Marshalling Evidence
Tribunal Quality Evidence
Comparing Tribunals, Trials &
Hearings
Expert Witnesses & Scientific
Evidence
The State
Judicial System
State Supreme Court
State Courts of Appeals
State Courts of Original Jurisdiction
Inferior Courts
Small Claims
The Federal
Judicial System
U. S. Supreme Court
U. S. Court of Appeals
Special
Federal Courts
Federal
District Courts
Jurisdiction
• Jurisdiction is
– Political entity, nation, state, or local subdivision
– The power and authority of a government to regulate
activities
– Constitutional permission to exercise governmental
power
• Jurisdiction and e-commerce
– New area of legal concern
– Old law is being rewritten to reflect new technology
Conduct of Civil Trials
Pretrial activities
Pleadings
Pretrial discoveries
Trial
Post-trial activities
Appeals
Litigation in the U.S. Legal
System
• Common Dispute Resolution Process
• Differentiation of Criminal & Civil Litigation
• Adversarial Process
– Parties are responsible for proof of their claims
– Parties determine which witnesses to call &
when to object to opposing evidence
– Role of attorneys
Prelitigation Concerns
• Who are the Parties to be Sued?
– Who are the plaintiffs
• What is the Basis of the Suit?
– Legal Theory
• When will the Litigation Begin?
– Statutes of Limitation
• Where could the Litigation Take Place?
– Jurisdiction & Venue
Pretrial Activities &
Discovery Procedures
• Depositions -- Testimonies Given by Witnesses
under Oath
• Examinations
• Inspection of Records & Documents
– Electronic documents
• Interrogatories -- Questions Submitted to the
Opposing Party & Answered under Oath
• Pretrial Conference -- Move toward Trial or
Settlement
Agency Functions
• Executive Powers
– Policymaking, investigation, enforcement
• Legislative Power
– Promulgate rules & regulations
• Judicial Power
– Hearings & adjudication
• Checks & Balances:
– From separation of each agency’s three functions
– Legislative, Executive & Judicial Controls
Investigations
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Violation Reports Trigger Investigation
Witnesses Questioned
Documents Requested
Third Parties Questioned & Submit
Documents or other (electronic) Records
• Direct Monitoring
– Testing, plain view, inspections
• Records Retention Policies
Administrative Subpoenas
• Subpoenas Not Self-Executing
• Recipient May Refrain from Testifying or
Compliance
– But Consequences if Uncooperative
• Administrative Subpoena: Ct. Enforcement
1) Has Legitimate Purpose for Investigation
2) Inquiry is Relevant to Purpose
3) Information not already in Possession
4) Proper Administrative Steps Followed
Facilities Inspections
• Warrant Req’d: Search of Pvt. Property:
– 4th A: no unreasonable searches/seizures
– Administrative probable cause required
– Federal magistrate issues warrant
• Exceptions:
– Emergency conditions
– Consent
– Activities in plain view
– Long history of pervasive regulation
• Firearms, liquor, food, prescription drugs
Administrative Adjudication
• Pre-Trial Process:
– Investigation, Complaint & Notice, Ltd
Discovery
• Trial-Like Adjudication
– Opening & Closing Remarks
– Fact determinations:
• evidence presented, witnesses examined/crossexamined
– Application of Law/Regulations
– Decision or Order
• Appeal Through Agency & Judicial Review
ADR Advantages over
Litigation
• Takes Less Time and Cost
• Can Select Decision Maker & the Place for
Dispute Hearing
• Non-Adversarial Process & Inf. Methods
• Parties are Actively Involved
• Each Party Can Benefit from Resolution
• Generally More Confidential
Litigation Advantages over
ADR
• Longer Time Frame May be Advantageous
• Each Party Obtains Valuable Information
about the Other Party
• The Rule of Law Governs the Dispute
• Can Establish a Precedent
• Preferred for New & Complicated Cases
• More Public Accountability of Parties
• Principles Become Precedent & Public Policy
Arbitration
• Arbitrator/Arbitration Panel
– When Selected?
• Prior to dispute, usually by contract
• After dispute arises, to settle outside litigation
– How Selected?
• Is arbitration fair & balanced?
• Decision Usually Binding & Final
– Very limited appeals
• Mandatory Court Annexed Arbitration growing
in Several States
Mediation
• Non-Binding
• Supervised by Independent Third Party
Mediator
– Persuades Disputing Parties to Settle
– Focuses attention on issues, quells emotions,
urges concessions on unreasonable
demands, proposes compromises, helps find
common ground
• Conciliation Similar but without Proposing
• Popular in Labor & Employment Disputes
Court-Annexed Mediation
• Part of the Pretrial Litigation
• Mediation Panel (usually) of 3 Persons
• Panel’s Decision is a Judgment if Parties
Accept the Award
• If any Party Rejects the Award
– Go to trial
– Consequences of rejection of the award
The Mini-Trial
• Informal Presentation of the Evidence to
Various Types of Forums
– EX: to Senior Management
– Mock Jury & Judge may attend for realism
• May Invite Independent Advisor
• Abbreviated Discovery Process
Private Trials
• Rent-a-Judge
• Pioneered in CA
– Spreading slowly to some other states
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Retired Judge with Expertise
Parties Agree that Decision will be Binding
Usually Applies the Law
Held Anywhere, Anytime, Confidential
Judgments Enforced if Parties Agree (usually
beforehand)
Non-Judicial Tribunals
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Internal Investigations
SRO, NGO
SH Inspection Privileges
FOIA
Factors Relevant to Selection
from Among Dispute Resolution
Methods
• Is the decision binding? Can it be
reviewed?
