Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

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A. Authentication (946)

Questions on pages 947

(1) May inadmissible evidence (such as hearsay) be used to authenticate a document?

No. By making authentication a special topic of relevancy and specifying that evidence is sufficiently authenticated if proof has been offered sufficient to support a finding that the matter in question is what its proponent claims, FRE 901 necessarily requires that the evidence of authenticity be admissible. Otherwise the trier of fact could not consider the evidence of authenticity. Inadmissible evidence of authenticity could not, therefore, provide proof sufficient to support a finding of authenticity by the trier of fact.

(2) Do the Federal Rules retain the common law chain-of custody requirement?

The individual "links" in a chain of custody are the "conditions of fact" that show the evidence is relevant. See FRE 104(b) and FRE 901. The idea of a "chain of custody" simply expresses a rigorous articulation of what the necessary conditions are when dealing with an item of real evidence, when the precise nature of the item is circumstantially important. Proof of a chain of custody is a sufficient method of authentication of real evidence in most cases. But it is not a necessary method of proof. Under FRE 901(a), the test is whether the evidence is what it purports to be, not whether an unbroken chain of custody can be proved.

(3) Does Rule 901 require a showing that an offered document tends to prove the issue on which it is offered, or only that the offered document is "genuine"?

Rule 901 does not require a showing that an offered document tends to prove the issue on which it is offered, but Rule 402 does. Rule 901 deals only with the requirement of authentication and identification, not with other problems of relevance or competence.

(4) Beyond the examples listed in 901(b), what other types of proof will satisfy Rule 901(a)'s general provision?

We can't think of any at the moment but the point is that there are myriad ways in which ingenious lawyers can prove that something is what it purports to be. FRE 901 (b) is exemplary only.

(5) How does Rule 901 relate to Rule 703, which permits an expert to base his opinion on facts or data reasonably relied upon by experts in that field?

Under FRE 703, an expert can rely on anything experts.in his field reasonably rely on in forming their opinions, even if the item relied on is not itself admissible. This means that an expert can use as the basis for his opinion evidence that would not meet the authentication requirements of Rule 901. Under FRE 705, an unauthenticated document may be described as the basis for the expert's opinion and thus get before the jury in an indirect way. The court, of course, may guard against this by not permitting the offering party to deliberately circumvent the authentication rules in this way, but if the opposing party wants to conduct a vigorous crossexamination of the expert, it may have no choice but to bring the unauthenticated document into the case.

(6) Should voice identification be treated more like eyewitness identification or authentication of handwriting?

Voice identification is treated more like eyewitness identification than handwriting authentication in that familiarity with the voice of a person may be acquired for purposes of the litigation much like familiarity with the appearance of a person may be acquired for the purposes of the litigation. Often a witness will be asked in court if they recognize the person or the voice of a person that they have seen or heard only as part of the incident on trial and at the trial. It makes sense to treat voice identification like eyewitness identification rather than like handwriting in this situation. We see faces and hear voices as part of our everyday experience and when asked in court to connect a voice or vision to something that occurred in the past, we allow the ordinary witness to do it. Although we are probably not very reliable at identifying either faces or voices, we want to know what the witness saw or heard at the time. On the other hand, we probably would not allow a lay witness to identify a voice on a tape recording based solely on familiarity with the voice acquired solely for litigation.

(7) What rationale justifies the distinction between the categories of self-authenticated evidence in Rule 902 and all other evidence subject to Rule 901's authentication requirement?

The rationale that justifies the distinction is that, with respect to the items listed in FRE 902, there is thought to be an "extreme unlikelihood of forgery or mistaken attribution." Broun, Authentication and Contents of Writings, 1969 L.& Soc. Ord. 611 at 631 (1969).

(8) What are the operative effects of self-authentication? May the opposing party contest the authenticity of a self-authenticated item of evidence? If self-authenticated evidence is challenged, how is the issue resolved and by whom?

Rule 902, providing for self-authentication, sets up a rebuttable presumption of authenticity. The presumption is, in and of itself, sufficient to make the item in question admissible, but the opposing party is then free to question the authenticity of the item before the trier of fact. He may do so by offering evidence that the item is not genuine and by argument. Such challenges to the authenticity of the item in question go to the weight the trier should accord the item, not to its admissibility.

