GW Law Faculty Publications & Other Works Faculty Scholarship 2015 Authentication and Hearsay: Which Trumps? Stephen A. Saltzburg George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Saltzburg, Stephen A., Authentication and Hearsay: Which Trumps? (2015). 30 Crim. Just. (2015). ; GWU Law School Public Law Research Paper No. 2015-29; GWU Legal Studies Research Paper No. 2015-29. Available at SSRN: http://ssrn.com/abstract=2641141 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. TRIAL TACTICS Authentication and Rules 104(b) and 901(a) require the judge to focus on evidence that actually is admitted. In the discussion Hearsay: Which Trumps? that follows, each mention of Rule 104(b) should be assumed to also apply to Rule 901(a). BY STEPHEN A. SALTZBURG A Sample Case uppose that a document is offered by the gov- United States v. Harvey, 117 F.3d 1044 (7th Cir. 1997), ernment as a defendant’s statement to prove the illustrates the conflict that may arise when a defendant Struth of its contents, and the defendant objects objects that a statement is not his or hers. The defen- that he or she did not write or adopt the statement. To dant, Roderick Harvey, set up a campsite for himself decide admissibility, does the trial judge use Federal and his dog, Drigo, in the Shawnee National Forest, Rule of Evidence 104(a) or 104(b)? Or does the judge which is located in southern Illinois. He was charged use both? The answer should be clear after 40 years with cultivating several plots of marijuana that law of experience with the evidence rules, but it remains enforcement officials discovered near the campsite. cloudy for many courts and lawyers. When law enforcement officials first discovered the marijuana plots during aerial surveillance, Harvey was The Difference in a hospital and rehabilitation center recovering from Federal Rule of Evidence 104(a) sets forth this standard: serious injuries suffered when he collided with a truck while riding a bicycle. He was in the center for approx- (a) In General. The court must decide any imately six weeks after the marijuana was discovered, preliminary question about whether a witness is and from the outset he expressed concern about his qualified, a privilege exists, or evidence is admis- dog being left somewhere in Shawnee National Forest. sible. In so deciding, the court is not bound by It took law enforcement officials two weeks after evidence rules, except those on privilege. spying the marijuana plots from the air to actually reach them on foot in an isolated, rugged location. They It makes clear that the judge may rely on inadmis- came upon some plants that were six to seven feet tall sible evidence such as hearsay that would be excluded and were near a well-developed campsite containing under Rule 802 in making a ruling. two tents. The officers saw no people at or around the Rule 104(b), on the other hand, sets forth a differ- campsite but encountered a large, emaciated German ent standard: shepherd that growled and barked at them. The officers returned to the campsite a couple of (b) Relevance that Depends on a Fact. When days after first reaching it and installed vibration- the relevance of evidence depends on whether a activated video surveillance equipment that they fact exists, proof must be introduced sufficient periodically checked for more than a month without to support a finding that the fact does exist. The finding any evidence of a human presence at the site. court may admit the proposed evidence on the Two days after Harvey left the center, officers con- condition that the proof be introduced later. ducting live surveillance of the campsite saw him at the site moving around with the aid of crutches. The On its face, Rule 104(b) makes clear that it oper- officers arrested Harvey, searched the campsite, and ates similarly to Rule 901(a), which states that “[t]o found freshly-cut marijuana and a black satchel near satisfy the requirement of authenticating or identify- where Harvey had been sleeping in one of the tents. ing an item of evidence, the proponent must produce Two notebooks found inside the satchel contained evidence sufficient to support a finding that the item diary-like entries and things-to-do lists. There were is what the proponent claims it is.” references to planting dates, planting conditions, and So, Rule 104(a) permits a judge to consider inad- the grow plots around the campsite. One crossed-out missible evidence in making an evidence ruling while entry stated “20 plants into ground up top today.” Officers also found another entry that referred to the S TEPHEN A. SALTZBURG is the Wallace National Organization for the Reform of Marijuana and Beverley Woodbury University Professor Laws (NORML), numerous entries mentioning a dog at George Washington University School of named Drigo, miscellaneous papers bearing Harvey’s Law in Washington, D.C. He is a past chair name, and a copy of a magazine generally devoted of the Criminal Justice Section and a regular to the cultivation of marijuana. Officers testified that columnist for Criminal Justice magazine. He Harvey asked about his dog “Drago” (the name as is also author of the book Trial Tactics, Third Edition (American recalled by one of the arresting officers) and the sta- Bar Association 2013), an updated and expanded compilation tus of his camping gear while being transported to of his columns. federal court. 52 CRIMINAL JUSTICE n Spring 2015 Harvey objected at trial to the admission of the diary Some cases seem to treat the inquiries under the entries, but the trial judge admitted them over objection two rules as identical, meaning that authenticated despite the fact that the government did not offer any statements by a party-opponent are automatically handwriting evidence at trial. On appeal, the govern- not hearsay. Indeed, the admissibility of hear- ment argued that the entries were admissible because say is routinely treated as a preliminary question only the individual who planted the marijuana could under Rule 104(b) which, like Rule 901, requires have made them. The court of appeals found this argu- only “evidence sufficient to support a finding.” ment to be unpersuasive: On the other hand, Bourjaily v. United States, 483 The Government’s overall objective in this case U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987), was to prove that Harvey was responsible for the states that the Federal Rules of Evidence “nowhere marijuana plants around the campsite. To prove define the standard of proof the court must observe that, the Government offered the written materials in resolving these [preliminary] questions.” The found there. But to authenticate those materials Bourjaily Court therefore held that preliminary as Harvey’s writing, the Government argues that facts relevant to Rule 801(d)(2)(E)—the cocon- only Harvey could have written them because spirator exception to the hearsay rule—must be only the planter of the marijuana would keep proven under a “preponderance of the evidence” those kinds of records. The Government, in other standard. Since Bourjaily, we have stated more words, assumes that Harvey planted the mari- generally that “[w]hen making preliminary factual juana—the very point it must ultimately prove. inquiries about the admissibility of evidence under This is circular reasoning at its worst. The refer- a hearsay exception, the district court must base its ences to the marijuana plants suggest the materials findings on the preponderance of the evidence.” were written by the planter of the marijuana, but United States v. Franco, 874 F.2d 1136, 1139 (7th those references hardly imply that Harvey is the Cir. 1989). The admission of evidence under Rule author/planter. 801 may therefore require a higher standard of (Id. at 1049.) proof than the prima facie showing required to authenticate evidence under Rule 901. The court nonetheless found no abuse of discretion (Id. at 1049–50 (alterations in original) (citations on the part of the trial judge and explained as follows: omitted).) Rule 901(b)(4) allows evidence to be authen- In the end, the court of appeals failed to decide ticated by “[a]ppearance, contents, substance, which rule governed and instead concluded that internal patterns, or other distinctive character- “[r]egardless of whether the authentication and hear- istics, taken in conjunction with circumstances.” say thresholds are identical, we find that the written The written materials were found in an isolated materials satisfy the higher preponderance of the evi- and remote area where law enforcement agents dence standard.” (Id. at 1050.) It appears that other observed no one other than Harvey. The materi- courts believe that it is sufficient for the judge to find als were within Harvey’s campsite; indeed, they simply that Rule 104(b) is satisfied and that it is not were next to Harvey’s own bed. The writings also to satisfy the higher standard of Rule 104(a). One make numerous references to Harvey’s beloved example is United States v. Gil, 58 F.3d 1414 (9th Cir. dog, Drigo. These distinctive characteristics and 1995). In still other cases, courts address the evidence circumstances are sufficient to support a finding question as simply a hearsay question without focus- that the materials were written by Harvey.