Foundation/Authentication/Best
Category > Foundation/Authentication/Best
Updated 3/6/2024The trial court erred in admitting the uncertified, unauthenticated exhibits as proof that defendant suffered a prior conviction.The trial court erred in admitting uncertified, unauthenticated records to prove defendant suffered a prior felony conviction. The court no longer kept physical court files, and instead maintained digital copies on its own electronic system. But the court here did not take judicial notice of the digital copies in the system. Moreover, the contents of the uncertified records cannot support a finding of authenticity.id: 26560
Updated 2/3/2024Testimony that the victim’s blood tested negative for alcohol was inadmissible due to the lack of foundation.The trial court erred in admitting evidence that the murder victim’s blood tested negative for alcohol. There was insufficient evidence to satisfy the three foundational elements for the toxicology results as a chemist not present for the test discussed its reliability, the chemist who performed the test did not testify, and there was no evidence the machine was functioning properly.id: 27661
Defense experts properly rebutted the presumption of the reliability of the red light cameras.Defendant was cited for failing to stop at a red light based on a red light camera photograph. Evidence Code sections 1552 and 1553 provide a presumption for the existence and content of computer information and digital images taken from them and establish preliminarily that a computer’s print function worked properly. However, these presumptions were improperly viewed as presumptions affecting the burden of proof rather than the burden of producing evidence. Defense expert testimony rebutted the presumption of reliability of the photographic evidence. The judgment was reversed.id: 23941
Red light camera violation conviction was dismissed where the testifying police officer could not lay the proper foundation.Defendant was convicted of failing to stop at a red light at an intersection equipped with an automated red light enforcement system. A private company provided the photos and video to the police department which issued the ticket. However, the court erred by admitting the evidence obtained from the red light cameras because the evidence was authenticated, not by an employee of the company who could show the system was properly calibrated, inspected and working well, but by a police officer who lacked the required knowledge. Even though there were deficiencies in the settled statement, the record was adequate to show the legal error.id: 22597
The prosecution never established the foundational fact of when the maggot sample was collected, and by rejecting the defendant’s objection on that ground the court violated his right of confrontation.An entomologist testified as an expert regarding how long the maggots collected from the victim’s body had been there. The trial court erred in overruling defendant’s lack-of-foundation objection regarding the sample of maggots collected on May 13th because the prosecutor never established the fact that the sample had been taken on that day. The prosecution argued the expert witness properly relied on this hearsay in forming his opinion but when the sample was collected was a simple question the jurors could have decided without expert guidance. The error in overruling defendant’s objection also violated defendant’s right to confront witnesses, but the error was not prejudicial as the testimony was not particularly important to defendant’s case.id: 22293
The prosecution's failure to authenticate a photo downloaded from defendant's Myspace page should have barred its admission. The trial court admitted a photograph showing a witness flashing gang signs to rebut her testimony that she and defendant (her boyfriend) did not associate with the gang. The photograph had been downloaded from defendant's home page on his Myspace website. However, the court erred in admitting the photo due to the prosecutor's failure to authenticate it. The police officer could not testify from personal knowledge that the photo was accurate and no expert testified that it was not a fake. But the error was harmless in light of the overwhelming evidence of defendant's guilt. id: 21612
The court erred by admitting a gang roster downloaded from the internet because it was not properly authenticated despite the officer's testimony that he believed this was the gang's roster.The prosecution offered a purported roster of a gang's members which appeared on a web page as evidence that the defendants belonged to the gang. However, the trial court erred by admitting the evidence because it was not properly authenticated. There was no showing that the writing was what it purported to be. The officer's testimony that he believed this was a roster of the gang was not sufficient to authenticate the document as a gang roster. id: 21613
Updated 3/7/2024The prosecution properly authenticated the text messages taken from the cell phones. Defendant argued the trial court erred by admitting evidence of text messages taken from two cell phones because the prosecution failed to authenticate the messages as coming from numbers associated with him. However, regardless of whether the phones belonged to him, the prosecution met its burden of establishing that the victim used the phone to communicate with him and that he had access to the other.id: 26342
