5.Arrest Photo Authentication and Renewed Evidentiary Requests
51 lines(SIDEBAR CONFERENCE AS FOLLOWS:
THE COURT: All right. I think that's right. You still may need a witness in the absence of a stipulation.
MS. CLARKE: They've told us all along --
THE COURT: The objection to their admission was overruled but that --
MR. WEINREB: It was on relevance and 403 grounds. The only representation that I made to the defense was that items of evidence that were collected at Scene A and Scene B in Watertown, we would not object to them on authenticity and chain-of-custody grounds. This is something different. These are arrest photos. We're not stipulating to anything that was not an item of evidence.
MS. CLARKE: That was not our understanding. Our understanding, authentication was not an issue. It was the relevance claim that the government made. So that's why we didn't have a witness here, because we've always been led to believe that authentication was not the issue.
THE COURT: I guess, if authentication is not an issue, then you don't need somebody to provide the usual foundation.
MR. WEINREB: Well, I don't know what you mean by "authentication is not an issue." Normally, each side is entitled to --
THE COURT: These are what they purport to be. That is, they're photographs of the defendant getting out of the boat.
MR. WEINREB: Well, there's nobody for us to cross-examine about how long he was in the boat before the photographer took the pictures, whether -- what the lighting issues -- respecting the lighting issues, respecting other things the photographer may have seen when --
THE COURT: That's all true, but I think you probably waived it by not raising an authentication or insisting on a foundation. In other words, if you agree --
MR. WEINREB: I'm insisting on it now. I never waived it. If the defense heard that, they misunderstood. Our agreement was items of evidence that were collected at the scenes. There was no need -- we were willing to waive any authenticity questions with respect to those because we don't -- we were not interested in cross-examining any of the people who collected them or were in the chain of custody.
But with respect to these pictures, because we have objections to them, we are entitled to insist on the normal -- that the normal Rules of Evidence be followed and that they bring a witness who actually can authenticate them and, therefore, be subject to cross-examination about how various aspects of the scene may affect whether they are, indeed -- not so much whether they're what they purport to be in the sense of being photographs but, as the defense is constantly doing with our evidence, putting it in context, as they say, what each side has with respect to the other's evidence.
MS. CLARKE: Judge, one of those photos is in. This is the rest of these series. We would have had a witness here had we known that was an objection. We were clearly told authentication was not the issue, that it was simply a question of relevance.
THE COURT: Who would you have --
MS. CLARKE: We would have to go find the photographer --
THE COURT: The photographer --
MS. CLARKE: -- or one of the police officers who was on the scene. We simply didn't do that because of the nature of the objection that was raised.
MR. WEINREB: Who the photographer is is a matter of public knowledge, but we'll give them the name and --
MS. CLARKE: Come on. These were provided to us in discovery. It's the next in the series of photographs. It's about seven photographs that the government gave to us.
MR. WEINREB: But that doesn't address the objection that, without the witness who took the photographs, we can't put them into context to help the jury know what weight to give them, not just the admissibility. They may appear much weightier to the jury than they otherwise would if they just come in as if they spoke for themselves. In fact, there was a person who was there who can speak about them, and that will affect the way the jury takes them.
THE COURT: Okay. I think you need a witness, so maybe you can get one.
MS. CLARKE: They're Mass. State Police photos.
THE COURT: There is an identified person, I assume.
MS. CLARKE: I assume the government --
MR. WEINREB: There is.
THE COURT: We'll take a break, and we'll see -- come back at 2.
MS. CLARKE: Should we do any other work while we're up here?
MS. CONRAD: We have a couple of pending matters still in terms of -- before we rest. There's our motion to reconsider regarding the range issue and also renew the request regarding the admission by the party opponent in light of the repeated questions by Mr. Chakravarty referring to that as the defendant's bedroom.
I also want to add, with respect to that, that I have conducted a thorough search of all of the discovery we've received. We never -- contrary to Mr. Weinreb's representation, never received any 302 reports or anything else that identified the source of the information set forth in Docket No. 350 as factual statements about occupancy and use of that apartment and particularly of the defendant's room being used as a storage and computer room. We'd ask to be provided with that so we can call that source as a witness in the alternative if the Court will not permit us to offer the government's own statement under United States v. Cotter and under Federal Rule of Evidence 801(d)(2).
THE COURT: Okay. The ruling stands. As to the other matter, we'll address that later.
MS. CLARKE: Could you just give us two minutes? And we'll make a decision whether we're going to delay this thing for those pictures.
MS. CONRAD: On the other ruling, you're talking about the range?
THE COURT: Yes.
MS. CONRAD: But what about the discovery issue?
THE COURT: The discovery issue.
MS. CONRAD: With respect to the statements in Docket No. 350.
THE COURT: No, not germane.
MS. CLARKE: Could you play music for a couple minutes?
MS. CONRAD: It's not germane who occupied that room?
THE COURT: We'll take a ten-minute break for the jury and --
MS. CONRAD: Judge, are you saying who occupied that room is not relevant?
THE COURT: That's not what I said.
MS. CONRAD: Well, that's what it sounded like.
THE COURT: The ruling -- we've been over it three times.
MS. CONRAD: I'm sorry. I think it's relevant and it's admissible.
THE COURT: We'll take a ten-minute break.
. . . END OF SIDEBAR CONFERENCE.)
THE COURT: Jurors, we'll take just a brief recess.
COURT CLERK: All rise for the Court and jury. The Court will take a very brief recess.
(Recess taken at 12:29 p.m.)
(The Court entered the room at 12:50 p.m.)
THE COURT: See you at the side.