Category Archives: Evidence
You are the “director” and “producer” of your trial and the witness’s testimony. We can’t change the facts, but you do have the power of when and how to present them subject to the limits of the Rules of Evidence. Indiana Rule of Evidence 611 controls the manner and mode of interrogation of witnesses. This Rule provides as follows:
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
There will be times when you will have to call either the opposing party or a hostile witness to make your case. Do not forget that you are allowed to treat that witness or party as if they are on cross-examination. In all other instances, any witness called in your case in chief must not be asked leading questions. The court also has the power to limit your examination if it delves into matters which are irrelevant, repetitious, confusing, misleading, or unfairly prejudicial. Almost all evidence is prejudicial, otherwise she wouldn’t present it. It’s only when the evidence is unfairly prejudicial and the prejudice substantially outweighs its probative value that it may be excluded. (IRE 403) With these thoughts in mind let’s delve into the organization of your questioning.
A witness’s testimony has to have a clear beginning, middle and end. The beginning typically involves laying out the witness’s personal background and their opportunity to observe. Usually at the beginning of the examination you are establishing for the jury why they should find your witness a reliable source of information.
The middle part of the testimony is typically the meat of the matter you need to address with the jury. Remember, you might know the case like the back of your hand but the jury doesn’t. As a result, it’s important to address issues in a chronological fashion and to avoid the use of pronouns. This is true not only for your questions, but the witness’s answers as well. A jury will easily get lost if you do not use the names of the persons involved. When it comes to your client, never use the word “plaintiff” or “defendant”. That sounds like your client is not a human. You want the jury to connect with your client on a personal level. Once you’ve established in a clear fashion as part of a witness’s testimony that the opposing party identity (for example “the plaintiff, John Smith”) you might want to resort to using the term “plaintiff” or “defendant” in referring to the other party.
Finally, always end the witness’s testimony on a high note. Try to structure your examination so that you leave your strongest point with the jury as you sit down. Remember the power of primacy and recency effect. People tend to remember that which they hear first or which they have heard most recently. The first item in a list is initially distinguished from earlier activities as important (primacy effect) and may be transferred to long-term memory by the time of recall. Items at the end of the list are still in short-term memory (recency effect) at the time of recall.
A client or witness needs to be thoroughly familiarized with what it means to forget as opposed to not knowing something. If one says, “I don’t know,” something, it means it was never in their brain. “I don’t remember,” on the other hand, means that the information was once in their brain, but cannot be retrieved. At the time of trial, an, “I don’t know,” will be utilized to show that your client is lying. When in doubt, a client should answer, “I don’t recall,” or “I don’t remember,” as opposed to, “I don’t know.” If a client does not remember, you can salvage their testimony by either refreshing recollection under Indiana Rule of Evidence 612, or the information can be established as past recollection recorded under Indiana Rule of Evidence 803(5). These provisions are discussed below in greater detail.
Indiana Evidence Rule 612(a) provides: “If, while testifying, a witness uses a writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.” Although this evidence rule contemplates the use of writings to refresh a witness’s memory, it “does not address the method by which the witness’s memory may be refreshed.” Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000) (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)), reh’g denied. In Thompson, the Indiana Supreme Court outlined the proper procedure for refreshing a witness’s recollection as follows:
The witness must first state that he does not recall the information sought by the questioner. The witness should be directed to look at the writing, and be asked whether that examination has refreshed his memory. If the witness answers negatively, the examiner must find another route to extracting the testimony or stop the line of questioning.
Thompson, 728 N.E.2d at 160 (quoting Miller § 612.101 at 226). In Thompson, the Court recognized that Indiana Evidence Rule 612 does not suggest, much less require, that a writing used to refresh a witness’s memory have been prepared by the witness. Id. at 160-61.
Indiana Evidence Rule 803(5) provides that the following is not excluded by the hearsay rule:
Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.
Federal Rule of Evidence 612 provides that: if a witness uses a writing to refresh memory for the purpose of testifying, either-(1) while testifying, or (2) before testifying … an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing has matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.
Rule 612 is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c), which governs depositions upon oral examination. See Federal Rule Civil Procedure 30(c) which provides that “[e]xamination and cross-examination of witnesses [during depositions] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615”.
