Tuesday, October 06, 2009

U.S. v. Estrada-Eliverio, No. 07-50191 (10-5-09), decision available here. The mantra in evidence is "authenticate, authenticate, authenticate." The 9th made it a bit easier for the government to do so, at least with public documents in immigration cases, so long as the witness says the magic words of "it looks the same...cross my heart and hope to die, stick a needle in my eye" (or words to that effect). In this case, the prosecutor sought to introduce prior records of deportation from the A-file in a 1326 reentry case under Fed. R. Evid. 901. Defense counsel objected, arguing that the Fed. R. Crim. P. 27 only allowed such records in under a Fed. R. Civ. Pro. cross reference to Rule 44 that required certification. The 9th said that was, indeed, one way, but another was provided through FRE 901, which required the custodian of record to say "yep, that record is a copy of the authentic one." The Fed. R. Crim. P. 27 reference was not the only way. Further, it was not an abuse of discretion for the court to admit it, despite the objection that the witness had not seen it created. That is not required. The witness need only to testify that it is the same. The 9th (Paez joined by Fisher and District Judge Robart) also held that the challenge to the state prior of assault leading to bodily injury, Calif. Penal Code 245(a)(1), was foreclosed by the court's holding in Grajeda, 9-21-09.


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