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blithe

Evidence in trials

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Objections to evidence are made at trial, not beforehand. Unless the opposing party has stipulated that certain evidence is not objectionable, you will need to be prepared to lay the appropriate foundation.

"Business records" are typically hearsay but are subject to an exception to the rule that generally excludes hearsay evidence. I could not find a usable version of the NM Rules of Evidence online, but, on the assumption that they generally follow the Federal Rules of Evidence (as many states' rules of evidence do), you should look at Rule 803(6) with respect to the foundation that must be laid in order to get business records admitted: http://www.law.cornell.edu/rules/fre/rules.htm#Rule803.

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I should have said that it is a federal case. The pretrial order I am working on specified that evidence must be submitted to the other party, and filed, a certain number of days before trial, and the other party has a certain number of days to object. Does this constitute a stipulation that they are admissible?

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You generally must lay the foundation for the evidence you seek to have admitted and to establish that the business records exception is met if a hearsay objection is raised, which for business records means having an witness from the business organization (e.g. custodian of records) testify concerning the records you seek to admit. You can avoid that if the other side has actually stipulated to admission of the record. But without reading the pre-trial order you have, I'd not assume that a lack of objection means that the other party is deemed to have stipulated to its admission. The details of the order matter greatly. Unless it's crystal clear that the effect of not objecting is the same as stipulating to admission, you should be prepared to establish the foundation and the business record exception at trial. Because if you guess wrong and the court concludes that the failure to object per the pre-trial order was not a stipulation, you may be precluded from getting your evidence admitted if you aren't prepare with a witness to establish what is necessary for admission.

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I agree with "Tax_Counsel" about reading the pretrial order carefully. In my experience in federal matters (none of which is in DNM), a party need only reserve objections. It need not actually make specific objections before trial.

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Alright, I think that you all and the Judge have answered my original question, mainly because I got a communication from the Court from him so timely, and he decreed that we exchange copies of evidence we intend to attempt to admit at trial. Attempt appears to be the operative word here, and therefore I conclude that I must proceed prepared with a witness in order to be sure to get my evidence in. So now answer me this: The two Defendants, Capital One and Geico, certainly will have someone at the trial to testify for them, a representative employee I assume, so since I'm my only witness, I would put myself on the stand first, tell what happened to me at their hands and attempt to introduce the evidence as I go along, most of which I got from them themselves or it itself during discovery. If they object, I can then wait until I cross examine their witnesses and get it introduced then. Right?

Also, what about police reports? How can I be prepared to introduce them should there be an objection?

Thank you both for your sound advice.

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blithe said...

So now answer me this: The two Defendants, Capital One and Geico,

certainly will have someone at the trial to testify for them, a

representative employee I assume, so since I'm my only witness, I would

put myself on the stand first, tell what happened to me at their hands

and attempt to introduce the evidence as I go along, most of which I got

from them themselves or it itself during discovery. If they object, I

can then wait until I cross examine their witnesses and get it

introduced then. Right?

No. First, in cross-examination, you are limited to asking questions within the scope of the direct exam that the other party did. if the other party didn't make any mention of the document during direct examination, you can't do anything with it except as a rebuttal to something the defense witness did say during the direct examination. So, you'd run the risk that the defendant in his direct exam would never open the door you need for you to get this admitted.

Second, along that same line, you take a risk with your proposal because the defendant might never even call the witnesses you need. If that occurred, you'd then of course lose your chance to get it admitted.

Third, if you want the document admitted to help tell the story of your case, then be prepared to call the necessary witnesses during your part of the case to lay the foundation, overcome any hearsay objections, etc., so that you can get it before the court during your case presentation. You don't want to wait to get your stuff admitted until after the defense starts its case. That leaves holes in your story during your case presentation, you won't get much of a chance to tell the story of the document if you were to get admitted during defendant's case. The jury may find that confusing and basically ignore the document as a result. Thus, even if you could do it, it wouldn't be a good idea. It would weaken your case presentation.

blithe said...