Problem - Blackacre (948)

Answer and Analysis:

(1) The unrecorded deed may be authenticated by a witness who saw it executed (FRE 901(b)(1)), or by a witness who can identify G's signature on the deed as genuine (FRE 901(b)(2) or (3)).

(2) The recorded deed could be self-authenticated under FRE 902(4) or (8).

(3) The list of expenditures and receipts could be authenticated by D under FRE 901(b)(1). Authentication of the list, however, does not guarantee admissibility. The list must still overcome problems of hearsay and best evidence.

(4) The newspaper is self-authenticating under FRE 902(6). There is no hearsay problem here because the content of the article is not being offered for the truth of the matter it asserts.

(5) These records and receipts could be authenticated by D under FRE 901(b)(1).

(6) The canceled checks can be authenticated by a combination of D's testimony that they are his checks, and that he received them from his bank marked with the cancellation stamps. FRE 901( b)(1) and (4).

(7) This letter can be authenticated as a letter from G by the reply-letter technique. D testifies to the contents of the letter he sent to G. The contents of the reply then indicate that it could only have been written by G in response to D's letter. FRE 901(b)(4).

(8) The conversation could be authenticated by the witness testifying that he recognized G's voice. FRE 901(b)(5). If the witness could not so testify, then he could authenticate the conversation as having been with G by testifying to the number called and to G's self-identification. FRE 901(b)(6).

Problem - The Problematic Promissory Note (948)

Answer and Analysis:

(1) Close, but not enough. The proponent of the evidence must offer evidence that the witness did not acquire his familiarity with B's handwriting for purposes of the litigation. FRE 901(b)(2).

(2) Here, by comparison, the foundation is sufficient. The witness bases his non-expert opinion that B's signature is genuine upon a familiarity with B's signature acquired without reference to the litigation. FRE 901(b)(2) .

(3) This testimony would suffice. The testimony is that of a witness with knowledge. FRE 901(b)(1).

(4) This foundation is not adequate. The witness is not offered as an expert. Compare FRE 901(b)(2) and (3).

(5) This offer will suffice if the judge, upon his visual inspection, concludes that on the basis of such visual inspection, reasonable persons could conclude that the signature on the note was genuine. FRE 901(b)(3).

If the authenticity of the exemplars of B's signature were challenged, the question of their genuineness would be resolved just as other authenticity questions are resolved under FRE 901; that is, the exemplars would be admitted upon proof sufficient to support a finding that they are genuine, with the question of their genuineness then left to the trier of fact for ultimate resolution.

If none of the above testimony is offered, the note may not be admitted. Moreover, before the note is admitted, D must show not only that the note is genuine, but also that, even if genuine, the note relates to some material issue in the case. However, since the note, if valid, affects D's net worth, its relevance follows from its authentication, regardless of the transaction that gave rise to it.

The problem is based on United States v. Carriger, 592 F.2d 312 (6th Cir. 1979).

Problem - The International Bank of Commerce Mail Scam (949)

Answer and Analysis:

The letters should be admitted. The problem is drawn from United States v. Gordon, 634 F.2d 639 (1st Cir. 1980). The relevant portion of the opinion is as follows:

The thrust of the defendant's authenticity argument is that there is no direct evidence that he signed or authorized the sending of any of the documents which purport to come from him. To this the government answers that the appearance, contents, substance, internal patterns and like characteristics of the documents purporting to have been authorized by the defendant, taken in connection with the circumstances of this case support a finding that the documents were so authorized, and that therefore the documents were appropriately admitted under FRE 901 (a) and (b)(4). We agree with the government for the following reasons.

