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Trial: Direct Examination: Foundation

This Guide, prepared by the Robert M. Spire American Inn of Court, presents resources for conducting a direct examination.

Introduction

The sources included in this section discuss the foundation necessary for admissible evidence as well as relevant information to overcome foundational objections.

Description

a. Neb. Rev. Stat. § 27-702 Expert Testimony

b. Neb. Rev. Stat. § 27-703 Bases of Opinion Testimony by Experts

c. Neb. Rev. Stat. § 27-801 Hearsay; Definitions; Statement, Declarant, Hearsay; Statements Which Are Not Hearsay

(1) Inconsistent Statement [801(1-3)]

(2) Consistent Statement [801(4)(a)(i)]

(3) Pretrial Identification (Federal Court Only) [801(4)(a)]

(4) Personal Admissions [801(4)(b)(i)]

(5) Adoptive Admissions [801(4)(b)(ii)]

(6) Authorized Admissions [801(4)(b)(iii)]

(7) Agent’s Admissions [801(4)(b)(iv)]

(8) Coconspirator’s Admissions [801(4)(b)(v)]

d. Neb. Rev. Stat. §27-802 Hearsay Rule

e. Neb. Rev. Stat. § 27-803 Hearsay Exceptions; Enumerated; Availability of Declarant Immaterial

(1) Present Sense Impression (Federal Court Only) [803(1)]

(2) Excited Utterance [803(1)]

(3) State of Mind [803(2)]

(4) Medical Diagnoses or Treatment [803(3)]

(5) Past Recollection Recorded [803(4)]

(6) Business Record Exception [803(5)]

(7) Absence of Business Record [803(6)]

(8) Public Records [803(7)]

(9) Records of Vital Statistics [803(8)]

(10) Absence of Public Record on Entry [803(9)]

(11) Records of Religious Organizations [803(10)]

(12) Marriage, Baptismal, and Similar Certificates [803(11)]

(13) Family Records [803(12)]

(14) Records of Documents Affecting an Interest in Property [803(13]

(15) Statements in Documents Affecting an Interest in Property [803(14)]

(16) Statements in Ancient Documents [803(15)]

(17) Market Reports, Commercial Publications [803(16)]

(18) Learned Treatise [803(17)]

(19) Reputation Concerning Personal or Family History [803(18)]

(20) Reputation Concerning Boundaries or General History [803(19)]

(21) Reputation as to Character [803(20)]

(22) Judgments of Previous Conviction [803(21)]

(23) Judgment as to Personal, Family, or General History, or Boundaries [803(22)]

(24) Residual Exception [803(23)]

f. Neb. Rev. Stat. § 27-804 Hearsay Exceptions; Enumerated; Declarant Unavailable; Unavailability Defined

(1) Unavailability of Declarant [804(1)]

(2) Former Testimony [804(2)(a)]

(3) Dying Declaration [804(2)(b)]

(4) Declarations Against Interest [804(2)(c)]

(5) Statement of Personal or Family History [804(2)(d)]

(6) Residual Exception [804(2)(e)]

g. Neb. Rev. Stat. § 27-805 Hearsay within Hearsay

h. Neb. Rev. Stat. § 27-806 Attacking and supporting credibility of declarant; opportunity to explain; examine declarant

i. Neb. Rev. Stat. § 27-901 Requirement of Authentication or Identification; General Provision; Illustrations and Examples Enumerated

(1) General Provision [901(1)]

(2) A Matter Is What It Is Claimed To Be [901(2)(a)]

(1a) Diagram, Photo, Model [901(2)(a)]

(3) Handwriting Testimony by Lay Witness [901(2)(b)]

(4) Handwriting Testimony by Expert Witness [901(2)(c)]

(5) Readily Identifiable or Chain of Custody [901(2)(d)]

(6) Voice Identification by a Lay Person [901(2)(e)]

(7) Telephone Conversation to a Person or Business [901(2)(e)]

(8) Publicly Filed Writing [901(2)(g)]

(9) Ancient Record [901(2)(h)]

(10) Result from Process or System [901(2)(i)]

