Latest news with #FederalRulesofEvidence
Miami Herald
7 days ago
- Politics
- Miami Herald
Feds say Smartmatic bribed Venezuela's top election official with luxury home
Federal prosecutors in South Florida allege that Venezuelan-American tech executive Roger Piñate — co-founder of the voting technology company Smartmatic — secretly bribed Venezuela's longtime elections chief, Tibisay Lucena Ramírez, by transferring control of a luxury residence in Caracas to her in exchange for political favors. The alleged bribe, according to prosecutors, was intended to help Smartmatic secure Lucena's help in a commercial dispute with the Venezuela government, following the company's August 2017 accusation that the Nicolás Maduro regime committed fraud in the National Constituent Assembly election—a claim that led Smartmatic to cease operations in the country. The bribe allegation, detailed in new court filing, is expected to be used by Miami federal prosecutors as evidence against Piñate, who is charged with multiple counts of money laundering and bribery related to contracts in the Philippines. The U.S. government plans to present photographs, witness testimony, and encrypted text messages to demonstrate that Piñate, 49, orchestrated the transfer of an upper-middle-class home with a pool to Lucena Ramírez between April and July 2019. Prosecutors claim the house was offered as a bribe to secure favorable treatment from Lucena, who, as president of Venezuela's National Electoral Council wielded broad authority over the country's controversial voting system and its private vendors. Reacting to the allegations, Smartmatic said the government's filing is 'filled with misrepresentations.' 'As an example, the government's citation of an alleged bribe in Venezuela in 2019 is untethered from reality. Smartmatic ceased all operations in Venezuela in August 2017 after blowing the whistle on the government and has never sought to secure business there again,' the company told the Herald in an email. 'We have always operated lawfully, ethically, and transparently. We stand by our two-decade track record of integrity.' According to the filing, the residence at the center of the alleged scheme was controlled by Piñate through a foreign shell company. Prosecutors say he worked with others — including 'Individual 1,' an unnamed co-conspirator mentioned in a broader indictment — to obscure the property's origin and prevent the transaction from being traced back to him or to Smartmatic. Text messages among the group, according to prosecutors, show that they plotted to transfer the home's title through a third party to conceal the transaction's true purpose: a bribe. Ultimately, Lucena assumed control of the property, which prosecutors say was compensation for her support in resolving a commercial dispute between Smartmatic and the Venezuelan government. The filings cite Rule 404(b) of the Federal Rules of Evidence, which permits the introduction of evidence of other crimes, wrongs, or acts not charged in the indictment if they help prove motive, intent, or a pattern of behavior. The Justice Department argues that the alleged Caracas bribe sheds light on Piñate's methods — and supports the broader claim that he systematically used illicit payments to secure or maintain contracts with election officials in various countries. The alleged bribe to Lucena occurred during a stormy period in Smartmatic's dealings with Venezuela. In 2017, a public rift erupted between the company and the electoral council over the results of the Constituent Assembly elections. Smartmatic accused the Maduro regime of manipulating turnout figures, inflating them by at least one million votes, and announced it would cease operations in the country. From 2004 to 2017, Smartmatic had been one of the Venezuelan government's most significant technology partners, supplying voting machines, election software and logistical support under contracts worth tens of millions of dollars. Piñate, as Chief Operating Officer and later President, played a key role in managing the company's relationship with the electoral council leadership. Following the 2017 fallout, Smartmatic stopped receiving payments under its contracts with Venezuela. Prosecutors allege that Piñate sought to repair the relationship and believed Lucena — then still council president — was essential to achieving that goal. Lucena, who died in April 2023, led the electoral council from roughly 2006 through mid-2020 and remained a central figure in Venezuela's electoral infrastructure during the presidencies of Hugo Chávez and much of Nicolás Maduro's tenure. While praised by the regime as a technocrat, she was widely criticized by opposition leaders and international observers for overseeing an electoral system plagued by irregularities and manipulation. The revelations about Lucena come as Piñate faces criminal charges related to a $1 million bribery scheme in the Philippines. In