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Introducing Evidence:Get it In and Keep it Out

JOHN C. DONOVANCHARNS & DONOVAN, DURHAM NC

Categories of Evidence

Demonstrative Evidence Evidence that shows what something looks like

(a neighborhood) or how something was done (an assault, a sobriety test). This can also be presented as an attorney or witness demo.

Documentary Evidence Paper documents, Phone records, Medical

Records, Employment records.

Physical Evidence Physical objects of evidentiary value.

Demonstrations: Safety First!

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Laying the FoundationFor physical or documentary evidence, proponent must

establish: 1) Identity - Can the witness identify it? (Rule 901)

Requirement of an “original” or acceptable “duplicate,” (Rules 1001-1003)

2) Authentication – Is the item what you say it is (Rule 901) or is it self-authenticating (Rule 902)?

3) Relevance - Does it make a consequential fact more or less probable? (Rules 401, 402, 403)

4) Chain of Custody – Has it changed or been altered since it was collected? (Custody requirements may be relaxed with some documentary evidence, e.g. medical records).

Relevance: Does it Move the Ball?

Identification and Authentication

Often used interchangeably in Rule 901 Identification – How can the witness identify it?

Markings on object, individual characteristics of the item, serial number

Witness is record custodian, or created the item herself

Authentication – How does the evidence “connect to the relevant facts of the case”? Linked to a relevant person, place, time, event?

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RULE 901 – Requirement of Authentication or Identification

Must present “evidence sufficient to support a [rational] finding that the matter in question is what its proponent claims.” Intentionally broad language – threshold standard Rule 901 details many different ways to authenticate Even if ‘authenticated’ and admitted, the jury need

not believe the authenticating witness’ testimony, or even believe that the admitted evidence is actually what it the witness says it is. Fact finder does not have to rely on evidence just because the judge admitted it.

Just because it’s admissible doesn’t mean it’s persuasive.

Rule 901(b)(1), Testimony of Witness with Knowledge & Chain of Custody

901(b)(1) - “Testimony that a matter is what it is claimed to be”- a witness with first-hand knowledge can establish the foundation through testimony.

Custody authentication : A series of witnesses account for the whereabouts and condition of an object from the time it is found in connection with the relevant facts of the case until the moment it is offered into evidence.

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Beware of documentary evidence containing hearsay!

If the DA attempts to introduce documentary evidence that does not fall under a hearsay exception, OBJECT on hearsay and 14th Amendment Due Process grounds, as well as 6th Amendment Confrontation Clause grounds if appropriate.

(If you are proffering the evidence, perhaps you are actually “refreshing recollection” of the witness and stopping short of moving to introduce the item.)

What is the item being offered for? Impeachment purposes? Illustrative purposes? Substantive purposes?

Hearsay is not permitted if an item is being offered for substantive purposes without a hearsay exception.

Types of Evidence to Introduce

Phone records, Text messages, Social Media posts

Business records - Rule 803(6) hearsay exception - including Medical records.

Photographs / VideoVoice recordingsDiagrams

Phone records…

You represent a man charged with assault on a female in domestic violence court. He wants to testify regarding abusive and/or amorous phone calls made to him by the prosecuting witness. You are seeking to introduce his phone records into evidence or in the alternative, use them to refresh his present recollection. Try this:

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Phone Records in District Court Mark exhibit for identification

Show exhibit to opposing counsel

Ask to approach witness

Show exhibit to witness – what is it?

Does defendant own a phone? What is the phone number ?

Who is the phone carrier? What is the account number?

What is the billing address?

Whether he recognizes the phone records

Whether the information contained on the records matches his personal information and recollection

Whether the records are an accurate account of the calls the defendant made/received on the date in question

Ask to admit into evidence

Hearsay Objection

Without a records custodian in court, phone records are subject to a hearsay objection from the State.

If you must introduce phone records over the State’s objection, use the business record exception to the hearsay rule contained in Evidence Rule 803(6).

The Pause That Refreshes

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Present Recollection Refreshed

If the State’s hearsay objection is sustained, ask the witness if reviewing the phone records would refresh his present recollection of the times and dates of the calls in question (Rule of Evidence 612).

But remember the witness can’t directly read from the records and they can’t be introduced into evidence over a sustained hearsay objection.

However the witness is allowed to refer to the document as an aid to memory

State is entitled to see the document

Phone Records as Business Records (Make the State lay the foundation!)