(11) Authentication Authorized by Statute [901(2)(h)]

j. Neb. Rev. Stat. § 27-902 Self-Authentication; When

(1) Public Documents Under Public Seal [902(1)]

(2) Public Documents Not Under Public Seal [902(2)]

(3) Foreign Public Document [902(3)]

(4) Certified Copies of Public Records [902(4)]

(5) Official Publications [902(5)]

(6) Newspapers and Periodicals [902(6)]

(7) Trade Inscriptions and the Like [902(7)]

(8) Acknowledged Documents [902(8)]

(9) Commercial Paper and Related Documents [902(9)]

(10) Presumptively Authentic Under Acts of Congress or the State of Nebraska [902(10)]

k. Neb. Rev. Stat. § 27-903 Subscribing Witness Testimony; When Necessary

l. Neb. Rev. Stat. § 27-1001 Definitions; Writings and Recordings, Photographs, Original, and Duplicate

m. Neb. Rev. Stat. § 27-1002 Requirement of Original; Exception

n. Neb. Rev. Stat. § 27-1003 Admissibility of Duplicate; When

o. Neb. Rev. Stat. § 27-1004 Admissibility of Other Evidence of Contents; When

(1) Originals Lost or Destroyed [1004(1)]

(2) Original Not Obtainable [1004(2)]

(3) Original in Possession of Opponent [1004(3)]

(4) Collateral Matters [1004(4)]

p. Neb. Rev. Stat. § 27-1005 Public Records; Contents, How Proved

q. Neb. Rev. Stat. § 27-1006 Voluminous Writings, Recordings, or Photographs; Summaries; Availability; Orders

r. Neb. Rev. Stat. § 27-1007 Contents of Writings, Recordings, or Photographs; How Proved

s. Neb. Rev. Stat. § 27-1008 Functions of judge and jury

(1) Denial That the Original Ever Existed, Disputed Original, Other Evidence of Content of the Original

t. Neb. Rev. Stat. § 27-1101 Applicability of Rules; Courts; Proceedings Generally; Rules Inapplicable; Grand Jury, Miscellaneous Proceedings; Rules Applicable In Part

(1) Scope [1101(1)]

(2) Juvenile Proceedings [1101(1)

(3) Contempt Proceedings [1101(2)]

(4) Privileges [1101(3)]

(5) Proceedings Where Rules Inapplicable [1101(4)]

Availability

a. Neb. R. Evid. § 27-101 et seq.

b. Richard Collin Mangrum, Mangrum on Nebraska Evidence (2011 ed., Vol. 3 Thomson West 2011).

c. Nebraska Court Rules and Procedure (Vol.1– State, 2011).

Foundation Necessary for Electronic Evidence and Relevant Cases

a. Text Messages.

(1) Dickens v. State, 175 Md. App. 231 (2007).

Murder case where the victim was murdered by her husband. Five text messages were introduced at trial and Defendant challenged them on appeal arguing that they were not properly authenticated by the State.

The victim’s mother testified that she had purchased the phone a couple of months prior so she could call 911 in the event of an altercation with the Defendant. Following the victim being murdered, the victim’s mother re-took custody of the phone and viewed the text messages. She found the text messages in question and called the detective who took photographs of each of the messages.  The text messages showed the number of the sender, which the victim’s mother testified as initially belonging to the victim, but that the number had been given to the Defendant by the victim. The victim’s mother testified that the defendant had the use of the cell phone for the time when the messages were sent. The testimony that the Defendant had the cell phone was supported by the fact that the phone was found near the home of a neighbor whom the Defendant had spoken to shortly after the murder.  The text messages referred to events that only a very small amount of people would know and that, when coupled with the fact that the Defendant had a history of threatening his wife, the Court found that the jury could legitimately infer that the Defendant sent the messages.  Two of the text messages were sent on July 6, 2000 and July 7, 2000 by a person calling himself “Doll/M” and referred to wedding vows (until death do us part). The Court found that this was circumstantial evidence that the message was sent by the Defendant.

(2) State v. Taylor, 632 S.E.2d 218 (2006).

Defendant was charged with first-degree murder, first-degree kidnapping, and robbery with a dangerous weapon. Defendant argued that two text messages sent to and from the victim’s company issued cell phone were not properly authenticated.