If used the document to refresh his recollection, the Court must still decide whether the “writing contains matters not related to the subject matter of the testimony.” Id.
Often I look to my own law practice and find inspiration for a topic on trial advocacy. In preparation for an upcoming trial and mediation, I decided that a sprawling case involving boxes of documents, video interviews, audio recordings, printed newspaper articles, internet blogs, and TV news reports would benefit from the same approach that a movie director or a cutting room editor might apply to a documentary or a movie.
My family is pretty creative and even a little artsy at times. My younger brothers every Christmas have put together family theatrical productions/movies and pseudo-documentaries together with PowerPoint, iMovie and Windows Movie Maker. One of my younger brothers is studying sports broadcasting and is in fact quite talented at putting news reports together. So I hired him to put together my client’s story. We used my detailed demand as our working script and pieced together our case in a visual format. The collaborative result was an impressive and focused narrative that I provided which was interspersed with segments of evidence we had collected as part of the discovery process.
I have increasingly been taking video-taped depositions of the key players in cases. I then present video clips from the deposition as part of my presentation at mediations and in trials. In a video deposition, the witness cannot hide. He cannot say “that is not what I said” or “the court reporter must have misunderstood me.” He is much less likely to rewrite his deposition with his errata sheet, as well. If your opponent objections or tries to coach the witness, you can let the objections in to show what is really happening or edit them out for clarity and flow. Pregnant pauses can be eliminated to develop pace and increase interest.
In this day and age, people want information presented in an easily digestible format. In my most recent case, there were a number of media formats. These sources included TV news conferences, video depositions, video interviews, audio clips, surveillance videos, documentary evidence, as well as, informational clips summarizing the topics of liability, the law and damages. The whole presentation was cut down to about 15 minutes and I was able to stop the “movie” on separating slides, narrate and highlight the upcoming clip with my own headlines, outline or off-the-cuff observations.
I knew it was powerful and persuasive when my opponent remarked that “well it is not as clear and clean as you wanted to make it.” Nonetheless, all the information that was pieced together was objective and irrefutable. I did not make it up. The order in which it was presented made it easy to follow and see why it was damaging to my opponent’s position. The most damaging video clips came directly from my opponents discovery and depositions or from news interviews found on the Internet or YouTube.
In one instance the other side was testifying about a supposed “head-butt” committed by my client. I was able to play the few seconds of taped footage from a squad car showing the event, then immediately play the other party’s testimony describing the event he saw. While he described the event during his video deposition, I was able to superimposed in the lower corner of the screen, a video clip (no audio) which cycled through the supposed “head-butt” several times as he testified about it. The party’s description of the event could be immediately compared with his deposition testimony. The viewer could judge instantly whether a crime had been committed as suggested by the deponent or whether it was an overblown post hoc justification for an unlawful arrest.
60 Minutes is an excellent show that competently digests and puts together an array of interviews, media and information in a concise and persuasive fashion. Today these technique are now available to the average person at minimal cost. Keep this mind for your next case as you move forward.
In my last post, I discussed readings that could help improve your knowledge and analytical skills in addressing statistical data. Below is a check list of items to consider summarized from the Manual on Scientific Evidence Third Edition, Reference Guide on Epidemiology. Here is the list:
CHECKLIST OF PROBLEMS WITH THE USE OF STATISTICAL DATA AND ANALYSIS
I. What Sources of Error Might Have Produced a False Result?
A. What Statistical Methods Exist to Evaluate the Possibility of Sampling Error?
1. False positives and statistical significance,
2. False negatives,
B. What Biases May Have Contributed to an Erroneous Association?
1. Selection bias: Selection bias refers to the error in an observed association that results from the method of selection of cases and controls (in a case-control study) or exposed and unexposed individuals (in a cohort study).
2. Information bias: Information bias is a result of inaccurate information about either the disease or the exposure status of the study participants or a result of confounding. In a case-control study, potential information bias is an important consideration because the researcher depends on information from the past to determine exposure and disease and their temporal relationship.
