IV. REAL EVIDENCE

An item of real evidence can be best described as the actual thing in controversy in the litigation. Examples of real evidence are as varied as the cases themselves. Real evidence is the piece of metal alleged to have fallen from a Continental jet and on to the runway only to shred the tire of the Concorde. Real evidence can be the failed Firestone tire which caused a rollover, the component part which failed, or the bullet that imbedded into the victim's body. Because real evidence is the thing itself, and not merely representative of the thing, by its very nature it is the best evidence of the thing. While the concern of whether the item is representative is eliminated, the requirements for authenticity are heightened.

A. General Care and Handling

Because authenticity is important, if not critical, the specific item should be preserved in its "original" condition. The degree of care depends largely on the nature of the item of evidence itself. For example, the piece of metal alleged to have caused the Concorde's fateful accident would not require the same degree of care as an item which is perishable, fragile or delicate. For example, if the item of real evidence is a part in working condition, it must remain in working condition. If the part is damaged or broken, greater care should be exercised to insure that it remains in that same state of disrepair. Finally, the item should be kept safe from tampering.

B. Admissibility

As previously stated, the "best evidence" rule does not apply to real evidence because real evidence is the thing at issue. Nonetheless, for an item of real evidence to be admitted, it must be relevant, must not be unfairly prejudicial, and must be authentic.

1. Relevance - Most real evidence would satisfy the requirement of relevancy as set forth in Louisiana Code of Evidence article 401. See La. Code Evid. Art. 401. The existence of a defective part would, by definition, make the conclusion that the product was defective more probable.

a. Most Louisiana courts do not struggle with this issue and hold that sufficient foundation for the admissibility of real, or physical, evidence has been established if it is more probable than not that the item is connected with the case. State v. Berry, 95-1610 (La. App. 1st Cir. 11/8/96) 684 So. 2d 439, writ denied 97-0278 (La. 10/10/97) 703 So. 2d 603.

b. Nonetheless not all relevant evidence is admissible. Louisiana Code of Evidence Article 403 sets forth exceptions to the general rule when, among other things, the object of evidence may cause "substantial unfair prejudice."

2. Unfair prejudice - As previously stated, Louisiana courts may decline the introduction of evidence if the probative value of the evidence is "substantially outweighed by the danger of unfair prejudice." Id. Thus, if introduction of the item would inflame to the extent that an unfair prejudice is created, then the item may be excluded.

3. Authentication - A common method of authentication is by providing a foundation or by "laying a chain of custody." See Section C.

C. Foundation requirements

While state courts as a preliminary matter look to whether the item of physical evidence has a connection to the case, the authenticity of the item is essential. Therefore, the proper foundation for an item of real evidence should include a recitation of the chain of custody.

1. Chain of Custody - The chain of custody may be established by testimony from the person who is in custody of the item, along with the identity of the individual or individuals who has custody in a continuous unbroken chain from the relevant time (i.e. the date of the accident) until the item is submitted into evidence. The witness must also testify that the item is in the same condition as when it was originally received.

a. Degree of detail - The degree of detail needed to authenticate an item of real evidence through the chain of custody depends largely on the nature of the item itself. If the thing its readily identifiable, or has a unique quality (i.e. a serial number) the degree of detail necessary will likely be relaxed.

b. Gaps in the chain - Most Louisiana courts have noted that gaps in the chain of custody are not fatal provided that the evidence as a whole establishes that it is more probable than not that the item was original. See McLaughlin v. Fireman's Fund Ins. Co., 582 So. 2d 203 (La. App. 1st Cir.) writ denied 586 So. 2d 536 (La. 1991); Ruddock v. Jefferson Parish Fire Civil Service Bd., 96-831 (La. App. 5th Cir. 1/28/97), 688 So. 2d 112. Moreover, some courts have held that defects in the chain of the custody go to the weight of the evidence rather than to its admissibility. See, e.g., State v. Foster, 95-0585 (La. App. 4th Cir. 2/15/96), 669 So.2d 1288 writ granted in part 96-0670 (La. 6/28/96) 675 So. 2d 1101.

D. Handling Opposition

1. Preparation - Items of real evidence must be carefully stored and the custody of which should be well established. Consider the type of real evidence and whether there is doubt to its authenticity. If there is no doubt, then weaknesses, if any, in the chain of custody should not be of great concern.

2. Developing alternate strategies - If the opposition can defeat the chain of custody or otherwise cast doubt as to the authenticity of the item, consider using the item as demonstrative evidence. The item can, under most circumstances be used as a model for the purposes of the witnesses' testimony. Of course, it must be clear from the outset that the item is no longer being offered in to evidence as the thing itself.

V. DOCUMENTARY EVIDENCE

Documentary evidence comes in many forms. It is the letter sent out, the check written, the medical record or police report. Documentary evidence also includes the deposition transcript, or the expert witnesses' report. However, each item of documentary evidence requires some basic consideration.