August 2024, a federal grand jury in the Southern District of Florida indicted Piñate and Jorge Miguel Vásquez, 62, of Davie, Florida, for conspiring to bribe Juan Andrés Donato Bautista, the former chairman of the Philippine Commission on Elections. Prosecutors allege that Piñate and his co-defendant inflated the prices of voting machines sold to the Philippines and diverted the excess funds into secret accounts used to pay off Bautista. These illicit transactions were disguised through fake contracts, loan agreements, and coded language. the government says. The funds were laundered through accounts in Asia, Europe, and the U.S., including financial institutions in South Florida. Piñate and Bautista are charged with one count of conspiracy to commit money laundering and three counts of international money laundering. If convicted, each faces up to 20 years in federal prison for each count. The cases have brought renewed scrutiny to Smartmatic, a company long at the center of debates over electronic voting systems, especially in Latin America. Though it has consistently defended the integrity of its technology and denied involvement in government manipulation, the firm now finds itself implicated in allegations that its senior leadership engaged in bribery as a routine business practice. Smartmatic was founded in 2000 by Piñate, Antonio Mugica, and Alfredo José Anzola, with the goal of providing secure digital voting systems. The company gained international prominence after the Chávez government awarded it contracts to modernize Venezuela's election infrastructure in 2004. The company's systems were used in numerous elections during the Chávez and Maduro eras, playing a central role in digitizing the country's voting process.
Time Business News
03-08-2025
- Time Business News
Digital Footprints as Evidence: How Online Activity Can Shape Court Cases
The intersection of digital technology and courtroom proceedings has reached a critical juncture, with legal experts warning that Americans' online behaviors are increasingly becoming their own worst enemies in litigation. Recent comprehensive analysis by The Texas Law Dog reveals a startling reality: your digital presence may be silently sabotaging your legal rights, regardless of how secure you believe your privacy settings to be. Legal professionals are witnessing an unprecedented shift in how evidence is gathered and presented in courtrooms across America. What many citizens fail to recognize is that every click, post, and digital interaction creates a permanent record that can be legally accessed and weaponized against them during litigation proceedings. The scope of this phenomenon extends far beyond what most individuals anticipate. Research tracking digital evidence usage across major social media platforms including Facebook, LinkedIn, X (formerly Twitter), Instagram, YouTube, and TikTok has uncovered compelling statistics that should concern every internet user. Data analysis spanning from fall 2022 through fall 2023 demonstrates that digital evidence played a decisive role in approximately half a million legal cases, fundamentally altering trial outcomes and settlement negotiations. A dangerous misconception pervades public understanding of digital privacy. Many users operate under the false assumption that privacy controls on social media platforms provide legal protection against evidence discovery. This belief has proven catastrophically wrong in countless courtrooms nationwide. Federal courts have established clear precedent regarding digital evidence admissibility. Under established Federal Rules of Evidence, judges consistently rule that relevant social media content qualifies as legitimate evidence, regardless of privacy settings or user intentions when posting. The American Bar Association has documented the systematic approach courts use to authenticate digital evidence, noting that social media posts present unique verification challenges compared to traditional electronic communications like emails or text messages. The authentication process requires courts to examine multiple factors, including potential account access by third parties, the possibility of planted evidence, and the overall reliability of the digital platform. However, once authenticated, this evidence carries substantial weight in judicial proceedings. The practical implications of digital evidence have been demonstrated through numerous high-profile legal cases that serve as cautionary tales for social media users. In the landmark case Romano v. Steelcase Inc. , a plaintiff's claims of permanent, home-confining injuries were completely undermined when defense attorneys successfully obtained access to her supposedly private Facebook and MySpace accounts. The content revealed activities and lifestyle patterns that directly contradicted her sworn testimony about physical limitations. Similarly, the Nucci v. Target Corp. case illustrates how