Documentary or Physical Evidence

Evidentiary Issues Pertaining to Documentary or Physical Evidence

Testimonial evidence presents the fact finder with only oral statements and their manner of delivery from which to determine what weight and effect to place on the evidence. In contrast, documentary or physical evidence presents the fact finder with an actual item it can hold, examine, review or read when determining the weight and effect to place on it.

Not all stalking or harassment cases will involve admission or exclusion of physical or documentary evidence. However, when such evidence is part of the case, examples of documentary evidence include:

• Electronic communication records: The most common examples are telephone call records, copies of emails sent and/or received, or internet usage records if such technologies are alleged to have been used in the stalking or harassment. Given the need for a "records custodian" to testify in order to have such material actually come into evidence, see Rule 11-901 (authentication and identification), such evidence is used fairly rarely. For example, on phone records the records custodian could be an employee of the relevant telecommunications company who may be based in another state which may make appearance in a New Mexico courtroom financially impossible for both the prosecution and defense.
  
  Thus, the most common usage of such material is to refresh a witness's recollection, typically the victim, regarding the frequency of electronic communications, as well as the dates and times associated with them. When such records are used to refresh recollection, the actual electronic communication records themselves are not introduced into evidence, but instead are shown only to the witness during his or her testimony as a means of assisting their recollection. Once the recollection is refreshed, the witness must testify from their memory, rather than reading from or relying heavily on the communication records.
• "Hard copy" communications: Examples include hand written letters, notes, drawings and similar means of communication if such methods were alleged to have been used in the stalking or harassment. To have such items actually introduced into evidence, the witness who was the recipient of the material would have to testify to the items' authenticity, the circumstances under which they came into his or her possession and on what basis they determined the items were produced by the individual they are alleging was responsible for their creation.
• Medical records: These records might be used to show the emotional impact the alleged stalking or harassment had on the victim and/or physical manifestations resulting from the distress caused by the alleged patterns of behavior. As with electronic communication records, an appropriate custodian of such records would have to testify to lay the proper foundation for their admission into evidence.
• Domestic violence orders of protection: Where the charge of aggravated stalking alleges that the defendant knowingly violated such an order under §30-3A-3(A)(1), efforts would be made to introduce the order into evidence to prove its contents as part of showing how the defendant's conduct was a violation of its provisions.
• Court order regarding conditions of release and bond: Where the charge of aggravated stalking alleges defendant violated such an order under §30-3A-3(A)(2), efforts would be made to introduce the order into evidence to prove its contents as part of showing how the defendant's conduct was a violation of its provisions.
• Video surveillance records: For example, video might be available from a private business or public institution to show the defendant's identity and the frequency of his or her presence at that location if, for example, the alleged method of stalking is surveillance under §30-3A-3(A)(2). Another example would be if the victim set up video equipment on his or her own to identify the defendant and document that the harassment or stalking was taking place. The same sort of video surveillance records could be used by the defendant to show his or her presence elsewhere at the time of the alleged stalking or harassment. An appropriate foundation from the custodian of such records would be necessary for such material to be actually introduced into evidence.