3. Other conceptual problems:
a. Issue or hypothesis is improperly defined: Sometimes studies are limited by flawed definitions or premises.
b. Publication bias: the tendency for medical journals to prefer studies that find an effect. If negative studies are never published, the published literature will be biased.
c. Financial bias / Conflicts of Interest: the source of funding of studies have been shown to have an effect on the outcomes of such studies by researchers.
d. Observer bias: Is bias is with the “observers” of the research (i.e., the research team) rather than the participants. In other words, observer bias occurs when the observers (or researcher team) know the goals of the study or the hypotheses and allow this knowledge to influence their observations during the study. For example, if an observer knows that the researcher hypothesized that females speak in more complex sentences, they may believe they hear females speaking that way during the study even if it’s not really true.
e. Participant bias: This occurs when participants adjust their behavior to what they think the experimenters expect. This can be a significant problem in that, if participant bias occurs, then the results of an experiment may not be entirely due to the experimenters’ manipulation of the independent variable.
f. Research bias: (also called experimenter bias): Is a process where the scientists performing the research influence the results, to portray a certain outcome.
g. Sampling bias: (also called ascertainment bias) is a bias in which a sample is collected in such a way that some members of the intended population are less likely to be included than others. It results in a biased sample, a non-random sample of a population (or non-human factors) in which all individuals, or instances, were not equally likely to have been selected. If this is not accounted for, results can be erroneously attributed to the phenomenon under study rather than to the method of sampling. Examples include: Self-selection, Pre-screening, Advertising, etc.).
h. Exclusion bias: Results from exclusion of particular groups from the sample, e.g. exclusion of subjects who have recently migrated into the study area (this may occur when newcomers are not available in a register used to identify the source population). Excluding subjects who move out of the study area during follow-up is rather equivalent of dropout or non-response, a selection bias in that it rather affects the internal validity of the study.
i. Healthy user bias: when the study population is likely healthier than the general population, e.g. workers (i.e. someone in ill-health is unlikely to have a job as manual laborer).
j. Overmatching: matching for an apparent confounder that actually is a result of the exposure. The control group becomes more similar to the cases in regard to exposure than the general population.
k. Symptom-based sampling bias: The study of medical conditions begins with anecdotal reports. By nature, such reports only include those referred for diagnosis and treatment. A child not function in school is more likely to be diagnosed with dyslexia than a child who struggles but passes. A child examined for one condition is more likely to be tested for and diagnosed with other conditions, skewing comorbidity statistics. As certain diagnoses become associated with behavior problems or intellectual disability, parents try to prevent their children from being stigmatized with those diagnoses, introducing further bias. Studies carefully selected from whole populations are showing that many conditions are much more common and usually much milder than formerly believed.
C. Could a Confounding Factor Be Responsible for the Study Result? Confounding occurs when another causal factor (the co-founder) confuses the relationship between the agent of interest and outcome of interest. (e.g. Researchers must separate the relationship between gray hair and risk of death from that of old age and risk of death.) Confounding is a reality—that is, the observed association of a factor and a disease is actually the result of an association with a third, confounding factor.
1. What techniques can be used to prevent or limit confounding?
2. What techniques can be used to identify confounding factors?
3. What techniques can be used to control for confounding factors?
II. General Causation: Is an Exposure a Cause of the Disease?
A. Is There a Temporal Relationship?
B. How Strong Is the Association Between the Exposure and Disease?
C. Is There a Dose–Response Relationship?
D. Have the Results Been Replicated?
E. Is the Association Biologically Plausible (Consistent with Existing Knowledge)?
F. Have Alternative Explanations Been Considered?
G. What Is the Effect of Ceasing Exposure?
H. Does the Association Exhibit Specificity?
I. Are the Findings Consistent with Other Relevant Knowledge?
I would urge you to check this free and comprehensive source of information on scientific evidence.
More and more, figures and statistical information finds it way into litigation, both criminal and civil. At some point in your career as an attorney you will need to understand what can and cannot be accomplished in utilizing statistics. Most laypersons and attorneys are ill-equipped to handle such information. Oftentimes experts can find refuge in statistics which may or may not be truly relevant to the legal issue you are confronting. As Mark Twain (a/k/a Samuel Clemons) famously noted:
“Figures don’t lie, but liars figure.”
Another often quoted quip is:
“There are three kinds of lies: lies, damn lies and statistics.”