seemingly innocent social media activity can destroy a legal claim. The plaintiff, who sued for significant injuries and emotional trauma following a slip-and-fall incident, was compelled by the court to provide recent Facebook photographs. These images revealed a lifestyle inconsistent with her claimed injuries and emotional distress, ultimately weakening her case and reducing potential compensation. Insurance companies have rapidly adapted to this new evidentiary landscape, deploying sophisticated digital investigation techniques to challenge claims. Adjusters now routinely scour social media platforms for content that contradicts injury claims, seeking evidence of physical activities that appear inconsistent with alleged limitations or emotional states that don't align with claimed psychological distress. This systematic approach to digital evidence gathering has fundamentally shifted the power dynamic in personal injury litigation. What previously required expensive private investigators and extensive surveillance can now be accomplished through comprehensive social media analysis, making it easier and more cost-effective for insurance companies to challenge legitimate claims. Given this evolving legal landscape, individuals must approach their online presence with the same caution they would exercise when giving sworn testimony. Every post, photograph, and interaction should be evaluated through the lens of potential legal scrutiny. Legal experts recommend implementing comprehensive digital hygiene practices, including regular privacy audits, careful consideration of all posted content, and understanding that deletion doesn't guarantee permanent removal. The key is recognizing that your digital footprint extends far beyond your immediate social circle and can be accessed by opposing legal teams with proper court authorization. As Matt Aulsbrook from The Texas Law Dog emphasizes, 'The digital age has fundamentally changed how legal cases are won and lost. Understanding the permanent nature of online activity and its potential legal implications isn't just advisable—it's essential for protecting your rights and ensuring fair legal outcomes.' The message is clear: in today's interconnected world, your smartphone screen might as well be a courtroom window, and every post could become evidence in ways you never imagined. TIME BUSINESS NEWS
Reuters
05-05-2025
- Science
- Reuters
US judicial panel advances proposal to regulate AI-generated evidence
May 2 (Reuters) - A federal judicial panel advanced a proposal on Friday to regulate the introduction of artificial intelligence-generated evidence at trial, with judges expressing a need to swiftly get feedback from the public and lawyers on the draft rule to get ahead of a rapidly evolving technology. The U.S. Judicial Conference's Advisory Committee on Evidence Rules in Washington, D.C., voted 8-1 in favor of seeking public comment on a draft rule designed to ensure evidence produced by generative AI technology meets the same reliability standards as evidence from a human expert witness. The proposed rule is designed to address concerns about the reliability of the processes used by computer technologies to make predictions or draw inferences from existing data, akin to issues courts have long addressed concerning the reliability of expert witnesses' testimony. The reliability of testimony of expert witnesses who rely on such technology is already subject to scrutiny under the Federal Rules of Evidence. But the rules do not currently cover what would happen if a non-expert witness used an AI program to generate evidence without any knowledge of its reliability. Under the proposal, AI and other machine-generated evidence offered at trial without an accompanying expert witness would be subjected to the same reliability standards as expert witnesses, who are governed by Rule 702 of the Federal Rules of Evidence. The rule would exempt "basic scientific instruments." The proposal now goes to the Judicial Conference's Committee on Rules of Practice and Procedure, the top judicial rulemaking body, which will vote at its June meeting on whether to publish the proposal for public comment. Some judges expressed uncertainty about whether such a rule should ultimately be adopted, and a representative for the U.S. Department of Justice, Elizabeth Shapiro, was the lone vote against it, citing concerns about how it would be deployed. But committee members expressed a general view that they needed to at least get a draft rule out for public comment in order to gather information and avoid having the normally years-long rulemaking process prevent the judiciary from keeping up with the evolving technological landscape. U.S. District Judge Jesse Furman, a Manhattan-based judge who chairs the panel, said he was unsure whether he would ultimately back finalizing the rule but was "genuinely interested in what the world has to say about this thing." "I