Chapter II Nontestimonial Evidence
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II. Nontestimonial Evidence
A. Introduction
Nontestimonial evidence can generally be divided into three categories: real, documentary and demonstrative. Real evidence is uncommon in bankruptcy matters and is therefore not specifically addressed in this Handbook.
In addition, as noted in Section I.E, aside from real evidence, most nontestimonial evidence can be can be displayed digitally. This Handbook refers to any form of digital evidence — including documents, photographs, charts, drawings, audio recordings and videos — as demonstrative evidence. Because documentary evidence is the most common type of nontestimonial evidence in bankruptcy matters, this section often refers to documents specifically, but it generally also applies to other forms of demonstrative evidence (and real evidence as well).
Strategic considerations in determining how exhibits should be used at trial are discussed in Section I.E. Once counsel has decided which documentary and demonstrative evidence he or she intends to offer, counsel should then anticipate potential objections, consider how he or she can overcome the objections, and decide the most appropriate witness through whom to offer each exhibit. Addressed below are the principal hurdles to the admission of nontestimonial evidence and other related topics.
B. Relevancy
The threshold test for relevancy is quite broad. Rule 401 provides that "[e]vidence 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."90 But this broad standard can be misleading. The trial court has the discretion to exclude relevant evidence "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."91 (This is commonly referred to as the Rule 403 balancing test). Counsel should be judicious in selecting the documentary evidence to offer into evidence to avoid directing the fact-finder's attention away from the most persuasive evidence or running afoul of Rule 403.
Often, a document will contain both relevant and non-relevant information or other information that is objectionable. Thus, it is sometimes necessary for counsel to offer the document "for the limited purpose" of establishing a certain relevant issue or point. In such instances, the proponent of the evidence will sometimes first attempt to have the exhibit admitted without limitation (and then, only after that attempt is rebuffed, offer it for a limited purpose). There are a variety of reasons for the admission of evidence for a limited purpose. Some of the most common include:
• Prior inconsistent statement used for impeachment: Counsel does not offer the prior inconsistent statement of a witness for its truth, which may be hearsay, but to demonstrate that the witness told a different story at an earlier point.92
• Portions of the document are wholly irrelevant or unfairly prejudicial: Counsel offers the document only as to its non-objectionable parts.
• Notice: A document or a conversation is not itself substantively admissible, but is admitted to show notice of a particular fact or a reasonable basis to investigate.
When trying a case to a jury, it is often the best practice to request a bench conference to discuss the proffer of evidence for a limited purpose. Further, it is sometimes necessary to redact irrelevant or objectionable portions of an exhibit admitted in evidence for a limited purpose before publishing the exhibit to a jury. Such redactions typically occur at the bench conference or during a break in the evidence with the court's concurrence as to the appropriate information to redact.
i. Offering an Exhibit for a Limited Purpose
[Show or hand copy of document to opposing counsel, then hand copy to the clerk. Depending on local practice, hand copy to judge.]
Q: Mr. Witness, let me show you this document, marked as Exhibit _. Can you identify it?
A: Yes, I can.
Q: What is it?
A: [Witness identifies.]
Q: [Questions to demonstrate relevance of the document.]
A: [Witness responds.]
Q: Your Honor, I offer Exhibit _ for the limited purpose of __________.
C. Authentication
To get a document admitted into evidence, counsel must also produce evidence sufficient to support a finding that the document is authentic or genuine — that is, that the document is "what the proponent claims it is."93 Importantly, the proponent of documentary evidence is only required to present prima facie evidence that it is authentic for it to be admitted in evidence. Therefore, the court's admission of the evidence does not represent a conclusive determination that it is authentic, and the nonproponent may present conflicting evidence contesting the authenticity of the evidence. Stated differently, conflicting evidence as to whether a document is authentic goes to the weight and not the admissibility of the ev-idence.94
In practice, many courts require that the parties meet in advance of trial or hearing to stipulate to the authenticity of documents. And many courts do not take objections to authenticity well unless there truly is a genuine dispute over the authenticity of a document. That said, in the absence of a stipulation between the parties, counsel should carefully consider before trial or hearing how he or she will establish that a document is authentic.
