GREGORY CHANDLER ON CONTINUING OBJECTIONS

Continuing objections are a vexing problem.  I was reviewing a trial record last week in which the trial counsel had made an excellent use of a continuing objection.

Often, a particular line of testimony or other evidence will present the same evidentiary objection that the nonoffering party has previously and unsuccessfully argued to the Court.  In these circumstances, neither the Court nor trial counsel may find it productive to reiterate continuous objections at each point during the trial as if the issue had not been raised before. 

On the other hand, trial counsel must be concerned that a failure to renew an objection down the line could be deemed a waiver.  Therefore, trial counsel should make clear that he or she has a continuing objection, on grounds previously stated, to the entire line of testimony or evidence.  In federal courts, nothing in the Federal Rule of Evidence prevents the use of a continuing objection, and the procedure has been upheld by many Courts.  Of course, a continuing objection is only as good as the original objection; as such, it only preserves the ground of appellate review initially stated by the trial counsel. 

Gregory Chandler, Attorney at Law

Gregory Chandler--Hearsay In Extradition Hearings

In United States v. Kin-Hong, 110 F. 3d 103 (1st Cir. 1997) the Court reversed an order preventing extradition.  The Court opined that the Federal Rules of Evidence are not applicable in extradition proceedings.  The Court, therefore, took the position that hearsay statements accusing the petitioner of bribery were admissible. 

The thought to remember is that the Federal Rules of Evidence do not apply to all federal court proceedings. 

Gregory Chandler, Attorney at Law

GREGORY CHANDLER--THE ART OF THE OBJECTION II

To my readers.



I received a great deal of positive feedback about my writing
from May 2012 titled "The Art of the Objection."

The writing may be read on this blog. 

Thanks,



GREGORY CHANDLER

GREGORY CHANDLER ON AUTHENTICATION OF REAL EVIDENCE

GREGORY CHANDLER, ESQ. 


One of the general requirements of introducing real evidence, including writings, at a trial is that the evidence must be authenticated.  Authentication means that the trial attorney must establish that the real evidence is what it is supposed to be.  Trial attorneys often call this process the laying of a foundation.  In laying a foundation, the trial attorney presents evidence that establishes the evidence as what it is supposed to be.  The authentication of real evidence is expressed in Federal Rule of Evidence 901.   

Federal Rule of Evidence 901(a) reads:


"In general.  To satisfy the requirements of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." 


Rule 901 provides that the proponent must provide evidence sufficient to support a finding that the proffered material is what the proponent says it is.  Under Rule 901, the question of authenticity is generally considered one of conditional relevance--a document or other piece of evidence is not relevant unless it is what the proponent purports it to be. 

As a question of conditional relevance, the admissibility standard appears to be the same as provided by Federal Rule of Evidence 104(b):  Has the proponent offered a foundation from which the jury could reasonably find that the evidence is what the proponent says it is?

This is a liberal standard favorable to admitting the evidence.  The drafters of the Federal Rules of Evidence apparently believed that the authenticity should generally be a jury question, subject to the limitation that there is no reason to bother the jury with evidence that clearly is not what the proponent claims it to be.  However, there is no clear showing that Congress adopted a unitary approach to authentication that would deprive the trial judge of the traditional power to scrutinize possibly unreliable or fabricated evidence. 


GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER: THE 10 Commandments of Cross Examination

During the past 20 years, I have attended many lectures given by the National Institute of Trial Advocacy (NITA).  I recall attending a National Session of NITA in Boulder, Colorado and being instructed on Irving Younger's 10 Commandments of Cross Examination. 

A video of Younger's 10 Commandments of Cross Examination from the 1975 NITA National Session remains a major instructional video even today.  I present the 10 Commandments of Cross Examination below with my input.

1.  Be brief.

On cross examination, the goal is to get just a few important points from the witness.  Cross examination is not the point in the trial to build your case.  The cross examiner should get in quick and get out.  A long cross examination will give the witness an opportunity to present an argument against your side. 

2.  Short questions, plain words. 

Novice trial attorneys often violate this commandment of cross examination.  The cross examiner should make the questions short.  The cross examiner should also use plain words and avoid legal jargon.  This is especially important in jury trials. 

3.  Always ask leading questions. 

The cross examiner should control the witness by asking leading questions.  A good leading question gives the witness little or no ability to answer the question in a manner that impairs your side. 

4.  Don't ask a question to which you do not know the answer. 

This again, is a means of witness control.  For example, the cross examiner may ask the question, "Did you ever see Mr. Jones enter the building?"  In this instance, the cross examiner knows that the witness never saw Mr. Jones enter the building in question.  The cross examiner, therefore, knows that the witness cannot properly testify that she or he saw Mr. Jones enter the building in question. 

5. Listen to the witness' questions. 

Cross examiners often ask a question and then focus on the next question.  By paying attention to the witness' question, the cross examiner can ask the better question. 

6.  Don't quarrel with the witness. 

The cross examiner must understand that the witness on cross examination is, to some degree, either neutral or adverse.  If the cross examiner quarrels with the witness, witness control is often lost.  In addition, many jurors do not like to see attorneys quarrel with a witness. 

7.  Don't allow the witness to repeat his direct testimony. 

In most instances the direct testimony favors the other side.  Therefore, it is not advantageous to allow the witness to repeat the direct testimony.  Nonetheless, there is sometimes a reason to violate this commandment of cross examination.  When the direct testimony favors the cross examiner, it is sometimes good to let the witness repeat the direct testimony.

8.  Don't permit the witness to explain his answers. 

This commandment is part of witness control.  Again, this commandment may be violated when the cross examiner knows that there is no favorable way for the witness to explain the answer. 

