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Laying the foundation for electronic and documentary evidence at trial
Jul 20, · Offer the document into evidence. “I offer this document into evidence, your honor,” is all you need to say. Be prepared to meet any objection. If the court overrules the objection (s) and orders that it be admitted, proceed to Step 8. If the court rules that it is inadmissible, proceed to Step Estimated Reading Time: 6 mins Code, § ) Electronic evidence can also include voicemails, database materials, and computer metadata. Most basically, evidence must be relevant (Evid. Code, § ) and not subject to any exclusionary rule (i.e., hearsay) in order to be admitted. Next comes the issue of authentication. (Evid Electronic evidence or records come in many different types. When starting work in criminal cases involving the use of electronic evidence, it is helpful to consider and apply a basic understanding of these records to identify which ones may be useful for the case. At its core, electronic evidence is simply an event memorialized by a computer
Foundation for admission of downloaded files into evidence
The proliferation of computers, digital media, and social media is constantly creating new types of evidence available for use at trial. Emails, texts, tweets, status updates, posts and metadata provide potential treasure troves of information, but is it admissible? Applying the traditional rules of evidence to new media can be tricky, foundation for admission of downloaded files into evidence.
Before you assume a jury will see the evidence, you need a plan for laying a foundation. As the manner by which information is recorded has changed over the years, the law in California has evolved and expanded in an attempt to keep up with the times. Code, § Over time the definition expanded to include photocopies of those more traditional documents, as well as printouts of emails and Web pages, photographs, videos, and almost any other form of communication or representation.
Electronic evidence can also include voicemails, foundation for admission of downloaded files into evidence, database materials, and computer metadata. Most basically, evidence must be relevant Evid. Code, § and not subject to any exclusionary rule i. Next comes foundation for admission of downloaded files into evidence issue of authentication.
Code, § a. There is no need to authenticate a writing unless opposing counsel objects to its foundation or authenticity. You have the burden to introduce evidence sufficient to sustain a finding that the writing is what you claim it to be. Goldsmith 59 Cal. While the judge decides whether a party has satisfied their burden, foundation for admission of downloaded files into evidence, Evid.
Code, § c. McAllister v. George 73 Cal. Mao Cal. In foundation for admission of downloaded files into evidence how to authenticate a writing, it is important to be foundation for admission of downloaded files into evidence of the reason you want the evidence admitted.
When raising an objection to your evidence, your opponent may try to conflate two possible reasons for admission of the evidence, possibly confusing the court before the judge rules on the evidentiary objection. It is critical that you understand why you need the evidence admitted before you begin to argue why the court should rule in your favor. In such a case, the court can instruct the jury to determine whether the preliminary fact exists, and to disregard the evidence if it finds the preliminary fact does not exist.
The court could also instruct the jury to disregard the foundation for admission of downloaded files into evidence if the judge later finds that the jury could not reasonably find that the preliminary fact exists. Agrippina Versicherunges A. Accordingly, if opposing counsel raises an objection to the foundation for the writing, you should argue to have it conditionally admitted. This way, you can show it to the jury and use it in questioning witnesses while presenting additional evidence to support a proper foundation for the writing.
Now that you have authenticated the writing itself, you still need to lay a foundation for the secondary evidence of the content of the writing. Code § b. You want to show as much of the TCR to the jury as you can, foundation for admission of downloaded files into evidence, but face a barrage of objections stating that TCRs are not admissible.
Box v. California Date Growers Assn. First, you may elicit the content of the document by asking the officer detailed questions and offering the report to refresh his or her recollection. Robinson v. Cable 55 Cal. Videotapes and photographs of an event or a particular location can also be enormously helpful to a jury. The proponent of the evidence must present evidence, by testimony or some other method, that the video accurately depicts what it purports to show. People v. Gonzalez 38 Cal.
This can be done by offering a witness who was present at the time the video was made who can testify that it accurately depicts what it purports to show. Bowley 59 Cal. However, that is not required, and in reality, you do not have to identify the person who created the video or photograph.
Cheary 48 Cal. Culver City Unified School District Cal. State Water Resources Control Bd. In other words, witness testimony, circumstantial evidence, content, foundation for admission of downloaded files into evidence, location, or any other means provided by law can be sufficient.
Goldsmithat p. Dawkins Cal. In People v. Goldsmitha driver was cited for failing to stop at a red traffic light based on several photographs and a second video recorded by a red light traffic camera. The photographs and video were offered to show that an event occurred at a particular intersection on a particular date and time, namely, that the driver had run the red light. An officer testified that the camera system was independently operated, and so the court found that because the system automatically and contemporaneously recorded the images as they occurred, a proper foundation had been laid.