A. Basic Rules Surrounding Documentary Evidence

1. Authentication - The document must be authenticated. Either the writer of the letter must, in testimony, identify himself as the author of the letter. The recipient may authenticate a letter by either testifying that the letter has been received or by sending a reply letter. For a discussion of the reply letter doctrine see Malloy v. Vanwinkle, 94-2060 (La. App. 4th Cir. 9/28/95), 662 So. 2d 96. Additionally, business or medical records can be authenticated by the designated custodian of those documents.

a. Some documents have been deemed self authenticating under Louisiana law. See La. Code Evid. art. 902. For example, documents under public seal, certified Louisiana documents, official publications, printed matter such as newspapers and periodicals, authentic acts, and commercial papers, among others are all self-authenticating under Louisiana law. Id.

2. "Best Evidence" - Louisiana law has replaced the "best evidence" rule with the provisions of the Louisiana Code of Evidence. See State v. Francis, 597 So. 2d 55. Specifically, the original writing or recording is generally required to prove its content. See La. Code Evid. art. 1002. However, under Code of Evidence Article 1003, a duplicate may be admitted unless there is either some doubt as to the authenticity of the original or under the circumstances it would be unfair to accept the duplicate in lieu of the original.

a. The original is not required when, it has been lost or destroyed in the absence of bad faith, the original is unobtainable, impractical, or in the possession of the opponent. See La. Code Evid. art. 1004.

3. Hearsay - By its nature most documentary evidence is hearsay, containing out of court statements which are now being presented to prove the truth of the matter asserted. La. Code Evid. Art 801. Nonetheless, numerous exceptions to the hearsay rule are applicable.

a. Business records - The business record exception extends to cover all documents "made and kept in the ordinary course of a regularly conducted business activity." See La. Code Evid. art. 803(6). This exception covers information stored in electronic format as well.

b. Public records - Regularly conducted and recorded activities of public offices and agencies are also excepted from the hearsay rule. However, investigative reports from police or law enforcement remain hearsay. See La. Code Evid. art. 803(8).

c. Family records - Statements of fact concerning family history which can be found in family Bibles, and the like are excepted from hearsay. See La. Code Evid. art. 803(13).

d. Ancient documents - Documents which have been in existence over thirty (30) years are not hearsay. See La. Code Evid. art. 803(16).

B. Admissibility

As with real, or physical evidence, documentary evidence require some relevancy to the proceeding. Thus, the threshold analysis of Article 401 must be satisfied. However, documentary evidence requires authentication, and thus, more in the way of foundation.

C. Foundation

As previously stated, the original best evidence rule has been supplanted with the revisions to the Louisiana Code of Evidence. While Article 1002 of the Code of Evidence expresses a preference that the original writing be used, Article 1003 authorizes the use of a duplicate unless doubt exists as to the authenticity of the original, taking into consideration the circumstances. Nonetheless, the authenticity and foundation for the document must be established through a witness who has some connection to the document. For example, the testimony of the letter's author, the check writer, or the records custodian are all necessary to establish the foundation for the document's admissibility.

D. Handling Opposition

As with most evidentiary challenges, preparation is key. While challenges to documentary evidence should typically be handled by pretrial motions in liminie, the lawyer should carefully think through each possible avenue of attack, particularly when the document is critical to the case. The lawyer should consider challenges as to foundation, authenticity, and hearsay. The lawyer should cater testimony to ease the introduction of documents and to head off challenges. Finally, the lawyer should develop an alternate plan in the event that the challenge to documents is successful.

E. Dealing with various types of documentary evidence

1. Business Records - Business records are among the most common form of documentary evidence. Under the rules, a qualified witness may testify as to the content of a business record. A consideration as important as the business record is the use of the witness explaining the documents. The experience and knowledge of the witness could be called upon to enhance the evidentiary value of the document.

2. Letters and Copies of letters - Letters are common, but more complicated. Unlike business records, letters can be hearsay. Letters must also be authenticated in order to prevent the possibility of a forgery. Thus, the witness must recognize and identify the signature on the letter. In issues surrounding contracts or formal notices, proof of receipt becomes an issue. Thus, testimony of mailing, and of receipt by the addressee, could be beneficial. Finally, the copy of the letter must satisfy Article 1003's requirements.

3. Checks - Checks are negotiable instruments and may have an independent legal value. However, the witness must authenticate the check by acknowledging that the check comes from his account, that he made payment by check, he recognizes the endorsement as the payee, and that he received the canceled check from his bank.

4. Expert Opinions - Experts can rely on a variety of information in forming their opinions. Thus, their reports may reflect this variety and include evidence which would otherwise be inadmissible, such as hearsay. However, the expert's report is an essential document which should be included into evidence. The expert's report can continue to speak to the jury long after the expert has concluded testimony.

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