preparing his testimony, the attorney work product doctrine did not apply. In addition, the attorney-client privilege did not apply because, in part, the documents were used by Chaco to refresh recollection in connection with testimony at deposition.


Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046 (8th Cir. 2007)

The plaintiff brought suit alleging that defendant discriminated against him on the basis of his Arabic race after the September 11, 2001, terror attacks. Plaintiff’s employment began in the summer of 2001 and ended in March 2002. In April 2002, two FBI agents came to plaintiff’s home, questioned him about whether he was engaged in making bombs, and searched his house. According to plaintiff, one of the agents told him that someone from defendant’s office had called the FBI to report that plaintiff was making bombs. When plaintiff filed suit in October 2002, he attempted to obtain the FBI informant’s identity to show defendant’s racial animus against Arabs. His attempts included: (1) a letter requesting that the FBI send him the records of his investigation; (2) a subpoena demanding the records and the FBI agent’s testimony; (3) a motion to compel production; and (4) an administrative appeal. When all proved unsuccessful, plaintiff served a 30(b)(6) subpoena for the files, specifically demanding to learn the identity of the informant and whether he or she was employed by defendant. The FBI objected, citing the common law confidential informant privilege and Department of Justice regulations. The magistrate judge reviewed the unredacted files in camera and denied plaintiff’s second motion to compel, holding that the FBI did not abuse its discretion in refusing to disclose the material on the basis of the confidential informant privilege where the files showed that the informant had been assured confidentiality and plaintiff’s need for the informant’s identity was speculative. Finally reaching plaintiff’s substantive claims, the district court granted summary judgment to defendant on all counts. The court rejected plaintiff’s argument that discrimination could be based on his evidence that an employee of defendant’s provided a false tip about him to the FBI, finding that all of plaintiff’s attempts to obtain the identity of the informant had been unsuccessful, and that his only evidence was what he was allegedly told by the FBI agent, which was inadmissible hearsay. On appeal, plaintiff argued that the FBI agent’s statement should have been admitted through exceptions to the hearsay rule in Federal Rules of Evidence 804(b)(3) and 807. The court held that the FBI agent was not “unavailable” as required for the Rule 804(b)(3) statement against interest exception, because plaintiff had not made a good faith attempt to locate and subpoena the witness. Plaintiff’s lone subpoena had been returned undelivered and he had made no other efforts to locate the FBI agent apart from his motion to compel the FBI to disclose his location. The court also found that plaintiff had not shown the FBI agent’s statement had the circumstantial guarantees of trustworthiness as required for the Rule 807 residual exception. Thus, the Eighth Circuit affirmed the lower court in full.


Owen v. General Motors Corp., No. 06-4067, 2007 WL 1101194 (W.D. Mo. April 12, 2007)

This putative class action arose out of a windshield wiper malfunction on plaintiffs’ 1999 Chevrolet Tahoe, which was manufactured by defendant General Motors (GM). In 1997, several years prior to the filing of the suit, the National Highway Traffic Safety Administration (NHTSA) had investigated reports of wiper failure in seven 1995 GM vehicles. GM had also performed its own investigation and, in the course of doing so, retained Dr. Michael Pecht to determine the cause of the wiper failure. Dr. Pecht’s contract entailed planning for GM’s case with the NHTSA and called for any documents GM considered confidential to be marked as such. Dr. Pecht and CALSE, his consulting group, were paid in part by GM and in part by the wiper manufacturer. After the consulting work ended in 1999, Dr. Pecht did not perform additional work for GM. When the present lawsuit was filed, GM unsuccessfully attempted to contact him about his possible retention as an expert. Plaintiffs subsequently named Dr. Pecht as an expert witness. The district court denied GM’s motion to disqualify Dr. Pecht, finding GM’s argument that it expected the information disclosed to Dr. Pecht to remain confidential lacking in credibility due to: (1) GM’s failure to mark documents given to Dr. Pecht as confidential and (2) GM’s failure to require all members of the task force to execute a confidentiality agreement. Also factoring into the court’s decision were public policy considerations as well as the fact that Dr. Pecht would be subject to cross examination, thus revealing any bias he might have for or against GM.


