proof
THE JOURNAL OF THE TRIAL EVIDENCE COMMITTEE
SECTION OF LITIGATION | AMERICAN BAR ASSOCIATION
WINTER 2010 VOL.18 NO.2
The Confrontation Clause under
Crawford v. Washington and
Its Progeny
By James A. Nofi
T
he Supreme Court’s 2004 decision
in Crawford v. Washington1 almost
single-handedly resurrected the Sixth
Amendment’s Confrontation Clause2 in criminal trials. It overruled Ohio v. Roberts,3 which
had been the leading Supreme Court decision on the application of the Confrontation
Clause for almost a quarter of a century.
Under Roberts, the Court had permitted the
admission of out-of-court statements of a
witness who was unavailable at trial if the
statement bore adequate “indicia of reliability,” such as the existence of a firmly
rooted hearsay exception or other particularized guarantees of trustworthiness. Crawford
changed the analysis from whether the statement was reliable to whether the statement
was testimonial. If testimonial, the statement
is now admissible only if the Confrontation
Clause is satisfied. Crawford marked the
beginning of a new Confrontation Clause
jurisprudence.
Continued on page 13
in this issue
Message from the Chairs
2
Going Negative: How
an Overlooked Hearsay
Reliable or Not? Beware of
Experts Using Internet Sources
Exception Can Prove a
By Phillip S. Georges
Authentication of Emails:
Positive
3
Beware of Improper
W
here would we be today without the Internet? Many of us are
always connected to the web.
Whether we are at our computer at work, out
of the office with our BlackBerry or iPhone,
or even sitting at home on the couch with our
laptop, the Internet has become an essential
part of our life. At any time, if you have a
question that you do not know the answer to
and you want to do some research about it,
where are you likely to turn? The Internet.
Not only do we turn to the Internet for
answers to questions, but we rely on the
information that we discover. We all at
some point have been searching for more
information regarding a case. Maybe it is
information about a medical condition that
your client has. You do a Google search
and, suddenly, there at your fingertips is
all the information that you need about
xanthogranulomatous pyelonephritis. You read
through the information and it appears to come
from a credible source, like WebMD, and you
rely on it. Now, you can’t cite it in a publication
or even a brief for that matter, but you do rely
on that information to better understand that
Alterations
5
Using Demonstrative Evidence
to Win
8
Continued on page 17
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
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proof
EDITORIAL BOARD
COCHAIRS
Christina L. Dixon
Zupkus & Angell, P.C.
Denver, Colorado
John P. McCahey
Hahn & Hessen LLP
New York, New York
John H. McDowell Jr.
K&L Gates LLP
Dallas, Texas
Jacqueline Griffith
Chehardy, Sherman, Ellis, Breslin,
Murray, Recile & Griffith, LLP
Metairie, Louisiana
David Wolfsohn
Woodcock Washburn LLP
Philadelphia, Pennsylvania
MANAGING EDITORS
Robert F. Parsley
Miller & Martin PLLC
Chattanooga, Tennessee
Jonathan A. Choa
Potter Anderson & Carroon LLP
Wilmington, Delaware
CASE COLUMNIsTS
David A. Kotler
Dechert LLP
Princeton, New Jersey
E. Warren Moise
Grimball & Cabaniss, LLC
Charleston, South Carolina
AUTHORS
David T. Case
K & L Gates LLP
Washington, DC
Charles B. McFarland
Vinson & Elkins LLP
Houston, Texas
Eugene Illovsky
Morrison Foerster
Walnut Creek, California
James J. Donohue
White & Williams LLP
Philadelphia, Pennsylvania
ABA PUBLISHING
Anna Sachdeva
Associate Editor
Andrea Siegert
Art Director
Noel F. Stahl
Miller & Martin PLLC
Nashville, Tennessee
Proof (ISSN 1938-8373) is published quarterly by the Trial Evidence Committee, Section of
Litigation, American Bar Association, 321 N. Clark Street, Chicago, IL 60654, www.abanet.
org/litigation. The views expressed within do not necessarily reflect the views or policies of
the American Bar Association, the Section of Litigation, or the Trial Evidence Committee.
Copyright 2010 American Bar Association. All rights reserved. For permission to reprint,
contact ABA Copyrights & Contracts, 321 N. Clark Street, Chicago, IL 60654; fax: (312) 9886030; email: [email protected].
Address corrections should be sent to the American Bar Association, c/o ABA Service
Center, 321 N. Clark Street, Chicago, IL 60654.
http://www.abanet.org/litigation/committees/trialevidence
MESSAGE
from the Chairs
W
elcome to the
winter issue of
Proof, the Journal
of the Trial Evidence
Committee. Our committee is having another exciting and productive year.
The
Trial
Evidence
Committee provided comments to the restyled
Christina L. Dixon
Federal Rules of Evidence
and continues to actively
monitor the rule changes.
Trial Evidence again is
sponsoring innovative programming at the Section
of Litigation Annual
Conference, which will
take place April 21–23,
2010, in New York City.
The committee is responJohn H. McDowell Jr. sible for two programs in
the Trial Practice track on
mock jury trials and top
10 jury trial blunders. We
also will be sponsoring a
program on waiver of the
attorney client privilege.
In addition, the committee has a program slated
for the 2010 ABA Annual
Meeting in San Francisco.
We encourage all memDavid Wolfsohn
bers to attend the Section
Annual Conference in New
York in April and the ABA Annual Meeting in
August. You will not want to miss these meetings.
We also encourage you to get involved in distance CLE programs. Stay tuned for information
about the programs that our committee will be
cosponsoring this year.
Remember that we always welcome program ideas,
practical tips on evidence, articles, case updates, and
other material for the website. We especially look
forward to receiving Tips from the Top and Tips
from the Bench. Contact one of our Judicial Liaisons
(Sarah Marmar, Rich de Bodo, or Dipali Parikh) to
coordinate approaching a judge of your choice or
providing your own evidentiary war story.
Our committee, once again, provides quality and
suitable content to assist the battle-tested litigator.
Christina L. Dixon
John H. McDowell Jr.
David Wolfsohn
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
934135crx_10mar10.indd 2
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Going Negative: How an Overlooked
Hearsay Exception Can Prove a Positive
By Dawn C. Van Tassel
A
s trial attorneys, we understandably tend
to focus on the positive evidence we
have amassed in discovery, e.g., the key
documents and the fantastic admissions. While
we stack up the mountains of paper in preparation for trial, it is easy to overlook a powerful and
persuasive weapon—namely, the evidence that
isn’t in the record.
The absence of a record, commonly referred to
as “negative evidence,” is just as admissible as any
regularly kept business or public record, provided the
proper foundation is laid. And it can be just as persuasive to a finder of fact as any smoking gun email.
Federal Rules of Evidence 803(7) and 803(10)
establish exceptions to the hearsay rule that
enable an advocate to present negative evidence.
Rule 803(7) permits a party to offer evidence
“that a matter is not included in the memoranda
reports, records or data compilations, in any form”
of any regularly conducted activity that would
normally be admissible under Rule 803(6). Rule
803(10) provides a similar exception for absences
of entries in a public record.1 In enacting the two
exceptions, the Rules Committee recognized that
there would be overlap between the two, which it
considered “harmless duplication.”2
The reasoning behind the hearsay exceptions
for regularly kept business records and public
records should apply with equal force to the
absence of such records. “The exception to the
hearsay rule for both business and public records
[is] grounded on the high probability of their
accuracy. Such records are maintained regularly
and systematically by persons having a duty to
make accurate records and are relied upon in
the course of daily operations.”3 If we trust businesses and governmental entities to keep reliable
records, it necessarily follows that the lack of a
record should be just as reliable.4
Negative evidence is not only reliably admissible, but it can also be powerfully persuasive. An
extreme example can be found in the case of Hunt
v. Liberty Lobby.5 E. Howard Hunt, who was convicted of federal crimes arising from the Watergate
break-in, sued a newspaper publisher for libel. The
allegedly libelous article stated that Hunt was
involved in a conspiracy to kill President John
F. Kennedy. This exposé was based in part upon
an alleged internal memorandum discovered at
the CIA. To prove the falsity of the article, Hunt
submitted affidavits from CIA officials that stated
they were the custodians of particular records and
that after diligent search of the appropriate files,
they were unable to locate any evidence of a CIA
memorandum incriminating Hunt. On appeal,
the Eleventh Circuit ruled that the affidavits were
properly admitted under Rule 803(10).
While most pieces of negative evidence do not
rise to the level of proving that one did not conspire to assassinate a sitting president, the absence
of a record can nonetheless be very helpful in any
number of situations.
In another example, United States v. Gentry, a
criminal defendant falsely reported to his coworkers, and eventually the sheriff, that he bit into a
pin when he ate M&M candy bought from a vending machine. This false report of food tampering
garnered the defendant a sentence of 12 months’
of imprisonment. On appeal, the defendant complained that the court should not have admitted
testimony from an employee of the manufacturer
that there were no other reports of pins in M&M
candy. The Seventh Circuit affirmed the trial
court’s admission of this evidence in accordance
with Rule 803(7).6 While the Gentry case arose in
a criminal context, one could easily see its application in a civil suit for product liability as well.
Laying a Proper Foundation
Although the wording under each rule varies
slightly, in getting negative evidence admitted,
the proponent’s goal is the same—to demonstrate
that a diligent search was made in a reliable compilation of data and no evidence of a particular
record or event was found. The reliability of the
record keeper and the diligence of the search
made for the records are threshold issues for
the court to decide.7 Once deemed admissible,
however, the weight of the negative evidence is
determinable by the jury.8
Proving Diligence
Rule 803(10) requires proof that a “diligent
search” was conducted of the public record. There
is no magic language required to meet this burden,
however, and if a witness testifies in a manner
that is consistent with a diligent search, it is not
necessary that he or she use the words “diligent
search” to lay the proper foundation.9 However,
it is appropriate for a court to exclude evidence
Dawn C. Van Tassel
Dawn C. Van Tassel is with
Maslon Edelman Borman
and Brand in Minneapolis,
Minnesota. She can be
reached at dawn.vantassel@
maslon.com.