9.  Don't ask the "one question too many."

This commandment is linked with the next commandment about saving something for summation. This commandment is also key in witness control. 

10.  Save the ultimate point of your cross for summation.    

The summation is the part of the trial when the trial attorney gets to argue the case.  Summation is called closing argument in many jurisdictions.  By saving the ultimate point for summation, the trial attorney is allowed to present the ultimate point in a manner that cannot be attacked by additional witnesses or evidence.  


Above, are Irving Younger's 10 Commandments of Cross Examination with my input.  A key theme of the 10 Commandments of Cross Examination is witness control.  The ultimate goal of the trial litigator is presenting the best case. 



GREGORY CHANDLER, Attorney at Law  

GREGORY CHANDLER -- BUSINESS RECORDS

I plan to do another writing on business records soon.

Gregory Chandler

GREGORY CHANDLER: THE BEST--AND NOTHING BUT THE BEST--EVIDENCE

BY GREGORY CHANDLER, ESQ.


While teaching a seminar on the rules of evidence, I became aware of the fact that many attorneys do not understand the concept known as the Best Evidence Rule.  In the Federal Rules of Evidence, the Best Evidence Rule is expressed in Federal Rule of Evidence 1002, Requirement of the Original.  Most states have a rule of evidence similar to Federal Rule of Evidence 1002. 

Federal Rule of Evidence 1002 (Rule 1002) reads:

 An original writing, recording, or photograph is required in       order to prove its contents unless these rules or federal statute provides otherwise. 

The Best Evidence Rule requires the production of an original in order to prove the contents of a writing, recording, or photograph, unless an exception is provided in another Rule.  The traditional rationale for the Best Evidence Rule--that accuracy is promoted by production of the original, because the process of copying creates risk of fraud, mistake, or error--has been reduced somewhat by technological advances with respect to copying of writings and recordings.  The Federal Rules take account of these developments by establishing broad exceptions to Rule 1002.  Rule 1002 must be read together with the exceptions provided in Rules 1003 and 1004.  The only legitimate concern remaining is where the proponent seeks to prove the content of a writing or recording by way of oral testimony or handwritten replication, i. e., where there is no duplicate of the final document. 

The one difficult concept that arises in connection with Rule 1002 is the notion of proving the contents of a writing, recording, or photograph.  If the contents are not sought to be proved, the Best Evidence Rule is inapplicable, and the proponent can prove the fact in any otherwise permissible way. The fact that a writing is made to describe or record an event or a condition does not prevent testimony by knowledgeable witnesses as to the same event or condition, if it is the event or condition to be proved and not the contents of the document itself. 

One familiar example relates to the question whether one individual paid another individual a certain sum of money at a specified time.  The first individual may have given the second individual a written receipt, but that does not prevent oral testimony concerning the alleged payment.  The proponent is trying to prove whether or not a payment is made, not the content of any agreement. 

However, should the first individual choose to prove the fact of payment by using the receipt, Rule 1002 requires that the original or a duplicate of the receipt be introduced, or its absence explained, because in that case the content of the receipt (i. e., the amount, date, signature, etc.) is the point to be proven.  The same can be said of the use of most photographs, a point made by the Advisory Committee of the Federal Rules of Evidence.  Ordinarily, a witness takes the stand and states that a photograph represents the scene as she or he saw it.  The contents of the photograph are not then in issue; the scene is in dispute.  Therefore, Rule 1002 seldom applies to ordinary photographs.  However, in an obscenity prosecution or copyright case, the contents might be in dispute.  The contents of a photograph would also be in dispute if the proponent merely took a photograph of documents and offered the photograph to prove the contents of the documents. 

The most common example of non-applicability of the Best Evidence Rule in criminal cases is police officer testimony as to the contents of a confession.  Police officers who heard a defendant confess may testify to what they heard even if there is a recording of the confession and a transcript of that recording.  Only when the recording or transcript is actually offered, as proof of the content therein, is the Best Evidence Rule triggered. 

One example of an application of the Best Evidence Rule arose in United States v. Bennett, 363 F. 3d 947 (9th Cir. 2004).  The United States Coast Guard found substantial amounts of marijuana on the defendant's boat, and the major contested issue was whether defendant was importing the marijuana from Mexico.  The federal prosecutors did not have eyewitness testimony that the boat crossed into United States waters from Mexican waters.  The federal prosecutors relied at trial chiefly on the testimony of a customs officer that he found a global positioning system (GPS) on the defendant's boat and that the GPS revealed that the boat had traveled from Mexican waters to the bay of San Diego, California. 

A GPS device uses global positioning satellites to track and record the location of the device, and thus the location of any object to which it is attached.  The GPS device in question came with the capabilities to graph the boat's journey the day of the search.  The customs officer testified at trial that the GPS mapped the defendant's journey from Mexican territorial waters and then north to San Diego Bay.  The customs officer admitted on cross-examination that he had not taken possession of the GPS device itself nor had he obtained any printout record of the date contained in it.  Rather, he simply used the GPS device and viewed the graphic display, which indicated where the boat had been.  The court found the testimony about the GPS information to be a best evidence violation for three reasons.  First, the GPS display the customs officer saw was a writing or recording.  Second, the customs officer never actually observed the defendant's boat travel the path depicted by the GPS.  Third, the customs officer did not observe anyone entering way points into the machine.  Thus, the witness' testimony concerned the content of the GPS to prove the defendant's travels.  The federal prosecutors did not produce the GPS itself, in which the GPS could be employed in court; nor did it produce a printout of the GPS data.  Either of these sources would have been the best evidence of the boat's travels; as a result, testimony did not satisfy the Best Evidence Rule.  Finally, the government provided no excuse for relying on the witness' testimony instead of the GPS or a printout. 


GREGORY CHANDLER, Attorney at Law