Evidence / Objections / Exceptions

OBJECTIONS

Relevance

• "any evidence which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant"

• Madison v. State, 238 Ga. App. (1999)

• if doubtful evidence admitted weight is left to the trier of fact

Bolstering Credibility of Witness / Self-serving

evidence which is designed to promote or extol the virtues of a witness, or to enhance the reputation of a witness

• child molestation case -- expert witness -- it is proper for an expert to testify an examination of a physician or an evaluation of a psychologist showed injury "consistent with sexual abuse" Odom v. State, 243 Ga. App 227 (2000), proper for expert to testify about the ability of children of certain ages to distinguish fiction from reality and expert testimony about the difficulty teenagers go through in bringing forth highly personal matters such as sexual abuse. Alford v. State, 243 Ga. App. 212 (2000).

No Foundation

• Lay Witness - testify to facts, opportunity to witness facts

• Expert Witness- qualifications of expert / education / experience

• Testimony will assist the trier of fact in making the ultimate decision in the case

• Hypothetical questions must contain fact in evidence or going to be in evidence otherwise objectionable as "assumes facts not in evidence"

Cumulative

• prohibition in Juvenile Court from submitting cumulative witness testimony or evidence

Offer of Proof

• to preserve record on appeal

• made after an adverse ruling on evidence

Privileged Communication

• Witness Offering Opinion which goes to the Ultimate Issue,

• Invading the province of the Finder of fact

Hearsay & Hearsay Exceptions

• Evidence in which one witness simply says something he or she has heard from someone else. Since the original statement was not given under oath, the repetition of such statements is inadmissible to the court as evidence.

• Hearsay Exceptions=Offered to Explain Conduct or for some other purpose than the truth of the matter asserted

Admissions

• A statement or conduct which is inconsistent with a party's position in litigation.

• Statement or conduct against interest..

Res Gestae-

Declarations accompanying an act, or so nearly connected in time as to be free from all suspicion of device or after thought.

The four criteria of a res gestae statement is that

1. it must grow out of the main fact,

2. serve to illustrate the main fact,

3. be made contemporaneously with the main fact, and

4. be spontaneous and free from reflection.

• i.e. a spontaneous admission made by the defendant or evidence provided by a witness at the time of the traumatic incident out of fear and disorientation can be considered as admissible evidence.

• While a child may be too young and too immature to testify under oath, their res gestae statements may be allowed into evidence.

Dying Declarations-

• Exception is limited a person in the article of death, who is conscious of his condition and gives a declaration that relates to the cause of his condition and the person who killed him.

• Requires foundation -- declarant must know death is imminent

Necessity Exception to Hearsay Rule

The four fundamental requirements are

• The witness must be unavailable,

• there must be guarantee of trustworthiness in the statement,

• the evidence must be relevant to a material fact in issue in the case, and

• the evidence must be more probative to that material fact than other evidence.

Refreshed Recollection 24-9-69

• Witness refreshes recollection & assists memory by the use of a writing or memorandum, provided testimony is from recollection refreshed by the writing or "shall be willing to swear positively from the paper"

• All parties are allowed to see what refreshed the recollection of witness

Past Recollection Recorded

Witness cannot recall the event in question but can attest the event was accurately recorded at a time closer to the event than the time of trial, the document is therefore introduced

Medical Diagnosis & Treatment 24-3-4

• statement made for purposes / facilitation of medical diagnosis & treatment,

• "pertinent to the medical treatment or diagnosis"

• does not have to be made to doctor

• 3 types of statements

• symptoms & physical condition

• causation

• medical history

Business Record Exception 24-3-14

• document MUST be maintained in the ordinary course of business or the organization or entity maintaining the record

• document MUST be the customary practice of the business or entity to maintain such record

• entries MUST be made at or about the time of the events described or recorded occurred

Photos - x rays

• Foundation required

• photo is a fair and accurate depiction / representation of the object and what the witness observed

• who took photo irrelevant

Child Hearsay Statute 24-3-16

• A child under the age of fourteen describing sexual or physical abuse, provided the child is available to testify and the child's statement is made under circumstances to provide sufficient indicia or reliability.

• Four requirements

1. child must be under fourteen regardless mental capacity,

2. child must be available to testify for both parties,

3. statement made by the child must be a statement which explictlly & directly describes sexual or physical abuse, and the trustworthiness and the reliability of the statement,

• Factors to be considered: Gregg v. State, 201 Ga App 238 (1991)

• atmosphere & circumstances under which the statement was made,

• spontaneity of the child's statement,

• child's age,

• child's general demeanor,

• child's physical or emotional condition,

• presence or absence of threats and promises,

• presence or absence of alcohol,

• child's general credibility,

• presence or absence or coaching by the parents or other 3rd parties

• consistency between out of court statement & testimony at trial.