The evidence shows that the questioned documents are part of an interlocking pattern followed with respect to each of a score of alleged victims of a single scheme. They are parallel documents which on their face purported to come from J. John Gordon, the President and Senior Counsel of the International Bank of Commerce, with a residential address at 8 Creswell Road, Worcester and a telephone numbered 617-754-5000. The defendant had a residence at that address and a telephone with that number. Some of the questioned documents were mailed from New Hampshire at a time when he was there; others were mailed from Massachusetts when he was there. Some of the addressees replied by sending to the 8 Creswell Road address checks which were deposited in the account of the defendant's wife and were used for his expenses. Most significantly, at least 7 of the addressees sent to the 8 Creswell Road address promissory notes or loan applications in reply to letters which purported to come from defendant. The defendant qua party kept these replies and used them qua lawyer to cross-examine the 7 addressees when they took the stand as witnesses, and then introduced the replies as his exhibits. It is reasonable to infer that the defendant would not have retained these exhibits if he had not authorized the letters to which they replied. Moreover, all the questioned letters purporting to come from the defendant whether received by the seven whose replies the defendant introduced in evidence or received by others of the 22 witnesses who testified are 'ue~ sdem generis: they are on the same stationery, refer to the same type of transaction, and otherwise indicate a common authorship. The district judge had substantial evidence to support a finding that the defendant authorized all the exhibits which on their face purport to come from him and which in any way relate to the scheme alleged in the indictment.

634 F.2d 639, 643-644.

Problem - Viva Card (949)

Answer and Analysis:

Under FRE 901(b)(9), any relevant computer output can be admitted into evidence if the person offering the evidence shows that the system which produced the data was reliable. The output need not have been prepared in the regular course of business, and may have been prepared expressly for use at trial. Weinstein's evidence, 901(b)(9)[02]. Thus there is no substantive problem with any of the evidence being offered. The bank must merely establish an appropriate foundation for its admissibility. There may, however, be a hearsay problem. See Problem - Computer Records, above.

The person who provides the foundation for the admission of electronically produced data need not be the person who actually operated the computer. It is enough if the witness is familiar with the operation of the equipment used. Ibid. Thus the opera's business manager is an appropriate person through whom to offer output from the opera's computer, assuming that the manager can explain how the system works sufficiently to give assurance of the accuracy of the output.

Opposing counsel should be given access to the underlying program and data so that he may prepare for cross-examination; the underlying program and data need not be offered in evidence as a precondition to the admissibility of the computer output.

Problem - Offer and Acceptance (950)

Answer and Analysis:

E-mail communication is a prominent fact of current-day commercial life. The somewhat evanescent nature of e-mail raises new questions of authentication. Presumably Green would give background testimony about the e-mail program (likely to be less and less necessary as e-mail becomes more a fact of everyday life), authenticate the printout as coming from his computer. There would have to be some basis associating the originating e-mail address with Brown.

The copy of the response would similarly be authenticated by Green as coming from his e-mail program. He would also have to show that he actually sent the e-mail to the Brown e-mail address. Presumably this would be supplied by testimony that his program indicated that the e-mail was sent, that the program is reliable, and that there was no rejection received.

If the issue were seriously contested, the court might require Green to submit to voir dire on the reliability of the e-mail program or the computer, or to submit the program for inspection by Brown's counsel or expert.

There would be two other possible evidentiary objections, hearsay and best evidence. Any hearsay objection could be overcome by limiting the offer "not for the truth". The e-mails are verbal acts, and hence admissible as non-hearsay. The best evidence rule would apply to the "copy" of Green's accepting e-mail. One wonders about the continued viability of the Best Evidence Rule in an age of electronic communication. If it applied, presumably it could be satisfied by calling on Brown for production of the "original" responsive e-mail as received, and on non-production, offering Green's "copy".

The Cudia City Wash (950)

Answer and Analysis:

This document should be admissible under either FRE 901(b)(4) or FRE 901(b)(8). The document is not in any way suspicious on its face, and was produced by the defendants from the . association's files. This is circumstantial evidence that it is a document of the association. These facts together with the apparent age of the document would allow the document to qualify also as an ancient document.

The case for admission is particularly strong because the purpose for which the document is offered is to show that the association was on notice of the frequency of storms, which is shown to a degree simply by the fact of the document being in the association's files.

The problem is drawn from Markiewitz v. Salt River Valley, 118 Ariz. 329, 576 P.2d 517 (Ariz. App. 1978). The Arizona court, deciding the issue under state law, held that the document was inadmissible because the document did not show on its face who made it or the date on which it was made.

