9-14 Evidence - Distinction btwn facial logical relevance and

							9-14 Evidence                                              9/14/2005 9:58:00 AM

 Distinction btwn facial logical relevance and underlying logical relevance:
        All evidence, oral, written, physical, must be relevant. R. 401 – any
           tendency to prove or disprove a point
        Facial logical relevance – any tendency to prove or disprove a point
        Underlying logical relevance – personal knowledge R. 602 (aka
           conditional relevance)
        Two independent objections, evidence lack relevancy and witness
           doesn’t have any personal knowledge about testimony. –
        Judge decides relevance 104A
        Personal knowledge judge is preliminary screener R. 104B, has
          proponent presented enough evidence to show the jury that this
          person has personal knowledge.
             o In theory, the jury can still reject the proposition that the
               witness had personal knowledge.
         104B**** - how this rule relates to other rules
             o three ways this will come into play
             o R. 602 personal knowledge –
             o Figure out other 2!!


 R. 401
 Old (original rule) page 195 footnote 15 – included 2 prong test
        Definition of materiality, definition of relevancy
        Materiality is no longer an independent objection


 Documentary evidence ---
      Why are you offering that into evidence – be prepared to answer
        this for every piece of evidence.
      What is this document – how do you prove up that this document is
          authentic
             o Decided under 104B – Judge decides if enough evidence
               presented to allow a reasonable juror to determine that the
               document is authentic.
                    104B – conditional relevance – relevancy conditioned on
                     fact. The judge can conditionally admit the letter before
                     it has been proved up. Most judges will wait until you
                      are able to satisfy both conditions (authenticy and
                      relevancy) before they admit it into evidence.
                   He establishes authenticity first and then relevancy.
             o Much of this can be done outside presence of jury before trial
               starts


Use terms interchangibly:
       Predicate, foundation, authentication, identification, verification,
        proving it up.


When we speak of documents, authentication, photos, verification,
Safest to use in TX is predicate or prove up


PAGE 16, 4 STEP METHOD FOR WALKING AND TALKING INTO EVIDENCE
LOOK AT TX EVIDENTIARY FOUNDATIONS BOOK


Authentication:
Letter addressed to X signed by Y:
       Y testifies, that’s my letter, that’s my signature
         Non expert opinion – Z testifies farmiliarity of handwriting, how do
          you recognize
         Handwriting expert – compare with authenticated sample
         Distinctive characteristics
         Return letter or reply letter doctrine – testimony by X, if x is writing
          about or in response to things said in Y’s letter, then it is a
          circumstantial way to prove that X got y’s letter.
              o Can be used for e-mail also
         Testimony of witness with knowledge, person who saw it’s
          execution.
         Z saw it as opposed to saw its execution, that look like the letter
          that he gave to me to deliver to X.
         Ancient document – Z comes in and says it’s an ancient document,
          in existence for 20 years or more
         Process or system – writing letter of acknowledgement when
          receiving a particular thing
         Comparison by trier of fact (judge or jury). Have something they
          have already authenticated as being written by Y.
            o Court decides if first document is authentic (document you
               are comparing it to)
            o Usually used with hair samples, bullistice, etc.
            o Federal Rule – difference between 901 b3 TX and Federal –
               Federal rule assumes that judge and jury will both be
               involved in the process of authentication of the first
               document.


901A – judge decides under 104B – preponderance of the evidence –
Quickest and easiest way to prove up is a stipulation by the other side that it
is authentic. What do you lose if you get a stipulation
       Attention, credibility



Business Records:
      902 (10) – affidavit, signed by custodian of the records. (803 (6),
        business records exception to the hearsay rule)
         Live Witness – custodian of records, witness with knowledge
          (employee)
         901 (b)(4) – distinctive characteristics – combining with live
          witness with personal knowledge, testify to symbols, company
          name, trademark,
         ancient documents
         custody – chain of custody
         901 (b) (3) – comparison with known business record from
          company, could be combined with b4


Official Records:
Self Authentication – Rule 902
        902(1) – document bearing seal of US or State or
        902 (4) – custodian of records signs an attesting certificate that it is
          a certified copy, a true and accurate representation of the original
          that is on file with that office.
        902n (8) – document attested to by notary
602 – question
      does this person have personal knowledge
9/14/2005 9:58:00 AM
9/14/2005 9:58:00 AM