Rules of Evidence Problem Based on the “Jacques Affidavit” Loaded in Week 6 Module)
Write a memo to the prosecutor handling the case briefly describing the pieces of Electronically Stored Information (ESI)/ digital evidence referred to in the Problem (“Jacques Affidavit”) that tend to prove Jacques’sguilt. Select what you consider to be the three most important pieces of Digital Evidence/ ESI and explain how this evidence could be admitted at trial (i.e. identify the relevant rule(s) and the witnesses who will have to be called to admit this evidence a trial.
There are generally five basic issues that you will have to deal with in demonstrating the digital evidence you select is admissible:
1 Was it legally obtained? (e.g. search warrant? consent? 2703 (d) order
2. Was the evidence you selected “relevant” under FRE 401?
3. What witness(es) are you going to rely on to admit the evidence? (e.g. CF expert) Please remember that since this is a criminal case (kidnapping) you will not be able to call the defendant “as a person with knowledge” to authenticate. He has a 5th Amendment right to refuse to testify.
4. How are you going to “authenticate” each piece of digital evidence under FRE 901?
5. Even if you are able to “authenticate” the digital evidence you have selected, is it, nonetheless inadmissible because it is hearsay? You will have to consider the definition of “hearsay” under FRE 801 as well as the “exceptions.” (see e.g. FRE 803)
