Tape Recorded Evidence Admission

[dfcar1]

My question involves court procedures for the state of: Delaware and federal court. My questions are about the procedures for using recording evidence and how to avoid getting it thrown out, as hearsay or some other objection.
I have recorded conversations with a debt collector I want to use as evidence in Delaware court. According to Delaware wiretapping law, it should be admissible, since I am a party. I also have tapes of credit bureau, I want to use in federal court. Assuming the evidence is admissible, I have a few questions:
In my state case, both parties in Delaware, do I need to subpoena the employee I spoke to on the phone ? Since I was a party is it hearsay? If the other party wants a copy for discovery, how would I provide that? I want to anticipate any objections before I produce the evidence. I would like to produce the evidence "after" the employee denies the statements.

In my federal case I have recorded evidence to use against a credit bureau. I think it should be admissible. Is it admissible if I don't have the name of who I spoke to. The evidence was on a digital recorder and is on my computer? If I want to record them again, hat should I do to make the evidence stand up in court.
Thanks

[Mr. Knowitall]

You can authenticate a recording based upon your own testimony.

The recording itself isn't "hearsay" although the recording may contain hearsay statements.

If the other party requests a copy in discovery, you would ordinarily make a copy and provide it to them.

There's no talismanic answer to "[w]hat should I do to make the evidence stand up in court" - it depends on the facts.

[cmre3456]

My question involves court procedures for the state of: Delaware

If the other party wants a copy for discovery, how would I provide that? I want to anticipate any objections before I produce the evidence. I would like to produce the evidence "after" the employee denies the statements.

I know I'm late on this, but your local federal trial court rules may require you to provide a copy of those recordings and any other evidence you intend to use, and a list of witnesses you intend to call at the pre-trial hearing, even without a request for discovery.

http://www.ded.uscourts.gov/

See rules 16.3 (6)(7)

As to how you provide them, if they are on your computer, just burn them to a CD/DVD. If they are analogue such as a tape on an answering machine, I'd call some legal secretaries at law offices, or ask the court clerk for the name of someone who provides the service of burning those to CD/DVD. I would ask the clerk if you need to provide two copies of everything - one for the court and one for the other party. I would expect you would need to. Be sure to label the disks with evidence numbers. Ask the clerk what your number range is for evidence numbers. You might have 1 - 100, or 101 - 200, depending.

Is it admissible if I don't have the name of who I spoke to. The evidence was on a digital recorder and is on my computer? If I want to record them again, hat should I do to make the evidence stand up in court.


Thanks

If I were your opponent, I'd object if you didn't know who you spoke to, but I'd probably lose. Your testimony that it's you speaking to the company should get you there but only one thing is certain. You never know how a judge will rule.

Sorry, I missed something. If you have to produce all of your evidence etc. at the pre-trial hearing but want to catch the witness in a lie, you use a deposition for that. Depositions occur before the pre-trial hearing.

Ask the question at the deposition and let the witness lie. That will become sworn testimony and will be a matter of record on the deposition transcript. That transcript is admissible at trial during the witnesses' testimony. So, you have the witness between a rock and a hard place. The witness knows that you have hard evidence of the truth, and also that you have hard evidence that she earlier lied about it. You can fully confront the witness with all of that in front of the jury.

[Mr. Knowitall]

If you have to produce all of your evidence etc. at the pre-trial hearing but want to catch the witness in a lie, you use a deposition for that. Depositions occur before the pre-trial hearing.

If you want to depose a witness, you need to arrange for the deposition, schedule the deposition, give proper notice, subpoena the witness, and hold the deposition. The transcript isn't free - there's a per-page transcription cost that can add up quickly. I would not be particularly optimistic about a pro se plaintiff, holding her first-ever deposition against a witness, accumulating much useful information over the course of a deposition. I would become even more pessimistic if the witness is represented by counsel.

Ask the question at the deposition and let the witness lie. That will become sworn testimony and will be a matter of record on the deposition transcript. That transcript is admissible at trial during the witnesses' testimony.

The transcript as a whole won't become admissible merely because a previously deposed witness testifies at trial. But it will be useful to introduce contradictions and to impeach a witness whose testimony changes.

[cmre3456]

All true. However, if catching the witness in a lie is a make or break deal, the clerk can provide the subpoena, and the court can provide the place for the deposition. The clerk can provide a list of court reporters who can swear in the witness and make the record of the deposition.

You not only have to pay the recorder, but there's probably an additional charge for getting a transcript.

As for a pro se going up against an attorney in a deposition, I would read, read, read about depositions. They are by nature fishing expeditions, and questions are allowed which wouldn't be allowed in court. A question must be answered if the reason for asking it is that it might lead to admissible evidence.

If the only thing I really needed from the deposition was to ask that one question to get the witness to lie, I wouldn't at all be afraid of going up against an attorney. If the attorney violates the concept of the fishing expedition and does too much objecting to questions, I'd file a motion for sanctions with the court, showing the court the transcript, and ask that that attorney be required to pay for another deposition, and that she follow the rules. During the deposition, I'd let the attorney know, on the record, that she was pushing her luck and that I was about to call a halt to the deposition and file for sanctions with the court.

Again, read and read about depositions as much as possible, even including using google so you know the rules and then cram them down the attorney's throat. I agree that right off the bat you'd have to show the attorney that you know the rules and that you'd hold her accountable to the judge.