Problem -The Unregistered Gun (959)

FRE 901(b)(10) provides for authentication by any method provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority. Rule 27, F.R.Crim.Proc., provides that the absence of an entry in an official record may be proved in criminal actions in the same manner as in civil actions. Rule 44(b), F.R.Civ.Proc., provides that in civil actions, a written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement is admissible as evidence that the records contain no such record or entry, if the statement is authenticated as provided in Rule 44(a)(1). Rule 44(a)(1) provides that authentication may be accomplished by a certificate under seal made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept. The procedure followed by the government in this problem meets the requirements of this rule structure. The constitutionality of this method of proof, even for an essential element of a criminal offense, has been upheld and justified "by administrative necessity and by the trustworthiness arising from the fact that the declarant has a legally enforceable duty to maintain accurate records." Warren v. United States, 447 F.2d 259 (9th Cir. 1971).

Problem - "Reach Out, Reach Out and Touch Someone" (959)

The problem is drawn from United States v. Sawyer, 607 F.2d 1190 (7th Cir. 1979). The relevant part of the opinion is as follows:

On the issue of authentication, there is sufficient circumstantial evidence, in our view, to satisfy Rule 901(b)(6) of the Federal Rules of Evidence, for it is undisputed that the number listed in the agent's report was Sawyers business number, and the personal nature of the information sought makes it highly unlikely that anyone else would have answered for Sawyer.

607 F.2d 1190, at 1193.

Problem - The Set-Up (959)

Answer and Analysis:

The problem is drawn from United States v. Hyatt, 565 F.2d 229 (2d Cir. 1977). The relevant portion of the opinion is as follows:

Hyatt asserts that the district court's refusal to admit the testimony of one of his witnesses was improper. Hyatt wished to call the mother of his co-defendant, who was to testify that she received numerous telephone calls from someone identified as "Jimmy," who said that he was looking for Hyatt.

Whether this testimony is, as the district court thought, hearsay is somewhat unclear. If the statement in question is "I am Jimmy," the declarant is Jimmy, and the statement hearsay. If the statement in question is, "I received a telephone call from someone calling himself Jimmy," the declarant is the proposed witness, and the statement is not hearsay if used to prove only that some person telephoned the witness.

The difficulty for appellant's claim is that the statement was apparently being introduced to prove more than the receipt of a telephone call; it is being used to identify a particular "Jimmy." Thus even if not hearsay as to the witness, the statement comes within the authentication requirements of Rule 901 of the Federal Rules of Evidence, requirements which are not met, even circumstantially, in this case. Accordingly, the district court's exclusion of the testimony was not error.

Had D's mother been able to identify Jimmy's voice on the basis of hearing Jimmy's voice at trial, then the telephone conversation would have been admissible under FRE 901(b)(5).

Problem - Four Unknown, Named Narcotics Agents (960)

Answer and Analysis:

The problem is drawn from O'Neal v. Morgan, 637 F.2d 846 (2d Cir. 1980). The relevant portions of the opinion are as follows:

The allegation of fact on which the relevancy of the admission depended in this case was that the person who made the admission to Carrington was one of the defendants. If this allegation was supported by sufficient evidence, the admission was clearly relevant to the claim of police brutality. Carrington could not identify the voice of the person with whom he spoke as that of one of the defendants, but voice recognition is not required. Under Rule 901(b)(6), circumstantial evidence, including self-identification, may be sufficient to identify the person who answers a telephone call. In this Circuit, selfidentification of the person called at a place where he reasonably could be expected to be has long been regarded as sufficient . . . . Carrington's testimony showed that he called the arresting officer at the Street Crime Unit, the place where all the defendants could be expected to be; that the call was referred to one of the- arresting officer's partners, and that the person to whom the call was referred identified himself as the arresting officer's partner. These circumstances were sufficient to support a finding that the person who made the admission was one of the arresting officer's partners, Garbus or Morgan...