think sometimes when you put something out for notice-and-comment there's kind of an assumption that it's a train that's moving forward to final approval," Furman said. "Here I think there are a lot of questions that we need to work through." The proposal comes amid broader efforts by federal and state courts nationally to address the rise of generative AI, including programs such as OpenAI's ChatGPT that are capable of learning patterns from large datasets and then generating text, images and videos. Chief U.S. Supreme Court Justice John Roberts in his end-of-the-year annual report in December 2023 cited the potential benefits of AI for litigants and judges while saying the judiciary would need to consider its proper uses in litigation. US judicial panel wrestles with how to police AI-generated evidence
Reuters
02-05-2025
- Politics
- Reuters
Admissibility of Non-US Evidence at Trial in the US
Evidence must fulfill certain requirements before it is admissible at trial in a US federal court. When a trial involves a domestic dispute where parties have obtained discovery through standard federal procedures, the admissibility of the evidence is generally established through the testimony of witnesses located in the US. However, in a trial involving an international dispute relying on evidence obtained from a foreign country, the question of admissibility can be more complicated. A party may not be able to call witnesses located abroad to establish admissibility because they are generally beyond the subpoena power of a US court and the expense and time associated with calling foreign witnesses may make it impractical to do so. Therefore, when seeking to introduce evidence obtained abroad, counsel may wish to explore alternate means of admitting evidence. This article examines provisions from the Federal Rules of Civil Procedure (FRCP) and the Federal Rules of Evidence (FRE) that may best serve litigants trying to establish the admissibility of evidence obtained abroad without the live testimony of witnesses, including the rules addressing: Exceptions to the rule against hearsay. The authentication of foreign public documents and records. The introduction at a hearing or trial of translations of evidence obtained from a foreign country. The introduction of deposition transcripts as evidence at trial. (For the complete version of this resource, which includes information on how to obtain the required certification when seeking to admit self-authenticating documents at a hearing or trial, see Admissibility of Non-US Evidence at Trial in the US on Practical Law.) Exceptions to the Rule Against Hearsay Because of the difficulty of having a witness located abroad appear to testify at a trial in the US, counsel may have to rely on materials constituting hearsay to establish their case. Hearsay is a statement, other than one made by the declarant while testifying at a hearing or trial, offered in evidence to prove the truth of the matter asserted (FRE 801(c)). Hearsay evidence is inadmissible at trial unless it falls under one of the exceptions specified in the FRE. The exceptions to the rule against hearsay that most affect the introduction of documents, records, and reports originating from abroad include those under: FRE 801(d)(2) (opposing party's statement). FRE 803 (exceptions independent of the witness's availability). FRE 804 (statements against interest). FRE 807 (residual hearsay exception). (For more on the rule against hearsay, see Evidence in Federal Court: Overview, Determining Hearsay Flowchart (Federal), and Hearsay Exclusions and Exceptions Flowcharts (Federal) on Practical Law.) Opposing Party's Statement The federal rules provide that relevant statements, including those obtained abroad, offered against an opposing party are not hearsay and are admissible when the statement: Was made by the opposing party in an individual or representative capacity. Is one that the opposing party manifested that it adopted or believed to be true. Was made by a person whom the opposing party authorized to make a statement on the subject matter of the statement. Was made by the opposing party's agent or employee on a matter within the scope of the agency or employment relationship while the relationship existed. Was made by the opposing party's co-conspirator during and in furtherance of the conspiracy. (FRE 801(d)(2).) When a party stands in the shoes of a declarant or a declarant's principal, hearsay statements by the declarant or principal are admissible against the party (FRE 801(d)(2); see also 2024 Advisory Committee's Notes to FRE 801). These statements, even when included in documents or deposition testimony obtained abroad, have been admitted into evidence in federal courts (Mike's Train House, Inc. v. Lionel, L.L.C., 472 F.3d 398, 412-13 (6th Cir. 2006), abrogated on other grounds, A.K. by and Through Kocher v. Durham Sch. Servs., L.P., 969 F.3d 625, 630 (6th Cir. 2020) (citing