Updated 2/26/2024Officer’s testimony regarding the surveillance videos was not hearsay, did not rely on authenticated writings and helped establish probable cause for the warrentless arrest.Defendant argued the arresting officer’s testimony regarding the robbery surveillance videos was inadmissible and insufficient to establish probable cause for the warrantless arrest of the defendants. First, the officer’s testimony was not hearsay because it was offered only to show the information he relied on when arresting defendants. Moreover, the videos were properly authenticated as they came from robbery case files or were obtained from the location of the robberies, which is circumstantial evidence that the videos depict the robberies under investigation. Finally, the videos helped the officer identify the defendants and helped establish probable cause for the warrantless arrest.id: 26246
Updated 2/24/2024Facebook messages were properly authenticated by content, and the testimony of the victim and others.Defendant argued reversal of his criminal threats conviction was required because the prosecution failed to authenticate the Facebook messages as having been sent to the victim by defendant. However, the messages were properly authenticated based on their content, together with the testimony of the victim and other witnesses. This evidence allowed the jury to reasonably determine that defendant was the person who sent the messages to the victim.id: 26705
Updated 2/7/2024The trial court did not err in finding the chain of custody had been established for the hair, notwithstanding the presence of two root ends.Defendant argued that evidence of a hair with two root ends must have been tampered with, and the trial court erred in rejecting his challenge to the chain of custody of the evidence. However, there was no evidence of tampering, and any discrepancies raised by the technician’s visual perception would go to the weight of the evidence.id: 27220
Under the rule of completeness, the trial court properly refused to redact the letter detailing the witness’s cooperation.The trial court granted the defense request to admit a letter written by a prosecutor implying the state’s witness may have received consideration for his testimony. The court did not thereafter err by refusing to redact the letter to omit details of the defendant’s involvement in the charged offenses. the court properly found the entire letter was admissible under the rule of completeness.id: 24726
The trial court did not err by refusing to instruct that duress could negate malice or premeditation. The trial court did not err by refusing to instruct that because defendant was under duress, the murder was not premeditated and lacked malice. Moreover, the rule precluding a duress defense in murder cases did not violate due process principles.id: 25034
Copies of letters written in prison were properly authenticated by the testimony of prison officials who described the policy of copying the letters before delivering them.Defendant argued the trial court erred by admitting into evidence copies of letters he wrote to other inmates while in prison. He claimed the admission of the copies violated the secondary evidence rule. However, he forfeited the issue by failing to object on that basis in the trial court. He did object to the authenticity of the documents but prison officials testified to the process of photocopying letters before delivering them. id: 25033
The trial court did not err by refusing to admit handwritten rap lyrics found in the codefendant’s cell suggesting that he was the shooter.Defendant moved to admit a paper containing the handwriting of his codefendant, who defendant maintained killed the victim. The writing was a rap song written by the codefendant, that included his initials and suggested that he shot the victims. However, the court properly excluded the paper for a lack of foundation. The defense presented no handwriting comparison testimony, and despite the initials there was no other indication that the writing referred to the codefendant. The words could also be read to suggest that the writer was a participant in the killing but not the shooter.id: 25008
The trial court did not err by admitting the contents of a letter after a witness’s claim that the letter contained a threat.A defense witness testified that he had been threatened by the codefendant and had a letter to prove it. The trial court did not err by allowing the jury to hear the full content of the letter, which also made reference to defendant’s guilt. The evidence was admissible under the rule of completeness provided in Evidence Code section 356.id: 25009
The rule of completeness did not require the prosecution to play defendant’s entire statement to the police where the portion played was not misleading and the prosecutor never argued defendant fired the fatal shot.Defendant argued the trial court prejudicially erred by allowing one of the detectives to convey a misleading portion of his police statement rather than require the prosecution to play the entire statement for the jury. However, the testimony did not suggest who threw the gun and the prosecutor never argued that defendant fired the fatal shot. Neither did not prosecutor argue (as defendant claimed) that his throwing of the gun showed a consciousness of guilt. The trial court did not err by ruling that Evidence Code section 356 did not require admission of defendant’s entire statement to the officer. id: 24725
The text messages were properly authenticated by one of the parties describing the content.Defendant argued the trial court erred by admitting the text messages between his girlfriend and Jacarri Brown. Contrary to defendant’s claim, the messages were properly authenticated by Brown’s testimony describing the content and screenshots. Moreover, the messages were not hearsay. Brown testified at trial and authored his own messages. Defendant’s girlfriend’s text to Brown were not admitted for their truth, but rather to rehabilitate Brown’s testimony.id: 25468