• Crawford v. Washington, 124 S. Ct. 1354 (2004)

• Does not apply in deprivation cases, opposing counsel may try

• 24-3-16. Testimony as to child's description of sexual contact or physical abuse.

• A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Calling the parent for purposes of cross examination 24-9-81

• call parent as an adverse party pursuant to 29-9-81

• Deprivation cases are civil actions so when a parent takes the 5^th then court is allowed a rebuttable inference that the response would be contrary to the interest of the party testifying or unfavorable. In Re S.B. 242 Ga. App.184 (2000)

242 Ga. App. 184; IN RE S. B.; 528 SE2d 278 (01/18/2000)

In addition to the facts noted by the juvenile court, the record shows that the mother refused to testify at the deprivation hearing when called as a witness by the Department. Instead, she invoked her Fifth Amendment privilege against self-incrimination. While the mother asserts that she had no part in K. B.'s death, the Supreme Court has held that the invocation of the privilege against self-incrimination in such cases is an implied admission that a truthful answer would tend to prove that the witness had committed the act. The administration of justice and the search for truth demand that an inference may be drawn that witness' testimony would be unfavorable to [her] in a civil action in which the privilege is invoked to protect [herself]. This is particularly true in a child custody contest heard by a trial judge with broad discretion when the inference corroborates other proof of alleged illicit conduct between the parties which affects the welfare and interests of minor children.

24-9-81. When own witness may be impeached; right to call, examine, and impeach opposite party.A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement. However, in the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party, or anyone for whose immediate benefit the action is prosecuted or defended, or any agent of said party, or agent of any person for whose immediate benefit such action is prosecuted or defended, or officer or agent of a corporation when a corporation is such party or for whose benefit such action is prosecuted or defended a witness, with the privilege of subjecting such witness to a thorough and sifting examination and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined.

UNITED STATES SUPREME COURT

Crawford v. Washington,

124 S. Ct. 1354 (2004) [see attached article]

In Crawford v. Washington, the U.S. Supreme Court partially overruled Ohio v. Roberts, 448 U.S. 56 (1980), and created a new test for the admissibility of hearsay statements. Under Crawford, hearsay statements by an unavailable declarant are either testimonial or non-testimonial. If hearsay by an unavailable declarant is testimonial, it is inadmissible against the defendant unless the defendant had a prior opportunity to cross-examine the declarant. If the unavailable declarant's hearsay is non-testimonial, the Confrontation Clause is not implicated, and admissibility is governed by the rules of evidence, including considerations of reliability. Crawford provides limited examples of "testimonial" but does not provide a comprehensive definition: prior testimony that the defendant was unable to cross-examine, grand jury testimony, affidavits, depositions, and statements made during formal police interrogations.

Important Points:

• Crawford does not change the rule that if the hearsay declarant testifies at trial and is subject to cross-examination about the out-of-court statement, the Confrontation Clause is satisfied and poses no barrier to admissibility.

• Crawford is a Sixth Amendment case and the Sixth Amendment applies only to criminal cases. Juvenile proceedings are civil, not criminal.

• In Crawford, the Supreme Court wrote that the Confrontation "Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." In certain cases, a child's out-of-court statements may be relevant for reasons other than truth of the matter asserted.

Possible Implications of Crawford:

• The Supreme Court has held that statements to police officers in the course of investigations are testimonial but it is unclear whether 911 calls are (See People v. Moscat, 2004 WL 615113 (N.Y. City Crim. Ct. 2004) (holding a 911 call to the police was an excited utterance and therefore non-testimonial)).

• In Snowden v. State, 2004 WL 71945 (Md. Ct. Special App. 2004), the court reversed the defendant's conviction for sexual abuse holding the children's hearsay statements to a CPS social worker, offered at trial in lieu of live testimony, was testimonial -- and therefore inadmissible -- hearsay.

• It seems clear that videotaped interviews of children are testimonial under Crawford, but Crawford does not apply to civil deprivation hearings.

List of Basic Generic Objections

• ambiguous (see vague)

• answer non-responsive

• answer exceeds (goes beyond) scope of question and constitutes a volunteered statement by the witness

• argument improper (e.g., refers to facts not in evidence, misstates evidence, misquotes witness, vouches for witness, indicates personal belief or opinion of counsel, unfairly prejudicial, comment on defedant's failure to testify, indirect attack on accused by attacking integrity of defense counsel

• argumentative in content and tone without asking for new information; using his/her question to argue the case

• assuming facts not in evidence (loaded question that prevents the witness from having the opportunity to deny the existence of the assumed fact)

• asked and answered (see repetitious)

• authentication lacking or improper (failure to identify item of evidence, e.g., writing,  and show its logical relevance)  (see failure to lay proper foundation)

• badgering the witness (also, quarreling with , arguing with, shouting at, bullying, looming over, and threatening)

