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Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, March 27, 2011

Sign Here: 5th Circuit Finds District Court Improperly Excluded Signed Prior Inconsistent Statements

Federal Rule of Evidence 613 provides that witnesses can be impeached through prior inconsistent statements. Meanwhile, Federal Rule of Evidence 901(a) provides that 

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, let's say that a party wants to impeach a witness through an alleged prior inconsistent which was signed by the witness but which the witness claims is inaccurate. Has the prior statement been properly authenticated? According to the recent opinion of the Fifth Circuit in United States v. Isiwele, 2011 WL 768883 (5th Cir. 2011), the answer is "yes."

In Isiwele, Enitan Isiwele was convicted on multiple counts of health care fraud and conspiracy to pay kickbacks in connection with a scheme to fraudulently bill Medicare/Medicaid for power wheelchairs. After three witnesses for the prosecution testified that, despite Isiwele's claims, they did not lose their powerchairs during Hurricane Rita, Isiwele sought to impeach them through signed statements which stated:

I, [name of beneficiary/witness], hereby request the services of Galaxy Medical Supply, LLC to assist me in obtaining a replacement for my equipment, a(an) POWERCHAIR, which was lost in [H]urricane RITA.
By signing the attached Release of Information and Authorization for Payment of Benefits Form, I hereby declare that the said equipment was lost as a direct result of the hurricane and authorize us [sic] to take necessary action to assist me in securing the replacement equipment.

Outside the presence of the jury, each of these witnesses identified his or her signature on one of these statements but claimed they had not previously owned power wheelchairs that were lost in Hurricane Rita. Thereafter, "[t]he district court refused to admit these documents into evidence on the ground that they had not been properly authenticated because the witnesses did not absolutely adopt the substance of the documents." 

After he was convicted, Isiwele appealed, claiming, inter alia, that this decision was erroneous. The Fifth Circuit agreed, finding that

"[W]e do not require conclusive proof of authenticity before allowing the admission of disputed evidence."...Rule 901(a) "merely requires some evidence which is sufficient to support a finding that the evidence in question is what its proponent claims it to be."..."Once the proponent has made the requisite showing, the trial court should admit the exhibit...in spite of any issues the opponent has raised about flaws in the authentication. Such flaws go to the weight of the evidence instead of its admissibility."

That said, the Fifth Circuit found that the error in excluding these statements was harmless and affirmed Isiwele's conviction.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/03/901a-613-us-v-isiwele-f3d-2011-wl-768883ca52011.html

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