Shinseki v. Sanders, 556 U.S. 396, 409-11 (2009))). Statements falling under this exception do not have to be against the party's interest when made (see Statements Against Interest below) and do not require the laying of a preliminary foundation before being introduced into evidence. The opposing party that made the statement did not have to possess personal knowledge of the matter admitted. In fact, even if the opposing party's statement is an opinion, it is admissible under FRE 801(d)(2). Additionally, the admissibility of an opposing party's statement is not affected by the declarant's availability or unavailability or whether the witness testifies. While statements falling under the categories above are admissible as exceptions to the rule against hearsay, the statements themselves do not substantively establish: The authority given to a declarant by the opposing party to make a statement on the subject matter of the statement. The existence of an agency or employment relationship. The existence of a conspiracy. (FRE 801(d)(2).) Exceptions Independent of Witness Availability FRE 803 specifies several exceptions to the rule against hearsay that may apply regardless of the witness's availability. These exceptions may be particularly useful when litigating international disputes where the custodian or creator of the evidence cannot be called to testify at trial. The categories of documents that are admissible under this exception include: Business records. Public records and reports. Public records of vital statistics. Statements in ancient documents. Final judgments of previous convictions. Testimony or certifications regarding the absence of records. Business Records A business record or other record of a regularly conducted activity is admissible at trial as an exception to the rule against hearsay if: The record was made at or near the time of the transaction or other event, or from information that was transmitted, by someone with knowledge. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit. Making the record was a regular practice of that activity. (FRE 803(6).) These conditions may be shown by: The testimony of the custodian or another qualified witness. A certification that complies with FRE 902(12) (see Authenticating Foreign Documents Under Federal Rules below). A statute permitting certification. (FRE 803(6).) To be admissible, neither the source of information nor the method or circumstances of preparing the business record may indicate a lack of trustworthiness (FRE 803(6)). Additionally, if relying on a certification under FRE 902(12), the certification accompanying the business record must be signed in a way that, if the certification is false, the individual certifying the record would be subject to a criminal penalty in the country where the certification was signed. The party submitting the evidence must also provide the opposing party with reasonable written notice of the intent to offer the record and provide the record and certification for inspection so that the party has a fair opportunity to challenge them. (FRE 902(12).) (For the complete version of this resource, which includes more on obtaining the required certification, see Admissibility of Non-US Evidence at Trial in the US on Practical Law.) This exception may be particularly useful when introducing evidence such as Swiss bank records because they are records of regularly conducted activities maintained as a regular practice of business (Melridge, Inc. v. Heublein, 125 B.R. 825, 830 (D. Or. 1991)). Public Records and Reports A public record is admissible as an exception to the rule against hearsay if neither the source of information nor other circumstances indicate a lack of trustworthiness, and the record sets out: The office's activities. A matter observed while under a legal duty to report but not including a matter observed by law enforcement personnel in a criminal case. In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation, such as a police investigation. (FRE 803(8).) The public records and reports exception includes foreign public records and reports, such as notices of arrest or investigative reports prepared by foreign police (Mike's Train House, Inc., 472 F.3d at 412; see also Amica Life Ins. Co. v. Barbor, 488 F. Supp. 2d 750, 756 (N.D. Ill. 2007)). Even records not originating from a foreign government may qualify under this exception. For example, the United Nations and the Organisation for Economic Co-operation and Development are both considered public offices or agencies within the rule (Alinejad v. Islamic Republic of Iran, 2023 WL 4684929, at *17 (D.D.C. July 6, 2023); Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1186-87 (E.D. Pa. 1980)). Public Records of Vital Statistics Public records of vital statistics from outside the US are admissible as an exception to the rule against hearsay. Records of vital statistics include: Marriage certificates. Birth