Monthly Archives: September 2013

Making “Good” on “Breaking Bad”

Breaking Bad Well one of my favorite shows is no longer around.  The final episode of “Breaking Bad” aired last night.  The show delivered the goods and brought the saga of Walter White to its tragic and fitting conclusion.  What more could someone want out of great story-telling than a journey that showed that “ends” don’t justify the “means” no matter how noble the goal.  In the end, Walter had to admit the truth… that in trying to preserve his family and their way of life, he had destroyed it.  Walter had to come to grips with the fact  that “he” did the terrible things, (cook Meth, kill, lie, cheat, intimidate, etc.), not for his family, but to feed his insatiable ego.

As a former federal and state prosecutor, I loved the ability of the show to convey the core truth of so many things.  The DEA agents, such as Hank Schrader reminded me of the agents and cops I had worked with in prosecuting drug dealers, bikers and those involved with racketeering.  The jocularity and bravado of the agents was real.  The drug world was accurately portrayed as ruthless, violent and bad to the core.  The Arian Brotherhood really does weld power in prison populations and is capable of reaching out and make things happen.  I heard such stories first hand as a result of investigating and prosecuting inmates involved with illegal activities from behind bars.  The ravages of Meth were not hidden or glamorized.  The emaciated rotten tooth prostitute showed the ugly effects of Meth use and the carnage of family members left behind in its wake.  Jesse Pinkman, Walt’s partner, lost his girlfriend, Jane, to an overdose and a second one to an execution.  The ripple effects of Meth’s evil led to a grief stricken father to fail at his job as an air-traffic controller resulting in an airliner full of people crashing with another plane.  In real life ugly things do happen as a result of illegal drug distribution and use.  However, the ugly truths garner little attention from those in middle-America unless it touches someone they know.

The show might have been unbearable to watch for all its death and grimness were it not for the comic relief provided by some of its “characters” such as the sleazy attorney, Saul Goodman, who seemed to always “know a guy, who knows a guy.”  Saul, an Irish Catholic, changed his name to sound like he was a Jewish attorney to increase his appeal to those who, as “Saul” put it, “wanted a member of the tribe.”  “Saul” was hilariously over the top when the story line needed it most.  “Saul” was always quick with a quip in the show’s darkest moments.  “Badger” and “Skinny Pete”, Jesse’s loony friends broke the tension with their buffoonery and missteps as drug dealers.

Rarely does a show deal so honestly with its characters, subject matter and fans as “Breaking Bad” did here.  The writers and the show’s creator, Vince Gilligan, made “good” on ‘Breaking Bad” by not dragging out the plot line for commercial gain.  The series was character driven. It had a real story arch that allowed the show to end where and when it should.  Walter White, an under-achieving high school chemistry  teacher, diagnosed with cancer, found that there are no quick fixes in life.  Ultimately, “Breaking Bad” by Walter White led to no real good.

Congratulations to Vince Gilligan and his talented writers, cast and crew on a brilliant T.V. series that made “good” in the end.

There is No Shame in Stealing from the Best

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You don’t have to reinvent the wheel every time you confront a new or unfamiliar situation. It is important to your progress as an attorney to learn from other’s mistakes and successes.

I remember taking my son into a local music store called “B.J.’s Guitar Island” here in Indy, so my son could take guitar lessons. After one of his lessons, an older gentleman walked in and started talking to the owner. He picked up an inexpensive electric guitar and started to make it wail beautifully. The older guy laid out guitar lick on top of guitar lick. My son and I stood by mesmerized. He looked up at my son and said “I can tell you really love music… I can see it in your eyes.” He continued, “Son, there’s nothing new in music. There are just eight notes and there only so many ways you can put them together. Listen to all kinds of music from the best, even if you don’t necessarily like it. It will make you a better musician and don’t be afraid to steal from the best.” The man we saw and spoke to that day was Rock-A-Billy Legend, Ronnie Haig. My son followed his advice. A decade later my son graduated from college with a degree in Recording Arts from Butler University. My son and a friend from school wrote, created, performed and produced their own album which is now on iTunes.