Evidence regarding GPS signals sent by an ankle monitor was promptly authenticated by the testimony of the officer who supervised the electronic monitoring program. Defendant who was subject to electronic monitoring, was convicted of leaving the county without permission. He argued the trial court erred by admitting a report showing the GPS data transmitted by his electronic ankle monitor. Contrary to his claim, the evidence was properly authenticated by the testimony of the officer who tracked defendant’s whereabouts. The prosecution was not required to present a custodian of the company that made the device or produced the software in order to authenticate the evidence.id: 25388
The trial court did not err in admitting into evidence faxed copies of certified court records to prove the on-bail allegations.Defendant argued the trial court prejudicially erred in admitting faxed copies of certified court records to establish that he was on bail when he committed the charged crimes for purposes of Penal Code section 12022.1, subd.(b) enhancement. However, since the documents faxed from Riverside County were admissible under the secondary evidence rule and there was sufficient evidence to authenticate them. The trial court did not err in admitting them into evidence in the trial of the on-bail allegations.id: 20937
The prosecution sufficiently authenticated the incriminating photos even without testimony from anyone in the photos or present when they were taken. The minor argued the trial court erred by admitting incriminating photographs extracted from his cell phone because the photos were not properly authenticated - none of the subjects in the photos testified. However, the photos were properly authenticated by the investigating officers. The photos matched those on defendant’s Instagram account. And when he was arrested, he was wearing the same clothes and was in the same location shown in the photos, and he was with the other people in the photos.id: 24201
The court ruled on the authentication issue by admitting the note and properly allowed a lay witness to testify that defendant wrote the note. Defendant argued the trial court erred by failing to require authentication of an insurance note. However, the judge was briefed on the authentication issue, and impliedly found the evidence to be authentic before admitting it. Moreover, the court properly admitted the lay opinion of defendant’s long-time work colleague who believed defendant wrote the note.id: 23764
ATM photos were properly admitted under the business record hearsay exception. The trial court did not err by admitting the ATM photos as a business record. The photos were computer generated and maintained by Wells Fargo to track customer transactions. Because they were computer generated, foundational testimony showing the accuracy and reliability of the photos was not required. And because the photos were not testimonial there was no confrontation clause violation. id: 23810
The 911 recording was properly authenticated by the officer who described the system and how he downloaded the data.Defendant argued the audio recording of the anonymous 911 call was improperly admitted due to the lack of a proper foundation. However, the officer’s testimony about the computer system’s operation and his downloading of computer data was sufficient, in combination with the content of the recording, to establish the recording was genuine and what the prosecution claimed it was. id: 23843
Still photos taken from the videotape were properly authenticated by a police officer who said the video accurately depicted the events after the shooting and the still photos depicted the images on the video.Defendant argued the trial court erred by admitting two still photographs taken from the liquor store videotape that were enhanced by a private company. Contrary to defendant’s claim, the photos were properly authenticated as the officer who viewed the videotape that was retrieved from the VCR at the crime scene testified that it accurately depicted the conduct of the parties inside the store immediately after the shooting. The officer also testified that the still photos depicted the images on the videotape.id: 23595
The testimony of the officer who monitored the red light traffic camera cases was enough to establish a foundation, and the evidence was not hearsay.Defendant was convicted of driving through a red light based upon photographs produced by red light traffic cameras. Contrary to her claim, the evidence was adequately authenticated as Evidence Code sections 1552 and 1553 provided a presumption of authenticity for these images and data. The fact that digital images were used did not require the additional testimony of a technician regarding the operation and maintenance of the system. Moreover, the evidence did not constitute hearsay as the photos and video were not statements of a person as defined by the Evidence Code. Finally, the law does not require any special rules for digital evidence offered in trials of red light traffic cameras.id: 23620
The trial court did not err by allowing testimony from a pathologist who did not perform the autopsy. Defendant argued the trial court erred by allowing a pathologist who did not perform the autopsy to testify about the report at the capital trial. There was no confrontation clause violation following People v. Dungo (2012) 55 Cal.4th 608. Adequate foundation was provided by the autopsy report, photographs, slides and the witness’s 30 years of experience. id: 23310
SART photos used by the doctor to support his opinion were not testimonial evidence for confrontation clause purposes and were not hearsay, but rather, demonstrative evidence.Defendant was convicted of sexual activity with a 13 year-old girl. He argued the trial court erred in admitting the SART photos of the victim upon which the state’s doctor relied in rendering his opinion. Contrary to defendant’s claim, the photos were properly authenticated by the witness who described in detail the procedures used in creating and preserving the evidence. Moreover, admission of the evidence did not violate the confrontation clause because the photos were not hearsay but rather probative demonstrative evidence of a physical trauma suffered by the victim.id: 23095