Rules 803, 901(b) and 902 provide several ways to satisfy this requirement. Certain types of documents are "self-authenticating," meaning that "they require no extrinsic evidence of authenticity in order to be admitted."95 For nontestimonial evidence that is not self-authenticating, the Rules set forth a non-exhaustive list of the types of witness testimony and other evidence that can satisfy the authentication requirement. As it relates to the authenticity of documents, that list includes:
• Testimony of a witness with knowledge. Rule 901(b)(1)
• Non-expert opinion about handwriting. Rule 901(b)(2)
• Comparison by expert witness or the trier of fact. Rule 901(b)(3)
• Distinctive characteristics and the like. Rule 901(b)(4)
• Evidence about public records. Rule 901(b)(7)
• Evidence about ancient documents or data compilations. Rule 901(b)(8)
• Evidence about a process or system. Rule 901(b)(9)
• Methods provided by a statute or rule. Rule 901(b)(10)
1. Witness with Knowledge
The most common way to authenticate a document that is not self-authenticating is through the testimony of a witness with personal knowledge of the document.96 When authenticating a document through such a witness, counsel should be prepared to "lay a foundation" establishing that the witness has personal knowledge of the document prior to offering the document into evidence.97
"Laying a foundation" typically involves asking the witness a series of questions, the answers to which establish how the witness has personal knowledge and can identify the document. "Laying a foundation" is in contrast to simply asking the witness whether he or she can identify the exhibit, without eliciting the basis of that knowledge from the witness. In practice, if it is apparent that the witness has such personal knowledge even though the proponent of the evidence has not laid a foundation for the witness to speak to the document, the non-proponent often will not object based on "lack of foundation" because he or she knows that the court will give the proponent the opportunity to do so upon objection.
i. Offering an Exhibit Through a Witness with Knowledge: Formal Basic Offer (Without Pre-Marking)
Q: Your Honor, I would ask that this document be marked as Exhibit _ for identification.
[Show or hand copy of document to opposing counsel, then hand copy to the clerk. Depending on local practice, hand copy to judge.]
Court: It shall be so marked.
[Take document back from clerk.]
Q: Your Honor, may I approach?
Court: You may.
[Hand document to witness and return to podium.]
Q: Mr. Witness, let me show you what has been marked as Exhibit _ for identification. Can you please review it and tell me when you have had a chance to review it?
A: I have reviewed it.
Q: What is this document?
A: [Witness identifies what the document is but does not state substance.]
Q: [Use relevant foundation pattern.]
A: [Witness responds according to relevant foundation pattern.]
Q: Your Honor, may I approach?
Court: You may.
[Take document from witness.]
Q: Your Honor, I offer Exhibit _ into evidence.
Court: It is admitted.
[Hand document to clerk; after marking, take back from clerk and hand back to witness, then continue with examination.]
ii. Offering an Exhibit Through a Witness with Knowledge: Standard Basic Offer (Without Pre-Marking)
[Show or hand copy of document to opposing counsel, then hand copy to the clerk. Depending on local practice, hand copy to judge.]
Q: Mr. Witness, let me show you this document. Can you identify it?
A: Yes, I can.
Q: What is it?
A: [Witness identifies.]
Q: [Use relevant foundation pattern.]
A: [Witness responds pursuant to foundation pattern.]
Q: Your Honor, I offer Exhibit _ into evidence.
Court: Any objection? It is admitted.
[Continue with examination.]
iii. Offering an Exhibit Through a Witness with Knowledge: Standard Basic Offer (With Pre-Marking)
Q: Please turn in your notebook to Exhibit __.
A: I have it.
Q: Can you identify this document?
A...
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