The same principle applies to attorneys. When I got out of law school, I clerked for a federal judge and had the chance to learn from the best and worse of the bar. I saw Roy Black out of Miami defend Ron Malinowski in a federal drug kingpin case on the heels of a successful defense by Black of a Miami police officer charged with the murder of a black teenager. The case made national headlines. Roy Black is famous for number of cases including his successful defense of William Kennedy Smith in a rape case. He had a warm, humble and professorial manner. While his defense was ultimately unsuccessful, I remember that his closing argument was masterful. As Roy Black began, he approached the jury and warmly greeted them, “Good morning ladies and gentlemen.” The jury immediately answered back in unison like they were school kids, “Good morning, Mr. Black.” The Oscar Awards had just happened and Black attacked the government’s “flipped” witnesses by awarding them and the government DEA agents various Oscars for their “performance.” It was a fantastic closing in a very difficult case. The court reporter had tears streaming down his face as he strained to maintain his composure in an effort to keep from laughing. He later transcribed the closing argument even though it was unnecessary and was kind enough to give me a copy. I still have the transcript and have read though it a number of times.

There are websites, such as Famous Trials (http://law2.umkc.edu/faculty/projects/ftrials/ftrials.htm), which have a treasure trove of information from historic legal battles. There are likewise books such as “The Devil’s Advocates: Greatest Closing Arguments in Criminal Law” and “Ladies and Gentlemen of the Jury” by Michael S. Lief that contain abridged transcripts of famous closings.

So learn and steal from the best! You will be better trial attorney for it.

X-Rays: How to Get Them into Evidence.

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X-ray are essentially a type of photograph and are admissible if:

1.The x-rays are authenticated, and

2.The x-ray technician’s competence is shown.

The sponsoring witness must establish that the x-ray is a “true and accurate representation of the evidence portrayed.” Lewis v. State, 730 N.E.2d 686, 690-691 (Ind. 2000), citing to, Labelle v. State, 550 N.E.2d 752, 754 (Ind. 1990); Lewis v. State, 730 N.E.2d 686, 691 (Ind. 2000). In this regard, if the x-ray is shown to have been taken by a regular x-ray technician in a hospital, no further showing of the technician’s qualifications or the machine’s reliability is necessary. Howard v. State, 264 Ind. 275, 342 N.E.2d 604, 608–609 (1976). Typically, the doctor ordering the x-rays is familiar with the group takiing the x-rays and is able to vouch for their competency and reliability.

Medical Records: Potential Problems You May Encounter in Entering Them Into Evidence

medical recordsMedical Records and Charts:  In most personal injury cases an attorney will be required to present medical records in order to prove their client’s claims.   Careful attention needs to be paid to satisfying the requirements  of the Rules of Evidence or key evidence could be excluded at the time of trial.  If a stipulation of admissibility cannot be obtained, you need to know precisely how you will establish each of the foundational requirements necessary to authenticate the records and satisfy the requirements for opinions and hearsay evidence.  Indiana Rule of Evidence 803(6) and (7) provides an exception to the hearsay rule for business records.  This provision states:

(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

While these provisions can be used to get by an objection on the grounds of hearsay, this is only part of the problem.  Although Rule 803(6) accommodates the inclusion of “opinions” in business records Indiana courts have recognized in the context of medical or hospital records, that the expertise of the opinion giver must be established. See Fendley v. Ford, 458 N.E.2d 1167, 1171 n. 3 (Ind.Ct.App.1984) (“Expressions of opinion within medical or hospital records historically have not been admissible under the business records exception because their accuracy cannot be evaluated without the safeguard of cross-examination of the person offering the opinion.”); accord Brooks v. Friedman, 769 N.E.2d 696, 701 (Ind.Ct.App.2002), trans. denied; Schaefer v. State, 750 N.E.2d 787, 793 (Ind.Ct.App. 2001); Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273, 1277 (Ind. Ct. App. 1998).  A physician’s opinion is not admissible until the requirements of Rule 702 have been met.  As a result, you need to address this problem with either an appropriate stipulation that allows for the exhibit to be admitted without limitation or you must redact the opinions from the document. Evidence Rule 702(a) provides in relevant part that:

[if] scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert… may testify thereto in the form of an opinion or otherwise.

While no case has specifically endorsed this method, Rule of Evidence 104 provides an attorney with backdoor means of satisfying preliminary questions of fact needed to introduce particular items of evidence. Under Rule 104(a) of the Rules of Evidence you can establish the witness’s qualifications without actually calling the witness to testify at the time of trial. This portion of the Rule provides:

IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

This means the court is free to suspend the Rules of Evidence in making this determination and could theoretically rely on a copy of the doctor’s curriculum vita or an affidavit of the doctors qualifications in allowing a copy of a hospital business record into evidence as this deals with whether a witness is qualified to testify.  If this method is not accepted, then you will be required to call the person rendering the “medical opinion” as a witness either live or by deposition.  Otherwise the evidence could be excluded should a timely objection be made.  Schloot v. Guinevere Real Estate Corp., supra, 697 N.E.2d at 1277.  Plan ahead or your case could be seriously undermined.