Testimony on the accuracy and reliability of red light cameras was not required to admit the evidence and the photos and video were not hearsay. Defendant was convicted of failing to stop at a red light intersection in violation of Vehicle Code section 21453, subd.(a) She challenged the admission of the computer generated photographs and a video of the traffic violation. Testimony on the accuracy and reliability of computer hardware and software is not required as a prerequisite to the admission of computer records. Moreover, the photographs and video were not hearsay and no hearsay exception was required to admit the evidence. Finally, substantial evidence supported the finding that the yellow light interval conformed to the statutory requirement.id: 22625
There was adequate foundation for the identification where the security guard had seen defendant in 20-30 videos in other fitness clubs.Defendant was convicted of burglary involving several fitness clubs. He argued the trial court erred by admitting the identification by a security guard who testified he had seen defendant in 20-30 surveillance videos from other clubs. However, unlike identification after seeing a person in a photo, the guard was able to see defendant’s posture, gait and body movements in the videos. The degree of knowledge of the subject by the identifier is a mater of weight, not admissibility.id: 22408
Faxed copies of certified court records may be admissible to establish that a prior conviction qualifies as a serious or violent felony under the three strikes law.The prosecution presented certified copies of court records from Alabama to prove defendant had suffered an out-of-state prior serious felony conviction. It was determined the copies were incomplete. After a recess, the prosecutor presented a single page of an indictment faxed from the Alabama clerk’s office. The trial court admitted the faxed copy of the original certified document. The faxed copy was properly admitted because there was sufficient evidence to show it was an accurate copy of the authentic court record.id: 22251
The trial court did not err by admitting printouts of defendant’s password protected MySpace page which the gang expert used to support his conclusion that defendant was a gang member. Defendant argued that the trial court erred by admitting printouts of his MySpace social media internet page, which the prosecution’s gang expert relied on in forming his opinion that defendant was an active gang member. Defendant argued the evidence was not properly authenticated. However, a reasonable jury could conclude from the posting of personal photographs, communications, and other details that the MySpace page belonged to him, especially since there was a password requirement for posting and deleting content. Moreover, the evidence was not inadmissible hearsay where it was not admitted for its truth and the jury was properly instructed that it could only be considered for the limited purposes stated.id: 22529
There was no chain of custody problem where the identity of the person in the hospital who drew defendant’s blood was unknown.Defendant argued there were problems with the blood sample’s chain of custody because there was no evidence to show who took his blood sample at the hospital and who delivered it to the crime lab. However, medical personnel drew defendant’s blood in the hospital and the sole purpose of the single blood sample analysis was to measure his blood alcohol level. The medical personnel had no incentive to alter the evidence, although it is unclear who labeled, sealed and transported the evidence envelope, it is proper to assume the official duty was properly performed.id: 21753
Defendant was not required to renew his chain of custody objection after making it during the criminalist’s testimony. Defendant timely objected to the chain of custody during the criminalist’s testimony after she began testifying about the blood collection procedures. The trial court found the chain of custody was adequate and ruled that any chain of custody issues go to weight rather than admissibility. Defendant was not required to renew the objection later even though the court indicated it would hear additional arguments later as to whether some of the evidence would be stricken.id: 21752
Written agreements executed by people named in dismissed counts of the Ponzi scheme were authenticated by circumstantial evidence as they were intermingled with similar agreements in charged counts and were not inadmissible hearsay.Defendant was charged in a 118 count information with several offenses relating to the sale of unregistered securities. Counts one through 99 contained the names of 33 victims. Only eight testified at trial. The court later dismissed the counts involving the other 25. The court admitted as nonhearsay the 150 agreements executed by the 25 people named in the dismissed counts and allowed the prosecutor to refer to those documents in closing arguments. Defendant argued the documents were not properly authenticated and were inadmissible hearsay. However, the documents were authenticated by their content and circumstantial evidence as they were found in defendant’s office intermingled with the agreements and enrollment forms authenticated by the testifying victims. The documents were also not inadmissible hearsay as they were probative of defendant’s intent and helped explain how a Ponzi scheme works. id: 21276
