Evidence in the Real World

1. The Rules of Evidence

You are likely to encounter both the Federal Rules of Evidence and the Maine Rules of Evidence. The Maine Rules of Evidence (M.R.E.) apply in cases heard in the Maine state courts. The Federal Rules of Evidence (F.R.E.) apply in the Federal District Court. The rules are often identical (and have grown more identical over the years) but may differ on important points. Do not assume that the rules are identical.

2 Admissibility and Authentication

The Rules say evidence is admissible if it is relevant, unless it is excluded by some other rule (such as the rule against hearsay evidence). "Relevant" evidence is simply evidence which tends to make more likely or less likely a fact important ("material") to how the case will be decided.

Authentication is a different animal. Authentication asks whether the document is in fact the original document (or a true copy if copies are admissible). Rule 901, M.R.E.: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The same rule offers some illustrations, which you should read.

For example, suppose you are moving for the admission of a letter you believe was written by the defendant. You put the defendant's girlfriend on the stand. She testifies that she is familiar with his handwriting and with his signature, by having seen him write and sign many times. You show her the letter and ask whether she knows whose handwriting it is. She says it is the defendant's, and you move to admit the letter into evidence.

Or you move for the admission of a photograph of an accident scene. You don't have to have the photographer on the stand. You ask someone with knowledge of the scene whether the photo is an accurate depiction of the scene on the day in question, witness answers affirmatively, and you move for admission.

What about things like deeds or death certificates? Many official documents (and some that are not official, such as newspapers) are self-authenticating, if properly certified as set forth in Rule 902. If you are going to move for the admission of such a document, and if you do not expect the other side to cooperate, follow that rule very carefully, and give yourself plenty of time in advance of trial to obtain official seals and signatures, etc.

Bank records and other records kept in the regular course of business are admissible as exceptions to the rule against hearsay. Rule 803(6). The records must still be authenticated. However, this can be done by affidavit of the custodian of the document. This is the usual manner of authenticating and obtaining the admission of such documents, as set forth in Rule 902(11). I attach a sample affidavit.

This exception is for regular business records: account records, letters generated in the usual course, etc. Don't expect to use it to get in, say, an accident report or other non-usual records, or any record prepared outside the business. Leen Company v. Web Electric, 611 A.2d 83 (Me. 1992).

When obtaining such an affidavit from a bank, brokerage house etc., call and ask to speak to the legal department. Such institutions handle these requests every day and you can expect no difficulty provided your affidavit is in the proper form. Please remember that in the notary's jurat it must appear that the document custodian signed of his or her personal knowledge, or the affidavit may not support a summary judgment motion. Rule 56(e), M.R.Civ.P.

Medical records have their own similar statutory provision for authentication and admission. Title 16 M.R.S.A. §357. When asking for medical records early in discovery you can sometimes save time by following the language of the statute and asking for authenticated complete records.

3. The Best Evidence rule.

This old common law rule states that where a document (including photos and recordings) will be used to prove its contents, the original must be produced. Rules 1001 and 1002, M.R.E. The Rule means what it says, and if a party introduces a copy to prove the contents of an original a valid objection may be made. The rule dates back to a time before photocopiers and may seem outmoded, but perhaps the rule gains relevance in this age of easily manipulated digital photos.

A usual pre-trial stipulation is to use copies in lieu of originals and such a stipulation takes care of any Best Evidence issue. But watch out for the rule, especially if the document is at the center of your case, e.g., a will case or a case on a promissory note.

4. When not to expect to get your document in without a witness

Suppose I represent a plaintiff whose truck was vandalized in a secure parking lot. I allege negligence by the owner of the parking lot. My damages consist of truck repairs. I have a detailed invoice from the repair shop, together with an affidavit from the president of the shop attesting to the accuracy of the record. Admissible? Of course not: the document is hearsay, an out of court statement offered for the truth of the matters asserted in the statement, and therefore objectionable under Rule 801 et seq., M.R.E.

The above example shows why hearsay is generally excluded from evidence. If I am the parking lot owner, I have a few questions for the guy who repaired the truck. What sort of shape was the truck in it was vandalized? Is it true that he fixed a lot of old dents unrelated to the vandalism? What about the hourly rate shown on the invoice – is that the same hourly rate he always charges, or is it bumped up?

Who am I suppose to ask these questions of, if the guy that did the work is not on the stand? It sometimes said, often foolishly in my opinion, that "the document speaks for itself." Well, I never heard a document speak, except once when I got a talking birthday card. When the contents of a document are seriously open to interpretation and question, get the author there, or someone who has personal knowledge of the facts in question.

So often in preparing for trial we are hesitant to ask for a witness to appear, regretting that we are taking them away from important work, perhaps even a vacation. But you have to do it. I tell the witness that if she were in the same boat as the plaintiff, she would certainly want the lawyer to make sure the witness is present, and they seem to understand that. Remember, while you may not want to subpoena a witness to trial, there is no more hollow, more sickening feeling than standing in a trial courtroom realizing you need a witness who is miles and miles away. That's why we almost always subpoena witnesses, even friendlys. We may do so by subpoena and witness fee sent with a waiver form, see example attached - avoiding the deputy cost – but subpoena we do.

5. Hearsay

I am not going to delve further into hearsay – it is a seminar in itself. Suffice to say there are a large number of exceptions, all set forth in Rules 803 and 804. Rule 804 exceptions apply only when the declarant is unavailable (dead or distant or unremembering). You can get a deposition transcript in under Rule 804, but if you will do so on account of the witness being distant (federal rules) or out of state, bear in mind that some judges insist that you show you have made an effort to persuade the witness to appear.

Also bear in mind the most important exception of all: that an admission (anything said or written) of a party-opponent is admissible as an exception to the rule against hearsay. Rule 801(d)(2), M.R.E. That single exception takes care of many hearsay issues.

6. General rules for handling evidence at depositions and trial

At deposition there is no need to scrupulously obey the rules of evidence, unless the deposition is meant to perpetuate (preserve) evidence for trial. For example, perpetuation of testimony by deposition occurs when your witness is out of state: at trial you will show the jury a video, or perhaps read the transcript into evidence. In Maine we often by consent take a doctor's trial testimony by deposition, to avoid the great expense of asking a doctor to block out a day for trial. If the deposition is for trial and if you will use the witness to lay the foundation for the admission of documents into evidence, all the foundation questions we would ask at trial must be asked (unless the admission of the documents is stipulated to, of course.)

For deposition or for trial, exhibits should be pre-marked: "Plaintiff's Ex. 1", etc. At a depo the court reporter may attend to this: if you have a great many exhibits, it saves time to have this done in advance of the witness being sworn.

Don't worry if the exhibits are not used in the order in which they are marked, or if a marked exhibit is not used. At trial and at deposition, it is usual for the parties and the court reporter or the clerk to confer at the end of the testimony and to collect the exhibits and determine if one or more were marked but not admitted. At a deposition, one may then go back on the record to, well, to make a record.

It is a common courtesy to have, for each exhibit, both the marked copy and a copy for the judge and each party. I keep my exhibits in manila folders with the exhibit labeled on each, one exhibit to one folder. I can easily pass copies around as each exhibit is used.

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