Writings, Recordings and Photographs: How to get them into evidence.

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In addition to the hurdles imposed for dealing with hearsay and opinions, writings, recordings and photographs have to be properly authenticated as being true and accurate representations of what they depict or have documented. When you cannot obtain a broad stipulation that an item of evidence is admissible, then you need to address the requirements of authenticity. Below are some of the rules to be considered in meeting these threshold requirements:

Rule 1001. Definitions
For purposes of this Article the following definitions are applicable:
(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. “Photographs” include still photographs, x-ray films, videotapes, and motion pictures.
(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An “original” of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately is an “original.”
(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by facsimile transmission, or video tape or by other equivalent techniques which accurately reproduces the original.

Rule 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute. An electronic record of the Indiana Bureau of Motor Vehicles obtained from the Bureau that bears an electronic or digital signature, as defined by statute, is admissible in a court proceeding as if the signature were an original.

Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Rule 1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) Original not obtainable. No original can be obtained by any available judicial process or procedure;
(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, such party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing; and such party does not produce the original at the hearing; or
(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

Rule 1005. Public Records
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.

Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

Rule 1007. Testimony or Written Admissions of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by a written admission, without accounting for the nonproduction of the original.

Rule 1008. Functions of Court and Jury
Whenever the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question of whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised whether (1) the asserted writing ever existed, or (2) another writing, recording, or photograph produced at the trial is the original, or (3) other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

Typically, writings and recordings require authentication. Indiana Rules of Evidence 901, 902 and 903 outline a number of ways this can be done with and without a sponsoring witness. These rules provide:

Rule 901. Requirement of Authentication or Identification
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony of a witness with knowledge that a matter is what it is claimed to be.

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

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (i) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (ii) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 30 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method or authentication or identification provided by the Supreme Court of this State or by a statute or as provided by the Constitution of this State.

Rule 902. Self-Authentication
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1) Domestic public documents. The original or a duplicate of a domestic official record proved in the following manner: An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy. Such publication or copy need not be accompanied by proof that such officer has the custody. Proof that such officer does or does not have custody of the record may be made by the certificate of a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(2) Foreign public documents. The original or a duplicate of a foreign official record proved in the following manner: A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position:
(a) of the attesting person; or
(b) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation.
A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown:

(i) admit an attested copy without final certification; or
(ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

(3) Official publications. Books, pamphlets, or other publications issued by public authority.

(4) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(5) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(6) Acknowledged documents. Original documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(7) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(8) Presumptions created by law. Any signature, document, or other matter declared by any law of the United States or of this state, to be presumptively or prima facie genuine or authentic.

(9) Certified domestic records of regularly conducted activity. Unless the source of information or the circumstances of preparation indicate lack of trustworthiness, the original or a duplicate of a domestic record of regularly conducted activity within the scope of Rule 803(6), which the custodian thereof or another qualified person certifies under oath (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity, and (iii) was made by the regularly conducted activity as a regular practice. A record so certified is not self-authenticating under this subsection unless the proponent makes an intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.

(10) Certified foreign records of regularly conducted activity. Unless the source of information or the circumstances of preparation indicate lack of trustworthiness, the original or a duplicate of a foreign record of regularly conducted activity within the scope of Rule 803(6), which is accompanied by a written declaration by the custodian thereof or another qualified person that the record (i) was made at or near the time of the occurrence of the matters set forth, by or from information transmitted by, a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted activity; and (iii) was made by the regularly conducted activity as a regular practice. The record must be signed in a foreign country in a manner which, if falsely made, would subject the maker to criminal penalty under the laws of that country, and the signature certified by a government official in the manner provided in subsection (2) above. The record is not self-authenticating under this subsection unless the proponent makes his or her intention to offer it known to the adverse party and makes it available for inspection sufficiently in advance of its offer in evidence to provide the adverse party with a fair opportunity to challenge it.