Seven hour gap between time the officer received the drugs and sealed the envelope did not require suppression of the evidence.Defendant argued there was insufficient evidence to support the chain of custody of the crack cocaine. That the officer did not seal the bag containing the drugs until seven hours after it was given to him was a problem, but gaps in the chain of custody do not automatically warrant suppression. Defendant offered no evidence of tampering only innuendo.id: 19923
Exclusion of entire taped conversation after the detective's testimony did not violate the best evidence rule or the rule of completeness.A detective testified about a recorded prearrest conversation between defendant and Bernstein. Defendant argued the failure to play the entire taped conversation to the jury violated the best evidence rule. However, since the detective was just testifying to what he saw and heard, his testimony was primary evidence even though the same matter may have been available in the tape recording. Moreover, the court's ruling did not violate the "rule of completeness" under Evidence Code section 356 which applies only to the portion of the statement originally introduced.id: 18626
Defendant waived the issue of lack of foundation by failing to object to the criminalist's failure to properly weigh the drugs for purposes of the weight enhancement.Following a sampling technique that did not involve weighing each brick, the criminalist concluded the cocaine weighed more than 40 kilograms. This was sufficient to support the Health and Safety Code section 11370 enhancement. However, the foundation for the expert's testimony was questionable because she did not weigh all of the bricks (which she could easily have done) and admitted the weight she provided was "approximate" and "relatively accurate." Nevertheless, defendant failed to object to the lack of foundation, which could have been cured by having the police go back and weigh the drugs. The issue was therefore waived.id: 18598
Best Evidence Rule did not preclude introduction of prison records when photocopies of the certification were presented.Defendant objected to the admission of Department of Corrections records to prove a prior prison term where the certifications of such records were photocopies. However, defendant raised no issue as to authenticity of the original, and the records were properly admitted.id: 12965
Defendant was given ample opportunity to establish a foundation to exhibit his tatoo to the jury and his omission to do so constituted a waiver.Appellant argued the trial court erred in refusing to allow him to exhibit two tatoos to the jury. However, since appellant was given the opportunity, but declined to exercise it, by establishing a suitable foundation, the suggestion by the trial court that exhibition of the tatoo was testimonial was harmless error.id: 12966
Secondary evidence was properly introduced where defense counsel acknowledged the original documents had been thrown away.At the Penal Code section 1538.5 hearing, the parties discovered that the original search warrant affidavit had been destroyed by the clerk's office in accordance with their internal policy. Defendant objected to the introduction of secondary evidence to establish the contents of the missing affidavit citing the Best Evidence Rule. However, because defendant was arrested in an automobile on a public street, and not inside a residence, a warrant was not required where there was probable cause to believe he had committed a murder. Moreover, defense counsel gave his assent to the factual representation made by the court that the original documents had been destroyed. This precluded defendant from arguing on appeal that the facts were not proved by competent evidence.id: 12967
Sound experiment to approximate gunshot noises was not faulty for failing to prove the noises picked up on the sound system were actually gunshots.In investigating the airport killings, police and airport personnel conducted a sound experiment involving gunshots in the hangar to recreate two sharp noises, consistent with gunshots that had been picked up by the aircraft noise monitoring system at the approximate time of the killings. Defendant argued a lack of foundation because it was not known exactly what caused the sounds heard over the monitoring system and therefore it was impossible to conduct the experiment under conditions similar to the actual occurrence. However, the purpose of the experiment was to assist the jury in this actual determination. The experiment was not rendered inadmissible because it could not conclusively prove the sounds were gunshots. Moreover, the experiment was not faulty for failure to include other sounds such as firecrackers and a car backfiring.id: 12968
The loss of an original letter by an inmate addressee does not render a copy inadmissible.The trial court admitted into evidence a copy of a letter sent by defendant to his wife who was in jail. She destroyed the original. Defendant argued admission of the copy violated the best evidence rule. However, the loss or destruction of an original letter by an inmate addressee does not render a copy inadmissible.id: 12969
Witness' testimony regarding the name imprinted on a credit card receipt did not violate the best evidence rule.Appellant moved to exclude the officer's testimony regarding the name imprinted on the credit card receipt. He did not challenge the unavailability of the original (the credit card itself), but rather argued under the best evidence rule, the People were required to produce the credit card receipt. However, under Evidence Code section 1505, the People did not have to show an attempt to obtain a copy of the receipt. Since a copy of the credit card was unavailable, the officer's testimony regarding the name imprinted on the credit card receipt was admissible.id: 12970
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245