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Univ. of South Carolina School of Law

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Tuesday, September 17, 2013

Power to the (Lay)People: Court of Appeals of Minnesota Finds lay Authentication Testimony Was Admissible

Similar to its federal counterpartMinnesota Rule of Evidence 901(b)(2) allows a party to authenticate a writing via

Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

In other words, even a lay witness can authenticate a writing, as long as that witess had familiarity with the handwriting of the person who allegedly drafted the writing before the incident giving rise to a lawsuit. Based upon this Rule, the appellant was out of luck in Bellino ex rel. Bellino v. Bellino, 2013 WL 40455809 (Minn.App. 2013).

In Bellino, the court noted that the facts were that

Respondent Muriel Jean Bellino is an 85–year–old vulnerable adult who is restricted to a wheelchair and unable to speak. She and her husband Eugene Bellino, who died in 2007, are the biological parents of ten children, including appellant Gregory Bellino; respondent's conservator and guardian, Annette Bellino; and defendant Joann Bellino. Appellant had a good relationship with his parents and has lived at his parents' residence in Bemidji for most of his life. In March 2007, appellant, Eugene, and Annette became respondent's co-guardians and co-conservators. In November 2007, Annette became respondent's temporary guardian and conservator, and in March 2008, Annette became respondent's permanent guardian and conservator. Annette has lived with and cared for respondent since October 2007.  

Annette commenced the underlying equitable action on respondent's behalf. The complaint alleges that appellant used an invalid power of attorney to convert respondent's property to his own use, including approximately $900,000 in stocks, bonds, CDs and cash; respondent's house in Texas, as well as its contents; and the contents of respondent's Bemidji home. The complaint was amended to allege that Joann Bellino assisted appellant in having the power of attorney notarized. The requests for relief include an accounting and imposition of a constructive trust. Appellant and Joann moved for summary judgment, arguing that the doctrine of unclean hands barred respondent's request for equitable relief. The district court denied the motion.

Anette testified that it was not the respondent's signature on the power of attorney, and the court agreed with her, concluding, inter alia, that the "power of attorney was not signed by respondent and appellant knew it."

The appellant thereafter appealed, claiming, inter alia, that Annette's testimony was improperly received. The Court of Appeals of Minnesota disagreed, concluding that

a witness need not qualify as an expert in handwriting forensics to testify regarding the authenticity of a signature. See Minn. R. Evid. 901(b)(2) (listing a "[n]onexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation" as an example of an appropriate form of authentication). Annette competently testified "based on the familiarity of [her] mother's signature throughout her life."

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/09/similar-to-its-federal-counterpartminnesota-rule-of-evidence-901b2allows-a-party-to-authenticate-a-writing-via-nonexp.html

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