Common Evidentiary Predicates to Authenticate Evidence

Transcription

1 Cmmn Evidentiary Predicates t Authenticate Evidence 1. Phtgraphs Rule 901. Identify and cnfirm that phtgraph is fair and accurate representatin f what is depicted. See Huffman v. State, 746 S.W.2d 212, 222 (Tex.Crim.App. 1988). PHOTOGRAPHS GENERALLY D yu recgnize this phtgraph? Hw are yu able t d s? When were these phtgraphs taken? D these phtgraphs accurately and fairly depict the scene as it appeared the day they were taken? Are there any material alteratins r deletins t the phtgraphs? [if phtgraph taken ff Facebk r Instagram with digital tuchup r editing, such as filters, have witness g thrugh thse] 2. Audi and vide tapes a. Vides with N Sund Just like a phtgraph. The witness has persnal knwledge f what is cntained n the recrding and can testify that the exhibit is a true and accurate cpy f what is recrded. See Angletn v. State, 971 S.W.2d 65 (Tex.Crim.App. 1993) and Huffman v. State, 746 S.W.2d at 222. b. Audi In audi recrding, witness is acquainted with the vice f the speakers and can identify the vices. Tex. R. Evid. 901 (b)(5). VIDEO GENERALLY Did yu recrd the incident? Hw are yu able t d s? When was the vide made? Were yu able t view the vide befre cming tday? Des the vide fairly and accurately depict the scene as it was recrded? Are there any material alteratins r deletins t the phtgraphs? [if phtgraph taken ff Facebk r Instagram with digital tuchup r editing, such as filters, have witness g thrugh thse] 3. Business Recrds under Rule 803(6) a. Predicate

2 i. Recrd was made and kept in the regular curse f business; ii. It was the regular practice f the business t make the recrd; iii. Recrd was made at r near the time f the event it recrds; iv. Recrd was made by, r frm infrmatin transmitted by, a persn with knwledge acting in the regular curse f business; b. Prf f Predicate Elements may be established by the custdian f recrds r ther qualified witness wh can testify that the recrds satisfy the exceptin. ELECTRONIC RECORDS Des yur rganizatin use a cmputer t keep recrds? Is the cmputer is reliable? Has the rganizatin develped a prcedure fr inputting data int the cmputer? Des the prcedure have built-in safeguards t ensure accuracy and identify errrs? Des the rganizatin keep the cmputer in a gd state f repair? Yu [witness] had the cmputer prduce a hard cpy f certain data? Yu used the prper prcedures t btain the hard cpy? The cmputer was in wrking rder at the time yu btained the hard cpy? Yu recgnize the exhibit as the hard cpy yu prduced? Hw d yu recgnize it? [If the readut cntains strange symbls r terms, the witness explains the meaning f the symbls r terms fr the trier f fact.] Please explain any specialized symbls r terms. c. Self-Authenticating Business recrds can be self-authenticating if accmpanied by an affidavit f the persn wh wuld therwise prvide the prerequisites fr admissin under Rule 803(6) and served n all parties by any methd permitted by the Tex. R. Civ. P. 21a at least 14 days befre trial. Tex. R. Ev. 902(10). 4. Gvernment Recrds under Rule 803(8) a. Public Recrds and Reprts Admissible if dcument is a cpy f a recrd r reprt f a public ffice r agency and the dcument sets frth: i. the activities f the ffice r agency; ii. matters bserved pursuant t duty impsed by law t which there exists a duty t reprt; OR

