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[This is a continuation from yesterday's Evidence I post.] 

In addition to witness testimony, in a trial there is also evidence in the form of documents and things. Before we get into that, I want to take a minute to talk about relevancy. Evidence may be true and competent yet completely irrelevant to the crime charged or any defense to that crime. Under Rule 402 of the Federal Rules of Evidence, irrelevant evidence is usually inadmissible. This is particularly true in a jury trial.  In a bench trial the judge will be more lenient believing in his own ability to avoid being swayed by irrelevant evidence.

This has already been a major issue in the Libby case in that there have been pre-trial motions, called motion in limine, to limit the amount of irrelevant confusing or prejudicial evidence that may be admitted before the jury. Christy has touched on this in prior posts and I mentioned it in the threads, but part of Irving’s “memory” defense has involved saying that he was preoccupied with much more important matters.

The best I can glean from the heavily redacted documents available publicly, is that whatever these other matters were, they must sound really scary and the concern is that the jury will get freaked out about some scary near miss and forget all about the issues at hand. I keep wondering about the sci-fi movie where the meteor hits the earth. There was a reference to North Korea, so maybe the chicken hawks were all running around the WH yelling that the sky was falling (chicken hawks morph into Chicken Little) and North Korea was gonna nuke us. Yeah, with those ICBMs that keep falling apart when they get 10 feet off the ground!

But I digress. We were going to discuss admissibility of documents and things into evidence, not as much fun as wild ass fantasies about meteors and Chicken Little-isms, but much more useful in preparing for Fitzmas.

Generally, before a document or thing can be admitted into evidence there must be other competent evidence to “authenticate” the document or thing. For example, in a trial for a murder involving a gun, the prosecution cannot just offer any old gun into evidence.  The prosecution must offer other evidence showing that the gun to be offered is indeed THE gun.

The classic examples of how to do this are laid out in Rule 901:

1) By testimony of a witness with knowledge. This is fairly obvious and needs no explanation.

2) By non expert opinion on handwriting. We discussed this in the last post. It is not uncommon for a spouse or secretary to testify based on personal familiarity that a certain handwriting specimen is indeed so and so’s. This also works with voice identification.

3) The jury or an expert witness compares the specimen (could be handwriting or anything else) with a another specimen which has already been authenticated.

4) Distinctive characteristics. Appearance, contents, internal characteristics, taken in context.

5) Telephone conversations can be authenticated by reference to telephone company records, by a participant identifying that the contents and by phone logs.

6)Public records are authenticating of the facts contained therein.

7) Ancient documents. The idea here is that information in an ancient document has been relied upon for so long as if it were true, it no longer matters whether or not you can independently prove it is true, because everybody accepts it as true. This is one of my least favorite because we all know that misconceptions have a way of hanging around before being debunked. (BTW, “ancient” under Rule 901 means more than 20 years old. I wonder what that makes me?)

Some documents and things are considered “self authenticating” and do not need to be proved up before they are admitted (though they are still subject to relevancy and other objections to admissibility). These are discussed in Rule 902 and include: Public documents with an official “seal” or with a testamentary statement from an appropriate public official attesting to their authenticity, books and other writings issued by a public agency, “commercial paper” such as promissory notes or UCC filings, trade inscriptions such as signs or labels affixed to things which show ownership or origin, and newspaper or other periodicals.

This last, news reports, gives me the willies. How many times have we seen our beloved fourth estate screw up the facts? Now, the mere fact that something goes into evidence does not mean you cannot contest it’s accuracy, but given the piss poor showing we have seen the last few years in terms of getting the facts straight before we rush to print (yes, I’m talking to you Judy Miller), I don’t know if media reports deserve such deference. I understand the rule. It’s based on the idea that everybody knows about it anyway and knows where it came from, so the only debate is about the contents not the origin. That theory, though still valid, is weakened in this age of abuse of the granting of confidentiality of sources and in view of the Jason Blair, “let’s make up some sources” trend in modern journalism.

Under Rule 1006 (yes, there are many, many rules) the contents of voluminous writings, recordings or photographs may be summarized in chart, summary or calculation and the latter admitted into evidence in place of the original material. This method is being used by Team Irving to solve a CIPA problem involving information that they wished to present that could not be declassified. During the trial watch for admission of something called the “dot chart” and see this rule in action.

Sometimes you don’t have to offer things into evidence at all. How cool is that? Sometimes you can prove a fact without offering any evidence of it whatsoever IF the other side is willing to “admit” the fact. Fitz tried to do that in an effort to avoid most of the greymail defense. He offered, many times, to “admit” that Irving was a very busy man and preoccupied with important matters.

Irving prefers to go to the trouble of proving that. Wouldn’t it be a kick in the head if he failed to do so? Just kidding, but it’s fun to imagine the headlines. *g*

(CHS notes:  The above photo is a picture of a notebook that belonged to Mark Twain.  I was thinking last night before I drifted off to sleep how interesting the coverage from Twain's pen would be of this trial, and of the Bush Administration in general.  And wishing that, somehow, he could reach out across the ages and add a bit of his wit to the proceedings.)