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
934135crx_10mar10.indd 3
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Litigants should
look for general
indicia of
unreliability and
any additional
factors that
would make the
data unreliable
in a particular
instance.
if there is no testimony or evidence about how
the search was made or where the circumstances
otherwise indicate a lack of trustworthiness.10
While Rule 803(7) does not use the words “diligent search,” it is nonetheless advisable for a party
seeking to admit negative evidence of business
records to establish that a thorough search of the
business record was made so the court can assess
the trustworthiness of the records themselves.
Proving Reliability
The second important element in laying a foundation for negative evidence is to prove that the
data at issue are reliably kept. This requirement
can be fulfilled through the testimony of a witness
knowledgeable about the records.11 A custodian
of records, as that term is commonly understood,
need not be the person to testify, however. In fact,
no one need testify in person at all, and the evidence can come in via affidavit.12 A certification
that complies with Rule 902 suffices in lieu of live
testimony.13
While a custodian of records may be an ideal
witness, when it comes to searching public records,
at least, the courts appear to presume some measure of reliability, thereby permitting the witness
who performed the search, whether the records
custodian or not, to testify. For instance, in an
action to recover military benefits that hinged
on the marital status of the defendant, the Fifth
Circuit affirmed the trial court’s admission of
testimony by an FBI agent that “he had searched
the public records in Mobile County, Alabama,
and found no record that appellant and Anderson
had been divorced.”14 The court rejected the argument that the absence of public records could be
proven only by the custodian. While the rules
“provide that the certificate of an official record
is admissible to prove the lack of a particular
record,” these rules do not exclude other evidence
to the same effect.15
Given that searches of records will increasingly
be made in computer databases, any number of
individuals could supplant the traditional notion of
a custodian of records since “[t]raditional notions of
physical ‘custody’ in hearsay rules makes little sense
when applied to computer data.”16
Rebutting Negative Evidence
If reliability and diligence are key, then it stands
to reason that the opponent of negative evidence
should use unreliability and lack of a diligent
search to keep the proffered evidence out.
Not only can a litigant attack a source of
documentation as unreliable in general, but some
thought also must be given to whether the records
are reliable in a particular instance with respect to
the negative evidence sought to be introduced. In
a recent First Circuit ruling, the trial court admitted Certificates of Nonexistence of Record from
the National Firearms Registration and Transfer
Record (NFRTR) over defendant’s objection that
the database had been unreliable in the past.17
Defendant’s only evidence of unreliability was an
unpublished, undated article by a private attorney
that was not made part of the record. The trial
court held that the defendant failed to prove that
the database was currently unreliable as to him,
which was affirmed on appeal.18 What’s the lesson? Not only should litigants look for general
indicia of unreliability but also any additional
factors that would make the data unreliable in a
particular instance.
An opponent of negative evidence may also
contest what constitutes a regularly kept record
in the particular database or record compilation. For instance, in Brodersen v. Sioux Valley
Memorial Hospital,19 a medical malpractice action,
plaintiff sought to prove that the physician did
not refer him to another doctor. Plaintiff argued
that because the medical record did not reflect a
referral, no referral was provided. The physician
testified that it was not his practice to record
referrals in the file. Plaintiff argued that doctors
should record such information and generally do
so. The court held that the “absence of entry”
rule does not hinge on industry standards for
record keeping. Rather, to avail himself of the
rule, the plaintiff must prove that this physician
in particular regularly recorded referrals as a part
of his business.20
Making the Most of What Isn’t There
With a little foresight, a party can gain a tactical
advantage through the use of negative evidence.
So long as the records searched are reliably kept
and a diligent search is performed, the proponent
can literally make a persuasive point out of nothing
at all.
Endnotes
1. Rule 803(10) provides
Absence of a Public Record or Entry. To prove the
absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence
of a matter of which a record, report, statement, or data
compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form
of a certification in accordance with rule 902 [regarding
self-authentication], or testimony, that diligent search
failed to disclose the record, report, statement, or data
compilation, or entry.
2. 1972 Committee Comment, Note to Paragraph (10).
3. United States v. Rich, 580 F.2d 929, 938 (9th Cir.
1978).
4. Interestingly, this may be the only reason that these
exceptions are enshrined as hearsay exceptions in Rule 803.
Technically, the absence of a record, a statement, or an entry
cannot be “hearsay” because it is not an out-of-court statement
asserted for the truth of the matter. See Fed. R. Evid. 801(c).
Continued on page 12
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
934135crx_10mar10.indd 4
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Authentication of Emails: Beware of
Improper Alterations
By Patricia L. Davidson
I
magine sitting in a deposition or on the witness stand. Opposing counsel presents you
with a document containing the now very
familiar format of a printed email. On the top
left-hand corner you see your name. Sure enough,
next to “From” is your name again and maybe
your email address. Then you look at the text of
the email. It is entirely unfamiliar. Maybe it uses
phrases that you never use. Maybe it makes a
shocking claim about something you have never
done. Or maybe it looks very much like an email
that you did write but a word or two has changed,
forever altering the meaning and intent of the
email. The result could be outrage or embarrassment or worse. But the email certainly looks like
it came from your email account. Does the judge
or jury get to see it?
Printouts of email are commonplace in trials.
Litigants, judges, and jurors are familiar with sorting through email chains and accepting emails as
business records, binding offers and acceptances,
proof of public government actions, and evidence
of virtually any type of communication. However,
familiarity can create complacency, and lawyers
should be aware that the ease of changing an
email header or email content can raise several
authentication issues at trial.
When an author of an email agrees that the
printout is an accurate representation of the
digital communication, authentication is straightforward: A proponent must show that the email
is complete and unchanged and that it originated
from the claimed source. Admissibility is then
governed by the usual evidentiary rules. However,
if an alleged author denies the accuracy of the
content of the email or, if an opposing party claims
that a proffered email is not what it purports to be,
then authentication challenges arise.
Bogus Emails and Bigamy
A rather extraordinary case of alleged email fraud
arose in the litigation of a case in the Massachusetts
Superior Court for fraud and related claims arising
out of a bigamist marriage.1 In the case, the defendant married the plaintiff in an elaborate wedding
ceremony in Sri Lanka after a long-distance courtship. Unbeknownst to the plaintiff and her family,
the defendant was already legally married and
living with a wife in Massachusetts.
Both before and after the wedding ceremony,
and before the plaintiff discovered the bigamy, the
defendant had sent the plaintiff numerous emails
that purported to be from third parties but were
actually authored by the defendant. The defendant concocted fictional characters with their
own fictional email addresses and fictional voices.
The cast of characters included a reverend, who
glowingly spoke of the defendant’s good character
and Christian predilections; the defendant’s loving mother, who opined that the defendant was “a
good boy”; and a nurse in Mexico, who allegedly
treated the defendant for dehydration. At trial,
the defendant admitted that he had set up fake
email addresses for these fictional characters. By
this point in the trial, his status as prevaricator
extraordinaire was well established.
More challenging, however, were hundreds of
email printouts purportedly between the plaintiff
and defendant dated after the plaintiff discovered
the bigamy. The defendant claimed that these
emails were legitimate. The emails purported to
show an ongoing relationship and an intent by the
plaintiff to have a future with the defendant. Those
representations could not have been any further
from the truth, but the printed emails were quite
convincing. The emails looked like they originated
from the plaintiff’s email account, appeared to be
part of sometimes lengthy email exchanges, and
looked and sounded very much like some of the
plaintiff’s legitimate emails. The plaintiff was horrified by the phony emails attributed to her.
To advance the defendant’s elaborate con, the
defendant apparently used the plaintiff’s email
account to communicate with himself. (He knew
her password and set up the communication.)
The fraud was not surprising given the nature
and extent of the defendant’s prior lies, but the
extraordinary volume and detail of the fake emails
were very surprising.
Forensic evidence was unavailable because the
defendant claimed that his hard drive crashed and that
he no longer had the computer he claimed he used at
the time. The plaintiff’s computer was also long gone.
Thus, the plaintiff needed to challenge authentication
without the assistance of forensic analysis.
At trial, the plaintiff emphatically testified that
she did not author the emails. Notwithstanding
the fact that the emails probably came from the
Patricia L. Davidson
Patricia L. Davidson
is a partner at Mirick
O’Connell in Worcester,
Massachusetts. She can
be reached at pdavidson@
MirickOConnell.com.
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
934135crx_10mar10.indd 5
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plaintiff’s email account, the defendant, in view
of the plaintiff’s protestations, was unable to
establish that the emails came from the plaintiff herself. Consequently, the emails were not
authenticated and the court did not admit them
into evidence. Of course at this point in the trial
the defendant’s credibility had been obliterated
and his penchant for fabricating emails had been
well established.2
Common Authentication Challenges
Problematic emails generally fall into three categories. The first concerns an allegation that an
email has been altered. Such changes are very
easy: Smith sends Jones an email. Jones easily
changes Smith’s email and then either saves it,
prints it, or forwards it. Certainly many lawyers
have on occasion cleaned up typos in emails sent
by another lawyer in their firm before forwarding
it to a client or have corrected typos in their own
emails that they sent to one party before sending
the email to a second recipient. But it is just as
easy to doctor emails for sinister motives as it is to
edit some sloppy typing.