Ahlberg v. Chrysler Corp., 481 F.3d 630 (8th Cir. 2007)

A decedent’s estate brought suit alleging negligence, fraudulent concealment, strict products liability, and emotional distress against Chrysler Corporation. The claims arose when the decedent was killed while attempting to stop a 1999 Dodge Ram truck from rolling down a driveway. The decedent’s grandson had been left alone in the cab and had shifted the truck from park into neutral or reverse. The core of the estate’s claim was that Chrysler did not equip the truck with a brake-shift interlock device, which requires the user of a vehicle to depress the brake pedal before shifting out of park. After the jury returned a verdict for Chrysler on all counts, the estate appealed, challenging several evidentiary rulings made by the trial court. Among other things, the estate argued that the trial court’s exclusion of fact witness testimony on hearsay grounds was improper because the statements should have been admitted under the rule of completeness. The witness would have testified that during a 1994 meeting, members of a Chrysler minivan safety-leadership team stated that vehicles manufactured without brake-shift interlock devices were unreasonably dangerous and that Chrysler vehicles should have been equipped with brake-shift interlock devices. The Eighth Circuit disagreed with the estate, holding that the rule of completeness applies to writings or recorded statements, not to conversations. Furthermore, the court noted that whilethe rule of completeness allows only the settingof contextand clarification ofanswers given on cross-examination, the estate was instead attempting to admit hearsay statements consistent with its fact witness’s own statements. Finding no abuse of discretion, the Eighth Circuit affirmed.


Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007)

The Lorraines’ brought action in the District Court of Maryland to enforce a private arbitrator’s award finding that certain damages to their yacht, Chessie, was caused by a lightning strike that occurred on May 17, 2004, while the yacht was anchored in the Chesapeake Bay. Markel American Insurance Company counterclaimed to enforce the arbitrator’s award, which, in addition to concluding that certain damages to Chessie’s hull was caused by lightning, also concluded that the damage incurred was limited to an amount of $14,100, plus incidental costs. Following discovery, the parties filed cross-motions for summary judgment wherein the parties sought to confirm and enforce the arbitrator’s decision. The Chief Magistrate Judge denied both parties without prejudice because the parties had not complied with various federal rules of evidence.

The Court concluded that the parties collectively failed to consider the implications and the applicability of the federal rules of evidence with respect to the submission of electronically stored information (ESI) in support of their cross-motions for summary judgment. The Court determined that the federal rules of evidence apply to ESI for purposes of trial as well as for purposes of motions for summary judgment.

Whether ESI is admissible into evidence is determined by a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence. Failure to clear any of these evidentiary hurdles means that the evidence will not be admissible. Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401; (2) if relevant under Rule 401, is it authentic as required by Rule 901(a); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception under Rules 803, 804 and 807; (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 1001-1008); and (5) is the probative value of ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. These are the five distinct but interrelated evidentiary issues espoused by the Court.

Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the process of determining admissibility of ESI, it must be considered first. There is a significant difference between the way that Rule 104(a) and 104(b) operate. When the judge makes a preliminary determination regarding the admissibility of evidence under Rule 104(a), the Federal Rules of Evidence, except for privilege, do not apply. Typically under Rule 104(a), the judge determines whether an expert is qualified, and if so, whether his or her opinions are admissible; the existence of a privilege; and whether evidence is hearsay, and if so, if any recognized exception applies. Under Rule 104(b), the jury, not the court, makes the factual findings that determine admissibility, the facts introduced must be admissible under the rules of evidence.

The first evidentiary hurdle to overcome in establishing the admissibility of ESI is to demonstrate that it is relevant, as defined by Federal Rule of Evidence 401. The proponent of the evidence should consider all potential purposes for which it is offered, and to be prepared to articulate them to the court if the evidence is challenged. It is also important to remember that there is a distinction between the admissibility of evidence, and the weight to which it is entitled in the eyes of the fact finder. Establishing that ESI has some relevancy generally is not difficult. Counsel should be careful to articulate the multiple grounds of relevance so that evidence that might otherwise be admitted may not be excluded because “the proponent put all his or her eggs in a single evidentiary basket”, which the trial judge views as inapplicable. Once the proponent of ESI establishes its relevance and concomitant presumptive admissibility, the next step is to demonstrate that evidence is authentic.

In order for ESI to be admissible, it also must be shown to be authentic under Rule 901(a). A party seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be. The inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury, which can be avoided by thoughtful advance preparation. Courts increasingly are demanding that proponents of evidence obtained from electronically stored information pay more attention to the foundational requirements than has been customary for introducing evidence not produced from electronic sources. The authentication requirements of Rule 901 are designed to set up a threshold preliminary standard to test the reliability of evidence, subject to later review by an opponent’s cross-examination. Factors that should be considered in evaluating the reliability of computer-based evidence include the error rate in data inputting, and the security of the systems. The degree of foundation required to authenticate computer based evidence depends on the quality and completeness of the data input, the complexity of the computer processing, the routineness of the computer operation, and the ability to test and verify the results of the computer processing. Determining what degree of foundation is appropriate in any given case is in the judgment of the court. The required foundation will vary not only with the particular circumstances but also with the individual judge.