• best evidence rule violated (see also, "original writing" rule)

• beyond scope of direct (in jurisdictions that limit the scope of cross to the subject  matter of the direct and matters affecting credibility of the witness)

• chain of custody not properly established (particularly when item is fungible and thus easily alterable and no single witness can identify the item with personal knowledge) 

• character evidence improper (e.g., to establish propensity)

• confusion of issues

• compound question that contains two or more questions within  a single question

• comment on evidence by judge

• continuing (running) objection

• cumulative evidence, needlessly, in that it fails to add to the probity of previously admitted evidence

• displaying evidence prior to its introduction or continuing to display evidence after it has been used

• expert testimony not admissible (e.g., underlying facts or data insufficient; field of scientific, technological or other specialty of expertise not reliable and/or relevant based on daubert factors such as: (1) whether the principle has been tested, (2) the results of published peer review, (3) error rates and (4) general acceptance; old frye rule requires general acceptance)   

• expert witness not competent

• final argument improper (see argument improper)

• failure to lay proper foundation for admission of testimony, exhibit, or document (predicate)   (see lack of evidentiary prediate)

• habit not established, improper habit evidence because

• hearsay, question calls for or answer contains

• hearsay within hearsay

• hearsay, evidence contains

• hearsay, evidence is the result of and is based upon

• hearsay, even though the statement fits into a recognized hearsay exception,  the confrontation clause (applies only when the prosecution offers hearsay against  the accused) bars use of a testimonial out-of-court statement by an unavailable witness whom the  defendant has not had the opportunity to cross-examine, irrespective of whether the  statement is deemed reliable; the statement is inadmissible as un-cross-examined  [see crawford v. washington, 124 s. ct. 1354 (2004)]

• immaterial in that it is of no consequence to any issue in the case (couple with irrelevant)   

• impeachment improper ( improper opinion or reputation character evidence, improper proof of prior conviction, improper foundation for proof of witness' prior inconsistent statement, improper proof of untruthfulness, impeachment with an irrelevant or collateral matter)

• incompetency of witness (e.g., lack of perception, lack of memory, inability to understand nature and obligation of oath, inability to communicate in language of court)

• irrelevant in the sense that it does not make a fact of consequence to the lawsuit anymore or less likely

• judicial notice improper

• lack of evidentiary predicate (foundation) for admission of testimony, exhibit, or document

• lack of personal knowledge (witness, other than expert, does not have first-hand information)

• lay witness opinion and/or inference improper; not helpful to clear understanding of witness' testimony or determination of fact in issue, not rationally based on perception of witness (e.g., see rule 701 fre)

• leading question (suggests or coaxes desired answer)

• legal conclusion (questions calls for or answer contains)

• limited purpose, admissible only for a (and offered generally)

• misstatement (mischaracterization) of evidence by counsel (or witness)

• non-responsive answer

• opening statement improper ( e.g., argumentative, invades province of court by providing instructions on law, states personal opinion or belief of counsel, counsel speculating about opposing counsel's evidence)

• opinion on ultimate issue

• personal knowledge of lay witness lacking ( see lack of personal knowledge)

• privileged communication (e.g., attorney-client; doctor-patient (if any); clergy; informant's identity; spousal capacity; spousal or marital  communication; self-incrimination)

• question has been answered by witness and is now giving an answer that goes beyond the question posed  (see witness has answered)

• question on cross-examination goes beyond scope of direct and issues of witness credibility (applies only in jurisdictions, e.g., federal court, where scope of cross is limited to subject of direct and issues related to witness credibility) 

• relevance lacking (see irrelevant) ( e.g., has no tendency to make existence of any fact of consequence to the case more or less probable than it would be without the evidence)

• religious beliefs or opinions of witness inadmissible to show witness' credibility impaired or enhanced (e.g., see rule 610 fre)

• repetitious (see asked and answered)

• requirement of original violated ( see best evidence rule, original document rule)

• sequestration of witnesses ("the rule" of witnesses) violation (as when evidence that another witness has made notations upon is presented to a testifiying witness)

• sidebar remark ( sidebar remarks are statements of counsel  for one party not addressed to the court and typically made while counsel for another party is examining a witness, arguing a question to the court or addressing the jury.) 

• speculation (conjecture, guess)

• undue delay

• unfairly prejudicial (e.g. rule 403 fre - potential danger of "unfair" prejudice substantially outweighs probative value - objecting party has bop; object that the otherwise arguably relevant evidence unfairly exaggerates the truth and tends to improperly stir the passions or sympathy of the court) even though arguably relevant

• vague

• waste of time

• witness has answered the question and is now volunteering  an answer to a question that hasn't been asked

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GACC is an affiliate of the National Association of Counsel for Children	GACC Jane Okrasinski Executive Director Email: jane@gaccchildlaw.org