certificates. Death certificates. (FRE 803(9); see United States v. Palomares-Munoz, 5 F. App'x 709, 711 (9th Cir. 2001).) Statements in Ancient Documents Statements in documents prepared before 1998 are admissible as exceptions to the rule against hearsay if their authenticity is established (FRE 803(16); see Authenticating Foreign Documents Under Federal Rules below). Final Judgments of Convictions Evidence of a final judgment of a conviction is admissible as an exception to the rule against hearsay if: The judgment was entered after a trial or guilty plea, but not a nolo contendere plea. The conviction was for a felony. The evidence is admitted to prove any fact essential to the judgment. When offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. (FRE 803(22).) This type of evidence is admissible even if there is an appeal pending in the case that may affect the judgment (FRE 803(22)). Absence of a Record Testimony or a certification that complies with FRE 902 stating that a diligent search failed to disclose a public record or statement is admissible as an exception to the rule against hearsay. This testimony or certification is admissible to prove either: The record or statement does not exist. A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind. (FRE 803(10).) Statements Against Interest A statement against a declarant's interest may be admissible as an exception to the rule against hearsay if the declarant is unavailable (FRE 804(b)(3)). A statement is against the declarant's interest if it is both: A statement that, when made, was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability that a reasonable person in the declarant's position would have made the statement only if the person believe it to be true. Supported by corroborating circumstances that clearly indicate its trustworthiness considering the totality of circumstances in which it was made and any supporting or undermining evidence, if offered in a criminal case as a statement that tends to expose the declarant to criminal liability. (FRE 804(b)(3).) Under the FRE, a witness is considered unavailable if the declarant: Is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies. Refuses to testify about the subject matter despite a court order to do so. Testifies to not remembering the subject matter. Cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness. Is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure the declarant's attendance or testimony. (FRE 804(a).) Residual Hearsay Exception The residual hearsay exception permits the introduction of necessary and trustworthy hearsay that does not fall within other hearsay exceptions. It provides a litigant with a catch-all standard under which they may be able to admit foreign evidence at trial that would otherwise be excluded (FRE 807(a)). A hearsay statement that is not admissible under a hearsay exception in FRE 803 or FRE 804 may still be admissible if: The court determines the statement has sufficient guarantees of trustworthiness after considering: the totality of the circumstances under which the statement was made; and any independent evidence corroborating the statement. The statement is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. (FRE 807(a).) A statement is admissible under the residual hearsay exception only if the proponent of the evidence provides the opposing party with reasonable notice of the intent to offer the statement into evidence so that the opposing party has a fair opportunity to evaluate the statement. The notice must: The residual hearsay exception permits the introduction of necessary and trustworthy hearsay that does not fall within other exceptions. It provides a litigant with a catch-all standard under which they may be able to admit foreign evidence at trial that would otherwise be excluded. Examples of the types of foreign documents that have been admitted under the residual hearsay exception include: Bank records from outside the US (United States v. Wilson, 249 F.3d 366, 376 (5th Cir. 2001), abrogated on other grounds, Whitfield v. United States, 543 U.S. 209 (2005); United States v. Prevezon Holdings, Ltd., 319 F.R.D. 459, 465-68 (S.D.N.Y. 2017)). Communications from foreign governments to the US (United States v. Doe, 860 F.2d 488, 491 (1st Cir. 1988)). Evidence that certain information was not included in the records of foreign governments (United States v. Cahill, 1988 WL 71239, at *3 (N.D. Ill. June 28, 1988)). Authenticating Foreign Documents Under Federal Rules Whether obtained under the FRCP, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention or HCCH 1970 Evidence Convention), or diplomatic channels, evidence obtained in a foreign country must be authenticated to be admissible at trial (FRE 901(a)). Evidence obtained from a foreign country may be authenticated if the party introducing it provides sufficient proof, either through testimony of a witness with knowledge or through