On Mar 8, 6:54 am, s...@panix.com (Seth Breidbart) wrote:
> In article <vc2ou2146plc2r6uci38hd64j01a8dr...@4ax.com>,
>
> Mike Jacobs <mjacobs...@gmail.com> wrote:
> >On Mar 3, 7:34 am, s...@panix.com (Seth Breidbart) wrote:
>
> >> How can he possibly know it came from his ex-wife? He can testify
> >> that he received it, but he can't prove that she sent it.
>
> >Yes he can. Legal "proof" does not mean scientific "proof".
> >Testimony is proof. If I testify that the moon is made of green
> >cheese, that is legally sufficient for the jury to deliberate and
> >reach a verdict that the moon IS in fact a moldy dairy product,
> >even though we all (think) we know better.
>
> I thought you're only supposed to testify to what you _observed_.
Good point. But as I'm sure you know, any act of observation changes the thing being observed, and every witness has a (slightly or greatly) different point of view. The law doesn't require that each witness test his conclusions to a scientific certainty before testifying to them, if those are the kind of conclusions that ordinary people draw from what they observe, nor does it require the witness to refrain from drawing conclusions at all, and limit himself to bare, basic recitation of the underlying facts. As long as it is within the usual realm of common understanding* and the witness believes what he is saying is true, _based_on_ what he observed, he can testify to it. Questions about the witness' opportunity and ability to perceive, his accuracy of recollection, and his biases that might fudge his conclusions about what he thought he saw, go to the weight of his testimony, not its admissibility.
* = conclusions that are _beyond_ the ordinary ken of the members of the jury, such as a medical diagnosis or reconstruction of the physics of an accident, require expert opinion testimony. But ordinary witnesses can testify to their opinions about matters they routinely draw conclusions about in everyday life, e.g. drunkenness, speed of a vehicle, distance to an object, tone of voice, body language, and so on.
Frex, "I saw Dave last night and he was drunk" is a conclusory statement that might be challenged on cross-exam if the witness never saw Dave actually imbibe anything that evening. But then the witness might point out that his conclusion was based on the facts that (1) the place where he saw Dave was a bar; (2) Dave had a mostly-consumed triple Scotch on the rocks in front of him when the witness saw Dave, along with a pitcher of beer; (3) when Dave stood up to shake hands with the witness he was wobbly on his feet and had a hard time connecting hands with the witness; (4) Dave's eyes were bloodshot; (5) etc. But he doesn't have to say all that, to begin with, in order to be allowed to testify under oath that "I saw Dave last night and he was drunk." The witness, if the attorney questioning him wants him to, can add these particular facts, to bolster the credibility of his conclusion, but he doesn't have to.
With regard to a letter or (by analogy, since caselaw is sparse) an email, the fact that the witness received a message purporting to originate from a particular person is sufficient to allow the witness to testify under oath that "My ex-wife Linda sent me an email admitting that she locked our kid in a closet when she went out to snort coke with Bob last night" even if he wasn't there to watch Linda lick the stamp and put the envelope in a blue-and-red box, or to watch her push the "send" button on her email client.
> he didn't _observe_ his ex-wife send it, all he can testify to is that
> he _received_ it and it had her name on it.
Those are the basic underlying facts, and he could testify in that fashion if he chose, but he is not limited to that, and could also testify to his conclusion that she sent it to him. The ex's lawyer, if she chose to go into it on cross-exam, could try to bring out the underlying facts on which the witness based his conclusions, such as the fact that he received it and it had her name on it; and then come up with other explanations for the underlying facts, such as that it was sent by someone else who had access to her account, or spoofed by someone completely unrelated to her account.
The jury then gets to decide whether Linda really sent it, or whether her new squeeze Bob sent it as a joke, or whether a malicious hacker spoofed it to get back at Linda for something unrelated.
Similarly, the witness who testified that he saw Dave drunk in my example above, could be tested on the strength of his underlying observations, the raw data as it were, and then the opponent may bring out evidence that the pitcher and the triple belonged to the party who had been sitting at the table before Dave, who had just arrived moments before the witness did; that Dave shook when he stood up because he has palsy; that Dave's eyes were bloodshot because he had been up all night poring over his stamp collection with a magnifying glass; etc.
> If I received a snail-mail letter with your name and return address,
> should I be able to testify that you sent it?
Scientifically, all the observer can know for sure is the fact of his observation; the objective existence of what was observed is a conclusion he draws from that observation. For each communicative event, there is a sender, a medium of transmission, and a receiver, each of which affects the content and meaning of the message. What the sender intended to send may not be what the receiver hears, but all the receiver can know is what he hears. Of course, the chances are unlikely that a ventriloquist is throwing his voice to make it appear that an oral admission came from Linda rather than from him, but this is technically no different than the mail situation when you break it down. All the hearer can testify to is that he heard a voice saying X, which appeared to come from Linda; but the law allows him to testify that "Linda said X." It's then up to Linda to put on evidence of the malicious ventriloquist putting words in her mouth.
--
This posting is for discussion purposes, not professional advice.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
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(tel) 410-740-5685 (fax) 410-740-4300
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