If the only reason for the deposition is to ask that one question, it could be over in 5 minutes and your payment to the recorder would be the minimum.

$.02

PS One of my highest goals in life when faced with a party who has an attorney, especially if it's a middle class private party, is to run their attorney's fees up as high as possible. If I know I won't be stuck with the attorney's fees, I can find a lot of reasons to contact that attorney, or in this case bring that attorney to a deposition, etc. I can cause the plaintiff to incur more in attorney's fees at a deposition than the deposition costs me pro se. I also file as many legit motions as possible - not enough to irritate the judge or make myself look stupid, just enough to keep the opposition attorney busy at the expense of the other side.

[Mr. Knowitall]

What court are you thinking of, in which the judge and clerk will take care of the arrangements for depositions in civil cases, provide rooms, issue subpoenas, etc.? That would be extraordinary. As we touched on in one of your threads, sometimes depositions are scheduled at the court, but that's a matter of the private party arranging with the court to provide dates and times when room at the court will be available, not a matter of the court taking over the party's responsibilities. Your court was exceptional in providing a court reporter; normally that will remain the litigant's responsibility even if the deposition is to occur at the courthouse.

At depositions objections may be made to the form and foundation of questions, and the party asking questions may be asked to correct the form of the question or lay a proper foundation before the witness answers. Other objections would normally be preserved for the record, although there may be matters (e.g., invocations of privilege) that result in a witness refusing to answer a question. Don't mistake the notion of discovery as a "fishing expedition" in the sense that you can pursue valid lines of inquiry without knowing what answers or information you will necessarily elicit, with a right to go into matters that are privileged or irrelevant, or to try to harangue, harass, intimidate or embarrass a witness by delving into unrelated matters. The term "fishing expedition" is typically used in the context of a judge limiting discovery, e.g., "There was no error in refusing to allow [the defendant] to engage in a fishing expedition by deposing the arbitrators."

If you hold a deposition to ask somebody a single question, you don't know what you're doing. There's also little reason to expect that the other side's attorney won't take full advantage of that opening by cross-examining the witness extensively and favorably.

[cmre3456]

What court are you thinking of, in which the judge and clerk will take care of the arrangements for depositions in civil cases, provide rooms, issue subpoenas, etc.? That would be extraordinary. As we touched on in one of your threads, sometimes depositions are scheduled at the court, but that's a matter of the private party arranging with the court to provide dates and times when room at the court will be available, not a matter of the court taking over the party's responsibilities.

You're mis-characterizing what I said. A pro-se can't issue a subpoena as an attorney can. You fill it out and the clerk signs it, then you have it served on the opposition's attorney.

The court will have someone in charge of arranging for rooms for depositions. At least our civil and district courts do. You arrange for the room, get a list of reporters and hire one yourself, and pay her. An attorney can subpoena a witness to her office for a deposition but a pro se needs a place which the opposition won't object to such as the pro se's home. (although I once called for a deposition at the home of a 94 year old man who preferred it at his home so he wouldn't have to travel, and the judge ruled in my favor.)

Your court was exceptional in providing a court reporter; normally that will remain the litigant's responsibility even if the deposition is to occur at the courthouse.

See above. I suggested only that you can get a list of recorders. You have to hire the recorder, pay her, and pay for the transcript.

At depositions objections may be made to the form and foundation of questions, and the party asking questions may be asked to correct the form of the question or lay a proper foundation before the witness answers. Other objections would normally be preserved for the record, although there may be matters (e.g., invocations of privilege) that result in a witness refusing to answer a question. Don't mistake the notion of discovery as a "fishing expedition" in the sense that you can pursue valid lines of inquiry without knowing what answers or information you will necessarily elicit, with a right to go into matters that are privileged or irrelevant, or to try to harangue, harass, intimidate or embarrass a witness by delving into unrelated matters. The term "fishing expedition" is typically used in the context of a judge limiting discovery, e.g., "There was no error in refusing to allow [the defendant] to engage in a fishing expedition by deposing the arbitrators."

Again, a misunderstanding of what I said. I said read, read, read and learn the rules, but I'm right in characterizing a deposition as an event where you can ask questions of a witness which questions wouldn't be allowed in court. If you have a legitimate witness and a legitimate train of thought you're trying to establish, you may ask the question. If the question is relevant to legitimate discovery, it must be answered. There's a reason they call it "discovery," LOL.

If you hold a deposition to ask somebody a single question, you don't know what you're doing. There's also little reason to expect that the other side's attorney won't take full advantage of that opening by cross-examining the witness extensively and favorably.

I strongly disagree. I've never seen a deposition with a single question, but there is no reason there couldn't be one if the sole purpose was to catch a witness in a lie you truly believed they would tell, and if that lie would really help establish your case to the jury. I can't see what cross the attorney could bring which would mitigate that lie once it's on the record. Then you could introduce that portion of the transcript as evidence before the jury to impeach the witness when or if she told a different story before the jury. Or, having told the lie at the deposition, the witness might try to repeat it on the stand. If you have hard evidence to refute it, and your case hinges on it, I say go for it.

Edit. Of course I would never ask a single question only, but in this case I might ask only one important question - the one expected to elicit an important lie. My first questions would of course be about the person to get that on record, and of course "how are you today" LOL and so on. I might ask a couple of innocuous questions. But my goal would be to stick the witness with that one question.