expert opinion, so that a reasonable juror could find in favor of authenticity or identification (Yongo v. Immigr. & Naturalization Serv., 355 F.3d 27, 31 (1st Cir. 2004); see also Cabas v. Barr, 928 F.3d 177, 184-85 (1st Cir. 2019)). Additionally, both the FRCP and FRE provide that certain types of documents are self-authenticating, meaning they are admissible at trial without any accompanying extrinsic proof of their authenticity (FRE 902). Self-Authenticating Foreign Documents Under the FRCP The FRCP provide that foreign public records are self-authenticating when evidenced by: An official publication of the record. An attestation by an authorized person that is accompanied by either a final certification of genuineness or a certification under a treaty or convention to which the US and the country where the record is located are parties. (FRCP 44(a)(2)(A).) The final certification may be made by: A secretary of a US embassy or legation. A consul general, vice consul, or consular agent of the US. A diplomatic or consular official of the foreign country assigned or accredited to the US. (FRCP 44(a)(2)(B).) Additionally, if all parties have had a reasonable opportunity to investigate the authenticity and accuracy of a foreign record, the court may for good cause either: Admit an attested copy without the requisite final certification. Permit the record to be evidenced by an attested summary with or without final certification. (FRCP 44(a)(2)(C).) To show that no foreign record exists, a party must submit a written statement that a diligent search of designated records revealed no record or entry of a specified tenor. The court may admit this statement for good cause when evidenced by an attested summary with or without a final certification. (FRCP 44(b).) Self-Authenticating Foreign Documents Under the FRE FRE 902 provides a list of public documents that are self-authenticating, including the following related to foreign public documents and records: Documents signed or attested to by an authorized person. Copies of foreign public records. Foreign records of regularly conducted activities. Documents Signed or Attested to by an Authorized Person Public documents that purport to be signed or attested to by a person authorized by a foreign country's law to do so are self-authenticating documents. Documents may be submitted into evidence at trial if accompanied by a final certification confirming the genuineness of the signature and the official position of the person signing or attesting to the document. (FRE 902(3).) As under FRCP 44(a)(2)(B), the certification may be made by: Where certification of a public document is not provided, the document is treated as presumptively authentic by the court if: The opposing party was provided a reasonable opportunity to examine the document for authenticity and accuracy. There is good cause for the absence of a certification. (FRE 902(3)(A); United States v. McGowan, 552 F. App'x 950, 954 (11th Cir. 2014).) Evidence obtained from a foreign country may be authenticated if the party introducing it provides sufficient proof, either through testimony of a witness with knowledge or through expert opinion, so that a reasonable juror could find in favor of authenticity or identification. FRE 902(3) is derived from FRCP 44(a)(2), which provides that a foreign public record is admissible when accompanied by a certification. FRE 902(3), however, is broader in scope because it applies to both foreign public records and foreign public documents. Public documents consist of: Official papers. Documents on file in a public office. Publications printed by order of the government. Public records are records required or directed by law to serve as a memorial and evidence of something written, said, or done. Copies of Foreign Public Records FRE 902(4) provides that copies of public records, including foreign public records, are self-authenticating if the copies are certified as correct by either: The custodian or another person authorized to make the certification. A certificate that complies with FRE 902(3), a federal statute, or a rule prescribed by the US Supreme Court. Foreign Records of Regularly Conducted Activities In a civil case, certified foreign records of regularly conducted activities are self-authenticating and therefore admissible. Foreign records of regularly conducted activities submitted as self-authenticating evidence must meet the same conditions as business records submitted as exceptions to the rule against hearsay under FRE 803(6). Obtaining Required Certification for Foreign Documents The procedure to obtain final certification to authenticate public records obtained abroad depends on whether the country in which the records are located is a signatory to a treaty, such as the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (HCCH 1961 Apostille Convention or Hague Apostille Convention, 33 U.S.T. 883). Certification of documents