Another problem is when a party alleges that
an email is fabricated, e.g., as in the bigamy
case when a person uses another person’s email
account to write and send bogus emails. Despite
the admonitions of Internet service providers and
IT departments everywhere, computer users are
often unimaginative with their passwords. With
sufficient motivation, it is not difficult for someone with a modicum of technical savvy to access
someone else’s personal information or create a
phony email account to embody that person’s virtual identity for a host of untoward purposes.
A similar authentication issue arises when an
email user tries to generate an email after the fact
to advance a legal position. It is not uncommon
for computer users to create an email that looks
like it was sent by a certain person on a certain
date, but actually was not.
Usual Authentication Principles Govern
Authentication of allegedly fraudulent or altered
documents is nothing new. Casebooks are full of
cases dealing with alleged forgeries or fabricated
evidence. Any analysis of the authentication of
emails thus begins with the principles applicable
to the authentication of any evidence. “The mere
possibility of alteration does not and cannot be
the basis for excluding emails as unidentified or
unauthenticated as a matter of course, any more
than it can be the rationale for excluding paper
documents (and copies of those documents).”3
Similar uncertainties exist with more traditional
written documents: A signature can be forged,
a letter can be typed on another’s typewriter, or
stationery can be copied.4
Authentication is an aspect of relevancy and is
often a first step in determining admissibility. Fed.
R. Evid. 901(a) instructs that “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.”5 A court
does not need to find that the emails are necessarily what the proponent claims—only that there
is evidence sufficient for the jury to make such a
finding.6 Authentication is within the discretion
of the trial court and “should not be disturbed on
appeal absent a showing that there is no competent evidence in the record to support it.”7 Once
an email is authenticated and admitted into evidence, parties may still challenge the credibility
of the email. A jury can use its own knowledge of
how email exchanges work and may consider testimony offered to explain, for example, an atypical response, such as emails that appear outside
chronological order.8
Under Fed. R. Evid. 901, authentication can be
accomplished in many ways. To buttress authentication and, ultimately, the credibility of email
evidence, a proponent of the email may employ
more than one authentication method.
Self-identification occurs when the sender
confirms the accuracy of an email attributed to
him. If no one objects, the email will be authenticated. Authentication also can be accomplished
by a recipient who testifies that he or she received
a message and responded to it. Self-identification
by the recipient may corroborate claims by the
alleged sender. If the sender initiated an email
exchange, the recipient may simply testify that
she received an email from a particular address
and replied to that same address. Such testimony
may not prove that an email is what the proponent claims, but it may lay the foundation for
authentication.
Emails that are not clearly identifiable by the
sender or recipient may be authenticated under
Fed. R. Evid. 901(b)(3), which provides that such
evidence may be authenticated by comparison
with “specimens which have been authenticated.”
Thus, a fact finder can compare headers, fonts,
typeface, tone, word choice, and signatures to
determine whether or not an email is actually
from the alleged author.
Context and content may also establish
authentication. Emails, like other evidence, can
be authenticated pursuant to Fed. R. Evid. 901(b)
(4) by “appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken
in conjunction with circumstances.” For example,
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
934135crx_10mar10.indd 6
3/5/10 10:52:40 AM
the email may refer to facts known only to the
sender. Or the email may follow a similar oral representation. The substance of the email may make
sense within the topics of an email chain.
There are limits on the extent to which a witness can comment on the characteristics of an
email. In United States v. Safavian,9 the District
Court for the District of Columbia considered the
authenticity of emails in conjunction with the
prosecution of David Safavian, a former government official tied to the Jack Abramoff lobbying
and political corruption scandal. In that case, the
court determined that an FBI agent through whom
the government planned to offer certain emails
could not testify from personal knowledge as to
whether a particular email address belonged to the
defendants. Similarly, the FBI agent could not testify about the meaning of internal email codes.
In some situations, Fed. R. Evid. 902 may
be utilized to authenticate emails. Fed. R. Evid.
902 delineates categories of documents that are
self-authenticating, i.e., documents that do not
require extrinsic evidence of authenticity as a
condition precedent to admissibility. Pursuant to
Fed. R. Evid. 902(11), business records, including
emails, may be authenticated if the records constitute regularly conducted activity.
Emails generated in a business context require
careful consideration. The fact that an email was
sent or received in the ordinary course of business
does not, in the absence of additional factors,
authenticate an email.10 Furthermore, testimony
from IT departments or computer forensic experts
that an email came from a company’s server or
from a specific computer terminal does not sufficiently link an email to a sender.
In United States v. Siddiqui,11 the Eleventh
Circuit addressed several ways that emails can be
authenticated. The case concerned the appeal of
Siddiqui’s conviction for fraud, false statements to a
federal agency, and obstruction in connection with
Siddiqui’s fraudulent application for a $500,000
National Science Foundation award. Siddiqui’s
application included false recommendations purportedly from professors in Japan and Switzerland.
As part of his defense, Siddiqui challenged the
authenticity of certain emails, in which he asked
the professors to (falsely) tell a government agent
that they gave Siddiqui permission to sign their
names to the award application. In affirming the
district court’s authentication of the emails, the
court stressed the professors’ testimony about the
characteristics of the emails. The professors testified that at about the same time that Siddiqui sent
the emails, Siddiqui contacted the professors by
phone and made the same request. The professors
testified that they understood that the emails came
from Siddiqui because they contained his email
address and were signed with his nickname “Mo.”
The context of the email sent to the two foreign
professors showed that the author of the email was
someone who had knowledge of the defendant’s
conduct and other details of his life. In addition,
during the Japanese professor’s cross-examination,
Siddiqui’s counsel introduced an email from the
professor to Siddiqui containing the same email
address as the email sent by Siddiqui to the professor.12 Considering those details, the Eleventh
Circuit concluded that the district court did not
abuse its discretion in ruling that the documents
were adequately authenticated.
Computer Forensic Analysis
In addition to the usual authentication issues
arising in more conventional documentation,
forensic computer analysis can yield a wealth of
information about the origin of an email. Any
computer activity usually leaves a digital footprint. By examining hard drives or data from
Internet service providers, a forensic expert can
often determine the origin and date of an email,
whether changes to the email have been made, or
whether a network has been corrupted internally
or via the Internet. Even deleted emails can often
be recovered. Testimony from these experts can
be invaluable in authenticating email.
If a hard drive or network is not accessible, a
party may be able to subpoena header information
for a specific email account from Internet service
providers, such as Yahoo or Hotmail. Very generally, header information tracks how email moves
around the Internet and shows where emails originate and where they are delivered. With header
information, a computer expert can attempt to
trace an email via transmission control protocol
(TCP) and Internet protocol (IP) addresses to
locate the servers the email was routed through to
attempt to identify the geographical location of
the origin of an email.
Tracking emails through Internet service providers can be very difficult. There are software
programs that allow the user to hide or change
the IP address. (This is one reason why computer
spam is still so prevalent.) It is also easy to mask
registration information on free services such as
Yahoo and Hotmail; thus, it is difficult to trace
an email to a specific user. In addition, Internet
service providers are notoriously reluctant to provide information about individual email accounts,
citing privacy concerns. Most will object to a
subpoena and will require a court order before
releasing the requested information.
Authentication of emails through a computer
forensic expert requires much of the same expert
Continued on page 12
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
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934135crx_10mar10.indd 7
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Using Demonstrative Evidence to Win
By Trey Cox
L
awyers need demonstrative exhibits so
jurors can hear them. Today, jurors live in
a grab-and-go world of CNN, USA Today,
sound bites, commercials, and US Weekly magazine articles. In newsrooms, conference rooms,
and classrooms, key information is identified and
visually organized to communicate both simple
and complex ideas. When jurors enter a courtroom, the visual stimulation that they rely on
in the outside world disappears. They are left to
plow through a mass of orally delivered, artificially
sequenced information about a topic they may
have never dealt with.
Studies show that jurors are overwhelmed by
the amount of information presented during a
trial.1 They can become easily bored, confused,
and frustrated. If your evidence is not delivered in
a format jurors can easily digest, your efforts (and
your case) are lost. The best jury consultant of my
generation, Jason Bloom,2 is fond of saying that
“people only hear what they understand.”
This is a surprising insight for most lawyers,
who think that jurors understand everything we
tell them. But that is simply not true. You will
only be heard if you deliver a message that people
can understand. Thus, a trial lawyer’s ability to
persuade depends primarily on the jury’s understanding the evidence. Demonstrative exhibits
ensure that your jurors hear your arguments.
Unfortunately, how to make a trial presentation fun and interesting is not included in the
law school curriculum. New lawyers are left to
trial and error as the only means to learn effective
courtroom communication techniques. The interactive and multi-sensory aspects of demonstrative
aids make it easy for a jury to learn the important
issues in the case, as well as increase your ability
to win at trial.
The Basic Purpose of Demonstrative
Exhibits
Trey Cox
Trey Cox is a partner with
Lynn Tillotson Pinker &
Cox, LLP in Dallas, Texas.
Demonstrative evidence should be used to clearly
or memorably convey the theme or concept.
There are five broad purposes for the use of
demonstrative evidence: (1) to organize facts
and themes, (2) to explain scientific or technical
information, (3) to make your facts and themes
“sticky” (i.e., more memorable), (4) to reinforce
key concepts or themes, and (5) to refresh jurors’
memories in long trials. Demonstrative evidence
is not a substitute for testimonial evidence.
