criminal evidence 6th edition norman m. garland chapter 12 documentary evidence and the right of...

Criminal Evidence 6th Edition

Norman M. Garland

Chapter 12Documentary Evidence And the

Right of Discovery

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Documents as aKind of Evidence

o The FRE 1001(1), defines documents, writings, or recordings as “letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.”

o Documents may be classified as either public or private


Public DocumentsPublic documents are categorized as:

(1) laws(2) judicial records(3) other official documents, such

as records or drivers’ licenses, marriage applications, and birth certificates

(4) public records of private writings, such as records of deeds and mortgages


Private Documentso Private documents are the

private writings or recordings of individuals, such as letters, memoranda, answering machine messages, suicide notes, or wills.


Authentication and the Best Evidence Rule

o Authentication is a foundational requirement that the authorship or genuineness be established.

o The best evidence rule requires that when one seeks to prove the contents of a document, writing, or recording, the original must be presented, unless there is good reason why the original cannot be provided.


Authenticationo Authentication is a prerequisite

to the introduction in evidence of a document that requires that the party introducing the document show that the document is what the party claims it to be.


Authentication and the FREo The modern rule, for example

FRE 901(b), expressly allows an unlimited number of ways to authenticate something.


Additional Requirements for Authentication of a Documento In addition to authentication, the party

introducing the document must show the relevancy of the document to the issues of the case.

o Meeting the requirements of authentication and relevancy is known as laying the foundation for the introduction of the writing, recording, or photograph into evidence.

o After this has been done, the document will be offered into evidence.


The Best Evidence Ruleo In proving the terms of a

document, where the terms are material, the original writing must be produced, unless the document is shown to be unavailable for some reason other than the fault of the party seeking to introduce the document.

o This provision is known as the best evidence rule.


A Statement of the Best Evidence Rule

o The rule says that, if information is to be offered during a trial concerning what is contained in a document, the best evidence, or best proof, of the contents of the document is the document itself, and so the original document must be introduced and the original document must be proven to be genuine.


The Best Evidence Ruleand the FRE

o FRE 1003 allows a duplicate to be admitted to the same extent as the original, unless there is a question as to authenticity or if it would be unfair to do so.


Duplicates Under the FREo A duplicate has been described as

a copy “produced by methods possessing an accuracy which virtually eliminates the possibility of error.” Photocopies, or copies made by any mechanical means, are acceptable. FRE 1001(4)

o Copies produced manually, either handwritten or typed, are not considered duplicates.


To what does the best evidence rule apply?

o The best evidence rule applies only to writings, recordings, and photographs.

o It is a rule that requires that the original of the writing, recording, or photograph be presented, unless there is some valid reason for tendering secondary evidence.


Satisfying the Ruleo Most modern “copies” of a

writing constitute a “duplicate.” o Photocopies, faxes, and

computer-generated “copies” of writings qualify as duplicates.

o A duplicate of a recording is any counterpart produced from the same matrix as the original by means of mechanical or electronic recording.


The Rule and Photographso The negative and any print

constitute the original of a photograph.

o Therefore, most means of producing copies today will result in a “copy” that satisfies the best evidence rule.


Primary vs. Secondary Evidence

o When an original document is produced in court, it is known as the primary evidence of what the document contains. o When the original is introduced, that

constitutes compliance with the best evidence rule.

o When other evidence is substituted for the original document, the substitute is known as secondary evidence.


The Most Common Form of Secondary Evidence

o The most common form of secondary evidence is testimony from a witness.

o Any time a witness testifies in such a way as to state in court the contents of a writing, recording, or photograph, that testimony constitutes secondary evidence.


The Most Frequently Encountered Situations of Secondary

Evidence When the original writing:o has been lost or destroyedo is unobtainable by any available judicial

process or procedureo is in the possession of an adverse party and

after a notice to produce it, the adverse party fails to do so

o is in the custody of a public officero relates to a collateral mattero is voluminous and cannot be examined without

a great loss of time, making a summary of the writing’s contents sufficient


Foundation: Secondary Evidence to Be Admitted

Three things must be shown: o that there has been a writing in

existenceo that the secondary evidence is a

genuine copy of the original or accurately relates the contents of the original

o the reason why, or justification, that the secondary evidence is being offered instead of the original


Lost or Destroyed Writings, Recordings, or Photographs

o When a party alleges that the original document cannot be produced because it was lost, there must be a showing that the party seeking to prove its contents diligently searched for the document.

o The extensiveness of the search necessary will vary depending upon the kind of document involved and its importance to the case.