3 iii. factual findings resulting frm an investigatin made pursuant t authrity granted by law. Rule 803(8)(b) specifically excludes State criminal investigatins in criminal trials. b. Self-Authenticating Certified cpies f public recrds are self-authenticating. Tex. R. Ev Once a dcument has been authenticated, n frmal laying f a fundatin is required fr admissin under Rule 803(8). Cwan v. State, 840 S.W.2d 435 (Tex. Crim. App. 1992). 5. Demnstrative Evidence a. Wuld it help the jury understand if yu were t: i. Draw a diagram? ii. Shw a similar bject? iii. Give a demnstratin? b. Cannt be inflammatry r prejudicial. Tex. R. Ev. 401, 402, 403; Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987), cert. denied, 484 U.S. 872 (1987). Objectins and Rulings 1. Rulings n Evidence Rule 103 Object t errneusly admitted evidence and make an ffer f prf when evidence is errneusly excluded. If the errr is fundamental errr affecting a substantive right, it can be raised fr the first time n appeal. 2. Rule f Optinal Cmpleteness Rule 107 If a party admits part f an act, declaratin, cnversatin, writing r recrded statement, then the ppsing party may intrduce any ther part r any ther writing r recrded statement which in fairness shuld be cnsidered cntempraneusly with the previusly admitted evidence. 3. Objecting t Preserve Errr In rder t preserve errr fr appeal, a trial lawyer must knw the fllwing three steps: 1. Make a Timely Objectin and State Yur Precise Grunds a. If verruled, errr is preserved. b. If sustained, cntinue t step 2 2. Ask t Have the Jury Instructed t Disregard the Questin, Cmment r Evidence a. If n instructin is given, errr is preserved. b. If the judge gives an instructin, cntinue t step 3

4 3. Mve fr a Mistrial Yu must cntinue demanding sme actin in yur favr until yu get a refusal/denial in rder t preserve errr.

5 Argumentative Q: Isn t it true yu did that because yu are a huge liar, admit it! O: Objectin, argumentative. Cunsel is arguing with the witness instead f asking questins. Assumes facts nt in evidence Q: Isn t it true yu wrecked yur car by running the stp sign? O: Objectin, the questin assumes facts that are nt in evidence at this time. Best evidence rule Q: D yu recgnize the signature n this cpy f the check? O: Objectin, best evidence rule. The riginal dcument shuld be used. Beynd the scpe f direct/crss examinatin Cmpund questin Vague Q: Isn t it true that yu applied fr the permit and that yu started wrk befre getting the apprval? O: Objectin, this questin is cmpund and shuld be brken int tw separate questins. Q: Isn t it true that yu went t the permitting ffice? O: Objectin, this questin is vague. Can I get a timeframe? Cunsel is testifying fr the witness Q: Didn t yu build the fence that high because yu thught yu were given permissin frm the inspectr and yur neighbr did the same thing s yu thught it was kay? O: Objectin, her attrney is testifying fr her. Lack f fundatin Q: What did the witness say? O: Objectin, Hearsay. OBJECTIONS: Hearsay Q: It s nt hearsay, the witness will shw what her present mental state was at the time. O: Objectin, Hearsay and lack f prper fundatin t prve the exceptin. Q: What did the witness tell yu? O: Hearsay Calls fr a legal interpretatin Q: Were yu legally intxicated when the fficer fund yu? O: Objectin, calls fr legal cnclusin by the witness. Lack f persnal knwledge Leading Q: What did yur sister believe? O: Objectin, lack f persnal knwledge as t what smene else believes. Q: Isn t it true that yu nly hit yur neighbr in self-defense? O: Objectin, the questin is leading n direct examinatin. Questin misstates testimny Q: S yu just stated that yu culd have clcked the vehicle next t my client s? O: Objectin, questin misstates the fficer s testimny. She said that she clcked the nly vehicle n the rad at that time. Calls fr a narrative Q: Tell me the stry f hw yu and yur husband met? O: Objectin, calls fr the client t state a narrative Calls fr privileged r cnfidential cmmunicatin Q: What did yur attrney tell yu? O: Objectin, the questin asks fr privileged infrmatin. Calls fr speculatin Q: What did yur husband think? O: Objectin, calls fr speculatin

6 Asked and answered Q: Isn t it true yu signed the dcument? A: N. Q: But isn t it true yu signed it? O: Objectin, asked and answered.