Why Demonstrative Evidence Works
Commentators offer many reasons why demonstrative evidence works, but it all starts with
effective communication. In today’s Internet and
sound-bite world, we are conditioned to receive
information in short, quick bursts reinforced by
large, easily understood graphics. This conditioning is caused by everything from TV programs
to the Internet to text messages. We expect easily digestible packets of information broken by
frequent intermissions. As a result, the average
person’s attention span lasts no longer than a
few minutes. And what’s worse is that if you do
not meet that expectation, the audience stops
listening. The average television news program
takes 90 seconds to cover a story: 30 seconds to
set the stage, 30 seconds to provide the details,
and 30 seconds to wrap it up.3 Conversely, lawyers
consume blocks of time with oral testimony and
argument, but offer very few visuals to explain or
emphasize an important point to the jury. That
makes lawyers hard to follow and puts jurors
to sleep. It does not take many post-trial interviews with jurors to understand that they do not
retain boring or hard-to-follow information; they
“changed the channel” and long ago forgot your
boring broadcast.
Jurors’ demand for information in a bite-sized,
easily accessible format is so strong that I liken it to
a news broadcast: If you are not providing interesting content, your audience grabs the remote and
goes channel surfing. Demonstrative aids that were
once just beneficial are now essential for keeping
today’s jurors tuned in to your program.
Common Sense Tells Us Pictures Are
More Interesting
As trial lawyers, we have to provide information
in the format that our jurors require. There are
many studies that document why demonstrative
evidence works,4 but we do not need a study or
a book to tell us that demonstrative evidence
strengthens any presentation by making it more
interesting and memorable. My first-grade teacher
was right: Show-and-tell works best because everyone can see and hear your story at the same time.
The show-and-tell of demonstrative evidence
focuses attention, makes evidence accessible, and
breathes life into evidence that would otherwise
be unacceptably dull and boring. That explains
why grabbing a juror’s attention during the read-
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934135crx_10mar10.indd 8
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ing of a deposition, much less maintaining his or
her focus, is nearly impossible.
The Weiss-McGrath Study
The commonsense conclusion that demonstrative
evidence makes a presentation more memorable
is supported by science. For example, McGrawHill published the Weiss-McGrath study, which
was designed to evaluate information retention.5
The study compared retention of information
presented in three different formats: orally only,
visually only, and both visually and orally. After
the presentation, researchers measured retention
at various intervals. After 72 hours (the length
of a short trial), the group that was presented
information solely by oral means retained only 10
percent of the information. The group receiving
information solely by visual means retained twice
the information, but still only 20 percent of the
total material presented. Those who received the
information both orally and visually retained 65
percent of the information presented. In simple
terms, individuals presented with both visual and
oral information retain the information much
longer—three to six times longer. In addition
to making the subject matter more interesting,
showing the jury a diagram, chart, or animation
lends credibility to what is said by the lawyer or
witness. Jurors are simply more likely to believe
something they see with their own eyes rather
than something a lawyer or a witness says is true.
By the way, what makes my point more
clearly—the preceding paragraph or the chart below?
Embracing Technology to Win
I cannot imagine trying a case without a laptop
and a good projector. These tools expedite the
presentation of evidence. Judges appreciate them
and jurors like them. The ritualistic procedures
and evidentiary rules of court complicate the
communication process, making it difficult to
keep jurors’ attention. When you have to ask the
witness to turn to Exhibit 4 in Plaintiff’s Exhibit
Binder Volume I, wait for him to find the right
binder, turn to the right exhibit, find the right
paragraph, ask your foundational questions, move
to admit the exhibit, and then publish it to the
jury, even P.T. Barnum would have lost the jurors’
attention. The administration of evidence is so
much cleaner with a projector.
Nonetheless, I have heard many lawyers refuse
to use technology, claiming the jury will believe
they are fat-cat corporate defendants. I disagree.
That is old-school, outdated thinking. Jurors are
no dummies; they can tell if you represent a successful business or a penniless victim. Whether
you use technology has no effect on this. In fact,
an awareness of a corporate client’s revenues may
actually increase jurors’ expectations of wellpresented information. So a decision to forgo
technology because it makes you look “rich”
may prove very costly indeed. Technology allows
you to replicate the grab-and-go pace that jurors
operate in every day. Jurors reward lawyers who
make their case accessible and easy to understand.
Courtroom presentation technology is too powerful a tool to ignore.
Dealing with Problems
Even with sufficient planning and preparation,
problems with demonstrative aids are inevitable.
Presentation problems do not determine the
outcome of the case as much as the lawyer’s reactions to those problems. To alleviate potential
pitfalls, create a backup plan in the event a video
re-creation is denied admission at trial. Most
often, the backup plan is an eyewitness who,
using photos or drawings, can gain admission of
the same evidence.
If a problem with an exhibit or equipment
arises in front of the jury, stay calm and request
a brief recess to fix the problem. Most judges
The
demonstrative
aid must be
relevant, and
the witness must
testify that it will
help with his or
her explanation
to the jury.
Retention After 72 Hours
65%
20%
10%
Orally
Visually
Orally & Visually
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934135crx_10mar10.indd 9
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will be reasonably patient for a minute or two.
Use the recess to eliminate the problem without
significant interruption to the jury or the court. If
the judge does not allow recess, stay calm, move
forward, and, if feasible, introduce the demonstrative evidence at a later time. When dealing
with highly technical demonstrative evidence or
equipment, try offering such evidence first thing
in the morning, soon after lunch, or after a brief
recess. That way, the equipment can be properly prepared and tested just prior to admission,
thereby reducing the possibility of equipment
malfunction in front of the jury.
Admissibility of Demonstrative Exhibits
Demonstrative evidence is cool and persuasive,
but how do we take that next step and place it
in the jury room for deliberations—the real final
argument? It is really not that difficult. With a few
basic predicates and some supporting substantive
evidence, demonstrative aids are generally no
problem to admit into evidence.
Demonstrative evidence is typically admissible
if it is shown to be relevant, if it will assist a witness in explaining his or her testimony, and if its
probative value outweighs its prejudicial effect.6
As a result, the primary foundational elements for
the use of demonstrative proof should be that it
relates to a piece of admissible substantive proof,
fairly and accurately reflects the substantive proof,
and aids the trier of fact in understanding or evaluating the substantive evidence.7 In other words,
the demonstrative aid must be relevant, and the
witness must testify that it will help with his or
her explanation to the jury. Whether a particular
exhibit is to be used as an aid or admitted into evidence may well depend on the difficulty of laying
the predicate for admissibility and the trial judge’s
attitude regarding admissibility of demonstrative
evidence. The trial judge is given broad discretion
in determining whether to admit or reject evidence, and the judge’s ruling will be overturned
only when there is a clear abuse of discretion.8 If
you want to admit a medical illustration of the
heart in a medical malpractice case, the exchange
with your expert would go as follows:
Q3: Does Exhibit 13 fairly and accurately
reflect the condition and function of a
healthy heart?
A3: Yes.
Q4: Your honor, Defendant moves to admit
Exhibit 13.
Now, your show-and-tell can begin. Everyone
can see and hear at the same time. I know, I know,
you are thinking “Objection, leading. You can’t do
that on direct with my own witness.” Not true. Rule
104 permits you to suspend the Rules of Evidence
when you present issues regarding the admissibility
of evidence.9 So what you have done is lead the
witness in a perfectly acceptable way through the
predicate to admit a demonstrative exhibit.
As the proponent of demonstrative evidence,
you may also need to respond to a Rule 403 objection. The balancing approach of Rule 403 states
that evidence, even though otherwise admissible,
“may be excluded if its probative value is substantially outweighed by the risk of: (a) undue
prejudice, confusion of issues, or misleading the
jury; or (b) undue delay, waste of time, or needless presentation of cumulative evidence.”10 This
“catchall” objection is used frequently as a last
resort by those attempting to exclude demonstrative evidence. Generally, courts welcome and
appreciate demonstrative aids, but be prepared to
have a sponsoring witness testify that the demonstrative aids fairly and accurately represent some
substantive evidence (see Q3 in the example
above), and that the demonstrative evidence will
help explain his or her testimony to the jury (see
Q2 in the example above).
Summary Evidence: Demonstrative
Exhibits and Rule 1006
Q1: Dr. Jones, you intend to testify regarding
the condition and function of a healthy
heart in order to explain the actual complications Mr. Patient suffered from prior
to the operation?
A1: Yes.
To increase the power and persuasiveness of
demonstrative exhibits, use Rule 1006 to amplify
and drive your point home. Summary exhibits can
be made into demonstrative exhibits and are one
of my personal favorites; they are one of the most
persuasive advocacy weapons you have in your
exhibit arsenal. Think about how often we, as
lawyers, use summaries and why we do it.
We summarize depositions, documents, and
arguments. Should we not also use summaries to
make life easier for the jury? Summaries provide
the jury with the highlights of voluminous and
otherwise inaccessible information. Summaries
save time and clarify testimony. They may be
made from documents or computer records.
Q2: And for the benefit of the jury, you intend to
use this diagram of the heart, which we have
marked as Exhibit 13 for identification?
A2: Yes.
The contents of voluminous writings, recordings, or
photographs, otherwise admissible, which cannot
conveniently be examined in court may be presented
in the form of a chart, summary, or calculation. The
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originals, or duplicates, shall be made available for
examination or copying, or both, by other parties at
a reasonable time and place. The court may order
that they be produced in court.11
The rule authorizes the use of charts, summaries, or calculations instead of the original documents, where the underlying documents cannot
be conveniently examined in the courtroom in
the presence of the jury. A proper predicate must
be laid showing what the underlying documents
are and explaining how they were created.12 If the
proper predicate is laid and the underlying records
are admissible, a summary will, likewise, be admissible.13 The underlying documents need only be
made available for inspection by the opposing
side to allow for determination of the accuracy of
the summary.
There is a difference between a summary of
voluminous records and a visual aid that is prepared from some other evidence in the case. That
difference was the subject of discussion in Speier v.