Document in Possession of Adverse Party

o When an original document is in the hands of a defendant in a criminal trial, a notice to produce must be given to the defendant to produce the original before secondary evidence may be substituted for the original.


Notice to Produceo There is no particular form

necessary for this notice. o It may be merely an oral request

to produce the document, but a reasonable time must be given for the production.

o As a practical matter, though, formal notice, known as notice to produce, should be given.


Subpoena Duces Tecumo If the document is essential at

trial, a subpoena duces tecum ordering a person to bring specified documents or objects to court with him or her should be served on the defendant rather than a notice to produce.


Production of Documentsand the Bill of Rights

o The Fifth Amendment privilege against self-incrimination allows the defendant lawfully to withhold a document, if such document would incriminate the defendant.


Collateral Mattero Secondary evidence of the contents of a

document may be utilized when such a document is not closely related to a controlling issue at trial.

o In such cases, the document is said to relate to a collateral matter, a matter only incidentally related to the issues at trial.

o When the contents of a document relate to such a matter, the original document need not be produced in court.


Document in Custodyof a Public Officer: The FRE

o The modern rule, FRE 1005, expressly exempts public records from the operation of the best evidence rule.

o In addition to the threat of loss or destruction, the production of public records causes inconvenience to the public as a whole and to the people in charge of such documents.


The Certified Document and Public Documents

o Secondary evidence in the form of a copy of an original is admissible to prove the contents of the record.

o Authentication of the copy does not require additional evidence, if a statement by the person, official, or clerk having custody of the record certifying that the document is a true copy of the original is attached to the copy.

o This is known as a certified copy of the original document.


Exemplified Copyo Sometimes in criminal cases, the

prosecution must prove that the accused was convicted of a crime in another state, or in another court proceeding.

o In such cases, the record of conviction must be certified by the clerk of the court, as well as by the presiding judge of the jurisdiction attesting that the clerk correctly certified the form.


Original Documents Too Voluminous to Examine

o Sometimes at trial it is necessary to use information from the records of a business or other entity to shed light on the issues of the case.


An Exception to the Best Evidence Rule: The Voluminous Records Rule

o The FRE specifically provide that unless each item is necessary to prove a fact in issue, a summary, chart, or calculation of voluminous records may be presented in the place of the records themselves.

o The records, though, must be made available for examination and/or copying by the other party at a reasonable time and place.


Original Documents and the FRE

o The FRE define an original document as the document itself “or any counterpart intended to have the same effect by a person executing or issuing it.”


Inscribed Chattelo An inscribed chattel is an object with

words and/or images painted, engraved, or written on it, such as a police officer’s badge or a truck with a business logo on it.

o Generally, such items are not subject to the best evidence rule.

o A judge has considerable discretion in allowing the introduction of secondary evidence to prove the terms of an inscription on a chattel.


Best Evidence Rule and Inscribed Chattels

o In determining whether or not to apply the best evidence rule to inscribed chattels, the judge will look at factors “such as the need for precise information as to the exact inscription, the ease or difficulty of production and simplicity or complexity of the inscription.” Lawson v. State (2004)


The Right of Discovery in Criminal Cases

o The right of discovery is a right afforded to the adversary in a trial to examine, inspect, and copy the evidence in the hands of the other side.


Major Disagreementso A major impediment to discovery

in criminal cases has been the view that fairness requires discovery to be reciprocal, which cannot be allowed in a criminal case because of the defendant’s Fifth Amendment self-incrimination and attorney-client privileges.


Rule 16 of the Federal Rules of Criminal Procedure (FRCrP)FRCrP 16 provides for discovery in criminal cases to achieve a number of different goals:

oProvide the defendant with sufficient information to plead and prepare for trial

oAvoid surprises to both sidesoPromote judicial economyoSpeed up the trial process


Rule 16 of the Federal Rules of Criminal Procedure (FRCrP)

The Rule permits the defendant, upon request, to discover from the prosecution:

o any written statements or transcriptions of oral statements made by the defendant possessed by the prosecution

o the defendant’s prior criminal recordo documents, photographs, tangible objects,

results of physical and mental examinations, and test reports possessed by the prosecution that the prosecution intends to use as evidence or that the court deems material to the defendant’s trial preparation


Exceptions to the FRCrPo The right of the defendant to discover the

identity of a confidential informer when vital to the defense, and at the time of trial in any event, in many cases;

o The obligation of the prosecution to disclose evidence favorable to the defense–Brady material.

o The defendant’s right to discover written or recorded statements of witnesses, required to be turned over in accordance with the Jencks Act in federal court and under similar state statutes.