Also, what about police reports? How can I be prepared to introduce them should there be an objection?

Generally police reports are not admissible in court because they are hearsay and not covered by an exception. What use do you plan to make of the police report?

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Well, then I guess I can assume, because I have to give the other side a firm list of witnesses by Oct. 1, that the two Defendants will have representatives there whom I can call to introduce my evidence, if there is objection to it being introduced?

The police reports I was going to use to show that my car had been stolen and recovered, and that my bank account had been invaded and that was why my payment bounced.

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Here's what the pretrial order says about exhibits:

The parties must confer over all trial exhibits. This does not apply to rebuttal exhibits that

cannot be anticipated before trial. The parties must file an original plus three (3) copies of the

parties' "consolidated exhibit list identifying all exhibits that the parties have stipulated are

admissible" and a "consolidated exhibit list identifying all exhibits the parties have stipulated to be authentic, but to which there are other objections" no later than calendar days before trial.

For those exhibits on which a stipulation could not be reached, the offering party must file a separate "contested exhibit list" no later than calendar days before trial. An original plus three (3) copies of each party's contested exhibit list must be filed on the date identified in the preceding paragraph. In addition, two courtesy copies of the contested and uncontested exhibit list must be delivered to the judge's chambers.

However, the Judge has said that we must exchange copies of proposed exhibits by Oct. 1, and he said nothing more about them.

Where does this leave me as far as introducing evidence while I'm giving testimony?

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blithe said...

The two Defendants . . . certainly will have someone at the trial to testify for them, a representative employee I assume, so since I'm my only witness, I would put myself on the stand first, tell what happened to me at their hands and attempt to introduce the evidence as I go along, most of which I got from them themselves or it itself during discovery. If they object, I can then wait until I cross examine their witnesses and get it introduced then. Right?

No. If this evidence is important to your case, it needs to be introduced during your case in chief. You cannot authenticate the defendants' business records, and, if you do not make your prima facie case before resting, the court could dismiss the case right then and there, without the defendants even needing to put on a defense. Moreover, the witness(es) the defendants produce at the trial might not be competent to authenticate the records you need. Therefore, you need not to be your only witness and need to make arrangements to have a proper authenticating witness to testify during your case in chief.

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blithe said...

Well, then I guess I can assume, because I have to give the other side a firm list of witnesses by Oct. 1, that the two Defendants will have representatives there whom I can call to introduce my evidence, if there is objection to it being introduced?

I'm not sure I understand this question. If you assume the defendants will have viable witnesses available for you to call during your case in chief, you may as well dismiss now. It's not the defendants' job to provide you with witnesses. Chances are that, at the start of your case in chief, sitting at the defendants' table will be their outside lawyer and an in-house lawyer. If I were the defendant's lawyer, and if you had failed to identify an authenticating witness, I would tell anyone competent to authenticate the documents to be as far away from NM as possible on the day of trial.

As soon as you identified these documents as something critical to your case, you needed to be thinking about how you would get them admitted into evidence. You could have sought to authenticate them by way of a request for admission or during a deposition. Hopefully for your sake you still have time to do that.

blithe said...

The police reports I was going to use to show that my car had been stolen and recovered, and that my bank account had been invaded and that was why my payment bounced.

They are inadmissible hearsay. You obviously can testify to these things yourself. You can also call a police officer and/or representative of your bank to testify to these things.

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blithe said...

Where does this leave me as far as introducing evidence while I'm giving testimony?

I don't understand the question. Your obligations with respect to lodging exhibits and lists of exhibits before trial is unrelated to your ability to introduce exhibits while you are testifying.

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Both Defendants are located outside this district, so I don't see how I can call a witness to testify as to the exhibits' authenticity. Doesn't it matter that these exhibits came to me through discovery, through their lawyers?

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blithe said...

Both Defendants are located outside this district, so I don't see how I can call a witness to testify as to the exhibits' authenticity.