Webster College,14 in which there was an attempt
to offer summaries of portions of the testimony of
several different plaintiffs on the amounts of their
lost wages. The court ruled the summary admissible, holding as follows:
[C]harts and diagrams designed to summarize or
perhaps emphasize the testimony of witnesses are,
within the discretion of the trial court, admissible
into evidence. This assumes, of course, that the
testimony summarized is admissible and already
before the jury. We recognize that such summaries
are useful and oftentimes essential, particularly in
complicated lawsuits, to expedite trials and to aid
juries in recalling the testimony of witnesses.15
Our goal as trial lawyers is to synthesize, from
the mountains of documents, volumes of testimony, and a mass of confusion, a concise, credible
explanation of what happened. Moreover, the
explanation must be a coherent and persuasive
story that allows our client’s version of the facts to
come through clearly and comprehensibly.
Consider this problem: 13 plaintiffs contend
that Acme’s operations at its local plant are a
nuisance and have diminished the value of the
plaintiffs’ property. You have great evidence that
the county tax appraiser has increased the value
of each plaintiffs’ home every year for the last
three years, including last year after the Acme
production plant went operational.
You can make this point with each of the 13
plaintiffs as they testify, but your point would be
defuse, repetitive, and boring. How do you organize and synthesize the property valuation data
for all 13 plaintiffs to make your point powerfully
and persuasively?
The recipe is easy: You call the county tax
appraiser, create a chart that summarizes the tax
data, and apply liberal amounts of Rule 1006.
Create a chart that compiles all 13 property tax
appraisals for all three years into one single chart.
As long as the county tax appraiser confirms that
the data is accurate, the originals were made
available to opposing counsel, and the data is
voluminous, most judges (except for the most
strict “evidentiarian”) will admit your summary
exhibit. Be sure to add a line in your summary
that shows the average annual value increase
to really drive your point home. Here is how it
would sound:
Q1: Now Mr. Tax Appraiser, as the county’s
highest tax official, have you reviewed
the appraisals for each of the plaintiffs’
property?
A1: Yes.
Q2: And the results of your appraisals have
previously been admitted as Exhibits
13—26 in this trial?
A2: Yes.
Q3: Based on those documents, have you
prepared Exhibit 27, which is a summary of these property values and their
percentage increase?
A3: Yes.
Q4: Are the values and percentage increases for
each of the 13 plaintiffs’ property fairly and
accurately reflected in Exhibit 27?
A4: Yes.
Q5: Move to admit Exhibit 27.
Judge: Exhibit 27 is admitted.
Q6: Mr. Tax Appraiser, as the highest tax
official in the county, can you tell the
jury how much the average value of the
plaintiffs’ property increased in the year
Acme’s plant went into operation?
A6: Yes, 6.2 percent increase on average.
Q7: In your professional opinion, did the
plaintiffs’ properties go up or down in the
year Acme’s plant went into operation?
A7: The average plaintiff’s property increased
in value 6.2 percent.
Once in evidence, your self-created, wonderfully argumentative, and powerfully persuasive
chart goes into the jury room and continues to
make your points well after you have stopped
talking. If you are lucky, one of your friendly
jurors will hold your demonstrative evidence up
during deliberation and repeat your arguments
based on the chart. What could be better than a
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
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934135crx_10mar10.indd 11
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juror wielding your own demonstrative evidence
to make your point long after you sit down?
Endnotes
1. Roy Kreiger, Now Showing At A Courtroom Near You, 78
ABA J. 92 (Dec. 1992).
2. Bloom Strategic Consulting, Inc., a litigation and communication strategy firm, www.bloomstrategy.com.
3. See William S. Bailey, Lessons From ‘L.A. Law’ Winning
Through Cinemagraphic Techniques, Trial, Aug. 1991, at 98.
4. Roy Kreiger, Now Showing At A Courtroom Near You, 78
ABA J. 92 (Dec. 1992).
5. H. Weiss and J. B. McGrath, Technically Speaking:
Oral Communication for Engineers, Scientists and
Technical Personnel (McGraw-Hill 1963).
6. See Fed. R. Evid. 403; Tex. R. Civ. Evid. 403; Ford
Motor Co. v. Miles, 967 S.W.2d 377, 389 (Tex. 1998).
7. See Robert D. Brain and Daniel J. Broderick,
Demonstrative Evidence: Clarifying Its Role at Trial, Trial, Sept.
1994, at 74; The Derivative Relevance of Demonstrative Exhibits:
Charting Its Proper Evidentiary Status, 25 U.C. Davis L. Rev.
957, 968 (1992).
8. See Goff v. Cont’l Oil Co., 678 F.2d 593, 596 (5th Cir.
1982).
9. Fed. R. Evid. 104.
10. Fed. R. Evid. 403.
11. Tex. R. Evid. 1006.
12. Baylor Med. Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69
(Tex. App.Texarkana 1992, writ denied).
13. Victor M. Solis Underground Util. & Paving Co. v.
Laredo, 751 S.W.2d 532 (Tex. App.San Antonio 1988, writ
denied).
14. Speier v. Webster Coll., 616 S.W.2d 617, 619 (Tex.
1981) (internal citations omitted).
15. Id.
5. 720 F.2d 631, 651 (11th Cir. 1983).
6. United States v. Gentry, 925 F.2d 186, 188 (7th Cir.
1991).
7. United States v. Robinson, 544 F.2d 110, 115 (2d Cir. 1976).
8. Id.
9. United States v. Valdez-Maltos, 443 F.3d 910, 911 (5th
Cir. 2006). See also United States v. Neff, 615 F.2d 1235, 1242
(1980) (“Mere failure to include the word ‘diligent’ is not sufficient to defeat the applicability of Rule 803(10).”).
10. United States v. Robinson, 544 F.2d 110, 114–15 (2d
Cir. 1976).
11. See Fed. R. Evid. 803(6) (“as shown by the testimony of
the custodian of records or other qualified witness”).
12. This provision of the Rule represented a shift from the
common law. Commentary to Rule 803(10) indicates that the
Rules Committee found this tenet of the common law to have
“no apparent justification.” 1972 Comment to Rule 803(10),
Note to Paragraph (10).
13. Rule 803(6); United States v. Bowers, 920 F.2d 220,
223 (4th Cir. 1990) (taxpayers argued that the government
failed to prove that they did not pay their taxes because a
custodian did not testify at trial. The court held that the “real
custodian is the agency and those who signed the certifications
had the agency’s authority to search the records.”).
14. Jackson v. U.S., 250 F.2d 897, 900–01 (5th Cir. 1958).
15. Id.
16. Bowers, 920 F.2d at 223.
17. See United States v. Giambro, 544 F.3d 26 (1st Cir.
2008).
18. Even if the defendant had done a better job marshaling
the evidence of the database’s alleged unreliability, the defendant nonetheless faced an uphill battle, as many circuits have
upheld the reliability of NFRTR database. E.g., United States v.
Rith, 164 F.3d 1323, 1334–45 (10th Cir. 1999); United States v.
Metzger, 778 F.2d 1195, 1202–03 (6th Cir. 1985).
19. Brodersen v. Sioux Valley Memorial Hospital, 902 F.
Supp. 931 (N.D. Iowa 1995).
20. Id. at 954.
foundation as in other matters. Walking an expert
through steps taken to confirm or refute the
authentication of an email is technical but can
provide a powerful challenge if the authenticity
of an email is at issue.
Endnotes
Reprinted with permission from the The
Environmental Litigator 20:2, Spring 2009.
Copyright 2009 by the American Bar Association.
Going
Negative
Continued from page 4
Authentication
of Emails
Continued from page 7
Conclusion
The bigamy case is an extreme example of how
easily a party with self-serving interests can
manipulate email. But it highlights how core
authentication principles and credibility ultimately
determine whether or not a fact finder may get to
consider whether an email is what it purports to
be. Printouts from websites, text messages, or any
type of data stored on a computer raise similar
authentication issues. The technology may be
new and ever-changing, but the process of figuring
out who is telling the truth is not.
1. Turner v. Viveiros, No. CV2006-00130-B (Mass. Super. 2006).
2. Id. The jury ultimately found the defendant liable for
fraud, battery, intentional and negligent infliction of emotional
distress, and conversion. The jury awarded the plaintiff and her
mother $550,000 in damages.
3. United States v. Safavian, 435 F. Supp.2d 36 (D.C. 2006).
4. See In re F.P., 878 A.2d 91, 95–96 (Pa. Super. Ct. 2005).
5. See United States v. Riley, 33 F.3d 1396, 1404 (3d. Cir.
1994) (“[t]he burden of proof or authentication is slight”);
United States v. Coohey, 11 F.3d 93, 97 (8th Cir. 1993) (“[t]he
proponent need only demonstrate a rational basis for his claim
that the evidence is what the proponent asserts it to be”).
6. 5 Federal Rules of Evidence Manual, § 901.02[1],
901-5 to 901-6 (8th ed. 2002).
7. United States v. Munoz, 16 F.3d 1116, 1120–21 (11th
Cir.), cert. denied sub. nom., Rodriguez v. United States, 513
U.S. 852 (1994).
8. Safavian, 435 F. Supp. 2d at 41.
9. Id. at 39.
10. CCP Ltd. P’ship v. First Source Financial, Inc., 856
N.E.2d 492, 496 (Ill. App. Ct. 2006).