In litigation, you will often hear someone argue that the odds of being injured in a particular fashion are so low that a jury should not compensate them. However, there is a real risk in engaging in such post hoc analysis. How would you feel for example, if the State of Indiana came into court refusing to pay the Lotto Jackpot on your winning ticket by arguing that you could not have won it because the odds of winning are one in seven million.
Another way to point this same principle out, is the fallacy of using statistics to explain away a plaintiff’s untimely and unexpected demise:
“Your honor and ladies and gentlemen of the jury. Research has established that 90% of individuals involved in similar accidents survive. Accordingly, we must conclude that in spite of the evidence of lack of respiration, heartbeat, and brain wave activity, and in spite of the unfortunate burial of the decedent, in my expert opinion I conclude that he did not really die, and therefore the plaintiff estate cannot recover.”
Even though this sort of logic is flawed to its core, such arguments regularly find their way into our justice system… sometimes with disastrous effect. In order to spot such problems, you need to read about statistics, understand their limitations and how they can be misused. In this regard I would recommend the following reading:
1. Trial by Mathematics: Precision and Ritual in the Legal Process by Laurence Tribe, Harvard Law Review, 1971. This is an informative law review article addressing this topic. Mr. Tribe was the law clerk who assisted a California justice in writing a seminal opinion in this area. The court reversed a criminal conviction where a prosecutor improperly used statistical arguments in a robbery case involving a multi-racial couple. People v. Collins, 438 P.2d 33, 36-37 (Cal. 1968). Tribe had a math degree from Harvard in addition to his J.D. This opinion is often cited by courts as a prime example of how statistics and “scientific” evidence can be misused and down right dangerous to the pursuit of justice.
2. Naked Statistics by Charles Wheelan. The author strips away the arcane and technical details and focuses on the underlying thinking that drives statistical analysis. The author also clarifies key concepts such as inference, correlation, and regression analysis, reveals how biased or careless parties can manipulate or misrepresent data. Memorable examples of problems with statistics are discussed as well.
3. Calculated Risks: How to Know When Numbers Deceive You by Gerd Gigerenzer. This book does exactly what the title infers, it shows you in a concrete fashion how faulty thinking leads to people drawing incorrect conclusions from statistics and data. One of the problems discussed in the book is the famous dilemma presented by the Monty Hall Let’s Make a Deal Problem.
4. Math on Trial: How Numbers Get Used and Abused in the Courtroom by Leila Schneps. This book reviews the facts and outcomes of ten trials spanning from the nineteenth century to the present day, in which mathematical arguments were used, abused and disastrously misused resulting in unjust outcomes.
5. Reference Manual on Scientific Evidence prepared by the Federal Judicial Center. This is a free handbook that covers a number of areas of science that regularly appear in federal courtrooms. This manual is utilized by the federal judiciary as a reference book and covers both the law and science underlying a number of disciplines including epidemiology which is statistically based. This is must reading for any trial attorney who is going to take on an expert in a courtroom. This manual is regularly updated as well.
6. A Systematic Approach to Clinical Determinations of Causation in Symptomatic Spinal Disk Injury Following Motor Vehicle Crash Trauma by Michael D. Freeman, PhD, MPH, DC, Christopher J. Centeno, MD, and Sean S. Kohles, PhD. is an article which critically examines the misuse of data and pseudo-science to undermine claims of personal injury in motor vehicle accidents by defense “experts” and studies conducted in this area of litigation. This article provides an excellent survey and critic of the literature dealing with medical causation in motor vehicle collisions.
This list of reading should be both interesting and informative to the trial attorney confronted with the use of statistics. Just as it is helpful to “think like a lawyer”, it is equally useful to “think like a statistician”. Remember, numbers don’t lie, but liars figure…
A picture is worth a thousand words.
One picture is worth 1,000 denials.
Let’s face it, in the context of a trial pictures and other demonstrative evidence can have a very powerful impact on a jury. Back in the late 1800s and early 1900s, attorneys could give closing arguments that could go on for literally days. For the most part there was not whole a lot in the way of demonstrative evidence beyond some still photographs in black and white. The primary way jurors took in evidence was through oral testimony and argument. Trials were drama plays attended by members of the public… reality T.V. for a bygone era. Politicians likewise would go stumping in person from town to town or connect with the electorate through the printed media.