Consideration should also be given to the ten methods identified in Rule 901(b). Although this rule addresses the requirements to authenticate electronically generated or electronically stored evidence, it is silent regarding how to do so. Rule 901(b), however; provides examples, that are non-exhaustive, of how authentication may be accomplished. The Court outlines appropriate ways to seek authentication of various electronic media such as email, Internet website postings, text messages and chat room content. The mere attachment of exhibits to motions could prove fatal if one does not provide the court with authenticating facts. Similarly, counsel should be prepared to proffer authenticating facts at the time of trial. Although courts have been lenient in applying the authenticating rules, there is a growing awareness that courts should seriously consider the accuracy and reliability of computerized evidence.

The fourth hurdle, so to speak, that must be overcome when introducing ESI is the potential application of the hearsay rule. Hearsay issues are pervasive when electronically stored and generated evidence is introduced. When analyzing the admissibility of ESI for hearsay issues, counsel should address each step of the inquiry in order: does the evidence contain a statement, made by a person, which is offered for its substantive truth, but which does not fall into the two categories of statements identified in 801(d)(1) and 801(d)(2). If, as a result of this analysis, a determination is made that the evidence is hearsay, then it is inadmissible unless it is covered by one of the exceptions found in Rules 803, 804 and 807.

If ESI has cleared the first three hurdles being shown to be relevant, authentic, and admissible under the hearsay rule or an exception thereto, it must also be admissible under the original writing rule (Rules 1001 – 1008) before it can be admitted into evidence or considered at summary judgment. When counsel intend to offer electronic evidence at trial or in support of a motion for summary judgment they must determine whether the original writing rule is applicable, and if so, they must be prepared to introduce an original, a duplicate original, or be able to demonstrate that one of the permitted forms of secondary evidence is admissible. The final evidentiary issue that must be considered in determining whether electronic evidence will be admitted is whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, as proscribed under Rule 403 of the federal rules of evidence.

The Court’s opinion provides a comprehensive guide that will hopefully assist counsel in avoiding evidentiary pitfalls that could prove fatal to his or her case.


Hicks v. Charles Pfizer & Co., 466 F. Supp. 2d 799 (E.D. Tex. 2005)

In a personal injury action against the manufacturers of a polio vaccine, alleged to be the cause of the plaintiff’s brain tumors, the defendants moved for summary judgment on the grounds that the plaintiff could not establish that the defendants’ products had caused her injury. Plaintiff offered four newspaper articles from 1962 as evidence to link the defendants to the particular doses of the vaccine she was given as a child during a public health campaign to vaccinate the public against polio. In response to defendants’ argument that the relevant statements from these articles consisted of double hearsay, the plaintiff sought application of two exceptions to the hearsay rule to render the articles admissible—the “ancient documents exception” and the “residual exception.”

In order to give effect to Rule 805, which requires each level of hearsay to conform to an exception to the hearsay rule in order to be admissible, the ancient documents exception found in Rule 803(16) would only permit statements that were made by the author of the articles and could not excuse the double hearsay problem. The plaintiff’s alternate theory for admissibility rested on Rule 807, the residual hearsay exception, which provides that if a statement is not specifically covered by Rule 803 or 804 it may still be admissible if the court finds that it satisfies the prerequisites of (1) trustworthiness, (2) notice, (3) necessity, and (4) materiality, and the court determines that the purposes of the rules and justice will be served by admission of the evidence. With regard to trustworthiness, the court noted that the statements significantly predated the present controversy, any inaccuracies would have likely been identified at the time they were made, multiple publications by different sources corroborated their credibility, and the contemporaneous timing of the writings and the occurrence of the events in question also established their reliability. The court similarly reviewed each of the other requirements and found that the statements satisfied Rule 807 and the articles were therefore admissible. Because the articles were sufficient to raise a material issue of fact with regard to the identity of the manufacturer responsible for the vaccine ingested by the plaintiff, the defendants’ motion for summary judgment was denied.


Committee Forwards Proposed New Evidence Rule 502 to Judicial Conference

Consistent with our goal to identify and report on emerging issues relating to the rules of evidence, we update our previous report on the status of proposed new Federal Rule of Evidence 502 regarding the attorney-client privilege. At its June 11-12, 2007 meeting, the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States approved the recommendations of the Advisory Committee on Evidence Rules and approved proposed new Evidence Rule 502. The Committee also approved a letter to Congress accompanying proposed new Evidence Rule 502 and a report to Congress on creating a harm-to-child exception to marital privileges.

The Committee will transmit proposed new Evidence Rule 502 to the Judicial Conference with a recommendation it be approved and transmitted to the United States Supreme Court. The language of proposed new Evidence Rule 502 will be available shortly and will be posted online.


ABA Adopts Standards for DNA Evidence

At the 2006 ABA Annual Meeting in Honolulu, Hawaii, the ABA House of Delegates adopted a new set of Criminal Justice Standards on DNA Evidence. The Standards establish standardized procedures for collection, retention, and access to DNA evidence in criminal cases. In the Spring 2007 issue of Proof, the Trial Evidence Committee’s newsletter, Ky Fullerton explores these standards.