• How is the decision maker selected? Does
he/she have expertise on the subject?
• What is the nature of the decision ?
• Is the process public or private?
• How time consuming and costly is the
process?
Varying Roles of Expertise
Legislation
Regulation
Litigation
Some key emerging
expertises
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Statistics, multiple-regression
Survey Research
Estimation of economic damages
Epidemiology
Toxicology
Engineering practice
DNA
Medical diagnosis & treatment
Environmental & workplace exposure
Employment issues
Evidence Admissibility
Relevance
Authentication
Admissibility
Direct vs. Circumstantial
Evid
• Direct evidence: statement by witness of direct
sensory observation
– Proves existence of some fact without inference or
presumption
• Circumstantial evidence: evidence from which the
proof of a material fact is inferred
– Not based on witness’ personal knowledge
– Additional reasoning required to reach proposition to
which inference is directed
Relevance: FRE Rule 401
Definition of ‘‘Relevant Evidence’’
• ‘‘Relevant evidence’’ means evidence
having any tendency to make the
existence of any fact that is of
consequence to the determination of the
action more probable or less probable
than it would be without the evidence.
Relevance: FRE Rule 402
Relevant Evidence Generally Admissible;
Irrelevant Evidence Inadmissible
• All relevant evidence is admissible, except as
otherwise provided by the Constitution of the
United States, by Act of Congress, by these rules,
or by other rules prescribed by the Supreme
Court pursuant to statutory authority. Evidence
which is not relevant is not admissible.
Relevance: Rule 403
Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time
• Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay
• Relevant evid excluded if prejudicial, balaincing
probative value against harm likely
– EX: emotional, time waste
Relevance
• Trial court judges have wide lattitude
– Subject to trial attorney exceptions & appeal
– Object to admission as arguably irrelevant
– Object to exclusion because arguably relevant
• Relevance vs. Materiality
– Relevance: evidence is relevant to a proposition or point
– Materiality: proposition or point is material to an issue at trial, has
legal significance to case
– EX: electric lawn mowing, wet grass & bare feet-relevant to
contributory negligence
• Immaterial if issue at trial is thrown broken blade
– FRE Now Merges Materiality into Relevance
Relevance
• Relevance is not inherent but contextual
• Exists only in relation between item of
evidence & matter requiring proof
– Either in witness’ Experience or from Science
– Applied logically to factual proposition
Authentication
• FRE Rule 901. Requirement of Authentication
or Identification
– (a) General provision.—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.
– A/K/A “Laying the Foundation”
• Test: sufficient proof that a reasonable juror could
find authentic
– eVid inadmissible as not authentic if source of info or
method or circumstances of preparation lacks
trustworthiness
Why Authentication?
• Cannot accept proffered evid at face value
– Exception for Self-Authentication
• Initial proof of accuracy & not forgery
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Judge rules, opposing counsel may move
Particularly important for exhibits & docs (e-)
But there is no guarantee against fabrication
Ultimately an outcome of adversarial trial process
• Authentication defined:
– Genre, verifying authorship, integrity, completeness,
correctness, validity, faithfulness to original,
meaningfulness, suitability for intended purpose
Authentication How?
• Accomplished in Pre-Trial Discovery
– Request for Admission of genuineness
– Stipulation
– Production authenticates as to claimed status
– Interrogatory
– Deposition
– FRCP 26(a) list not objected to
Authentication How?
• Accomplished at trial
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Request: marked for identification as Exhibit#
Witness sponsored
Offering as exhibit
Permitting adverse counsel to examine or object
Submitting to judge requesting to examine
Court ruling on admissibility
Permitted jury to hear it read, displayed or passed to
Authentication How?