Today the pace of life gets faster and faster. We are called upon to take in a wide variety of information and even have to multitask which is not my forte. Courts are crowded and judges are always wanting to “move things along.” Closing arguments that took hours now are limited to a matter of minutes. As a result, you need to package your message to fit in the time allotted. One way to do this is to rely on visual aids. Today a significant number of people learn primary through their sense of vision. We are use to receiving our news through the evening anchor both verbally and visually. Pictures and videos tend to be more objective and interesting to jurors than simply verbal information alone.
In describing how a collision occurred or what a document stated, it is important to involve as many of the juror’s senses as possible if you want them to remember and be convinced of your position. Pictures cannot lie (absent being doctored) or be bribed, and they don’t forget. Don’t be afraid to use video depositions, photographic blowups, power point presentations or large blown-up transcript pages with excerpts from key testimony.
Also, don’t forget to paint vivid pictures with your choice of words and descriptions, as well as through analogies and story telling. If you do so, your case just might just end up picture perfect for the jury.
Hearsay or non-hearsay? That is the question. But how do you identify statements that are potentially hearsay? On a local list serve experienced trial attorneys debated whether a “command” from a doctor to a patient was hearsay or not. Surprisingly, the opinions on this issue were pretty evenly split even though the answer was clear that a “command” is not hearsay. I looked and was surprised that I couldn’t find a clear explanation of the concept from any decision in my state. I knew that a “command” just like a “question” or a “greeting” cannot be hearsay because it is not a statement of fact. It cannot be true or false any more than the statements: “Hi. How are you doing? Can you get me a cup of coffee.” If it cannot be judged to be either “true” or “false”, then it can’t be hearsay because it cannot be offered for the “truth of the matter asserted.” Federal Rule of Evidence 801 is where we want to start. It provides a few key definitions that describe “hearsay”:
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
After a little research, I finally came across a case that explained the distinction pretty well, Stoddard v. Maryland, 157 Md. App. 247, 850 A.2d 406 (Md. App. 2004). There the court explained:
The ABC’s of Hearsay As a Point of Analytic Departure
To a student first embarking on Evidence 101, the key to understanding hearsay is, long before venturing into the thicket of the hearsay exceptions, to develop a sure “feel” for the difference between those utterances that are hearsay and those that are not. One must be able to negotiate the territory that McCormick called “the borderland of hearsay.”6 It is not enough to know that a challenged statement is admissible. That can be a
[850 A.2d 411]
lucky guess. Is it admissible because the hearsay rule is satisfied?, or is it admissible because the hearsay rule is inapplicable?
The classic classroom teaser posits a witness who testifies that he spoke by telephone with his brother in London, who said, “It is raining in London.” To the professor’s query as to whether that brotherly utterance is hearsay, the only intelligent answer is “I don’t have the foggiest.” It depends on the purpose for which the statement is offered. If it is offered to prove that at a given time it was raining in London, it is, of course, hearsay. If it is offered to prove that at a given time the brother was alive and able to speak, it is, with equal certainty, non-hearsay. The first purpose needs the brother to be shown to be trustworthy. The second purpose is indifferent to trustworthiness, and the hearsay rule is only designed to guarantee trustworthiness.
In Ali v. State, 314 Md. 295, 304, 550 A.2d 925 (1988), Judge McAuliffe gave a classic common law definition of hearsay.
Hearsay is generally defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Thus, when a statement is offered for some purpose other than to prove the truth of the matter asserted therein, it is not hearsay.
See also Burgess v. State, 89 Md.App. 522, 537 n. 12, 598 A.2d 830 (1991).
The Maryland Rules of Evidence, § 5-801(c), promulgated six years after Ali v. State, defined “hearsay” in almost verbatim terms.
“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Federal Rule of Evidence 801(c), from which the Maryland Rule is derived, is absolutely verbatim with the Maryland definition.
At the most basic level, under both the common law and the new Federal and Maryland Rules, a hearsay statement consisted routinely of the speaking of a declarative sentence in the indicative mood, which sentence stated the very fact which the proponent of the statement sought to prove by its use. Early on, however, it was recognized that a hearsay statement could be a writing of an assertion as well as a speaking of it. It was also universally recognized, virtually ab origine, that a hearsay statement could consist of a non-verbal action if the action were intended by the actor to be an assertion. The pointing of a finger at Suspect # 4 is just as assertive as are the words, “The man who robbed me is Suspect # 4.” Just as surely assertive, in response to a question, is a vertical shaking of the head (“Yes”), a horizontal shaking of the head (“No”), or a shrug of the shoulders (“I don’t know”).7
Reflecting that common law understanding of a hearsay “statement” is Maryland Rule 5-801(a).