Rule 903. Subscribing Witness’ Testimony Unnecessary
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

Writings: Writings and recordings as defined under Ind. Evidence Rule 1001(1), must be authenticated pursuant to Indiana Evidence Rule 901(a) before being admitted. See Bone v. State, 771 N.E.2d 710, 716 (Ind.Ct.App.2002) (reviewing whether data from defendant’s computer was sufficiently authenticated); Blevins v. State (1973), 259 Ind. 618, 627, 291 N.E.2d 84, 89. Questions of authentication of a document arise when their legal significance turns upon their execution, authorship, or content. “When the execution of a document is not in issue, but only … the fact of the existence of a document of such tenor, no authentication is necessary.” 4 Wigmore on Evidence Sec. 2132, at 714.
Whether a document requiring authentication is admissible is within the discretion of the trial court, and will be reversed only on a clear showing of error. Wolfe v. State (1981), Ind., 426 N.E.2d 647, 655. There are a number of ways that authenticity of a writing may be established. Wolfe v. State (1981), Ind., 426 N.E.2d 647 (inculpatory letter written by defendant properly authenticated by signature comparison); Kern v. State (1981), Ind., 426 N.E.2d 385 (inculpatory letter written by defendant properly admitted as self-authenticating); Gadacz v. State (1981), Ind., 426 N.E.2d 376 (memo book referring to “certain dates” when alibi defense offered sufficiently authenticated by showing that book was found in car which was under the exclusive control of defendant); Fair v. State (1977), 266 Ind. 380, 364 N.E.2d 1007 (inculpatory post card allegedly written by defendant sufficiently authenticated; fact that authorship not proven conclusively goes to weight, not admissibility); Blevins v. State (1973), 259 Ind. 618, 291 N.E.2d 84 (notations allegedly made by victim not properly authenticated, but error was harmless where contents of notations were proven through other testimony); Kramer v. State (1974), 161 Ind.App. 619, 317 N.E.2d 203 (letter to defendant offering sale of marijuana sufficiently authenticated “[b]ecause the letter was not the basis of the prosecution and because of the absence of any evidence indicating the letter was fraudulent …” 317 at 207); Millington v. State (1972), 154 Ind. App. 42, 289 N.E.2d 161 (trade school application executed on date of offense when alibi defense offered not sufficiently authenticated). Either non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation or the expert testimony of a questioned document examiner may be used for authentication. Ind. Evid. R. 901.

At the common law and in evidence treatises, the “reply letter doctrine” has long been used to authenticate statements both oral and written. Under the reply letter doctrine, if it can be shown that an inquiry was directed to a particular person, and that in due course an apparent reply was received, which expressly refers to or seems implicitly to acknowledge the earlier inquiry, this circumstantial evidence is sufficient to conclude that the reply was sent by the person to whom the original inquiry was directed. This is because only this person was likely to have received the inquiry, know of it and respond. In a typical case, both the inquiry and reply are by means of letter (or email) sent through the mail, giving rise to the name “reply letter doctrine.” This principle of establishing authorship circumstantially applies equally to a written reply to an oral inquiry, to a telephonic response to an oral or written inquiry, and so on, regardless of whether the U.S. Mails are involved. The essentials are to establish by evidence independent of the reply indications that the author was indeed responding to the inquiry. These points are the necessary predicate underlying the inference that the author of the reply is the person to whom the inquiry was put. See generally 5 C.B. Mueller, Federal Evidence § 518 at 50-51.

Recordings: Voice identification may be required in order to admit a recording. If a telephone call is recorded, the telephone caller’s identity must be established as a foundation for the admission of the content of the telephone call. Ashley v. State, 493 N.E.2d 768, 774 (Ind. 1986); Davis v. State (1928), 200 Ind. 88, 161 N.E. 375 (overruled on other grounds). Sufficient identification has been based on witness testimony that he was familiar with the caller’s voice and recognized it in conversation. Allison v. State (1960), 240 Ind. 556, 166 N.E.2d 171. The identity of the caller need not be proved beyond a reasonable doubt. Any doubt regarding the credibility of the voice identification goes to the weight of the evidence, not its admissibility. Id., Ind., at 564, 166 N.E.2d, at 174. Likewise, opinion testimony and circumstantial evidence can be used to establish the identity of a person involved in a recorded telephone conversation. Ind. Evid. Rule 901(5) & (6). Similar requirements are needed to authenticate audio recordings of persons.

