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.
How to Exclude Self-Serving Reports by Testimonial Experts
So you’re at trial and your opponent wants to offer into evidence their expert’s written report… What do you do? Is it admissible? The short answer is no. Expert’s reports are documents prepared in anticipation of litigation and do not have the inherent reliability of documents typically considered and admissible under exceptions to the hearsay rule such as Indiana Rules of Evidence 803 and 804.RULE 803. Indiana Rule of Evidence 803(6) recognizes this danger. IRE 803(6) states:
Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
(Emphasis Added). Clearly, a report by a hired gun hardly provides circumstances indicative trustworthiness. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004), the Indiana Supreme Court observed:
[The] business records exception to the hearsay rule is “based on the fact that the circumstances of preparation assure the accuracy and reliability of the entries.” Wells, 261 N.E.2d at 870. As we have observed more recently, the reliability of business records stems in part from the fact that “the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, [and] from the precision engendered by the repetition…” Stahl v. State, 484 N.E.2d 89, 92 (Ind. 1997); see also Advisory Committee’s Note to Fed. R. of Evid. 803(6) (observing that business records are made reliable by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”
Id. at 642-43. The Court went on to explain that if a business does not rely on certain records for the performance of its functions then those records do not fall into the hearsay exception for records of regularly conducted business activity. (See also Palmer v. Hoffman, 318 U.S. 109, 111 (1943), where the Court upheld the exclusion of a railroad engineer’s statement. “[I]t is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business. …[T]hese reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating not in railroading.“)
A retained expert’s report is not subject to review, audit, or internal checks for use in the expert’s business nor is it relied upon by the expert in the performance of business functions. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004). Instead it designed and created for use in litigation. IRE 803(6) requires that the method or circumstances of the preparation not indicate a lack of trustworthiness.
A report is not trustworthy when the Defendant hires an individual to prepare it if the primary motive for preparing the report is for litigation. Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000). “Litigants cannot evade the trustworthy requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business.” Id. See also, Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1090-91 (10th Cir. 2001); Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004).
These sentiments are echoed in Judge Robert Miller’s Courtroom Handbook on Indiana Evidence, in reference to Rule 803(6) he notes:
“Documents made in anticipation of litigation, including computer printouts are generally not admissible under Rule 803(6).” Certain Underwriters at Lloyds , London v. Sincovich, 232 F.3d 200, 205 (4th Cir. 2000); Bradley v. Phelps, 147 Ind. App. 349, 260 894, 898 (1970), cf. Baker v. Wagers, 472 N.E.2d 218, 222 (Ind. App. 1984).
So do not let your opponent get away with creating testimonial exhibits which will be taken back to the jury room and provide unfair emphasis on such testimony. Reports simply aren’t admissible.
Shutting Off the Defense Doctor’s Flood of Misinformation
In my last post, I discussed an analogy to deal with tactics used by your opponent to muddy the waters. Well, the problem is you have to drag the hogs out of the spring waters and it takes time to clear matters up. What if you could keep them out of the water altogether?
Have you ever had a defense doctor summarize everything under the sun regarding your client’s medical history in an effort to cloud the issues or mislead the jury, knowing you cannot afford to drag every doctor into court to undo the harm? Well a good portion of such evidence may be totally inadmissible.
Contrary to what a number of attorneys argue. The Rules of Evidence do not permit the admission of materials relied upon by expert witness for truth of matters they contain, if the materials are otherwise inadmissible. Rules of Evidence Rule 703. Faulkner v. Markkay of Indiana, Inc., 633 N.E.2d 798. (Ind. Ct. App 1996). The Rules simply allow the expert’s opinion to be based upon matters outside the official court record, if it is the sort of information typically relied upon in the expert’s field to render an opinion.
Evidence Rule 703 states, “[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by a experts in the field.” Ind. Evid. R. 702 permits the admission of expert opinion testimony but not opinions contained in documents prepared out of court by other medical doctors. Evidence Rule 703 permits a testifying expert to rely on such materials, including inadmissible hearsay, in forming the basis of his opinion.
However, it does not allow an expert’s reliance on hearsay or other inadmissible evidence to be used as a conduit for placing unavailable experts or physicians’ statements before a jury. In other words, the expert witness must rely on his own expertise in reaching his opinion and may not simply repeat the opinions of others. See Miller v. State, 575 N.E.2d 272, 274-75 (Ind.1991) (physician could rely upon but not repeat what another physician told him about diagnosis of defendant’s girlfriend).
Opinions or diagnosis of doctors who are unavailable to testify and not subject to cross examination do not come in as business records under Rule of Evidence 803(6). Where a party seeks to admit medical or hospital records that contain opinions, the proponent of the records is required to establish the expertise of the opinion giver under Rule of Evidence 702. Cook v. Whitesell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003); Wilkinson v. Swafford, 811 N.E.2d 374, 391 (Ind. Ct. App. 2004)(citing In re Matter of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004)), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Walker v. Cuppett, 808 N.E.2d 85, 97-98 (Ind. Ct. App. 2004). If the proponent fails to satisfy this foundational requirement, then such records are inadmissible. See Also. Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind.App.1998), (held that medical opinions within the certified medical records were not admissible). Similarly, Rule of Evidence 703 permits experts to base their opinions on hearsay, but does not permit them to testify as to hearsay medical opinions.
Nor are they admissible as statements made for purposes of diagnosis or treatment under Rule of Evidence 803(4). That exception is limited to only statements made by patients, not doctors. Sibbing v. Cave, 922 N.E.2d 594, (Ind. 2010)(prohibited plaintiff from reciting hearsay testimony at trial about what doctor told her about her injuries and diagnosis).
Finally, if such opinions or diagnosis are included in your client’s medical history, such statements represent multiple levels of hearsay based upon conversations by the client with doctors or other healthcare providers who are not subject to cross-examination and whose qualifications to render an expert opinion have not yet been established. Each level of hearsay must separately satisfy the requirements of Evidence Rules 702, 802 and 901 (authenticity). See Rule of Evidence 805 which deals with multiple levels of hearsay. This rule states, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”
One caveat to note on cross-examination of the defense doctor. Rule 703 does allow for you to inquire on cross examination at to the basis. It provides “The expert may in any event be required to disclose the underlying facts or data on cross-examination.” However, be careful because you could open the door to inadmissible and damaging items being brought out on redirect.
Be ready for this issue and close the floodgates of misinformation through the use of timely objections or a motion in limine.
Non-Hearsay: Greetings, Insults, Commands and Questions With No Real Answers
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
[850 A.2d 412]
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,
[850 A.2d 413]
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….