Subpoena phone company records custodian

Custodian must testify from first-hand knowledge that the phone records are: 1) a record of activity on your client’s

phone number; 2) made at or near the time of the phone

activity; 3) recorded by someone with personal

knowledge of the phone activity; 4) kept in the ordinary course of business

as a regular business practice; 5) by someone with a business duty to

record such data.

Computerized Business Records If the phone records are computer-

generated, the custodian-witness must have personal knowledge of how the computers gather and store information about phone activity so as to satisfy the court that the methods, the sources of information, and the time of preparation render such evidence trustworthy. State v. Springer, 283 N.C. 627, 636 (1973).

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Business Records How To 1) Mark documents for identification 2) Show documents to opposing counsel 3) Approach witness 4) Show documents to witness 5) Ask witness to identify the documents 6) Ask how the records are made, i.e. in the ordinary course of

business by someone with a business duty to record such info 7) Storage of the documents, where the documents are retrieved

from 8) Whether it is a regular part of business to keep and maintain this

type of record 9) Whether documents of this type would be kept under the

witness’s custody or control – any changes since the records were made?

10) Move for admission of the documents

Jury or Judge Still Get to Decide if the Records are Reliable

Authentication only establishes that the evidence supports a rational finding that they are phone records.

The jury gets to decide if the records really are accurate.

And if the record-keeping process really produces reliable records.

And if the specific foundation witness should actually be believed. See State v. Crawley, 217 N.C. App. 509 (Dec. 20,

2011).

The Special Case of Medical Records

NC law provides a method for you to subpoena medical records and introduce them into evidence without in-person authentication.

Pursuant to N.C.G.S. §§ 1A-1 Rule 45(c)(2) and 8-44.1, a medical records custodian need not appear in response to subpoena so long as the custodian delivers certified copies of the records requested to the judge’s chambers.

The records must be accompanied by a copy of the subpoena and an affidavit by the custodian testifying that the copies are true and correct copies and that the records were made and kept in the regular course of business.

Medical records can come in without further authentication if this procedure is followed.

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Photographs Photographs are admissible under N.C.G.S. §

8-97 as either illustrative or substantive evidence.

Under the NC Pattern Jury Instructions, the jury may consider a “substantive” photograph itself as “evidence of facts it illustrates or shows.”

An “illustrative” photograph may only be considered by the jury to the extent it “illustrates and explains” the testimony of a witness and not for any other purpose. The testimony is evidence, not the photograph.

Photographs as Substantive Evidence

To introduce a photograph as substantive evidence, you must lay a foundation showing that the photograph establishes a relevant fact and that the photograph has not changed or been altered since it was taken.

To lay such a foundation you need the witness to confirm: First-hand knowledge of when and how the photo was taken,

developed or displayed

The photograph accurately depicts its subject as it appeared at a relevant time

No methods were used during photography, processing or display to distort how the subject looks

The photograph has not been altered or changed since it was taken or processed

Introducing Photo -Illustrative

1) Mark exhibit and show to opposing counsel

2) Approach witness and show exhibit

3) Ask whether the witness recognizes and is familiar with the image (person, place, object, etc.) portrayed in this photograph

4) How the witness recognizes what is shown in this photograph

5) Whether the photograph fairly and accurately represents the subject as the witness remembers it on the date in question

6) Would the photo assist you in illustrating your testimony?

7) Move for admission of the exhibit

8) Expect State’s request for limiting instruction (illustrative purposes only)

9) Consider publishing photo to jury or placing on display screen during testimony

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Introducing Photo -Substantive

Who took the picture? What kind of camera? Film? Digital? Does the picture accurately depict how the

subject looked at the relevant time? How was the picture processed or stored? Any special methods used in processing or display

to alter how the subject looks? Any alterations since the photo was first taken?

Voice Recording Authentication of recording upheld where:

(1) the call was made to the same phone number as later calls made using the defendant’s jail positive identification number;

(2) the voice of the caller was similar to later calls placed from the jail using the defendant’s jail positive identification number;

(3) a witness familiar with the defendant’s voice identified the defendant as the caller;

(4) the caller identified himself as “Little Renny” and the defendant’s name is Renny Mobley; and

(5) the caller discussed circumstances similar to those involved with the defendant’s arrest. State v. Mobley, 206 N.C. App. 285 (Aug. 3, 2010).

