Object to, Admit, and Authenticate Evidence on the Move

There's a great smartphone app called Federal Evidence Applied, available for download here for the iPhone: https://apps.apple.com/us/app/federal-evidence-applied/id1232973956 , for $1.99, which is a great tool to have in the courtroom. The app is from David Shroyer, who is apparently a private developer, but it gives every sign of being extremely well thought-out. It is designed to take you through the steps of objecting to, admitting or authenticating evidence in a federal trial, through a series of guided menus. You can select a type of evidence:

. . . answer questions with respect to the nature of this evidence:

. . . and ultimately conclude in a green or red screen which indicates if the evidence can come in.

After questions concerning the admissibility of a police report . . .

. . . the user will be prompted run an authentication screen:

. . . in order to show what must be done to verify that a document is genuine.

An additional screen can then be run to check to see if the document satisfies the Best Evidence Rule.

Additional automated screens are available for competency; relevancy; prejudicial impact; hearsay; confirming the form of a question by an attorney is appropriate; different types of evidence (such as deposition or judicial notice of some fact); and when a court can make a preliminary determination on admissibility.

A separate guided menu is available to check to see what needs to be done to lay the ground for an objection to the admission of evidence.

The app also includes the text of the Federal Rules of Evidence.

Assuming you can get permission to bring your phone into a courtroom, this is a great tool to quickly help an attorney look up the steps she needs to follow to get evidence in, or keep it out.

Summary Charts and Demonstratives in the Jury Room

While demonstratives are usually excluded from the jury room during deliberations, a trial court can allow their use at its discretion. In United States v. Natale, 719 F.3d 719 (7th Cir. 2013), the Court of Appeals affirmed the district court's denial of a motion for a new trial by a defendant whose motion was based on the fact that the jury was allowed to use demonstratives during their deliberations. It concluded that the court did not abuse its discretion because:

1. Both sides were given the opportunity to give the jury demonstratives.

2. The demonstratives accurately represented evidence.

3. The demonstratives did not transport counsel to the jury room since labels were removed and the jury would have to identify their content by recalling testimony.

Taking the labels off a demonstrative exhibit can help separate it from an expert's testimony about the demonstrative.

Summary charts are real evidence which a jury can review during deliberations. Federal Rule of Evidence 1006 allows summary charts or calculations to be used to show the content of voluminous records, so long as the originals can be examined by other parties. This type of summary chart is based on admissible evidence. A pedagogical device summary is used to assist the jury in reviewing testimony or admitted exhibits, and a court may not permit it to be used during deliberations.

The words used to question witnesses matter

A widely known research article, by two psychologists from the University of Washington, confirms the view that, "questions asked subsequent to an event can cause a reconstruction in one’s memory of that event". Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory, 13 Journal of Verbal Learning and Verbal Behavior 585, 585 (1974), available at: https://webfiles.uci.edu/eloftus/LoftusPalmer74.pdf .

This study tested whether or not how fast people would guess cars involved in an accident were going would change based on the verb used to describe the collision. Participants were asked to answer one of these five variations on a question about the cars' speed:

- About how fast were the cars going when they smashed into each other?

- About how fast were the cars going when they collided into each other?

- About how fast were the cars going when they bumped each other?

- About how fast were the cars going when they hit each other?

- About how fast were the cars going when they contacted each other?

The speed estimates varied directly with the strength of the word that was used:

A second set of people was shown films showing an auto accident, and different subsets of participants were asked either:

- About how fast were the cars going when they smashed into each other?

- About how fast were the cars going when they hit each other?

. . . or not asked about the cars' speed at all. A week later the group was asked if they had seen broken glass in addition to a list of other questions about the accident. The films did not show any glass breaking. The answers of the three groups varied according to how they were questioned a week earlier:

The study also showed how poorly people estimate speed regardless of the language that is used. Four films showed one collision at 20 mph; one at 30 mph; and two at 40 mph. The participants guessed the speed of the cars in each film to be between 35-40 mph.