Then I hope you have time to serve requests for admissions or take a deposition.

blithe said...

Doesn't it matter that these exhibits came to me through discovery, through their lawyers?

No, it doesn't. That a party has a particular document in its possession, custody, or control, such that it has to produce the document in response to a document request doesn't necessarily mean that the document is sufficiently reliable such that it ought to be admitted despite being hearsay.

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blithe said...

How does one serve requests for admission? Would that be the same as the pretrial order stipulation clause that I posted here?

The answer to the second question is no.

As for the first question, that you've apparently litigated a federal lawsuit to a point that is shortly before trial without knowing about RFAs is more than a little troubling. Take a look at Rule 36 of the Federal Rules of Civil Procedure (http://www.law.cornell.edu/rules/frcp/#chapter_v). I would also suggest a visit to a law library to review the Moore's Federal Practice treatise and any local federal practice guides.

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Guest FindLaw_Pierre

Even textbooks have mistakes which is why you are right to perform due diligence. I am curious to look into this reading and see what exactly you are looking at or if it is possible that you have taken the reading translation too literally.

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Well, geez, 1067, I don't know why you would find it troubling that I don't know about RFAs (though thanks to you I now do), because I am not an attorney, only a pro se; I've spent my working life as a newspaper journalist and poet and won awards for both, but until recently, I've had no reason to study the federal rules of procedure. I've pored over them late at night, and unless I'm looking for something specific, they put me to sleep. Anyway, I still don't understand why the stipulation clause in the proposed pretrial order doesn't suffice, though since you say it doesn't, I will send an RFA with the copies of the exhibits I intend to attempt to introduce at trial. If no reply within 30 days, they will be deemed admissible, I presume, so I'd better get them out pronto, as the trial is Oct. 17.

What does privilege mean as used in Rule 501?

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blithe said...

I don't know why you would find it troubling that I don't know about RFAs (though thanks to you I now do), because I am not an attorney

Like it or not, and fair or not, pro se plaintiffs are expected to know the rules. I'm sorry if you find them to be boring, but you need to know them nonetheless (and it's not as though there are not sources that are a bit less dry than the rules themselves that will give you information about basic discovery procedures). And, while I might not expect a pro se plaintiff to have known about basic discovery procedures at the time you filed your complaint, you certainly should have learned about them by the time your case is less than 50 days away from trial.

blithe said...

I still don't understand why the stipulation clause in the proposed pretrial order doesn't suffice, though since you say it doesn't, I will send an RFA with the copies of the exhibits I intend to attempt to introduce at trial. If no reply within 30 days, they will be deemed admissible, I presume, so I'd better get them out pronto, as the trial is Oct. 17.

I guess we haven't asked and you haven't said, but will the defendants stipulate to the admissibility of these documents? I think you implied that they won't. However, if they will, then yes, a stipulation in the pretrial conference order will suffice. As far as serving an RFA at this point, it may be too late. When is/was the non-expert discovery cutoff. Unless it is on or after October 1, it is too late (unless you can get the court to allow you additional time.

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You have answered my next question in advance: I had just begun to suspect that the RFA must be part of discovery, and discovery ended in May, so I guess I must rely on the pretrial order stipulation to authenticate these documents I received from the Defendants during discovery. I see no reason why they would not so stipulate, unless they wish to block me and be unfair, because there is no way I can afford to subpoena their people from out of state.

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And just so you won't think I'm a complete idiot, I did know about admissions in regard to discovery but had not connected them to entering evidence at trial, which is new to me. Plus I don't find the rules boring when I'm looking for something specific. But for bedtime reading, I'd not suggest them.

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blithe said...

I see no reason why they would not so stipulate, unless they wish to

block me and be unfair, because there is no way I can afford to subpoena

their people from out of state.

If the documents would hurt their defense, expect them not to stipulate to them. It's not about being "fair" but about zealously representing their client's interests.

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