Video Authentication Authentication upheld where:

Witness established that the recording process was reliable by testifying: He was familiar with how video surveillance system worked,

equipment was “industry standard,” “in working order” on [the date in question], and the videos produced by the surveillance system contain safeguards to prevent tampering.

Witness established that the video introduced at trial was the same video produced by the recording process, and was the same video that he saw on the digital video recorder display.

Because Defendant made no argument that the video had been altered, the State was not required to offer further evidence of chain of custody. State v. Snead, 368 N.C. 811 (April 15, 2016)

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Don’t allow a mere foundation witness to tell the fact finder what they are seeing!

Don’t blithely allow the witness to narrate the video.

Unless the video is being used to illustrate what the witness saw with his own eyes, he doesn’t get to tell the jury or judge what they are seeing.

If the video “fairly and accurately depicts” what the witness actually saw, it can be introduced for illustrative purposes and the witness can narrate the video to illustrate her testimony.

State v. Fleming, ___ N.C. App. ___, 786 S.E.2d 760 (June 7, 2016).

“Functioning Properly” Testimony If the witness can only testify that the video

equipment was “functioning properly” at the time the video was made, she lacks first hand knowledge and should not be allowed to narrate or explain the video, since it is the video that is evidence, not her testimony. State v. Snead, 368 N.C. 811 (April 15, 2016)

If the witness is not an expert and does not have first hand knowledge of the events shown, she is no better than the jury or judge at deciding what the video shows.

State might try to qualify the witness as an expert to explain the video. Be ready to challenge under Rule 702.

Video Authentication Elements

Video equipment functioning properly Date and time stamps accurate

Other diagnostics show system working as intended

System is monitored and maintained to prevent tampering and ensure functioning

Video has not been edited or altered since the video custodian (store employee) first watched it See, e.g., State v. Ross, ___ N.C. App. ___, 792 S.E.2d 155

(Oct. 4, 2016).

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Cell phone video of surveillance video (Pt. 1)

Officer took cell phone video of store surveillance video monitor.

Officer testified the cell phone video accurately showed the contents of the video that he had seen at the store.

The store clerk also reviewed the video but was not asked any questions about the creation of the original video or whether it accurately depicted the events that he had observed on the day in question.

Cell phone video of surveillance video (Pt. 2): Need foundation.

Need foundation testimony about the type of recording equipment used to make the original surveillance video, its condition on the day in question, and its general reliability.

Must ask witness if the video accurately depicts events he observed personally.

Without this, proponent lacks proper foundation for introduction of the video as either illustrative or substantive evidence. State v. Moore, ___ N.C. App. ___, ___ S.E.2d ___

(July 18, 2017).

Diagrams

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Diagrams

A picture is worth a lot – especially if it illustrates your story of innocence.

Can clarify and simplify complicated testimony

Can help guide awkward or rambling witnesses

Can serve as a symbol and reminder of your most important points

Diagrams - Illustrative1) Mark exhibit and show exhibit to opposing counsel

2) Approach witness and show exhibit

3) Ask if witness is familiar with the area that this diagram depicts. If so, how?

4) Whether this diagram/map appears to be an accurate depiction of the area as the witness recalls it on the date in question

5) Is the diagram to scale?

6) Whether the diagram/map would help the witness describe the area included in the diagram or any events that occurred during the day in question

7) Move to admit the diagram into evidence for illustrative purposes

Internet Diagrams: Substantive

If the diagram is created by a program such as Google Maps, consider asking the court to take judicial notice of the printout as substantive evidence.

Potential substantive evidence includes layout of neighborhoods, distance between points, arrangement of highways, etc., under Rule of Evidence 201(b).

Google Maps’ diagrams have been recognized by federal appellate courts as a source containing information “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” See U.S. v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012); KeChiang Dai v. Holder, 455 Fed. Appx. 25, 26 n.1 (2d Cir. 2012); Pahls v. Thomas, 718 F.3d 1210 n.1 (10th Cir. 2012).

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Text Messages -Substantive

Courts will usually require circumstantial evidence tending to show who sent a text message, above and beyond evidence of the number the text was sent from.

Rule of Evidence 901(b)(4) allows for the use of “distinctive characteristics and the like” to identify or authenticate writings, including “appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

Text Messages – circumstantial evidence Robbery case with multiple accomplices A detective testified that he took pictures of text messages

on an accomplice’s cell phone while searching the defendant’s phone incident to arrest.

