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Evidence Articles

Laying a Foundation

     Generally speaking, before a proponent of evidence can offer an item into evidence that proponent should lay the foundation for such evidence.  The foundation is proof of a fact or event predicate to the admission of evidence.  There are times when a judge may choose to admit the evidence subject to subsequent proof of foundation.  However this is not the best idea as if the proponent fails to lay a proper subsequent foundation the Judge will be a position of having to either instruct the jury to disregard the evidence or grant a mistrial.     

Hearsay Doctrine

     As we know, the hearsay doctrine is complex and not easy to master.  The doctrine’s purpose is to exclude unreliable evidence from the purview of the jury.  The rules of evidence prefer testimony to be made in court and subject to the scrutiny of cross-examination.  With the aid of cross-examination a witness can be vetted as to perception, memory, and sincerity with regard to testimony made on the stand at trial.  When that testimony is initially made out of court by a declarant and then repeated in court it may be considered inadmissible hearsay.  Remember that the hearsay requiremen

Foundation for Original and Demonstrative Evidence

     Generally speaking, when we seek to introduce real or original evidence in trial we need to authenticate this evince before it will be accepted into evidence by our trial judge.  This requires you, as counsel, to demonstrate an “identification of physical evidence”.  This identification process involves having the witness identify the evidence as the original evidence and then describing to the court how the witness is sure that the proposed evidence before them today is the same evidence as the witness originally observed.  Commonly, when you have real evidence such as this it will ha

Expert Witness Testimony

     In some cases we may benefit from having an expert advise the jury.  These cases typically involve issues which are complex and beyond the comprehension of the average juror.  For example, in an injury case it is typical for the plaintiff to put on a medical doctor who can opine upon the injuries the plaintiff suffered.  Most jurors don’t have a solid grasp on the complexities of the human anatomy and/or medicine and thus can benefit from having an expert explain these things and provide an opinion as to these things. 

Expert Witness In Injury Trial

     Be advised that I write these blogs/articles for my, Eric Roy, and my staff’s benefit.  Most of the information regarding this specific topic comes from the teachings of Rick Friedman and Patrick Malone.  These are two of the most respected trial attorneys in the country.  For a thorough understanding of these ideas please refer to any of their publications which are enlightening to put it mildly.  

Authentication of Written Documents

     In this digital era, it is increasingly common to introduce correspondence preserved for trial which was initially transmitted by electronic means.  People prefer to communicate via email these days as opposed to transmitting letters by regular mail.  Thus, this poses the question as to how such electronic messages can be authenticated.  Generally speaking, we can assume that if a sender’s email address is located in the “from” line of email correspondence we can assume that the email comes from whomever owns that particular email address.  That being said, if another individual obtain

Authentication of Digital Animation and Simulations

     As trial approaches we, as trial counsel, should reach out to opposing counsel in an effort to formulate any stipulations possible with respect to the admission of evidence.  When we can get opposing counsel to stipulate to the authentication of our evidence all the better as we don’t want to waste trial time developing a foundation for our proposed items of evidence.  Laying a foundation is time consuming and bores the jurors.  We need our jurors paying attention not sleeping in our trials.    

Understanding Best Evidence Rule

     The best evidence rule is a rule of evidence which excludes what is otherwise logically relevant evidence based on considerations of reliability. This is analogous to the inadmissibility of hearsay testimony. We exclude hearsay testimony because we believe testimony should be subject to cross examination so as to provide greater reliability. The best evidence rule analogously directs that original writings be presented as evidence as opposed to secondary evidence of those writings. We want the real thing.

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