Tolling the statute of limitations

[quincy]

Thanks, I think I have enough to negate the claim of being immune from the action.
How would a video not be admissible as evidence?

Lack of authentication.

 

[NeilTheCop]

Lack of authentication.

Could you elaborate?
Just checked the new Mexico Rules of Evidence
RULE 11-901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
A. In General. To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.

I claim that it's a video taken of a truck loaded with manure passing my property.
The road used is clearly shown on the record from the County Assessors office of a satellite image of the area.

RULE 11-1005. COPIES OF PUBLIC RECORDS TO PROVE CONTENT
The proponent may use a copy to prove the content of an official record--or of a
document that was recorded or filed in a public office as authorized by law
--if these conditions are met: the record or document is otherwise admissible; and the copy is
certified as correct in accordance with Rule 11-902(4) NMRA or is testified to be correct
by a witness who has compared it with the original. If no such copy can be obtained by
reasonable diligence, then the proponent may use other evidence to prove the content

 

[quincy]

Could you elaborate?

Probably.

With evidence, you must certify that what you are presenting is what you say it is. Authenticating a video can be as simple as you testifying that you took the video on X date and time of Y doing Z.

However, the other party can dispute the legitimacy of the video - claiming it was not what you purport it is or that you modified or altered the content.

With any video evidence you wish to introduce, you might need support that the video accurately depicts the activities of your neighbor and has not been edited. Often this requires testimony from an expert who has examined the video and can testify it is what you have said it is.

Of course, the other side could always then have their own expert testify to dispute the findings of your expert ...

You can refer to Federal Rule of Evidence 901 or your state's rules of evidence.

 

[Zigner]

I have to admit, I haven't followed this thread very closely, but I have to ask this: Do you intend to present your video as evidence that trucks travel on the road, or do you intend to present your video as evidence that trucks that are hauling manure are traveling on the road?

 

[NeilTheCop]

Probably.

With evidence, you must certify that what you are presenting is what you say it is. Authenticating a video can be as simple as you testifying that you took the video on X date and time of Y doing Z.

However, the other party can dispute the legitimacy of the video - claiming it was not what you purport it is or that you modified or altered the content.

With any evidence you wish to introduce, you will want support that the video accurately depicts the activities of your neighbor and has not been edited. Often this requires testimony from an expert who has examined the evidence and can testify it is what you have said it is.

You can refer to Federal Rule of Evidence 901 or your state's rules of evidence.

Thanks Quincy.On some of the videos I actually spoke the date and time, but of course that can be disputed and a claim that I 'edited' the video.
But it does look like it's up to the jury to decide if the evidence is authentic

RULE 11-1008. FUNCTIONS OF THE COURT AND JURY
Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 11-1004 or 11-1005 NMRA. But in a jury trial, the jury determines in accordance with Rule 11-104(B) NMRA
any issue about whether
A. an asserted writing, recording, or photograph ever existed,
B. another one produced at the trial or hearing is the original, or
C. other evidence of content accurately reflects the content

 

[NeilTheCop]

I have to admit, I haven't followed this thread very closely, but I have to ask this: Do you intend to present your video as evidence that trucks travel on the road, or do you intend to present your video as evidence that trucks that are hauling manure are traveling on the road?

That the trucks are using the road, that they are hauling manure, that manure dust is being blown off the uncovered loads onto my property, that they use a Jake brake as they go past my property and that they drive onto the public highway with the loads of manure uncovered.

 

[quincy]

That the trucks are using the road, that they are hauling manure, that manure dust is being blown off the uncovered loads onto my property, that they use a Jake brake as they go past my property and that they drive onto the public highway with the loads of manure uncovered.

I think you would be smart to have your videos authenticated by an expert, if the videos are vital to supporting your claims.

 

[NeilTheCop]

I think you would be smart to have your videos authenticated by an expert, if the videos are vital to supporting your claims.