The detective identified the photographs in the exhibit as screen shots of the cell phone and testified that they were in substantially the same condition as when he obtained them.

Another accomplice, with whom the first accomplice was communicating in the text messages, also testified to the authenticity of the exhibit.

Court rejected defendant’s argument that authentication required testimony by phone company employees. State v. Gray, 234 N.C. App. 197 (June 3, 2014).

Circumstantial Foundation for Text Messages:

Defendant’s car was seen driving up and down the victim’s street on the day of the crime in a manner such that an eyewitness found the car suspicious and called the police;

Eyewitness provided a license plate number and a description of the car that matched the defendant’s car, and testified that the driver appeared to be using a cell phone;

Morning after the crime, the car was found parked at the defendant’s home with some of the stolen property in the trunk;

Phone was found on the defendant’s person the following morning; around the time of the crime, multiple calls were made from and received by the defendant’s phone;

Text message itself referenced a stolen item; By analyzing cell towers used to transmit the calls, expert witnesses

established the time of the calls placed, the process employed, and a route tracking the phone from the area of the defendant’s home to the area of the victim’s home and back. State v. Wilkerson, 223 N.C. App. 195 (Oct. 16, 2012).

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Text Message - Example1) Mark phone (showing text) as exhibit

2) Show phone to opposing counsel

3) Approach witness and show phone with text

4) Whose phone is this

5) Is the witness familiar with the text – if so, how?

6) What number the text came from

7) Whether the defendant recognizes the number – if so, how?

8) What if any other communication to or from this number during the time in question

9) Later communication – by phone or in person – in response to or referring to this text

10) Other distinctive characteristics of the text message (use of nicknames, reference to prior texts whose origin in verified, reference to private details only the alleged sender would likely know, threats or promises in the text later carried out by alleged sender, later admission by alleged sender, etc. )

11) Who witness believes sent the text

12) Move to admit into evidence

13) Remember – just need enough evidence to allow a rational finding that the text message was sent by the person the witness says sent it!

Facebook & Electronic Media

You want to introduce into evidence a print-out of threatening messages the prosecuting witness made on the wall of your client’s Facebook page.

Facebook Example Part I1) Whether the witness is familiar with Facebook

2) Whether the witness can explain what Facebook is

3) How the witness got a Facebook account

4) How the witness is identified as a Facebook user

5) How do users gain access to each other’s pages

6) Once a user gains access to a page, how users can communicate between pages

7) What the term “wall” means and how it functions

8) The procedures for who can leave messages on witness’s wall

9) Whether the witness can identify who writes on their wall

10) Mark exhibit

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Facebook Example Part II11) Show exhibit to opposing counsel

12) Approach witness and show exhibit

13) Whether defendant recognizes the exhibit – if so, how?

14) Who printed the exhibit out? (Witness should have done this)

15) Whether the information about the message writer included on the exhibit (account user name, other identification) matches identifying information of writer

16) Whether this print out is a fair and accurate depiction of the message left on the witness’s Facebook page on that specific date and time

17) Who wrote on the witness’s wall and the contents of the writing

18) Any distinctive characteristics of the message itself tending to show who wrote it (Rule 901(b)(4))

19) Move to admit print-out into evidence

Not all dogs are this nice.

Social Media Screenshots: Foundation

Pit bull kills man – voluntary manslaughter charge against owner

State attempts to introduce MySpace screenshots Court finds screenshots properly authenticated

where: State presents evidence Defendant goes by “Flex”,

and page in question has name “Flexugod/7.”

Page contained photos of the defendant and of the dog allegedly involved in the incident.

Link to a YouTube video depicting the defendant’s dog.

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Screenshots: Circumstantial Foundation

Circumstantial evidence was sufficient to support a prima facie showing that the MySpace page was the defendant’s webpage.

Court noted: “While tracking the webpage directly to defendant through an appropriate electronic footprint or link would provide some technological evidence, such evidence is not required in a case such as this, where strong circumstantial evidence exists that this webpage and its unique content belong to defendant”. State v. Ford, ___ N.C. App. ___, 782 S.E.2d 98 (Feb.

16, 2016).

Contact Information:

Charns & Donovan, Durham NC JCDonovanLaw@gmail.com

(919) 956-7564

Thanks - feel free to contact us with questions!