Photographs: The admission of photographs is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of discretion. To be admitted, it must first be established that the photographs are a true and accurate representation of the things they are intended to portray. Bray v. State, (1982) Ind., 430 N.E.2d 1162, 1164; Chambers v. State, (1979) Ind., 392 N.E.2d 1156, 1160. The relevancy is determined by whether a witness would be allowed to describe verbally that which the photograph depicts. Bray, supra; Murphy v. State, (1977) 267 Ind. 184, 195, 369 N.E.2d 411, 416. Testimony of a witness with knowledge that a matter is what it is claimed to be will suffice. Ind. Evid. R. 901(1).

Sexual-Assault, Child Molestation and Sex-Offense Cases

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Indiana Rule of Evidence 412 provides:

Rule 412. Evidence of Past Sexual Conduct

(a) In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or witness may not be admitted, except:

(1)        Evidence of the victim’s or of a witness’s past sexual conduct with the defendant;

(2)        Evidence which shows that some person other than the defendant committed the act upon which the prosecution is founded;

(3)        Evidence that the victim’s pregnancy at the time of trial was not caused by the defendant; or

(4)        Evidence of conviction for a crime to impeach under Rule 609.

(b) If a party proposes to offer evidence under this rule, the following procedure must be followed:

(1)        A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial.

(2)        The court shall conduct a hearing and issue an order stating what evidence may be introduced and the nature of the questions to be permitted.

(c) If the state acknowledges that the victim’s pregnancy is not due to the conduct of the defendant, the court may instruct the jury accordingly, in which case other evidence concerning the pregnancy may not be admitted.

In prosecutions for a sex crime, in addition to the specific exceptions outlined under Indiana Rule of Evidence 412(a), a common-law exception has survived the adoption of the Indiana Rules of Evidence. State v. Walton, 715 N.E.2d 824, 826 (Ind.1999). This exception provides that evidence of a prior accusation of rape is admissible if: (1) the victim has admitted that his or her prior accusation of rape is false; or (2) the victim’s prior accusation is demonstrably false. Id.

Past incidents of consensual sex, except in these limited circumstances, are not permitted to imply that consent was given on the date in question. The classic sort of evidence precluded by the Rape Shield Rule concerns sexual encounters, with other men at other times offered simply to show that the victim has consented in past sexual encounters thereby giving rise to an inference that she must have consented in the incident at hand. Rule 412 prevents a generalized inquiry into the reputation or past sexual conduct of the victim in order to avoid embarrassing the victim and subjecting the victim to public denigration. Stephens v. Miller, 13 F.3d 998, 1002 (7th Cir.1994), cert. denied, 513 U.S. 808, 115 S.Ct. 57, 130 L.Ed.2d 15.  The Rule reflects a policy first embodied in Indiana’s Rape Shield Act, Indiana Code § 35-37-4-4, that inquiry into a victim’s prior sexual activity is problematic and should not be used as a defense. The policies behind Rule 412 are intended to prevent the victim from being put on trial and protects the victim against surprise, harassment, and unnecessary invasion of privacy, and, most importantly, to remove obstacles to reporting sex crimes. See id.  Balanced against these policy considerations is the defendant’s right to present relevant evidence to finder of fact.

Rule 412 does permit evidence of the defendant’s past experience with the victim. However, the Rule does not permit a defendant to base his defense of consent on the victim’s past sexual encounters with other persons. An allegation of prostitution or general promiscuity does not affect this analysis. It is “intolerable to suggest that because the victim is a prostitute, she automatically is assumed to have consented to have sex with anyone, at any time.” United States v. Saunders, 943 F.2d 388, 392 (4th Cir.1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992); see also Tague v. State, 539 N.E.2d 480, 482 (Ind.1989) (holding that the trial court did not err in excluding the evidence of possible molestation of the victim by a person other than the defendant and “[v]irginity or the lack thereof has absolutely nothing to do with the crime of child molestation”); Beckham v. State, 531 N.E.2d 475, 477 (Ind.1988) (addressing a situation in which the defendant offered to prove the fact that the seven-year-old victim reportedly told his mother that he had previously been molested by another person and the similarity between the physical acts in the two instances and holding that the trial court properly excluded evidence of a prior molestation committed by a different person); Baughman v. State, 528 N.E.2d 78, 79 (Ind.1988) (holding that evidence of prior molestation by a different person was the type of evidence which the legislature deemed should be excluded); Parrish v. State, 515 N.E.2d 516, 519-520 (Ind.1987) (holding that the trial court properly refused to permit the defendant to question the nine-year-old victim as to whether he had been sexually abused in the past, because Indiana’s Rape Shield Statute shields the victim of a sex crime from a general inquiry into the history of past sexual conduct).