Bit excessive isn't it?
They have already admitted building the road, and that it's used by their trucks and that the trucks are hauling manure and where they are storing it. All I need to show is the dust from the cow manure being blown onto my property.
Mind you, knowing slippery attorneys they would say that the cow manure was counterfeit

 

[quincy]

Bit excessive isn't it?
They have already admitted building the road, and that it's used by their trucks and that the trucks are hauling manure and where they are storing it. All I need to show is the dust from the cow manure being blown onto my property.
Mind you, knowing slippery attorneys they would say that the cow manure was counterfeit

It is only excessive if your neighbor does not object to the introduction of the videos as evidence. Not so excessive if he does object.

It's up to you.

 

[NeilTheCop]

It is only excessive if your neighbor does not object to the introduction of the videos as evidence. Not so excessive if he does object.

It's up to you.

Point taken

 

[Taxing Matters]

Thanks, I think I have enough to negate the claim of being immune from the action.
How would a video not be admissible as evidence?

While I don't practice in your state, generally you have to lay the foundation for admission of the video; you can't just get up and start showing the video. That means having someone with personal knowledge of the video (which might be you) testify about the relevance and the authenticity of the video before you show it and ask that it be admitted into evidence. Exactly what you need to do for this depends on the rules and practices of the courts in your state.

Also, have you checked to see if you must share the video with the defendant before the hearing or produce a list of planned exhibits, etc., that you intend to introduce? Some courts require that parties share some of that information before a hearing or trial.

If you fail to lay a proper foundation at the hearing or miss a step that the rules require in advance of the hearing you open the door for the defense to object to admission of your evidence, and if it does not get admitted the court cannot consider it.

 

[Taxing Matters]

Bit excessive isn't it?
They have already admitted building the road, and that it's used by their trucks and that the trucks are hauling manure and where they are storing it. All I need to show is the dust from the cow manure being blown onto my property.
Mind you, knowing slippery attorneys they would say that the cow manure was counterfeit

Are their admissions in a form that you can use at the hearing? If not, you'll need to draw that out of them via cross examination at the hearing. Do not assume anything or take anything for granted. Verify what you need to do to get every point you need to cover before the court. Don't rely on the other side to do anything for you at that hearing.

 

[Taxing Matters]

Thanks Quincy.On some of the videos I actually spoke the date and time, but of course that can be disputed and a claim that I 'edited' the video.
But it does look like it's up to the jury to decide if the evidence is authentic

When you get to trial, that's true. But unless your state is unusual, the hearing for the preliminary injunction is to the court (i.e. the judge), not a jury, and the judge will decide issues of authentication. You have to lay the foundation in either case with enough that the judge or jury could find that the evidence is authentic to get the evidence admitted; then what the judge or jury actually determines of the authenticity will be a factor as they weigh the evidence.

 

[quincy]

You probably should consult with a lawyer in your area about the rules and procedures because that is where you are liable to have problems.

Someone can have an excellent case with excellent evidence but a failure to follow the correct procedures can doom the case.

Good luck.

 

[NeilTheCop]

Are their admissions in a form that you can use at the hearing? If not, you'll need to draw that out of them via cross examination at the hearing. Do not assume anything or take anything for granted. Verify what you need to do to get every point you need to cover before the court. Don't rely on the other side to do anything for you at that hearing.

Thanks.
No they admitted building the road, driving trucks on it and that the trucks were hauling manure. This was all in their answer to my original complaint they filed with the court.
I have satellite images from Google Earth showing the new road and the piles of manure where none existed before. Google Earth images have already been accepted by the courts as having the same weight as a normal photograph. US v. Lizarraga-Tirado, 789 F. 3d 1107 - Court of Appeals, 9th Circuit 2015.
The same satellite images are available as a public record from the County Assessors Office.
And the video's I have only show what they have already admitted to, that the trucks are on a new road they built hauling manure and surprisingly that 'some' dust emanates from the road as the trucks drive along it.
So I'm not sure how they can object citing relevance or authenticity as the videos only show what they have already admitted.
But we shall see.