FRE Rule 901(b) Some EXs
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Testimonial sponsor with knowledge
Chain of Custody
Handwriting (lay vs. expert opinion)
Distinctive characteristics (ltr-head)
Voice ID
Telephone calls
Public reports & records
Ancient Documents
Tape Recording
Photos, Videotapes, Xrays
Computer Output
Chain of Custody
• Authentication, Foundation or Predicate
– Addresses implication & risk that broken chain
suggests opportunities for falsification, alteration,
deterioration, mis-ID or tampering
– Typically triggered by objection to admission where
chain allegedly broken or uncertain
• Most useful for fungible evid, lack distinctive
characteristics
– EX: counterfeit currency, car key, computer file
– Not normally necessary if identifiable by distinctive
Chain of Custody
• Factors in chain of custody
– Potential commingled items w/ similar appearance
– Sponsor failed to ID uniquely &/or adequately record
• Establishing Chain from Seizure to Production
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Witness describes initial recovery of item(s)
Others describe handling, transfer & receipt
Precautions taken to preserve evid
Proof item not changed, substituted or tampered
Each, as link in unbroken chain, testify to chain’s
integrity & item’s unchanged condition
• Not all breaks require inadmissibility: seriousness &
reasonability of safeguards
Chain of Custody: EDD
• eData easily altered, files appear fungible
• Chain of Custody eData Log is Crucial:
– Every step documented throughout process
– Proper copying, transporting & storage
– Demonstrates that no alteration occurred
– All media secured throughout
Hearsay
• Hearsay Rule: Oral or Written Hearsay is Inadmissible
• FRE 801 Hearsay Definition - Statement offered in
evidence to prove the truth of the matter asserted.
– ‘‘statement’’ is (1) an oral or written assertion or
– (2) nonverbal conduct of a person, if it is intended by the person
as an assertion.
– Includes eData, some non-verbal
• FRE 802. Hearsay Rule
– Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.
• Prohibits witness from relating the word of another person
w/o exceptional circumstances
Hearsay Rationale
• Reasons: Reliability Generally Untestable
– Unreliability of out of court declarant cannot be
tested by confrontation & cross-exam
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Perception
Memory
Sincerity
Narration
– Confrontation Cl, 6th A.
• In all criminal prosecutions, the accused shall enjoy
the right … to be confronted with the witnesses
against …
Hearsay Exceptions
• Major Exceptions:
– Not Hearsay: not offered for truth of contents
• EX: offered to prove only that something was said
(defamation) such as effect on listener or reader
– Excited Utterance
– Dying Declaration
– Business records
• Reasons:
– Specific to each exception, but generally heightened
reliability & lower risks over general hearsay risks of
memory, perception, sincerity & narration
Burden of Proof
• Burdens: proof= production/going forward + persuasion
– “tipping point” to adjudicate in favor of one or other party
• Civil: Plaintiff
– Preponderance
– Sometimes: clear & convincing, greater weight
• Criminal: Prosecution
– Beyond Reasonable Doubt
• Defendant: any/all defenses
• Appeal: arbitrary, unreasonable, capricious
– Evid admission/exclusion: abuse of discretion
– Regulatory: unsupported by “substantial evid”
Testimony
• Lay
– Sensory Perception, Facts
– Ltd as to Opinion (w/in general experience)
• Expert
– Inference derived from Scientific Evidence
– Proof of expertise & domain’s discipline
• Sponsorship
– Context, Foundation, Predicate, Chain of
Custody
Types of Experts in
CyberForensics
• Considerable potential overlap
• EDD Specialist
– Discovery & processing of eData
– Assess or Convert opposing party records
• Computer Forensics Expert
– Location, recovery, discovery, generation, storage &
disclosure of EDD
– Advise lawyers
– Testify on recovery techniques & product
• Electronic Info. Processing Consultant
– Post-Harvesting advice on effective/efficient search,
extraction, conversion, presentation
Rule 701. Opinion Testimony
by Lay Witnesses
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Witness not testifying as expert
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Testimony may be opinion or inference
Limited to:
(a) rationally based on witness’ perception
(b) helpful to clear understanding of
the witness’ testimony or the determination of fact in issue,
&
(c) not based on scientific, technical, or other specialized
knowledge otherwise w/in 702
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W/in common experience, personal
knowledge, overall impression
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EX: observed a drunk, emotion, physical condition,
speed, size, color, shape, (in)sane, ID
Distinguish: “ran a red light” vs. “should not have
entered intersection
Rule 702. Testimony by
Experts
• Witness qualified as an expert by knowledge,
skill, experience, training, or education
– If scientific, technical, or other specialized knowledge
will assist trier of fact
– To understand evidence or determine a fact
in issue
• May testify as opinion or otherwise, if
(1) the testimony is based upon sufficient
facts or data,
(2) the testimony is the product of reliable
principles and methods, and
(3) the witness has applied principles
and methods reliably to facts of the case.
Rule 705. Disclosure of Facts or
Data Underlying Expert Opinion
• Expert may testify & give reasons therefore
without first testifying to underlying facts or
data
– Opinion or inference
– Exception: court may require expert to sponsor
data or report
– On cross-exam, expert may be required to
disclose underlying facts or data
Trilogy Observations
• Jury, not judge, must evaluate conflicting
expert & scientific evidence
• Judge is gatekeeper on rigor, cross-exam,
judge instr. & BofP also key
• Formal Daubert hearings not always
necessary
• Kumho too difficult for judges to distinguish
scientific from other technical disciplines
Some key emerging
expertises
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Statistics, multiple-regression
Survey Research
Estimation of economic damages
Epidemiology
Toxicology
Engineering practice
DNA
Medical diagnosis & treatment
Environmental & workplace exposure
Employment issues
CyberForensics