11. United States v. Siddiqui, 235 F. 3d 1318 (11th Cir. 2002).
12. Id. at 1321–23.
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934135crx_10mar10.indd 12
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The Reliability Standard of
Ohio v. Roberts
In Ohio v. Roberts, the Supreme Court held that
the preliminary hearing testimony of a witness
who was unavailable to testify at trial was admissible under a standard based upon its consideration
of the “relationship between the Confrontation
Clause and the hearsay rule with its many exceptions.”4 The Court recognized that a literal reading of the Confrontation Clause would require the
exclusion of any statement made by a declarant
not present at trial. It noted that, if the Clause
were so applied, then it would “abrogate virtually
every hearsay exception, a result long rejected
as unintended and too extreme.”5 Instead, the
Court rejected the literal application of the
Clause. While the Court had emphasized in earlier cases that the Clause reflected a preference
for face-to-face confrontation at trial, it had also
previously “recognized that competing interests,
if ‘closely examined,’ . . . may warrant dispensing
with confrontation at trial.”6 One such concern
was described as the “strong interest of every
jurisdiction in effective law enforcement and the
development and precise formulation of rules of
evidence applicable in criminal proceedings.”7
The Court asserted that it had sought to
accommodate these competing interests in a series
of cases. “True to common-law tradition, the process has been gradual, building on past decisions,
drawing on new experiences, and responding
to changing conditions.”8 Rather than set out a
bright line rule, the Court set forth the general
approach based upon its prior rulings.
The Ohio v. Roberts standard for the
Confrontation Clause restricted the range of
admissible hearsay by imposing two requirements:
unavailability and reliability. First, the prosecution had to demonstrate the unavailability of the
declarant whose statement it wished to introduce
against the defendant. Second, the hearsay had to
be trustworthy and bear such “indicia of reliability”
that permitted it to be placed before the jury even
when there was no confrontation of the declarant.9
“Reliability can be inferred without more in a case
where the evidence falls within a firmly rooted
hearsay exception. In other cases, the evidence
must be excluded, at least absent a showing of particularized guarantees of trustworthiness.”10
The Court recognized that certain hearsay exceptions rest upon such solid foundations that the admission of virtually any evidence within them comports
with the substance of the constitutional protection.
The Court specifically noted that dying declarations,
cross-examined prior to trial testimony, and properly
administered business and public records exceptions
were such firmly rooted exceptions.
The Court noted that none of the outpouring
of scholarly commentary on the complexity of reconciling the Confrontation Clause and the hearsay
rules suggested that the Court had misidentified
the basic interests to be accommodated. No commentator demonstrated that the prevailing analysis
was contrary to the intentions of the Framers.
Applying this standard, the Court held that
preliminary hearing testimony that had been
subject to cross-examination was no different from cross-examined prior-trial testimony,
which the Court had already deemed admissible
under the Confrontation Clause. Since there
was an opportunity for cross-examination at the
preliminary hearing—and counsel availed himself
of that opportunity—the transcript of the prior
testimony bore sufficient “indicia of reliability”
and afforded the jury a satisfactory basis for evaluating the truth of the prior statement.11
From 1980 through 2004, both prosecutors
and defense attorneys approached confrontation
clause issues as classic hearsay questions. If the outof-court statement was either subject to a firmly
rooted hearsay exception or showed particularized
guarantees of trustworthiness, it was admissible.
Confrontation
Clause
Continued from page 1
Crawford v. Washington Resurrects the
Confrontation Clause
In 2004, however, the Supreme Court upended
the rationale behind the Roberts test in Crawford
v. Washington. In Crawford, the defendant was
charged with stabbing a man who allegedly tried to
rape his wife. At trial, defendant asserted the state
marital privilege to preclude his wife from testifying. The prosecution then sought to introduce the
wife’s tape-recorded statement to the police, under
a hearsay exception for statements against penal
interest, as evidence that the stabbing was not in
self-defense. Defendant argued that this violated
his federal constitutional right to confront witnesses against him. The trial court admitted the
statement on the grounds that it bore “particularized guarantees of trustworthiness,” and the jury
convicted the husband of assault. The Washington
Supreme Court unanimously concluded that, even
though the wife’s statement did not fall under a
firmly rooted hearsay exception, it did bear guarantees of trustworthiness and was admissible.
The Supreme Court, in an opinion by Justice
Scalia, noted that whether the Roberts reliability approach comported with the Confrontation
Clause could not be resolved by examining the
text of the Sixth Amendment.12 The Court’s
lengthy review of the historical background of the
Confrontation Clause went back to Roman times
but concentrated on the Marian bail and examinations statutes of the sixteenth century and vari-
James A. Nofi
James A. Nofi is the
principal of the Law Office
of James A. Nofi, LLC, in
Atlanta, Georgia.
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934135crx_10mar10.indd 13
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Practitioners
no longer
focus on the
reliability of an
out-of-court
statement
under the
Confrontation
Clause.
ous seventeenth- and eighteenth-century English
cases. The Court concluded that the development
of the right of confrontation was to limit the abuse
of using the civil examination procedures under
the Marian statues as evidence at criminal trials.
The Court’s review of early American cases also
demonstrated that most such decisions permitted
the admission of prior trial testimony in criminal
cases only if the defendant had a prior opportunity
to cross-examine the declarant.
The Court concluded that the Confrontation
Clause was directed against the civil-law mode of
criminal procedure and particularly its use of ex
parte examinations against the accused and that
such application was not governed by the law of
evidence.13 The Court further concluded that the
constitutional text of the clause, like the history
underlying the common-law right of confrontation, reflected an acute concern with a specific
type of out-of-court statement. Thus, the Court
held that the Confrontation Clause only applied
to “testimonial statements.”
While not precisely defining when such statements are testimonial, the Court noted several
formulations of what it termed the “core class” of
testimonial statements. These examples included
ex-parte in-court testimony or its functional equivalent—
that is material such as affidavits, custodial examinations,
prior testimony that the defendant was unable to crossexamine, or similar pretrial statements that declarants
would reasonably expect to be used prosecutorially . . .
; extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior
testimony or confessions . . . ; statements that were made
under circumstances which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.14
The Court declared that some statements would
qualify as testimonial under any definition, such
as ex parte testimony at a preliminary hearing,
and held that statements taken by a police officer
in the course of interrogations are testimonial
even under a narrow standard.15
The Court turned to the historical record
again to support the second prong of admissibility under the Confrontation Clause: The
Framers would not have allowed the admission
of testimonial statements of a witness who did
not appear at trial unless he was unavailable to
testify and the defendant had had a prior opportunity of cross-examination. The common law as
it existed in 1791 conditioned admissibility of an
absent witness’s examination on unavailability
and a prior opportunity to cross-examine. The
Sixth Amendment incorporated those limitations, including the only exception that the Court
could find—dying declarations—which the Court
accepted on historical grounds.
The Court’s review of prior Supreme Court
precedent led it to hold that “[t]estimonial statements of witnesses absent from trial have been
admitted only where the declarant is unavailable,
and only where the defendant has had a prior
opportunity to cross-examine.”16 The Court concluded that, while its earlier decisions had generally been decided correctly, the rationale used by
the Roberts Court departed from these historical
principles. The Roberts test was both too broad
(it applied the same analytical mode whether or
not the hearsay consisted of ex parte testimony)
and too narrow (it admitted statements that did
consist of ex parte testimony upon a mere finding
of reliability).17 The Court held that the Roberts
test admitted core testimonial statements that the
Confrontation Clause meant to exclude, such as
accomplice confessions, plea allocutions, grand
jury testimony, and prior trial testimony.18
In remanding the case to the Washington
Supreme Court, the Court set out its ultimate holding, which established a new test for determining
admissibility under the Confrontation Clause:
Where nontestimonial hearsay is at issue, it is
wholly consistent with the Framers’ design to afford
the States flexibility in their development of hearsay law—as does Roberts, and as would an approach
that exempted such statements from Confrontation
Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment
demands what the common law required:
unavailability and a prior opportunity for crossexamination. We leave for another day any effort
to spell out a comprehensive definition of “testimonial.” Whatever else the term covers, it applies at a
minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations.19
Under this new rule, practitioners no longer focus
on the reliability of an out-of-court statement
under the Confrontation Clause. Rather, the
analysis now must be whether it is a testimonial
statement that the defendant has had the opportunity to cross-examine.
The Confrontation Clause after
Crawford v. Washington
The Supreme Court continued to outline the new
boundaries of its Confrontation Clause jurisprudence and give further guidance to practitioners in
the 2006 case of Davis v. Washington.20 Davis raised
the issue whether statements made to law enforcement personnel during a 911 call or at a crime scene
are “testimonial” and subject to Confrontation
Cause requirements. Davis was a domestic violence
case in which Adrian Davis was convicted of felony
violation of a domestic no-contact order. The court
admitted, over Davis’ objection, the tape recording
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of his girlfriend’s 911 call that established that Davis
was her assailant. The Washington Supreme Court
affirmed on the grounds that the portions of the 911
conversation that identified Davis as the assailant
were not testimonial.
In the companion case of Hammon v. Indiana,
the court admitted the affidavit of Mrs. Hammon
that was prepared after she gave her account of
the domestic disturbance to the police officer at
the scene. The trial court admitted the affidavit in
the absence of Mrs. Hammon’s appearance at trial
as “present sense impression” and Mrs. Hammon’s
statements as “excited utterances” that were permitted in these kind of cases even if the declarant
was not available to testify. The Indiana Supreme
Court affirmed and held that the statement was
admissible as an excited utterance and that the
oral statement was not testimonial since it was
not made in significant part for purposes of preserving it for potential use in legal proceedings.
The Supreme Court determined more precisely
which types of police interrogations produce
testimony.