is required under FRE 902(3) and FRCP 44(a)(2) for self-authentication purposes. The certification does not address the validity of the substantive content of evidence but rather the authenticity of the signature on the documents themselves or on a document to which the documents are attached (FRE 902(3)). If the country in which the records are located is not a signatory to a relevant treaty, a litigant will typically be required to obtain certification through diplomatic procedures. Obtaining certification through diplomatic procedures usually requires additional steps and review by the US embassy or consulate. (For the complete version of this resource, which includes more on how to obtain the required certification under the Hague Apostille Convention or through diplomatic channels, see Admissibility of Non-US Evidence at Trial in the US on Practical Law.) Translations of Foreign Evidence When producing foreign evidence in response to a discovery request, the producing party does not have the obligation to translate documents kept regularly in a foreign language (Nature's Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 441-42 (E.D.N.Y. 2011); see also In re Puerto Rico Elec. Power Auth., 687 F.2d 501, 510 (1st Cir. 1982)). In practice, however, if seeking to introduce this evidence at trial, the parties need to exchange translations of the produced materials before introducing them into evidence. In document-intensive litigations, the parties will likely have translations made of key documents. The parties may assert objections to certain translations, such as where the parties use conflicting translations during a deposition or where documents are partially translated during a deposition by an interpreter. Whenever possible, courts want the parties to exchange translations and stipulate beforehand to the accuracy of any translations to be offered at trial. (For a model affidavit of translation used to authenticate the translation of documentary evidence originally in a foreign language submitted to the court, with explanatory notes and drafting tips, see Affidavit of Translation for US Proceedings on Practical Law.) Deposition Transcripts Involving Non-US Litigants Counsel involved in a case where a non-US litigant is a party will likely introduce necessary deposition testimony at trial because witnesses outside the US are beyond the scope of the court's subpoena power and, therefore, may be unavailable to testify in person. Even when the litigant is a corporate party that would be able to compel employees located outside the US to testify at trial, courts have permitted counsel for the US corporation to introduce deposition testimony (see Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, Inc., 139 F.R.D. 368, 370 (N.D. Ind. 1991)). Both the FRCP and the FRE provide guidance on the introduction of deposition testimony of foreign witnesses at trial. Introducing Deposition Testimony Taken Abroad Under the FRCP Under the FRCP, all or part of a deposition transcript may be used against a party at a hearing or trial if: The party was present or represented at the deposition or had reasonable notice of it. The transcript would be admissible under the FRE if the deponent were present and testifying. (FRCP 32(a)(1).) Additionally, the deposition transcript may be used for purposes permitted by the FRCP, such as impeaching the testimony given by a deponent as a witness or for any other purpose permitted under the FRE (FRCP 32(a)(2)). A party may use the deposition transcript of any witness, whether or not a party, for any purpose if the witness is unavailable to testify (FRCP 32(a)(4)). A court will find that a witness is unavailable if the witness is located more than 100 miles from the place of the hearing or trial or outside the US, unless the court finds that the witness's absence was due to the action of the party seeking to submit the deposition testimony (FRCP 32(a)(4)(B)). Introducing Deposition Testimony Under the FRE Under the FRE, a deposition transcript is technically hearsay and therefore must be admissible under FRCP 32 or under one of the hearsay exceptions provided by the FRE. The FRE also provides that the unavailability of a witness permits the admission of deposition testimony as an exception to the rule against hearsay (FRE 804(b)(1)). What constitutes the unavailability of a witness under the FRE, however, differs from the FRCP. This is particularly important for the litigant seeking to admit foreign deposition testimony under the FRE, because the witness may be beyond the subpoena power of a US court and it may be impractical to secure the witness's appearance at a specific date and time for a hearing or trial in the US. Irina Kobylevsky joined Practical Law from Kruzhkov Russo PLLC, where she was counsel focusing on commercial and business litigation. Previously, she was an associate at Gusrae Kaplan Nusbaum PLLC and at Kaplan Fox & Kilsheimer LLP.
