Numerous motions, for instance, include an appraisal report but lack a declaration from the appraiser to authenticate the report. Attorneys cannot simply submit an appraisal report as evidence in a real trial. Under Rule 803(6)(D) of the Federal Rules of Evidence, the report must first be correctly authenticated by the testimony of the appraiser who prepared the report, or by a """"custodian of records"""" or other """"qualified witness.""
Even if the report contains a certification from the appraiser under penalty of perjury that it is a true and correct copy of an appraisal report he or she prepared, a """"certification"""" from an appraiser does not meet the specific legal requirements for declaration or affidavit testimony. The report cannot be authenticated in accordance with Rule 901 of the Federal Rules of Evidence without an appropriate declaration. Without authentication, the report is illegally inadmissible. In addition, absent a declaration from the appraiser, there is no evidence that he or she is qualified to testify as an expert witness regarding the opinions of value expressed in the report.
I also encounter numerous declarations from employees of institutional lenders that merely state, ""I am the vice president of XXX Bank and I make this declaration in that capacity."" In most cases, however, the declarations fail to provide sufficient evidence to support a conclusion that any of the relevant factual matters set forth in them are founded on the declarant's personal knowledge. Even though the declarant is a Vice-President of the lender (possibly one of many), this does not necessarily mean that he or she has intimate knowledge of the facts stated in the declaration.
All matters set forth in declarations must be founded on personal knowledge, and declaration statements are inadmissible unless the declaration itself affirmatively demonstrates that the declarant has personal knowledge of the facts. Commerce Bank of St. Louis, N.A., 37 F.3d at 1296; Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d at 315-16.
The declarations and affidavits of numerous officers and employees attempt to include the basic required statements to support a """"alternative"""" finding that they are a """"custodian of records"""" or other """"qualified witness"""" under Rule 803(6)(D), so that their testimony may be admitted under the """"business records"""" exception to the hearsay rule. Before documentary evidence can be admitted as an exception to the hearsay rule, Rule 803(6)(D) typically requires a declaration or affidavit to contain very specific statements. Numerous declarations lack one or more of the required statements, rendering the offered hearsay evidence inadmissible as a """"business record"""".
Rule 1002 of the Federal Rules of Evidence (sometimes referred to as the """"Best Evidence Rule"""") stipulates that the original of a document must be used to establish its contents. Consequently, evidence to establish the contents of a document is typically inadmissible. In the circumstances outlined in Rules 1003 through 1007, copies of the original document and witness testimony regarding its contents are admissible.
Motions are identical to trials in that they require admissible evidence to support the factual claims they make. Understanding the applicable state and federal principles of evidence will make you a superior attorney and serve you well throughout your career.
I was sued by the seller of a residence I purchased there many years ago. I represented myself pro se. When we appeared in court, I successfully objected whenever the plaintiff's counsel attempted to introduce documentary evidence, such as an appraisal report, based on lack of authentication, hearsay rule, and best evidence rule. After successfully representing myself in a two-day trial against an experienced civil attorney and obtaining a judgment of nonsuit, the presiding judge told me I was the brightest person who had ever entered his courtroom. Knowing the principles of evidence will make you appear intelligent, even if you are not.""
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