Statements are nontestimonial when made in the
course of police interrogation under circumstances
indicating that the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no
such emergency, and that the primary purpose of
the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.21
The Court held that the Confrontation Clause
applied only to testimonial hearsay. It noted that
in Crawford it had described testimony as a solemn
declaration or affirmation made for the purpose
of establishing or proving some fact and that an
accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance
does not. According to the Court, “[a] limitation
so clearly reflected in the text of the constitutional
provision must fairly be said to mark out not merely
the ‘core,’ but its perimeter.”22
The Court then held that a 911 call, at least
the initial interrogation in such a call, is ordinarily not designed to establish or prove some past
fact but rather to describe current circumstances
requiring police assistance. After reviewing the
differences between the nontestimonial interrogation in the Davis 911 call and the testimonial
one in Crawford, the Court concluded that the
primary purpose of the interrogation in Davis was
to enable police assistance to meet an ongoing
emergency. The caller was not acting as a witness
and was not testifying.23
The interrogation in Hammon, however, was
clearly part of an investigation into possibly past
criminal conduct. No emergency was in progress, the declarant was physically separated from
the defendant, and the statement deliberately
recounted, in response to police questioning, how
potentially criminal past events began and progressed. The Court held such a statement to be
inherently testimonial.24
The Court later made explicit its total rejection
of Roberts in all aspects. In Whorton v. Bockting,25
the Court unambiguously declared that Crawford
eliminated the Confrontation Clause protection
against the admission of unreliable out-of-court
nontestimonial statements. “Under Roberts, an
out-of-court nontestimonial statement not subject
to prior cross-examination could not be admitted
without a judicial determination regarding reliability. Under Crawford, on the other hand, the
Confrontation Clause has no application to such
statements and therefore permits their admission
even if they lack indicia of reliability.”26
The Supreme Court has continued to refine
its Confrontation Clause jurisprudence in more
recent cases. In Giles v. California,27 the Court
ruled that the doctrine of forfeiture by wrongdoing—that the defendant in effect waived his right
of confrontation when he committed a wrongful
act that caused the witness to be unavailable to
testify at trial—recognized in Crawford and Davis
was limited in murder cases to those in which one
of the purposes of the killing was to prevent the
declarant’s testimony.
Giles was accused of murdering his ex-girlfriend,
and the trial court had admitted into evidence
statements that the woman had made to police
officers who had responded to a domestic violence
report three weeks earlier. The California appellate courts affirmed Giles’s conviction and held
that Giles had forfeited his right to confront the
declarant because he had committed the murder
for which he was on trial and it was his intentional criminal act that made her unavailable.
After another extensive review of both the
state of the English common law at the time of
the founding and of American case law dating
back to the founding, the Court held that the
common law uniformly excluded unconfronted
inculpatory testimony of murder victims—except
testimony given with the awareness of impending
death—in the innumerable cases in which the
defendant was on trial for killing the victim but
was not shown to have done so for the purpose of
preventing testimony.
The most recent Supreme Court case applied
the Confrontation Clause to scientific and forensic
evidence that is admitted through certificates of
analysis. For years, many states have had statutes to
permit the introduction of some kinds of routinely
generated expert evidence by forensic scientists
without any testimony at all. In Melendez-Diaz
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v. Massachusetts,28 the Massachusetts court had
admitted into evidence affidavits or certificates of
analysis, which showed that the material seized by
the police from the defendant was cocaine. The
trial court overruled the defendant’s Confrontation
Clause objection and ruled that, pursuant to
Massachusetts statute, the certificates were admitted as prima facie evidence of the composition,
quality, and net weight of the narcotic. The
case was affirmed under a Massachusetts Supreme
Judicial Court precedent that held that authors of
certificates of analysis were not subject to confrontation under the Sixth Amendment.29
The Supreme Court, however, reversed and
held that the certificates of analysis or affidavits
“fell within ‘the core class of testimonial statements’” described in Crawford.30
The “certificates” are functionally identical to live,
in-court testimony, doing “precisely what a witness
does on direct examination.” Here, moreover not
only were the affidavits “made under circumstances
which would lead an objective witness reasonably to
believe that the statement would be available for use
at a later trial . . . but under Massachusetts law the
sole purpose of the affidavits was to provide “prima
facie evidence of the composition, quality, and the
net weight” of the analyzed substance . . . Absent a
showing that the analysts were unavailable to testify
at trial and that petitioner had a prior opportunity
to cross-examine them, petitioner was entitled to
“be confronted with” the analysts at trial.31
Conclusion
Under the Roberts test, out-of-court statements
in criminal trials were admissible if they were
reliable—a classic hearsay analysis. The Crawford
case replaced the concept of reliability with a
more literal reading of the right of confrontation
as the Court deemed it to exist at common law at
the time of adoption of the Sixth Amendment.
The current focus in the jurisprudence of the
Confrontation Clause is whether the out-of-court
statement is testimonial. If testimonial, then
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the statement is admissible only if the declarant
is unavailable and the defendant has had the
prior opportunity to cross-examine the declarant.
If the statement is not testimonial, then the
Confrontation Clause is not applicable at all and
such statements may be admitted without any
further judicial determination of reliability.
Whether a statement is testimonial appears to
depend upon the purpose for which it was made.
If it was made to establish facts for use at trial or
if such use was reasonably foreseeable, then the
statement is testimonial. Testimony at a prior trial
or preliminary hearing clearly qualifies. Forensic
certificates of analysis, which are simply affidavits,
are testimonial since their sole purpose is to be used
at trial. Police interrogations that are designed to
find out what happened are testimonial, but 911
calls of an emergency nature are not.
In sum, out-of-court testimonial statements
are not admissible in a criminal trial under the
Confrontation Clause unless the declarant is
unavailable at trial and the defendant had a prior
opportunity to cross-examine the witness. The
only exceptions to this rule are when the testimonial statement was either a dying declaration
or if the defendant had caused the declarant to
be absent to prevent his or her testimony. Given
that the Supreme Court has issued five decisions
on the Confrontation Clause since 2004 and the
issue often arises in criminal trials, it is likely that
the Court is not yet done with this issue.
Endnotes
1. Crawford v. Washington, 541 U.S. 36 (2004).
2. The Sixth Amendment’s Confrontation Clause provides
that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
3. Ohio v. Roberts, 448 U.S. 56 (1980).
4. Id. at 62.
5. Id. at 63.
6. Id. at 64 (citations omitted).
7. Id.
8. Id.
9. Id. at 65.
10. Id. at 66.
11. Id. at 73.
12. Crawford, 541 U.S. at 42.
13. Id. at 50.
14. Id. at 51–52 (citations omitted).
15. Id. at 52.
16. Id. at 59.
17. Id. at 60.
18. Id. at 63.
19. Id. at 68.
20. Davis v. Washington, 547 U.S. 813 (2006).
21. Id. at 822.
22. Id. at 823–824.
23. Id. at 828.
24. Id. at 829–830.
25. Whorton v. Bockting, 549 U.S. 406 (2007).
26. Id. at 420.
27. Giles v. California, ___ U.S. ___, 128 S. Ct. 2678 (2007).
28. Melendez-Diaz v. Massachusetts, ___U.S. ___, 129 S.
Ct. 2527 (2009).
29. Commonwealth v. Verde, 444 Mass. 279, 283–285 (2005).
30. Melendez-Diaz, 129 S. Ct. at 2532.
31. Id. (emphasis in original and citations omitted).
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934135crx_10mar10.indd 16
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which you set out to research. But was the information that you actually viewed reliable? Do you know
if the information that you viewed was ever tampered with by an outside party on the Internet?
Just as we turn to the Internet to find answers
to our questions, the experts that we rely upon
to testify for our cases are increasingly turning to
the Internet for information when formulating
their opinions. This has presented a new area of
concern for attorneys and the courts regarding
whether experts can rely on information obtained
from the Internet.
Clearly, the difficulty with purely Internetbased sources is determining their reliability. This
has been the heart of the struggle in recent years
for courts when deciding whether or not an expert
can rely upon an Internet source when forming
his or her opinion. Although the Internet source
is not likely to possess the reliable scholarly work
that would allow it to qualify as a learned treatise,
it still may contain facts or data that an expert
can rely upon.
Learned Treatises
Learned treatises are just one source of information upon which an expert may rely. In addition,
Federal Rule of Evidence 703 states that “the
facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing.” If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts
or data need not be admissible in evidence for the
opinion or inference to be admitted.2
Internet sources themselves could fall into the
third category of Rule 703 as information “made
known to” the expert. Clearly, the information
from an Internet source consists of facts and data
that the expert researches and is made aware of
before the trial. This allows the expert to base his
or her opinion on information that may be hearsay and not admissible, such as information found
on the Internet.
Under Federal Rule of Evidence 703, customary restrictions on hearsay do not apply to expert
witnesses. Of course, the degree that a trial judge
will allow an expert to rely upon hearsay evidence
for his testimony will depend upon a finding
under Rule 104(a) that it was reasonable for the
expert to rely on the hearsay evidence.3
Therefore, although inadmissible and not
within an exception, the data gathered from
Internet sources can be used by the expert when
forming his or her opinion. Of course, there still
is a standard of reliability that must be met. The
data needs to be of a type that is reasonably relied
upon by other experts in the field. Also, the court
will look at whether it was reasonable for the
expert to rely upon the information when forming
his or her opinion. The courts have addressed the
reliance placed upon Internet sources and the reliability of Internet sources in recent years.
Much of the written information that experts
have always relied upon was in published treatises
or articles found in periodicals on the subject matter for which they were testifying. Not only can
experts rely on these materials, but also generally
speaking, the materials themselves are admissible
as evidence. Federal Rule of Evidence 803(18)
permits admission of the information contained
in the learned treatises as long as it is established
as a reliable authority by the testimony or admission of your witness, by another expert’s testimony
,or by judicial notice.1
Oftentimes, the only real obstacle that needs
to be overcome with learned treatises is to ensure
that a proper foundation is laid, demonstrating
that the materials are a reliable authority. Many
learned treatises are relied upon by experts in the
field and typically undergo significant peer review,
which demonstrates the publication’s reliability.