Interestingly, the officer did not testify regarding the records or supervision of third-party maintenance or certification of the equipment. While longstanding principles still apply, Evidence Code sections and address the issue of printed representations of computer information or programs. A printed representation of computer information, a computer program, or images stored on a video or other digital medium is presumed to be an accurate representation of foundation for admission of downloaded files into evidence it purports to represent.
Code, §§ Goldsmith at p. However, if opposing counsel then produces evidence that a printed representation is inaccurate or unreliable, the burden shifts back to you to prove, by a preponderance of the evidence, that the printed representation is an accurate representation of the existence and content of what it purports to represent.
There are many compelling ways to use Evidence Code §§ and to your advantage at trial, while remembering that the secondary evidence rule does not alleviate your burden to authenticate the writing. Google Maps and Google Earth provide a number of helpful tools for making a jury more familiar with the geographic area at issue in your trial.
Both Google Maps and Google Earth are comprised of overhead satellite imagery and street views of almost every location in the state. Google Maps also allows you to access historical street view imagery, meaning you can print images of a particular road that were created close in time to your incident, for example, even though Google has recorded additional images of it since then.
This can be helpful in illustrating how conditions along that road changed over the course of time, foundation for admission of downloaded files into evidence. Google Earth offers 3D content and ruler and elevation profiles. These tools allow you to measure distances along a path of your choice, or observe the elevation changes in a particular area. If your opponent objects to the foundation of the printouts, you do not need to subpoena a representative from Google to testify as to their authenticity.
Remember to identify the purpose for which you are attempting to admit the printouts. Arguably, foundation for admission of downloaded files into evidence, the images are also admissible as substantive evidence. Sometimes an opposing party posts information about an incident on their social-networking pages and regrettably, sometimes our own clients do as well.
These posts may be relevant to establish intent, liability, severity of a collision, or the existence of injuries or damages. Printouts from social-media pages can be admissible. As discussed above, Evidence Code sections and create a presumption that the printouts are a reliable representation of what was depicted on the computer when it was accessed. However, that does not prove that the content on the social-media page was reliable. You need to offer testimony or other evidence that the content is what you are arguing it to be.
Beckley Cal. The prosecutor called the detective who accessed the MySpace material as a witness in the case. The defendants conceded that the picture belonged to the witness, but no one was called to testify that it was an accurate depiction of the witness actually flashing the gang sign. Also, no one was called to testify that the photograph was not a composite or had not been faked. The court in People v. Goldsmith59 Cal.
In the instance of photographs or videos, metadata could include information about exposure and the camera itself, and in the instance of cell phones, could include information about the times of calls, texts messages, or data retrieval.
This is separate from more straightforward data retrieval, which addresses retrieving substantive content. Many times, a computer, cell phone, or other device is programmed to record metadata automatically. This information can be valuable at trial as evidence supporting your case.
Hawkins 98 Cal. The defendant did not offer evidence to the contrary, but rather baseless assertions that it was possible that the computer had been tampered with. On that basis, the court ruled that the prosecutor had laid a proper foundation for the source code.
at A trial affords many opportunities to impress the jury with electronic and documentary evidence. While traditional rules of evidence apply to authenticating electronic and documentary evidence, further steps are often required to establish the reliability of that evidence.
He graduated from Loyola Law School in Shawn handles a broad variety of cases regarding personal injury and product liability. He serves on the Board of Governors for Consumer Attorneys Association of Los Angeles and Consumer Attorneys of California and was recently admitted into American Board of Trial Advocates. He currently serves as CAALA President. In addition to advocating for individual plaintiffs, she has experience litigating mass torts and class actions. She also handles bad faith insurance litigation, and has argued before the California Court of Appeal.
She is a member of the CAALA Board of Governors and is currently serving as the Vice Chair of the Membership Committee. Copyright © by the author.
The Best Way to Organize Your Files and Folders
, time: 14:34Foundation for admission of downloaded files into evidence
Documentary evidence introduced for the truth of its contents also must comport with the best evidence rule, which will be discussed in detail in 0 of this chapter. Briefly, this means that the original document must be admitted into evidence unless the document falls within a how can the city attorney get these into evidence at “x”’s w/ digital evidence, the foundation must include proof of the reliability of the computer hard- and software. see blogger.com, below. includes computer data downloaded to a disk and then printed out or displayed on a computer screen Dec 27, · The justice system says that you can show or read a report into evidence. However, before doing so, you need to establish that this was made in the regular course of business
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