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Limiting the Damage
So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme. So what should you do?
Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose. The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:
“If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”
The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”). As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited. Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:
During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.
Evidence relevant for some legitimate purpose, can only be excluded if it violates the precepts of Indiana Rule of Evidence 403. Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.
Keep these thoughts in mind the next time you need to limit the damage…
When silence is golden… The tacit admission.
Indiana Rule of Evidence 801(A) provides:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person, and the person must have an opportunity to respond. 16 INPRAC § 7.9d Criminal Procedure–Pretrial. A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person and the person must have an opportunity to respond. 12 Ind. Law Encyc., Evidence, §§ 135, 136; House v. State, 535 N.E.2d 103 (Ind. 1989)(held silence or equivocal response to assertion made by another, which would ordinarily be expected to be denied, is tacit admission, and the assertion and the words or conduct are admissible if reaction is not clear denial.), citing with approval to, Moredock v. State (1982), Ind., 441 N.E.2d 1372, 1374; Wickliffe v. State (1981), Ind., 424 N.E.2d 1007, 1009; Jethroe v. State (1974), 262 Ind. 505, 319 N.E.2d 133, 138–139. The chance to turn a person’s silence into a weapon should not be missed. It could be silence in the face of strong accusations made during the course of the meeting or even a judicial hearing. The key is to recognize situations which present themselves during the course of your investigation. The implied assertions for silence may be made during the course of custodial interrogation, during the course of a guilty plea or even during a sentencing hearing. Such instances may be pure gold for your case. So be alert.
Erroneous Recognition, Flyfishing and the Honest “Liar”
An “disinterested” adverse eyewitness has just testified and has devastated your case. You know they are wrong, but they were so convincing. They seemed so sincere. What if the jury believes the witness is sincere? If they think the witness is not lying, is all lost? Eyewitness testimony is inherently dangerous. In fact, “erroneous recognition” is the primary cause of wrongful criminal convictions.
Erroneous Recognition is described as a phenomenon where a person mistakes one situation or event for another. Th error is the result of a misapprehension of the reality of time. Deja Vu is an example of this. There the viewer realizes the implausibility of the recognition of an event as having happened before and knows that it did not and could not have occurred before. Erroneous recognition happens when the mind is unable to perceive this error.
Man is not alone. Animals make this mistake too. One of my favorite authors, John Gierach, who writes about fly-fishing notes in his book Trout Bum that this is what happens every time a trout strikes an Adams dry fly made from thread and feathers tied to a metal hook. The trout honestly mistakes the fly for a real live insect. The trout is sincerely wrong. In fact, it is dead wrong… And so is the eyewitness in this case, they are sincerely, but most certainly dead wrong.
The Truth of the Matter When It Comes to Impeachment.
So a witness changes their story on the stand and as a result your case is at risk of being directed out for insufficient evidence. Can impeachment with a prior statement save the day? Maybe…
In order to present extrinsic proof of the prior statement, it will have to be authenticated by the impeached witness or a third party under Rule of Evidence 901.
The statement is defined as non-hearsay under Rule of Evidence 801(d)(1) if it is a prior inconsistent statement under oath. It comes in for the truth of the matter asserted. Under Rule of Evidence 613 a prior inconsistent statement technically is only admitted for purposes of challenging the person’s credibility. This because it still remains hearsay absent a non-hearsay use or a hearsay exception such as a statement of a party opponent under Rule of Evidence 801(d)(2) which is non-hearsay.
Under Rule of Evidence 801(d)(1) the prior inconsistent sworn statement provide substantive evidence of the contradicted fact. While the difference is technical, it can be of importance if the prior inconsistent statement is need to prove an essential element of your claim.
Under Rule of Evidence 613 you need to do the following if you want to introduce extrinsic proof of the statement:
1. Authenticate the statement by identifying who, what, where and when the statement was made,
2. Give the witness an opportunity to explain or deny the statement, and
3. Give the opposing attorney an opportunity to examine the witness about it. This includes allowing opposing counsel to review the impeaching statement if so requested.
Here’s the language from the rules…
Rule of Evidence 801(d)(1):
(d) Statements That Are Not Hearsay. Notwithstanding Rule 801(c) , a statement is not hearsay if:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;
Rule of Evidence 613:
Rule 613. Witness’s Prior Statement
(a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its content to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney.
(b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2).
Hopefully, this discussion and these Rules show the importance of getting a sworn statement (preferably a deposition) from all key witnesses in advance of trial. A witnessed affirmation subject to the pains and penalties of perjury is adequate if notorization is not possible.
All Things Have a Rhythm Inluding Your Closing and Examinations
I was listening to a new album by cousin Peter Neff that he created in collaboration with his co-composer Mauricio Yazigi titled Spanish Guitars. The sound and rhythm is mesmerizing. It reminded me that a good cross-examination or closing argument has its own rhythm and melody. The pace and delivery both lulls and controls the defenses of the witness As the examination draws him closer to the truth.
