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Please refer to my previous reply. Thank you.

Please refer to my previous...
Please refer to my previous reply. Thank you.
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Answered in 1 hour by:
6/27/2013
socrateaser
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 39,498
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Hello again...you asked:

I have a client who has been charged with numerous felony counts of elder abuse and money laundering (the elder abuse charges are now dropped). She is facing a preliminary hearing next week on the money laundering. The prosecution will rely on numerous pages of spread sheets provided by my client's in-laws. We want to challenge the validity of the spread sheets and demand basic documents. What Evidence Code sections or other law can we use?

A: I've been trying to construct a rationale to exclude the spreadsheets for about an hour, and I'm drawing blanks. Penal Code 872.5 expressly permits the use of secondary evidence in a preliminary hearing. The spreadsheets are summaries of other information which would not be admissible without first permitting inspection by defense counsel prior to trial (Evid. Code 1522(a)). But at the preliminary hearing, the court can admit them.

If I were trying to keep this information out, I would ask the court to permit a voir dire of the witness concerning the process by which the spreadsheets were created, including the witness' capabilities with the spreadsheet software, experience and/or training in accounting, access to the original records, general mental competency, etc. The goal would be to try to reduce the witness' credibility to the point where the judge would refuse to give the spreadsheets any weight or admit them, because they are simply untrustworthy.

Wish I had an ironclad solution here, but I'm not finding anything better than an aggressive cross examination.

Hope this helps.
socrateaser
socrateaser, Lawyer
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Hello again,

I absolutely hate being stumped -- and I can't lose this problem, so I've been rethinking it.

Penal Code 872.5 provides, "Notwithstanding Article 1 (commencing with Section 1520) of Chapter 2 of Division 11 of the Evidence Code, in a preliminary examination the content of a writing may be proved by an otherwise admissible original or otherwise admissible secondary evidence."

The leading case on this issue is Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal. App. 3d 410, 418-419 -- where the court permitted use of a summary of 50,000 invoices, which were prepared by Plaintiff's controller. Okay, great. The issue here, then is that these spreadsheets are not business records. They aren't prepared in the ordinary course of business, so they do not have the necessary indicia of trustworthiness to be admitted over a hearsay objection. Consequently, they are not otherwise admissible secondary evidence, and so Penal Code 872.5 does not except them from the hearsay rule.

The witness can use recollection refreshed-past recollection recorded to read the spreadsheets into the record (Evid. Code 1237(a)) -- assuming that the proper foundation is laid. But, this would definitely keep the spreadsheets themselves out of the record -- and, aggressive cross exam may be able to show that the spreadsheet's author isn't really competent to write a spreadsheet formula (e.g., "How do you add an entire column of numbers using Microsoft Excel?"). Of course, the witness may be computer savvy, and that would ruin your whole day, but at least you have a shot at getting the witness sufficiently confused so that he/she doesn't say, "Oh, that's easy, '=sum(A:A).'".

I feel better now. Good luck.
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