Indiana’s Rape Shield Rule has been held to not violate the Sixth Amendment right of compulsory process to present witnesses in support of one’s defense, and has repeatedly been held facially constitutional. Moore v. Duckworth, 687 F.2d 1063, 1067 (7th Cir.1982).  Nonetheless, the constitutionality of Rule 412 application to preclude exculpatory evidence remains subject to examination on a case-by-case basis. Tague v. Richards, 3 F.3d 1133, 1137 (7th Cir.1993).  A number of  jurisdictions note that a rape shield statute or rule generally makes a victim’s sexual history irrelevant. State v. Crims, 540 N.W.2d 860, 865-69 (Minn.App.1995), rev. denied (1996) (see cases cited therein).  Admission of evidence may be constitutionally required where the evidence is offered not to show the victim’s consent but to establish that an injury could have been inflicted by someone other than the defendant. See Tague, 3 F.3d at 1136-38. Admission of such evidence may also be required when the trial court restricts a defendant from giving his own account of the events at issue. Cf. Stephens, 13 F.3d at 1017   (Coffey, J., dissenting).
The Sixth Amendment may be impacted when a defendant establishes that the victim engaged in a uniquely similar pattern of sexual acts. Cf. Jeffries v. Nix, 912 F.2d 982, 987-88 (8th Cir.1990)  (essentially finding a victim’s sexual history irrelevant in the absence of compelling evidence of modus operandi); People v. Sandoval, 135 Ill.2d 159,142 Ill. Dec. 135, 147, 552 N.E.2d 726, 738 (1990) (prior pattern exception applies to the admission of certain evidence which shows an individual’s unique “signature” for purposes of establishing identity). Likewise, an argument can be made that additional exceptions similar to those found under Indiana Rule of Evidence 404(b) for  “proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” could be used to admit evidence which would otherwise be inadmissible.

Finally, even when evidence of a victim’s past sexual history does fall within one of Rule 412’s exceptions, it is still subject to exclusion under Evidence Rules 401 and 403. Anytime the  probative value is “substantially outweighed by the danger of unfair prejudice” such evidence may be excluded under Ind. Evid. R. 403.

Evidence of Subsequent Remedial Measures

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Indiana Evidence Rule 407 provides:

When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. The rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Indiana Evidence Rule 407 is similar to its federal counterpart. See Fed.R.Evid. 407. Pursuant to this rule, evidence of post-occurrence remedial measures is generally inadmissible absent an excepted use. State Auto Ins. Co. v. Flexdar, Inc., 937 N.E.2d 1203, 1207 (Ind. Ct. App. 2010).
Hagerman Constr., Inc. v. Copeland, 697 N.E.2d 948, 954 (Ind.Ct.App.1998), trans. denied. Evidence of a subsequent remedial measure may be admitted when offered for purposes other than proving culpable conduct. Id. Examples listed in the rule include when done for purposes of ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Two policy considerations underlie the prohibitions of Rule 407. Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666, 670 (Ind.Ct.App.2004). First, that permitting proof of subsequent remedial measures will deter a party from taking corrective action to prevent future injuries. Id. Second, the general lack of probative value of using subsequent measures in proving omission or misconduct. Id. at 670-71.
Rule 407 of the Indiana Rules of Evidence is applied mostly in tort cases. See 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5285 (1st ed.1980). The most common types of remedial measures addressed under the rule are product design changes, additions of safety devices, warning provisions, and abandonment of tools or products. 12 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 407.101.
Rule 407 is worded broadly and has been applied in other contexts such as intentional tort and contract claims. See Wright & Graham, supra, § 5283; see also 1 Michael H. Graham, Handbook of Federal Evidence § 407:1 n.6 (6th ed. 2009) (“The breadth of exclusion under Rule 407 includes … [m]odifications made to clarify contract language.”). For example Rule 407 has been used to exclude evidence of subsequent policy revisions in insurance coverage disputes. State Auto Ins. Co. v. Flexdar, Inc., supra; Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1045 (7th Cir.2007).
I have personally used a subsequent remedial measure, taken before evidence could be collected and photographed, to prove spoliation of evidence found at the scene of an accident or a crime.

Motion in Limine: An Effective Pretrial Tool and Weapon (Part 5)

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Here are a few additional topics to cover in your motion in limine to keep red herrings from finding their way into your case:

EXPRESSION OF REGRET OR APOLOGY BY DEFENDANTS

Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with the above-referenced matter, as whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendants are sorry about what happened. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by this Court.

Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952).

OFFER OF PAYMENT OF MEDICAL AND SIMILAR EXPENSES

Defendants should be prohibited from introducing any evidence of offers to make payments of medical expenses or similar costs. Rule 409 of the Indiana Rules of Evidence specifically prohibits such evidence. It provides that:

Evidence of paying or furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury, or damage to property is not admissible to prove liability for such injury or damages. [Emphasis Added].

Any references made to this effect should not be permitted. Simon v. Clark, 660 N.E.2d 634, 1263 (Ind. Ct. App. 1996). Also, such evidence is calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403.

DELAY IN OBTAINING SURGERY AND CLAIMS OF FAILING TO MITIGATE DAMAGES

The defense has raised the affirmative defense of mitigation and may assert that Plaintiff has failed to mitigate his damages by not having surgery performed. The affirmative defense of failure to mitigate damages has two elements, both of which the defendant must prove by a preponderance of the evidence:

(1) the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages, and

(2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct.

Willis v. Westerfield, 839 N.E.2d 1179, 1188 (Ind. 2006). When a defendant seeks a failure to mitigate damages instruction based on a plaintiff’s failure to follow a treating doctor’s recommendations, whether expert medical opinion testimony is required is to be determined on a case-by-case basis. Willis v. Westerfield, 839 N.E.2d 1179, 1182 (Ind. 2006). Expert testimony is required where the question involves medical factors beyond the common knowledge of the layman such that the jury could only speculate in its findings. Willis, 839 N.E.2d at 1188-89. Here, the testimony of the treating physician has established that Plaintiff’s decisions concerning the course of his treatment to be reasonable. There is no testimony from any doctor that Plaintiff’s decision to delay surgery at this point in time is unreasonable or has resulted in probable harm to him. As such, any argument to this effect should be prohibited because such argument requires expert testimony.

MENTION OF WRITE-OFFS, DISCOUNTS AND REDUCTIONS

The defense should be prohibited from making any mention of write-offs, discounts and/or reductions as to Plaintiff’s past or future medical bills, as no such reductions/deductions have occurred and any evidence of the same is speculative in nature. There is no proof that this is likely to occur in the future. This information would simply cloud the issues in the present case and lead to distracting and confusing side issues. Ind. Rule of Evid. 403.

Keep these topics in mind next time you file a motion in limine. You may thwart an attempt to confuse and mislead a jury by the defense.

Habit Forming Evidence

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Evidence of habit can be quite useful since it can help fill-in details forgotten by a witness in dealing with routine matters or procedures. This rule of evidence provides:

Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

“Habit evidence is generally defined as [e]vidence of one’s regular response to a repeated specific situation.'” Carlson v. Warren, 878 N.E.2d 844, 850 (Ind. Ct. App. 2007) (quoting Black’s Law Dictionary 597 (8th ed. 2004)); See also 1 McCormick § 195 (2006). Evidence of habit can be very useful for handling standard procedures used by record keepers, medical personnel, police officers, lab technicians and toxicologists, where they cannot remember a specific item tested due to the volume of items processed. You simply have the witness outline their regular routine or practice in a particular situation to prove that they did so in your particular situation. (e.g. please describe your normal practice or procedure in performing the type of testing you performed here.)

Why Character Matters

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Such evidence is generally not admissible unless “character” is at issue. Ind. R. Evid. 404(a). Indiana Rules of Evidence 404, 405, 607, 608 and 609 deal with this area of law. Reputation of a person’s character among associates or in the community is a noted exception to the hearsay rule. Ind. R. Evid. 803(21). These rules provide as follows:

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes
(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 405. Methods of Proving Character
(a)Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. Upon reasonable pre-trial notice by the accused of the intention to offer character evidence, the prosecution in a criminal case shall provide the accused with any relevant specific instances of conduct to be used in cross-examination.
(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element.

Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of the Conduct of a Witness. For the purpose of attacking or supporting the witness’s credibility, other than conviction of a crime as provided in Rule 609, specific instances may not be inquired into or proven by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
The general rule is that evidence of a person’s character is not admissible to prove action in conformity therewith on a particular occasion. Brooks v. State, 683 N.E.2d 574, 576 (Ind.1997) (citing Evid. R. 404(a)). However, “[a]n exception to this rule is that a defendant is permitted to introduce `evidence of a pertinent trait of character of the victim of the crime.'” Id. (citing Evid. R. 404(a)(2)). Ind. Evidence Rule 405(b) “applies when a person’s character is a material fact that determines the parties’ rights and liabilities under the substantive law.” 
In re J.L.V., 667 N.E.2d 186, 190 (Ind.Ct.App.1996) (citing Wanke v. Lynn’s Trans. Co., 836 F.Supp. 587, 597 (N.D.Ind.1993)). 
 For example, “[a] person’s character may be a material fact in deciding who should have custody of children as fitness to provide care is of paramount importance. When character has been put in issue by the pleadings in this type of case, evidence of character must be brought forth.” Id. However, the Indiana Supreme Court has held that the fact that a defendant asserts self-defense does not make the victim’s character an essential element of his defense. See Brooks, supra, 683 N.E.2d at 577 (“Nor was the victim’s character an essential element of Brooks’ claim of self-defense. Whether or not [the victim] had violent propensities, the jury could still determine that Brooks did not act in self-defense.”).
The admission or exclusion of such evidence is a matter left to the sound discretion of the trial court, and is subject to review only for an abuse of that discretion. Hackney v. State, 649 N.E.2d 690, 692 (Ind.Ct.App.1995), trans. denied. Ind. Evidence Rule 404(b) governs the admission of uncharged misconduct, also referred to as prior bad acts. The Rule permits the admission of such evidence as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Ind. Evid. R. 404(b). Such evidence, however, is not admissible to prove a person’s character for the purpose of showing action in conformity therewith. Evid.R. 404(b).
Before admitting evidence of prior bad acts, the trial court must determine:
(1) whether the evidence may be admitted for the purpose acceptable under Rule 404(b) (proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident); and, if so,
(2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice under Ind. Evid. R. 403. Brown v. State, 659 N.E.2d 652, 655 (Ind.Ct.App.1995), trans. denied (1996). Exceptions to the general rule against uncharged misconduct must be applied with caution. Penley v. State, 506 N.E.2d 806, 808 (Ind.1987). In Penley, our Supreme Court warned of the danger associated with admitting evidence of uncharged misconduct, stating:
“The notion that the State may not punish a person for his character is one of the foundations of our system of jurisprudence. Evidence of misconduct other than that with which one is charged (‘uncharged misconduct’) will naturally give rise to the inference that the defendant is of bad character. This, in turn, poses danger that the jury will convict the defendant solely on this inference.”
Id. See also Edward J. Imwinkelried, Uncharged Misconduct Evidence § 1:02 at 4 (1984-1991) (noting that uncharged misconduct evidence could weigh heavily against a defendant even becoming a dispositive factor in conviction).
Rule 608(b) specifically states that specific instances of conduct may neither be inquired into nor proven by extrinsic evidence. Indiana cases have consistently held that Evidence Rule 608(b) prohibits the introduction of evidence regarding specific instances of misconduct. See, e.g., Johnson v. State, 832 N.E.2d 985 (Ind.Ct.App.2005) (holding that trial counsel’s performance was not defective for failing to proffer evidence that State’s witness allegedly kidnapped and robbed another party because Evidence Rule 608(b) would have prohibited the admission of such), trans. denied. There is an exception to this rule with regard to a conviction for a crime under Rule 609. 
 The limited exception mentioned in the last sentence of Rule 608(b) is applicable if there is testimony regarding the truthfulness of a witness in the form of opinion testimony as to character or reputation for truthfulness and veracity. In such instances an attorney may in the discretion of the court, if probative of truthfulness or untruthfulness, inquire on cross-examination about specific instance of conduct of the witness rendering the opinion on a person’s veracity. See, e.g., Johnson v. State, 832 N.E.2d 985 (Ind.Ct.App.2005, trans. denied.
Likewise in a defamation case, evidence of bad character could become relevant as part of the issue of damages. However, evidence of specific instances of misconduct would be limited to asking questions on cross-examination of reputation witness as to whether the bad act would impact the opinion of the person’s character or reputation. Ind. Evid. Rule 405(b).
Evidence of convictions for certain felonies and crimes of dishonesty would be admissible provided they met the requirements of Ind. Rule of Evidence 609. The conviction has to be for a crime or an attempt of a crime involving (1) murder, treason, rape, robbery, kidnapping, burglary, arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement. The conviction must less than 10 years old, absent approval by the court of older convictions.

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