Want to understand this power? Read out loud classic dialogues such as Plato’s the Republic. The Republic is a Socratic dialogue, written by Plato around 380 BC, concerning the definition of justice, the order and character of the just city-state and the just man. You will notice how the pace and melody of the words propels the examination and the rhetorical power of the questions posed.
Remember that cross examination is simply a means of speaking the truth to the jury through a series of well planned rhetorical questions that logically lead to your ultimate point. These examinations have a rhythm which you can use to your advantage to emphasize the themes of your case. See F. Lee Bailey’s cross examination of Detective Mark Furhman which helped undermine the State of California’s case by suggesting Furman was a dishonest racist who planted blood as evidence against O.J. Simpson.
Likewise a good closing has a rhythm and melody which melds with each point you must make to the jury. Check out the clip of “True Believer”, San Francisco attorney Tony Serra, as he gives a spellbinding closing argument for his client, Rick Tabish charged with murder.
Find your pace and use it to your advantage. The modulation of the pace, volume and pitch of your voice is no different than a musical instrument. It conveys the mood and emphasis of you point. Make sure there is both a rhyme and a reason supporting your next presentation.
Medical Malpractice: When Common Sense Trumps Expert Knowledge
Medical malpractice cases are difficult and expensive to litigate. However, sometimes experts are not required… Just common sense.
Indiana has long embraced the “common knowledge exception” to requirements of expert testimony in certain matters. A physician’s allegedly negligent act or omission can be so obvious that expert testimony is unnecessary. Wright v. Carter, 622 N.E.2d 170, 171 (Ind. 1993).
In Indiana, cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body. Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen), Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery, see Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008).
This same sort of common sense approach is endorsed in other jurisdictions as well.Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953)(applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides not required); Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails); Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence); Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door); German v. Nichopoulos, 577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers, 9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001) (case in which the defendant dentist allegedly pulled the wrong tooth); LaCourse v. Flower Hosp., 6th Dist. Lucas No. L–02–1004, 2002-Ohio-3816, 2002 WL 1729897, ¶ 16;) McConkey v. State, 128 S.W.3d 656, 660 (Tenn. Ct. App. 2003); Murphy v. Schwartz, 739 S.W.2d 777, 778 (Tenn. Ct. App. 1986); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell); Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267, 683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 92 (Tenn. 1999); Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care); Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App.1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence).
Medical malpractice litigation is expensive enough for a citizen to pursue. Common sense propositions should not require expert testimony. The underlying purpose of Indiana’s Rules of Evidence is set forth in Rule 102:
Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
The implementation of the “common knowledge exception” “eliminates unjustifiable expense” so that the “truth may be ascertained” and “proceedings justly determined.” Trial Rule 1 of Indiana’s Rules of Trial Procedure echoes similar sentiments noting:
They shall be construed to secure the just, speedy and inexpensive determination of every action.
The costs of medical malpractice cases are such that only a handful of cases are economically feasible to pursue, thereby closing the court house doors to most claims. Gary T. Schwartz, Medical Malpractice, Tort, Contract, and Managed Care, 1998 U. ILL. L. REV. 885, 895 (discussing how non-“large-damage” medical malpractice claims are impractical); Jeffrey J. Parker, Comment, Contingent Expert Witness Fees: Access and Legitimacy, 64 S. CAL. L. REV. 1363, 1369 (1991) (“[F]ees to employ necessary expert witnesses constitute substantial litigation expenses.”).
So remember that the “common knowledge exception” can be uncommonly economical and effective.
Closing Argument – Taking the Wind Out of the Other Side’s Sails before They Leave the Dock
It is important to stick with the argument that you’ve planned out and then aggressively and positively put forward your case. You don’t want to waste too much time responding to the other side’s argument to the detriment of their own. You want to help the jurors reach their own conclusions about the case through the use of rhetorical questions. Give the jury some credit and let them answer the questions you pose. If your rhetorical questions are properly framed, the answer will be obvious.
1. Addressing Your Problems Before the Other Side Does
Address your own problems before the other side goes on the attack. This allows you the advantage primacy as the jury will hear your arguments first as they mentally work their way through your case. Handle the questions likely to be raised by the defense in a forthright and confident manner. Put forth your best analysis of the evidence in favor of your client.
2. Credibility and Sincerity is Your Greatest Weapon
State your position with conviction and sincerity. If you exude sincerity, you will gain the trust of the jurors in your analysis of the case. To succeed, your analysis must be an honest one that does not dodge the difficult questions. If you lose your credibility, you lose your ability to persuade.
3. Address Any Weak Points in Your Theory
You need to anticipate attacks and be ready to address them in a calm and confident fashion so the jury understands that the supposed problems are nothing. You should have laid the groundwork for this in your voir dire of the jury, as well as in your opening statement and the evidence presented.
The Barrister’s Toolbox will hit 50,000 Views today… Now What?
Today my blog will have 50,000 views for the over 107 posts I have authored on a number of topics that confronts today’s trial advocate. My most read topic is about how to handle a deposition errata sheet. I find that quite surprising. A young attorney from New York called to thank me for the post and followed up with a thank you card. I still have that card on my desk to remind me why I take the time to blog.
