Our friendly federal court of appeals here in Atlanta issued a recent opinion about evidence in a case arising out of a federal prosecution that reminded me of the funny quote from Blazing Saddles (and earlier movies and stories) about how the bad guys “don’t need no stinking badges.” For the evidence geeks out there, the opinion concerns preliminary rules for assessing and potentially accepting a piece of evidence when there is a strong challenge as to whether the evidence is “authentic” under Rule 901 of the Federal Rules of Evidence. After 36 years of trying cases in federal court, I call this “passing the smell test” for challenged documents. The opinion is a lesson on how lawyers need to keep abreast of these rules, which can often win, or lose, a case.
Raul Gutierrez committed fraud when constructing the airport on the island nation of Trinidad and Tobago, and somehow the decidedly unfriendly federal prosecutors were able to bring federal criminal charges against him in south Florida. Raul pled guilty in 2006, and as I have discussed on earlier occasions, the Judge imposed the usual financial penalties, such as restitution, along with a hefty prison sentence. Raul had some real estate in Florida, the judge “forfeited ” the property, and later the nation of Trinidad and Tobago wanted to get the land as a “victim” of the offense. Time passed, the island got the judge to let them weigh in on whether they could go after the property, and then, a magical thing happened. A company that was once associated with our friend Raul claimed that they held a “security interest” in the property, even though no one had ever mentioned this million dollar “interest” nor recorded it in the preceding decade. In other words, years later, friends of Raul claimed they held a piece of paper that said they had a superior interest in the particular piece of real estate.
The U.S. government and the island nation smelled a rat, and asked for a trial. The Judge decided to split the trial into two parts: first, a trial on whether the document was “authentic”, and if so, what impact that had on the real estate. The Judge said the document did not pass the smell test (was not authentic) , and that the holder of the document had no rights to the property. The beneficiaries of the document appealed, and the 11th Circuit affirmed.
The important part of the case discusses how the trial judge is basically the fact finder on whether a particular piece of evidence can be used. Here, the islands’ lawyers pointed to the supposedly suspicious nature of the document, including that it was never previously recorded nor mentioned, that the person who found it supposedly made a previously inconsistent statement, and perhaps most importantly, that Mr. Gutierrez’s credibility was suspect. In other words, when one side presents a document or piece of evidence, the trial judge is almost always the final word on whether that item can be used as evidence in a federal trial.
The Court of Appeals kind of criticized the trial judge for using the wrong standard of admissibility, but then came to the same result using the old “harmless error” rule. To be clear, the appellate court reminded all of us that the standard for deciding authenticity is whether the proponent of the item presents “‘sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be.” Then, “the ultimate question of authenticity of the documents is left to the fact-finder.” In other words, if you cannot convince the trial judge that the item is real, you are not going to get that item into evidence. Kind of seems obvious, but too many lawyers forget this rule, and fail to get crucial evidence into court.