Presenting a live 90-minute webinar with interactive Q&A Evidentiary Challenges in Divorce Cases: From Writings and Photos to Text Messages and Social Media Authenticating, Admitting and Objecting to Admission of Evidence and Testimony THURSDAY, OCTOBER 30, 2014 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Thomas J. Browning, Founder, Browning & Smith , Marietta, Ga. Austin R.C. Buerlein, Esq., Browning & Smith , Marietta, Ga. Cynthia L. Ciancio, Shareholder, Ciancio Ciancio Brown , Broomfield, Colo. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Evidentiary Challenges in Divorce Cases: From Writings and Photos to Text Messages and Social Media By Thomas J. Browning, Esq. And By Austin R.C. Buerlein, Esq. Browning & Smith, LLC 31 Atlanta Street Marietta, Georgia 30060 770-424-1500 tj@browningsmith.com austin@browningsmith.com
Cornerstone of all Evidence (1) Relevance (2) Reliability (3) Authenticity Browning & Smith, LLC 6 www.browningsmith.com
Relevance FRE 401. Test for Relevant Evidence (Definition) : Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. FRE 402. General Admissibility of Relevant Evidence: Relevant evidence is admissible unless any of the following provides otherwise : the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury undue delay, wasting time, or needlessly presenting cumulative evidence. Browning & Smith, LLC 7 www.browningsmith.com
Reliability Reliability refers to the trustworthiness of a record as a statement of fact. It exists when a record can stand for the fact it is about, and is established by examining the completeness of the record’s form and the amount of control exercised on the process of its creation. Reliability concerns today, due to emergency of technology. All evidence must be “authenticated.” Browning & Smith, LLC 8 www.browningsmith.com
Authenticity Authenticity refers to the trustworthiness of a record as a record. An authentic record is one that is what it purports to be and has not been tampered with or otherwise corrupted. Authenticity is established by assessing the identity and the integrity of the record. It must be possible to ascertain at all times what a record is, when it was created, by whom, what action or matter it participated in, and what its juridical/administrative, cultural, and documentary contexts were. Browning & Smith, LLC 9 www.browningsmith.com
Authenticity A proponent must always properly authenticate (lay a foundation) that the item “ is what the proponent claims it is ,” as a condition precedent to admissibility. (see FRE 901 & 902). Two separate ways to “Authenticate” an Exhibit at trial : Category 1: “Self - Authenticating Evidence” : FRE 902 lists twelve (12) specific types of 1. evidence that are considered “ Self-Authenticating ,” and require no extrinsic evidence of authenticity in order to be admitted. Local rules and case law have expanded this list. Category 2: Fact-Sensitive Analysis: If the evidence is not “self - authenticating,” then the 2. proponent must demonstrate to the court that the item “is what the proponent claims it is,” under the facts and circumstances. FRE 901 provides a non-exclusive list of specific ways that a proponent may satisfy this accomplishment Browning & Smith, LLC 10 www.browningsmith.com
Category 1: “Self - Authenticating” Evidence See FRE 902 (See complete statute attached behind Tab “A;” also, on next slide) Documents produced during discovery. See Willis v. Hill, 116 Ga.App. 848 (1967); Hussein v. University and Community College of Nevada, F.Supp.2d, 2007 WL 4592225 (D.Nev.). See local statutes and case law for other examples. Browning & Smith, LLC 11 www.browningsmith.com
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