At trial, a strategic care specialist with Nextel Communications testified that Nextel keeps a record of all incoming and outgoing text messages to and from its customers. The strategic care specialist also testified regarding the content of the messages and that the times the messages are sent and received are stored in the Nextel database.  The prosecution then offered the manager of the Wireless Express Store as a witness. The manager testified that he had assigned and issued the victim a Nextel cellular phone and its number (which corresponded with the text messages at issue). The manager also testified that the victim’s phone had the capability to send and receive text messages. The manager was authorized to access the Nextel website to see the text messages to and from the victim’s telephone number. The manager identified the text messages in question as the ones he retrieved from Nextel’s website.

The Court found that the testimony by the Strategic Care Specialist and the Manager of the Wireless Express Store was sufficient to authenticate the text messages in question. The Defendant also argued that no showing was made as to who typed and sent the text messages. The Court stated, “The text messages contain sufficient circumstantial evidence that tends to show the victim was the person who sent and received them.”

b. Websites.

(1) People v. Clevenstine, 891 N.Y.S.2d 511 (2009).

Defendant befriended a family and then began to have sexually related activity with the family’s two teenage daughters.  The wife of the Defendant discovered sexually explicit communications between the Defendant and the youngest victim on the Defendant’s MySpace account.

Defendant appealed that the chat transcripts had not been authenticated. Both victims testified that they had engaged in instant messaging over MySpace with the Defendant about their sexual activities with him. An investigator from the computer crime unit “related” that he had retrieved the conversations from the hard drive of the computer that was used by the victims. Additionally, a legal compliance officer for MySpace testified that the messages on the computer disk had been exchanged by the users of the accounts created by the Defendant and the victims. The Defendant’s wife testified that she had viewed the sexually explicit conversations on the Defendant’s MySpace account while on their computer. The Appellate court found that this testimony provided “ample authentication for admission of this evidence.”

(2) Commonwealth v. Williams, 926 N.E.2d 1162 (Mass. 2010).

One of the witnesses at a murder trial stated that she had received messages via MySpace from Williams, the Defendant’s brother. The witness printed off the messages from her MySpace account and brought them with her to the courthouse. At trial, the witness testified that Williams was the Defendant’s brother. The witness testified that Williams had a picture of himself on his MySpace account and that his MySpace username was “doit4it.” The witness testified that she had received messages from Williams and that the print off with the messages (An exhibit for identification) was sent by the user with the screen name “doit4it” and had a picture of Williams. The witness testified that she had responded to 3 of the 4 messages and that the sender had responded. The contents of the messages demonstrate that the sender was familiar with the witness as well as the pending criminal case against the Defendant.

The Court found that there was insufficient evidence to authenticate the messages. The Court conceded that it appears that the messages were sent from Williams’ MySpace page, there was no testimony as to the security of the webpage, who could access a MySpace web page, or whether codes were needed for such access. The Court also said that without more evidence, it is unfair to analogize an exchange over MySpace to that of a telephone conversation with a specific individual.

The Court stated that, “[w]hile the foundational testimony established that the messages were sent by someone with access to Williams’ MySpace Web page, it did not identify the person who actually sent the communication. Nor was there expert testimony that no one other than Williams could communicate from that Web page.”

(3) Richard Collin Mangrum, Interpreting Nebraska Rule of Evidence 702 After the Supreme Court Adopted the Federal Daubert Standard for the Admissibility of Expert Testimony in Schafersman v. Agland Coop, 35 Creighton L. Rev. 31 (2001).

(4) Richard Collin Mangrum, Nebraska Procedural Rules of Evidence, 29 Creighton L. Rev. 219 (1995).

(5) Richard Collin Mangrum, Nebraska’s Evidentiary Rules on Relevancy, 29 Creighton L. Rev. 119 (1995). 

(6) Richard Collin Mangrum, Nebraska’s Evidentiary Rules Regarding Witnesses, 28 Creighton L. Rev. 55 (1994). 

(7) Richard Collin Mangrum, The Law of Hearsay in Nebraska, 25 Creighton L. Rev. 499 (1992).

Foundation Necessary for Electronic Evidence and Relevant Cases


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