Friday, October 11, 2013
Here's an interesting article dealing with the intersection between the federal shutdown and the rules of evidence. It is written by Howard Altschule, the owner of Forensic Weather Consultants, a forensic weather consulting firm that provides past weather records, analyses and reports to those who need it. So, who needs it? According to the article,
When forensic meteorologists provide official weather records and affidavits to our legal clients, they are often used to file motions and other documents with courts. In some cases, attorneys discover that their client may not have had any liability when an accident occurred, such as if someone fell on ice while an ice storm was in progress. In some of these cases, the attorney often files a Motion with the court to dismiss a case. In New York State courts, the rules of evidence are such that weather records must be “certified” in order to be admissible as evidence to the court. Because of the federal shutdown, there is nobody at the [National Climatic Data Center] to answer the phone, process the orders or certify weather records. If there really is merit for a judge to dismiss a case, will the judge still dismiss the case if no certified weather records were submitted or will the judge accept the non-certified copies? Many courts have denied these kinds of motions in the past when some professionals failed to obtain certified weather records, instead relying on the same records in non-certified format.
Now, New York doesn't have codified rules of evidence, but what they do apply in court is basically a version of Federal Rule of Evidence 902(4), which allows for the self-authentication of
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.