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a
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person, if it is intended by the person as an assertion.
Federal Rule of Evidence 801(a), from which the Maryland Rule derives, is absolutely verbatim. To complete the three intertwined definitions that go into the collective definition of “hearsay,” both Maryland Rule 5-801(b) and Federal Rule of Evidence 801(b) define “declarant.”
A “declarant” is a person who makes a statement.
With the earlier, and essentially indistinguishable, common law counterparts of such definitions, the law of evidence had clean-cut paradigms of hearsay and of non-hearsay, and there was a well-marked boundary between them. The hearsay rule, without disruptive aberrations, was “ship shape and Bristol fashion.” Then Admiral Tatham elected to challenge his cousin’s will, and, even as we write, we are still being assailed by the consequences of that caveat.
At the most basic level (pre-1838 and post-1994), little Jasmine’s question to her mother, “Is Erik going to get me?” clearly would not fit the hearsay mold. In Holland v. State, 122 Md.App. at 543-44, 713 A.2d 364, we discussed the ordinarily tell-tale grammatical and syntactical characteristics of a hearsay statement.
To qualify as hearsay, the words recounted in court must, for starters,constitute an assertion or statement of a fact. Many out-of-court utterances are self-evidently not assertions. If a witness testifies to the out-of-court inquiry, “What time is it?,” that inquiry is obviously not an assertion of anything. For an out-of-court utterance to qualify as an assertion, it generally must be in the indicative or declarative mood, rather than in the interrogative mood, the imperative mood, or the subjunctive mood. An out-of-court assertion of a fact may be true or untrue. For that reason, its admissibility in evidence is problematic if offered to prove that fact. An out-of-court inquiry, “What time is it?” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem. The out-of-court command, “Stop!” can be, by its very nature, neither true nor untrue and there is, therefore, no such credibility problem.
In Burgess v. State, 89 Md.App. at 537-38, 598 A.2d 830, Judge Alpert quoted with approval from D. Binder,Hearsay Handbook 18 (3rd ed. 1991):
Many out-of-court utterances fall within such categories asgreetings, pleasantries, expressions of gratitude, courtesies, questions, offers, instructions, warnings, exclamations, expressions ofjoy, annoyance, or otheremotion, etc. Such utterances are not intended expressions of fact or opinion. They are not assertions, at least for purposes of the hearsay rule.Thus they are not hearsay.
“How are you?”
“Have a nice day.”
“Would you like to have lunch?”
“I hope it doesn’t rain tomorrow.”
“I wonder what he paid for that car.”
“Can you join me for a drink?”
“Don’t do that, or else.”
“Watch your step.”
None of the above utterances is an intended expression of fact or opinion. None is hearsay.
(Emphasis supplied). And see United States v. Oguns, 921 F.2d 442, 448-49 (2d Cir.1990) (an inquiry is not an assertion);United States v. Long, 905 F.2d 1572,
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1579-80 (D.C.Cir.1990) (questions are non-assertive).
To say that little Jasmine’s frightened question to her mother does not fit within the classic paradigm of hearsay, however, is not to say that it might not be embraced by the bloated definition of hearsay spawned by Wright v. Tatham. Indeed, the appellant proposes just that. He posits as an implied assertion the following attenuated inference: 1) From Jasmine’s question we may infer that Jasmine was afraid of Erik; 2) from Jasmine’s fear of Erik we may infer that Erik had done something to generate that fear; 3) from that likely causation, plus the timing, we may finally infer that Erik had assaulted Calen in the presence of Jasmine. The appellant then concludes that such an implied assertion is inadmissible hearsay. This argument requires us to turn our attention to the rise and fall of the implied assertion.
I hope this explanation helps and you are ready to address this issue next time it comes up at trial. Alright now, was the woman who served my cappuccino giving me a cup of coffee? Or was this an implied assertion from conduct offered for the truth of the matter asserted? I’m waiting….
Medical 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.
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.