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Thursday, July 10, 2014

Admitting evidence when the authenticator can't come to trial

I have a great document I want to admit at trial, but author of the report is not coming to trial. What should I do?

Rather than try to answer this question under local jurisdiction rules, I'll try to tackle this using the Federal Rules of Evidence. For an excellent, searchable summary of the Federal Rules, see LII Rules of Federal Evidence. That should make this answer applicable to most locations. However, always check your local rules for evidence or procedure.

There are three aspects of evidence that are important to this discussion:
In order to introduce evidence, you must show that the person through whom you wish to admit the the evidence has (a) personal knowledge of the evidence, and (b) that the evidence accurately reflects the original document, or the environment depicted.

Once foundation has been established, the evidence must have the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 401.

An out-of-court statement made to prove the truth of the matter asserted. See Rule 801. Generally, hearsay is not permitted, and is the primary method for "jamming" evidence from admittance into the record of a trial. There are, however, considerable exceptions, and be sure to read Rule 802 carefully. The entire Rule 800 family deals with hearsay and exceptions.

To admit a piece of evidence, there must be a means to enter the evidence into the record -- i.e. someone must be able to say, "Yes -- I recognize this piece of evidence and was somehow involved with it." And once this is established, the evidence itself must be relevant to the instant action (a fancy way of saying "it is helps the court to understand the case being heard, or helps to clarify some part of the party's position). If the issue is relevant, but your witness has no first-hand knowledge or experience with the evidence, then the matter is hearsay, and it will not be allowed to come it.

This can be a serious problem! What if need to admit a medical report that was not written to you, but rather was written and placed in your medical record. Can you authenticate (lay foundation) for the report? No. You have no personal knowledge of the medical record -- it is maintained and updated by the doctor or hospital. You would need to get a custodian of records for the hospital or the doctor herself to verify the content of the report. Otherwise, when you attempt to admit the report, you will not be able to lay proper foundation (you have no personal knowledge), and it becomes hearsay. It should be noted, we are speaking about business records here. See Rule 803.

It is frequent, however, that third parties are not available for trial. Despite being served a subpoena, the individual who could authenticate the document is out of town, or too far away to attend trial practically. When a person who would otherwise testify cannot do so, you can seek to introduce their authentication, via affidavit. That's a sworn statement in which they testify they (1) cannot attend trial for a valid reason, (2) are the custodian of record for a given report or document (note: the method can also be used for witness testimony, but the bar for admission of such statements is significantly higher and not covered in this article), (3) and what they would state were they present in court (in support of the document, etc.). Prior to trial, the parties attend a pre-trial hearing. At this time, a motion should be made to admit the evidence based on the affidavit as testimonial based on the three points outlined above, and citing to Rule 901 (Authenticating Evidence) and any local rule that supports unavailability of a witness (travel will usually put the witness outside 50 miles of the courthouse, automatically making them unavailable under most local rules). For example, the local rule in DC is Rule 43.

Two critical pieces to remember. You must serve a valid subpoena on the individual who you want to testify (and they must be legitimately unavailable through no act of yours), and you must give notice to the opposing side that the individual cannot attend once you learn of this. That gives the opposing side time to depose the unavailable witness, or otherwise produce their own evidence based on the unavailability of the witness.

Finally, remember to inform the Court and request permission to have the evidence admitted prior to trial. This will avoid awkward bench wrangling in a jury trial, or a break in the flow of your presentation at bench trials, and is respected by the Court.

Do you have a question about evidence or procedure? Give us a ring! 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 Charles Hatley, Esq.
Leigh Snyder, Esq.

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