Brady v. Maryland: Prosecutorial Duty to Disclose Exculpatory

Evidence to Defendant

o The Supreme Court announced for the first time a general prosecutorial duty to disclose exculpatory evidence to the defendant before trial; i.e., evidence that would tend to exonerate the defendant.


Discovery Through Preliminary Hearing

o The defendant must make a discovery request in advance of or prior to trial.

o However, in many jurisdictions, even before the accused might have the opportunity to consider such a request, the prosecution may be required to present evidence at a preliminary hearing.


The Preliminary Hearing:A Review of That Proceeding

o A preliminary hearing is a stage in the criminal prosecution that is held for the purpose of determining whether probable cause exists to believe the accused has committed a particular offense.

o At the preliminary hearing, the prosecution must present evidence sufficient to convince the magistrate that there is probable cause to believe the accused committed a particular crime in order for the accused to be bound over for trial.


For Some Jurisdictions: Grand Jury Versus the Preliminary

Hearingo Although a preliminary hearing affords

the accused an opportunity to discover evidence in the hands of the prosecution, a preliminary hearing is not guaranteed in jurisdictions that prosecute by way of indictment rather than information.

o Some jurisdictions and the federal court system may not hold a defendant over for trial unless a grand jury has indicted the defendant.


Growth of the Right of Discovery

o Although the accused had a limited right of discovery through the preliminary hearing, the argument persisted that this was not sufficient to enable the defense to properly prepare a case.


Rule 16 (a)(1)(B) of the FRCrP: An Early Statute Granting Discovery

(1946)“Upon a defendant’s request, the government must disclose to the defendant and make available for inspection, copying or photographing, all of the following:

o Any relevant written or recorded statement by the defendant if the statement is within the government’s possession, custody of control; and the attorney for the government knows—or through due diligence could know—that the statement exists.

o The portion of any written record containing the substance of any relevant oral statement made before or after arrest if the defendant made the statement in response to interrogation by a person the defendant knew was a government agent.

o The defendant’s recorded testimony before a grand jury relating to the charged offense.”


Jencks Acto Named after Jencks v. United

States.o Deals only with the right of the

defendant to discover statements made by a government witness.

o Covers only statements written by the witness, or transcribed at the same time the statement was made and either signed or adopted by the witness.


Pretrial Discoveryo Some jurisdictions permit discovery

at arraignment on an indictment, or within a certain number of days after arraignment or filing of charges.

o Other jurisdictions allow the defendant to make a discovery request before arraignment, or preliminary hearing, while, at the other extreme, there are jurisdictions that do not permit defense discovery until after the preliminary hearing.


Matters Generally Included in the Right of Discovery

o Statements of the accused, including the right to hear or copy any recordings made of conversations with the accused.

o Statements of prospective prosecution witnesses.

o Names and addresses of prospective witnesses.

o Names and addresses of certain informants, particularly when probable cause for the arrest may stem from such informant, or if the informant was a participant in the crime or a witness thereto.


Matters Generally Included in the Right of Discovery continued

o Notes and documents made by witnesses, including the peace officer, used to refresh their memory prior to testifying.

o Notebook used by the officer during the course of investigation.

o Photographs of the defendant shown to the victim of a crime for identification purposes.

o Scientific reports, such as crime-lab reports.o Photographs pertaining to the crime.o Real evidence collected during the

investigation.


Procedure for PretrialDiscovery by Defendant

o The defense may not participate in discovery if the judge determines that it is simply a “fishing expedition” by the defense in an effort to see what is being held against the defendant with the hopes that it may be beneficial to the defense.


Prosecution’s Right of Discovery

o Since 1966, Rule 16 has provided for some reciprocal discovery.

o The most significant impediments to prosecution discovery rights are defendants’ self-incrimination rights and the attorney-client privilege.

o Compelling the accused to produce evidence is, to some degree, compelling the accused to be a witness against himself or herself.


Defendant’s Right to Original Investigative Notes and Audio Tapes

o Once an officer writes a report, he or she may destroy the original notes upon which the report is based.

o The departmental policy may even mandate such destruction of notes.

o Generally this is not a problem, since the majority of courts considering the matter have held that the defendant is not entitled to discovery of the officer’s original investigative notes.

o However, in some instances, courts have ruled otherwise.

criminal evidence 6th edition norman m. garland chapter 12 documentary evidence and the right of...

Documents

mcgrawhill companies

documentary evidence

criminal evidence

best evidence rulein

official documents

requirements of authentication

original writing

records of deeds