This is not the case with Internet sources.
The Internet Source
When I speak of an Internet source, I do not
mean a learned treatise that has been re-created
and published on the Internet. For example, there
are many professional journals that publish their
articles in a hard copy as well as ontheir Internet
site. In this case, you would just cite the actual
publication upon which your expert was relying
and not the Internet site.
When I speak of Internet sources, I am talking
about websites that publish information and articles exclusively on the Internet, e.g., Wikipedia
or WebMD. These Internet sources are vastly
numerous and often can be a compilation of
multiple sources, including relatively anonymous
contributors, as is the case with Wikipedia. These
sources lack the references to establish the veracity of the information that they contain. It may be
difficult to establish the qualifications or even the
identity of the author, and the writing may never
have been subject to any peer review within its
field. Even establishing the creators of the website
by anything other than their Internet address may
be difficult.
Reliable or
Not?
Continued from page 1
Federal Rule of Evidence 703
The Courts
Two issues that have been addressed by courts are
the reliability of Internet sources and whether the
Internet sources were the only pieces of data that
the expert relied upon. In Campbell v. Secretary of
Health and Human Services, the court addressed
Phillip S. Georges
Phillip S. Georges is an
associate with Gruber Law
Offices, LLC, in Milwaukee,
Wisconsin.
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934135crx_10mar10.indd 17
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Walking into a
courtroom with
an expert who
based his or her
opinion solely
on an Internet
source is
extremely risky.
the reliability of articles from the Internet that
were relied upon by a special master in reviewing
the opinions of an expert regarding the effects
of a vaccine.4 The court looked at whether the
Internet articles that the special master relied
upon met the standard of reliable evidence that
was necessary for the special master to perform
the “gatekeeping” function required by Daubert v.
Merrell Dow Parm, Inc.5
The special master had gathered information
from an online Dictionary of Neurology that no
longer existed by the time the matter came before
the Federal Court. The information that the
online dictionary contained, in turn, was drawn
from Wikipedia. In addition to the information
from the online dictionary, the special master
relied upon other articles that were also drawn
from Internet websites.
The court in Campbell raised significant concerns over the reliability of the Internet sources.
In particular, the court was concerned with the
“pervasive and disturbing series of disclaimers”
that were referenced on Wikipedia and other
websites.6 Those disclaimers warned that the
material contained on the websites could be in
the middle of editing, subject to vandalism, and
likely to be incomplete works. In addition, the
websites warned that they made no representation
or warranty regarding the accuracy or reliability
of the published materials. Another problem that
the court found was that many of the contributors
on Wikipedia did not cite accurate sources.
Given its concerns about the material relied
upon by the special master and the fact that the
special master failed to conduct an evidentiary
hearing to corroborate or refute the material contained in the Internet articles, the court found
that the special master had acted in an arbitrary
and capricious manner. Although the report of
a special master and not an expert was at issue
in the Campbell case, the analysis by the court
regarding the reliability of the Internet sources
is analogous to the type of analysis that would be
made when an expert witness relies upon them.
In contrast to Campbell, the court in ALFA
Corporation v. OAO ALFA Bank, et al. reached
the opposite conclusion with regards to the reliability of Internet sources. In ALFA, the plaintiff’s
expert relied heavily upon Internet sources for
examples of the translation of a Russian word.
The defense objected to the testimony of the
expert on the ground that his opinions were based
on inherently unreliable Internet sources.7
The court rejected the defense’s objection. The
court relied upon the fact that many contemporary
judicial opinions cited Internet sources and that
many cited Wikipedia specifically. The court referenced eight cases where Internet sources were
cited. The court argued that the frequent citation
to Wikipedia suggested that many courts do not
consider it to be inherently unreliable.8 The court
also referenced an analysis that claimed the error
rate of Wikipedia entries was not significantly
greater than those of Encyclopedia Britannica.9
The Court in ALFA went on to distinguish
Campbell v. Secretary Health and Human Services
by finding that despite any concerns raised in
Campbell regarding Wikipedia, the solution would
be to allow the plaintiff’s expert to testify and to
allow cross-examination regarding his report.10
Finally, the ALFA court distinguished the ruling
in Loussier v. Universal Music Group, Inc., where
the court excluded expert testimony that was based
exclusively on Internet postings, because the court
found it to be hearsay not reasonably relied upon
by experts in that field.11 The ALFA court noted
that even if the concerns regarding the reliability of
the Internet sources were well founded, the expert’s
testimony would still be admissible because his
opinions were based upon other sources.
To Rely or Not to Rely
Based upon the current case law, courts struggle
with assessing whether the information contained
in Internet sources is reliable. Although the court in
ALFA did try to dispute the argument that Internet
sources are inherently unreliable by referencing the
frequency with which Internet sources have been
cited by other courts, the court also appropriately
noted that citing a website in a judicial opinion is
not analytically identical to an expert basing his or
her opinion on such a source.12
An expert is still going to need to demonstrate
that the information from the Internet source is
reasonably relied upon by other experts in the
field. As the court in Campbell pointed out, often
the authors of Internet content fail to properly
cite sources. This makes it difficult to demonstrate
not only where the material came from but also
whether the information is from a source that is
relied upon in the expert’s field. If the source cannot be verified, this will open the expert up to vigorous cross-examination regarding the reliability
of the material that he or she is referencing. This
will not only damage an expert witness’s credibility but also could subject his or her testimony to
possible exclusion.
Different judges have different opinions about
what constitutes a reliable Internet source. This
will be especially true when the information
comes from a website that lacks any references or
is not peer reviewed or edited. Because Internet
sources are highly susceptible to attack regarding
their reliability, walking into a courtroom with an
expert who based his or her opinion solely on an
Internet source is extremely risky.
If your expert does decide to rely upon an
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934135crx_10mar10.indd 18
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Internet source when formulating his or her
opinion, make sure that your expert does not rely
solely upon Internet sources. That way you can
demonstrate to the court that the Internet source
was just one piece of data in your expert’s analysis
and that his or her opinion is also based upon
other verifiably reliable information.
Finally, don’t walk into the courtroom without
knowing what Internet sources your expert used.
Be ready to defend where the information came
from and, if the source itself is not verifiable, be
prepared to demonstrate that the data gathered
from the source is the type regularly relied upon
by experts in that field. If you can do this, then
you can argue that the information meets the
requirements of Federal Rule of Evidence 703 and
that your expert should be allowed to rely upon it
when forming his or her opinion.
Endnotes
1. Fed. R. Evid. 803(18).
2. Fed. R. Evid. 703.
3. Head v. Lithonia Corp., Incl, 881 F.2d 941, 944 (10th
Cir. 1989) (holding that a failure to make a preliminary
determination about whether data was of the kind “reasonably
relied upon” is a reversible error).
4. Campbell v. Secretary of Health and Human Services,
69 Fed. Cl. 775 (Fed. Cl. 2006).
5. 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L.Ed.2d 469
(1993).
6. Id. at 781.
7. ALFA Corporation v. OAO ALFA Bank and ALFA
Capital Markets (USA), Inc., 475 F. Supp. 2d 357 (S.D.N.Y.
2007).
8. Id. at 361.
9. Id. at 362.
10. Id.
11. Loussier v. Universal Music Group, Inc., No. 02 Civ.
2447, 2005 U.S. Dist. LEXIS 37545 at 14–15 (S.D.N.Y. July
14, 2005).
12. ALFA, 475 F. Supp. 2d at 361–362.
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50 cle programs
What you need to know
Who You Need to Know
•Leading trial lawyers, law professors,
and judges
• In-house counsel
•People throughout the United States
with similar practices
• Comprehensive trial skills training
• Latest trends and developments
• 50 different CLE sessions
• World-class faculty
A sampling of programming includes
Register online at
www.abanet.org/litigation/sectionannual
• Asserting and Defeating Claims of Waiver
• C
onducting Internal Investigations and Making Voluntary Disclosures:
Is It Worth the Risk?
• New Tools: What Attorneys Need to Know About the Federal Rules of Civil
Procedure 26(a)(2)(B) Amendments
• Steering Clear of Daubert/Frye Minefields
• Ethics Tools: Maintaining Attorney Work Product and Attorney-Client Privilege
• Everyday Tools: The Direct and Cross-Examination of Expert Witnesses
• Keep it Simple: Presenting Complex Technical Cases at Trial
• From Ethics to Tactics: Deposition Dos and Don’ts
• Twombly v. Conley—The Fight of the Century
• The Ethics of E-Discovery
• Magistrates Panel on Discovery Issues
• How Much Is Enough Evidence for Class Certification?
• Appellate Review of Adverse Discovery Orders in Federal Court—A Mock Oral
Argument Based upon Mohawk Industries, Inc. v. Carpenter
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
934135crx_10mar10.indd 19
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Nonprofit Organization
U.S.Postage
PAID
American Bar
Association
American Bar Association
321 North Clark St.
Chicago, IL 60654-7598
You’re invited! 2010 committee expo
Do you want to get published or blog on a topic related to your area of practice? Are you interested
in joining the editorial board of a legal publication? Are you looking for more opportunities
to network with your peers and ABA leadership?
© NYC & Company - Marriott Marquis TS
Come to the 4th Annual Section
of Litigation Committee Expo
at the Section Annual Conference in
New York City, where you can
learn about all of these opportunities
available to you and more!
What
Section of Litigation Committee Expo
Where
The Hilton New York
When
Thursday, April 22, 2010 • 5:30 p.m. – 6:30 p.m.
Registration
www.abanet.org/litigation/sectionannual
Published in Proof, Volume 18, Number 2, Winter 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association
934135crx_10mar10.indd 20
3/5/10 10:52:59 AM