The defendants contend that even if the plaintiff succeeded in showing that the admission was made by either Garbus or Morgan, exclusion of the admission was proper because Rule 901 (a) required the plaintiff to identify which of these two defendants made the admission. Although the defendants ground their argument on Rule 901(a), they could perhaps more plausibly base it on Rule 801(d)(2), which provides that a statement is not hearsay if it is "offered against a party" and is "his own statement" (Emphasis added). Here the plaintiff presented a sufficient basis for the jury to find that the admission was made by either Garbus or Morgan, but no evidence from which the jury could select between the two...

[The court then discusses the "somewhat similar problems in the field of tort law" in which a plaintiff presents evidence to show that two persons acted negligently toward him, but is unable to determine which of the two caused the. injury he sustained.]

We conclude that when a plaintiff presents to the trial judge sufficient evidence from which a jury can reasonably find that an admission was made by one of a limited group of two or more of the defendants, the admission should be received in evidence and the jury should be instructed that it may consider the admission against each member of that group of defendants who fails to persuade the jury that he did not make the statement. In this case, since the plaintiffs evidence was sufficient to permit the jury to find that the admission was by either Garbus or Morgan, the admission should have been received in evidence in the cases of these two defendants, with the burden of proof on each of them to disprove that he made the statement. Of course, if both denied making the statement, the jury should then have been told that if it was persuaded by their denials and by any other evidence tending to show that neither made the admission, the jury should not consider the statement against either of them. At this point in the trial, the statement would not have been admissible against either of the other two appellees, Esty and Williams.

Problem - "Joe Sent Me" (963)

Answer and Analysis:

The problem is drawn from United States v. Espinoza 641 F.2d 153 (4th Cir. 1981). The relevant portions of the opinion are as follows:

The admissibility of Holdren s testimony identifying Espinoza as the person with whom he spoke by telephone is governed to some extent by Rules 901 (a) and 104(b) of the Federal Rules of Evidence. Under the provisions thereof, it was not requisite to the admissibility of Holdren s testimony that it be sufficient itself to support a finding that it was Espinoza to whom Holdren spoke by telephone; Holdren's testimony was properly admissible, under the provisions of Rule 104(b), "upon, or subject to, the introduction of [other] evidence sufficient to support a finding of the fulfillment of the condition," that is, other evidence which would be sufficient to support a finding that Espinoza was the person to whom Holdren spoke by telephone, the establishment of the identity of Espinoza as that person being requisite to the relevancy of Holdren s testimony.

Testimony of a telephone conversation had between a witness and another person may be conditionally admitted, regardless of which of them initiated or answered the call, even though the witness cannot certainly identify the person with whom he spoke by voice identification, and the identity of the person with whom the witness is alleged to have had the conversation may be established by circumstantial evidence. [citing cases]

Here the circumstantial evidence tending to identify Espinoza as the person with whom Holdren spoke in the telephone conversation in which he communicated his order for kiddie pom to J-E is strong and compelling.

Furthermore, establishing the identity of a person by evidence that he made a reply or response in a manner that was expected to be evoked by a communication made to him by another who cannot identify him is well-recognized and time-honored. [citing cases]

Problem - The Case of the Nosy Neighbor (964)

Answer and Analysis:

The baseball bat is inadmissible until a foundation has been laid establishing its relevance. Counsel says that the bat was the weapon used in the assault, but he is not a witness and even if he were, his testimony would be hearsay. Counsel is right to have the bat marked as an exhibit "for identification." This allows counsel to refer to it in a neutral yet definitive way as "People's Exhibit A for Identification" and not as "the bat that was used in the assault." But counsel must elicit testimony from a witness who was at the scene and can identify the bat as the weapon used in the assault. This factual predicate is a precondition to the relevance of the bat and is therefore dealt with under FRE 104(b) and FRE 901(a), meaning that evidence must be offered that is sufficient to support a finding that the bat was the weapon used in the assault. Once this foundation is established, counsel can then offer the bat in evidence and the judge will admit it as "People's Exhibit A." It will thereafter be referred to as "People's Exhibit A in evidence" or simply as "People's Exhibit A. "

Problem - The Case of the Careless Cop (964)

Answer and Analysis:

Obie should have marked or tagged the bottle at the scene of the arrest or immediately after the arrest so that at a later time he could identify the bottle definitively as the bottle that was in D's possession. Otherwise the prosecution will have difficulty in proving that D had an open bottle of whiskey in the car and not an open bottle of tea. Whether the federal rules retain a chain-of-custody requirement is a matter of some controversy. FRE 901 appears to dispense with chainof-custody proof as a pre-condition to the admissibility of real evidence. The only requirement is that evidence be introduced sufficient to support a finding that the exhibit is what it purports to be. This requirement may be met in many ways other than proving a chain of custody. In some cases, however, chain-of-custody proof may be the only way to authenticate an exhibit.

Problem - Where the Rubber Meets the Road (969)

The point:

Students seem to have a hard time letting real evidence speak for itself. They tend to try to prove everything verbally even when an object can prove it more easily and effectively. This problem is an exercise in using exhibits and provides an opportunity for some role-playing. (It might enliven the class and make things more realistic to bring tires to class.)

Answer and Analysis:

An examination that effectively uses the tires might go like this:

"Ms. P are you the plaintiff in this action?"

"Did you buy some tires on or about June 1, 1983?"

"From whom did you buy the tires?"

"What kind of tires were they?"

"Do you recognize these items marked as Plaintiffs Exhibits A and B for identification?" [The tires.]

"What are they?"

"How do you know that these are the tires you bought?"

To the court: "I offer these tires as Plaintiffs Exhibits A and B.

"What condition were they in at the time you bought them so far as you knew at the time?"

"What did you do with them after you bought them? "

"How did they come to be in their present condition?"

This examination, together with a copy of the warranty establishes a prima facie case.

Problem - Live Exhibits (969)

The point:

The child is real evidence that for obvious reasons cannot be incorporated in the record and transferred to the appeals court.

Answer and analysis:

Some courts hesitate to allow a child's resemblance to a defendant to prove paternity. The reluctance is based primarily on the subjectivity and imprecision of judgments about resemblance, especially when a child is very young and its features have not yet "settled. " A further minor consideration is that the evidence cannot easily be reflected in the record and transferred to the appeals court.

P's counsel should point out features of resemblance and ask the judge to make an explicit statement on the record that the child's features are sufficiently settled and bear sufficient similarities to the defendant that the child's features are sufficiently probative of paternity to warrant the child's being shown to the jury. Inclusion of pictures of the child and the defendant in the record would give even further reassurance to an appellate court.

In Commonwealth v. Kennedy, 389 Mass. 308 (1983), the Supreme Judicial Court decided to adhere to its century old rule that a child of any age may be exhibited to the jury; the youth of the child goes only to the weight of the evidence. The court acknowledged that most states permit exhibition of a child only if its features are settled, and conceded that "a persuasive case can be made that generally a child should be exhibited to a jury only in conjunction with the testimony of a qualified expert who would testify concerning the probability that specific physical characteristics of a child were inherited from the defendant." The court adopted a rule that in the future such expert testimony will be required. For more on this subject see McCormick sec. 215; 1 Wigmore, Evidence sec. 627 (3d ed. 1940); State v. Johnson, 361 Mo. 214, 234 S.W.2d 219 (1950).

Problem - The Case of the Spite Fence (970)

The point:

Is a view evidence?

Answer and analysis:

If the motion for a nonsuit is granted, it can only be on the theory that a view is not evidence. Some jurisdictions take this position that a view is only a means of helping jurors understand and better relate to what is evidence. This seems a strained conceptualization at best. According to 4 Wigmore, sec. 1168, the notion that a view is not evidence has been repudiated by most jurisdictions. The federal rules do not treat the issue.

Questions on Page 967:

A view creates several logistical problems. Generally, a court reporter should be present at the view to take down what is said or a record should be made immediately thereafter in court. Counsel must be present to ensure that the correct objects are viewed. Some jurisdictions use official showers to conduct the view. Whoever conducts the view must take care that no information is obtained from other persons present at the view because this would be hearsay. However, swom witnesses may testify at the view by pointing out relevant objects and places. Minor changes in the appearance of the scene normally go to weight but it is possible that the scene will have changed so much in pertinent respects that the judge will deny the request for a view. In Snyder v. Commonwealth of Massachusetts, 291 U.S. 97 (1934), the court held that a defendant did not have a constitutional or other right to be present at a view, but this was prior to the time when Massachusetts regarded a view as evidence.