It is nice to give back to the profession and job I love. Back in law school, I knew my goal was to become the best trial attorney and advocate possible. I have worked on cases involving civil rights, personal injury, product liability, premises liability, defamation, false arrest, medical malpractice, murder, rape, pollution, RICO, wrongful death, mail fraud, gambling, counterfeiting, construction, drug trafficking, pollution, real estate, contract disputes and even a death penalty case. A few things I take away from all of this is over the last three decades of practice:
- Talent is over rated and hard work is under valued. An average attorney can out work and out hustle a smarter attorney. Put the time in to do the job right. Always assume your opponent is smarter than you so as too not overlook any key details.
- If you get into a new or difficult case don’t be afraid to,ask for help from a more experienced colleague. Your client deserves that much. In fact, join a trial attorney association and participate in it. Seek out mentors… They will help you grow as a professional.
- Re beer your reputation and integrity are the most important asset you or your client have, never take a good case and try to make it a great case or you will be left with bad case.
- Always continue to learn and hone your skills as a trial attorney. Otherwise, you will be left behind.
- Strive for excellence everyday, but accept the fact that you are only human and will make mistakes and fail from time to time. Embrace your mistakes as your best teachers. The worst mistakes we make are those we repeat. The first sign of insanity is to do the same thing over and over and expect different results.
- Take time to enjoy your life outside of the law. You need balance. While the law is a jealous mistress, it does mean your spouse should be a widow and your children orphans.
- The judge may not always be right, but the judge is always “the judge”. Respect the office even if you don’t respect the man who holds the position.
- That being said never be afraid to hold firm in your position for a client. Courage and fortitude are required. Politely make your record as needed and move on to the next topic. Often times a judge will reverse himself, if you make an offer to prove and stand firm.
- Finally, remember it costs you nothing to be a gentleman. Treat everyone with respect you encounter and it will be returned tenfold.
Closing Argument: Begin Strong, End Stronger and Sock It to Them!
As far as I am concerned, when it comes to your closing argument, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of a closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (about 10 pages) of your script are. Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.
Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention. Don’t waste this opportunity with boilerplate pleasantries and thanking the jury for their service. This comes across as flattery and will seem insincere. You are better off giving your thanks in the middle of your closing where it will be seen as heartfelt and less forced. Make sure you end strong as well so you can take advantage of the effects of primacy and recency. You are giving the jury needed inspiration as they retire to the jury room to deliberate.
At the end of his closing arguments before he sat down, renowned trial attorney, Gerry Spence, used the following analogy to drive home the point that his client’s fate was in the hands of the jury :
“I’m going to tell you a simple story, about a wise old man and a smart aleck young boy who wanted to show up the wise old man for a fool. The boy captured [a] little bird. He had the idea he would go to the wise old man with the bird in his hand and say, ‘What have I got in my hand?’ And the old man would say, ‘Well, you have a bird, my son.’ And he would say, ’Wise old man, is the bird alive or is it dead?’ The old man knew if he said,’It is dead,’ the little boy would open his hand and the bird would fly away. If he said, “It is alive,” the boy would take the bird in his hand and crunch the life out of it and then open his hand and say, ’See, it is dead.’ So the boy went up to the wise old man and he said, ’Wise old man, what do I have in my hand?’ The old man said, ’Why, it is a bird.’ He said, ’Wise old man, is it alive or is it dead?’ And the wise old man said, ’The bird is in your hands, my son.’”
So give the jury a memorable closing argument by starting and ending strong.
Direct Examination and Keeping Company with Honest Serving Men
On direct examination Indiana Rule of Evidence 611 requires you to use non-leading questions to elicit information from a witness. Like a good journalist you must uncover the Who, What, Where, When, Why and How. Incorporating these words into your qu
estions will avoid leading the witness and prevent objections concerning the form of your question.
Like a good journalist covering a story, jurors are going to want to know the who, what, where, when, why and how of the witness’s story. As the writer Rudyard Kipling so aptly put it:
I kept six honest serving men.
They taught me all I knew.
Their names were what and why and when
and how and where and who.
Make sure to take advantage of primacy and how you structure your examination so that the most telling points of the witness’s testimony will stay with the jury. To formulate your questions in a non-leading fashion, make sure to use these common terms.
Questions typically have to be asked in a non-leading fashion. That being said, there’s nothing to prohibit you from asking topically leading questions each time you introduce the jury to a new topic. Just like the journalist, you can use transitions to act as headlines for what is coming in your examination. For example, you could introduce a topic by stating: “I would like to talk with you about the day of the accident. Would you tell the jury how your day started on June 15, 2012?” You can also build your examination on testimony that has already been provided the witness. So if the witness provided you with testimony on a topic, you can link your next question to the information already provided. The witness tells you that they were in shock after the collision, you can follow-up with a question such as, “You said you were in shock after the collision, how did that affect your ability to communicate with those around you?”
The use of non-leading questions makes the witness the focus of the jury’s attention and allows for a more narrative and natural delivery of information to the jury. This enhances the witness’s connection with the jury and their credibility.
The Barrister's Toolbox 