If a view is evidence, it would seem that a defendant in a criminal case would have a strong constitutional argument to be present. Under our theory of the confrontation clause, whether the denial of the defendant's request to be present at a view (or his request that a view be taken) amounts to denial of confrontation clause rights would depend on the centrality of the view to the case and the durability of the conviction if the request were denied.

An unauthorized view of the scene of the crime by some members of the jury is grounds for a mistrial. Jurors must proceed upon what they learn as members of the jury and not on their private beliefs otherwise required. Naturally, jurors utilize their previously acquired knowledge and common sense in making their decisions but they are not permitted to conduct private investigations to learn more about the case. The dangers of allowing such forays are obvious. See People v. DeLucia, 20 N.Y.2d 275, 282 N.Y.S.2d 256, 299 N.E.2d 211 (1967); People v. Crimmins, 26 N.Y.2d 319, 310 N.Y.S.2d 300, 258 N.E.2d 708 (1970).

Problem - Spite Fence - A Reprise (971)

The point:

The photo is admissible without the testimony of the person who took, developed, or printed the photograph.

Answer and analysis:

The only foundational requirement for a photograph is testimony from a witness who has personal knowledge of what the picture depicts that the picture is a fair and accurate representation of the scene. P's testimony satisfies this requirement.

There are two distinct bases for the admissibility of photographs. One is described by Wigmore in the excerpt quoted on page 973 in Adamczuk v. Hallowav: the photo is simply another means by which the witness conveys what he has seen. It is testimony in pictorial form.

As the questions after Adamczuk (page 973) suggest, the pictorial testimony theory is not broad enough to cover all acceptable uses of pictorial evidence. For example, it is not broad enough to cover the admission of a photo taken through a telephoto or microscopic lens, by a hidden camera, or x-rays or regiscopic photos because there is no witness who can testify that the picture is a fair representation of what he saw. Thus the second theory for the admission of pictures.

The second theory supports the use of the photograph as circumstantial evidence, much like a fingerprint. The fact finder is able to draw a factual inference from the circumstance that a photographic negative was exposed under particular circumstances and when printed showed something of significance. This use of a photo is not a way of assisting a witness to communicate what he saw; no witness may have seen what the photo depicts. It is instead a physical trace of the event. As a consequence of the different logic implicit in the use of a photo as circumstantial evidence, the foundation requirements for introducing a photo to be so used are quite rigorous. The foundation should show the conditions under which the photo was taken, processed, and printed and that the process was accurate. - Problem - The Case of the Hidden Camera and the Sisk, Tatum and Bowley cases are examples of this use of pictorial evidence.

Problem - The Case of the Hidden Camera (973)

Answer and Analysis:

The photo is admissible. Here it is used as circumstantial proof that D was the culprit. The foundation consisted of evidence of how the camera was set up, how it worked, and how the picture was taken, processed, and printed.

Problem - Digital Doubts (981)

This problem is taken from Michael Crighton's Rising Sun, now a major motion picture. For those teachers who like to teach the course entirely from cine materials, this is another opportunity to watch Sean Connery in action. The purpose of the problem is to point out how changing technology affects the rules of evidence. Photography presents a great case study because technologically driven rules are about to come full circle. When photography was new, to get a photograph admitted the proponent had to produce the photographer and explain the process of developing film and printing the negative. As photography became common and a pat of daily life, ther rules evolved to Wigmore's pictorial testimony approach, under which all the proponent needed was someone -- anyone -- who could testify that the picture accurately depicted the scene. This rule proved inadequate as x-rays, micro and macro photography, and automatic cameras, such as closed-circuit video systems became important sources of evidence. The rules evolved to permit such cinematic and photographic evidence if testimony established the reliability of the process. Today, with digitalized photography, however, the possibilities of virtually nondetectable fabricated images may throw the whole area of photographic proof into doubt. Where should the rules go now?

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