COURTROOM EVIDENCE REFRESHER

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1 COURTROOM EVIDENCE REFRESHER Sponsor: Young Lawyers Division CLE Credit: 1.0 Thursday, June 19, :40 a.m. - 10:40 a.m. Ballroom A Northern Kentucky Convention Center Covington, Kentucky

2 A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio Kentucky Bar Association

3 TABLE OF CONTENTS The Presenters... i Courtroom Evidence Refresher... 1 First Golden Rule for Litigators... 1 Second Golden Rule for Litigators... 5 Third Golden Rule for Litigators... 7 Fourth Golden Rule for Litigators... 8 Fifth Golden Rule for Litigators... 12

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5 THE PRESENTERS Judge Gregory M. Bartlett Kenton Circuit Court 230 Madison Avenue, Suite 701 Covington, Kentucky (859) JUDGE GREGORY M. BARTLETT serves as Circuit Court Judge for the Kenton Circuit Court. He received his B.A. from Thomas More College, M.A. from Xavier University, and J.D. from the University of Kentucky College of Law. Judge Bartlett is a member of the Kentucky Corrections Commission, the Northern Kentucky, and Kentucky Bar Associations. He has been published in the areas of sentencing law and policy and is currently teaching courses on sentencing law and policy as an adjunct faculty member at Northern Kentucky University Chase College of Law. Vanessa B. Cantley Bahe Cook Cantley & Nefzger, PLC 312 South Fourth Street, Sixth Floor Louisville, Kentucky (502) vanessa@bccnlaw.com VANESSA B. CANTLEY is a partner with Bahe Cook Cantley & Nefzger, PLC in Louisville. She received her B.A. from Bellarmine College and her J.D. from the Louis D. Brandeis School of Law at the University of Louisville, both with honors. While in law school, Ms. Cantley served as President of the Student Body, founded the nation's first Student Bar Foundation, and was a member of the American Trial Lawyers Association mock trial team, and the National Moot Court Team. She has been named one of Louisville's top plaintiff's personal injury and labor and employment lawyers and a 2013 Kentucky Super Lawyer. Ms. Cantley is an Adjunct Professor of Law at the University of Louisville School of Law and serves on the Board of Governors of the Kentucky Justice Association and the American Association for Justice. She is the founder of Storytime Heroes, a non-profit organization dedicated to providing reading materials and volunteers to read to children who are hospitalized, in long-term care facilities, group homes and shelters. i

6 Jerome P. "Jay" Prather Garmer & Prather, PLLC 141 North Broadway Lexington, Kentucky (859) JEROME P. "JAY" PRATHER is a member of the Lexington law firm Garmer & Prather, PLLC, where his practice focuses mainly on medical malpractice and products liability. Mr. Prather received his B.A. from Vanderbilt University, where he was editor-in-chief of Orbis, and his J.D. from the University of Kentucky College of Law. While at U.K. he was named Outstanding Third-Year Staff Member of the Kentucky Law Journal and was a member of the Moot Court Board. Mr. Prather is admitted to practice in all state and federal courts in Kentucky and is admitted to practice pro hac vice in Ohio, Tennessee and Alabama. He is a member of American, Kentucky, and Fayette County Bar Associations, the Federal Bar Association, the Kentucky Justice Association, the American Association for Justice and the American Constitution Society. He is also a Life Fellow of the Kentucky Bar Foundation. Mark A. Wohlander Wohlander Law Office PSC Post Office Box Lexington, Kentucky (859) mark@wohlanderlaw.com MARK A. WOHLANDER maintains a private practice in Lexington. Prior to opening his practice, Mr. Wohlander was an attorney with the United States Attorney's Office for the Eastern District of Kentucky. He is a graduate of Cleveland State University and Cleveland Marshall College of Law. Mr. Wohlander is a member of the Kentucky and Ohio Bar Associations. ii

7 COURTROOM EVIDENCE REFRESHER Mark A. Wohlander Evidence Issues from Opening to the Verdict Computerized Records and Social Media First Golden Rule for Litigators Know and understand the Rules of Evidence backwards and forwards 1

8 General Provisions of the Rules The most important Rules of Evidence for the trial practitioner are set forth under Article I of both the Federal Rules of Evidence and the Kentucky Rules of Evidence. The remainder of the rules are the directions and guideposts for the court and litigator to either include or exclude evidence. Kentucky Rules of Evidence KRE 101 Scope of the Rules KRE 102 Purpose and Construction KRE 103 Rulings on Evidence KRE 104 Preliminary Questions KRE 105 Limited Admissibility KRE 106 Remainder of or Related writings or recorded statements KRE 107 Miscellaneous provisions Federal Rules of Evidence Rule 101 Scope of the Rules Rule 102 Purpose and Construction Rule 103 Rulings on Evidence Rule 104 Preliminary Questions Rule 105 Limited Admissibility Rule 106 Remainder of or Related writings or recorded statements 2

9 The Rest of the Rules Article II Judicial Notice Article III Presumptions in Civil Actions and Proceedings Article IV Relevancy and its Limits (Federal Relevancy and Related Subjects) Article V Privileges Article VI Witnesses Article VII Opinions and Expert Testimony The Rest of the Rules Article VIII Hearsay Article IX Authentication and Identification Article X Contents of Writings, Recordings, and Photographs Article XI Miscellaneous Rules Understanding the Role of Evidence, Jury Trials and Bench Trials The William E. Johnson Rule of Evidence Judge Mr. Johnson, what is your objection? Mr. Johnson Judge it just doesn t seem fair! Judge Mr. Johnson, which rule is that? 3

10 Federal Rules of Evidence Rule 102 Purpose and Construction These rules shall be construed to secure fairness in administration, elimination or 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. Kentucky Rules of Evidence KRE 102 Purpose and Construction These rules shall be construed to secure fairness in administration, elimination or 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. Understanding Your Case Successful litigation begins with thoroughly understanding your case. Each case which comes across your desk should begin with the simple thought that this case will eventually have to be resolved by a trier of fact. As such, from the very outset, the experienced litigator will begin to review the facts and the evidence with an eye towards admissibility. Remember, even if you have the greatest facts and evidence in the world, if you do not understand the mechanics of introducing the evidence, it does not matter how many bankers boxes you have on the floor behind the trial table. 4

11 Motion In Limine vs. Evidentiary Objections at Trial KRE 103(d) - Motions in Limine A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence. The court may rule on such a motion in advance of trial or may defer a decision on the admissibility until the evidence is offered at trial. A motion in limine resolved by order of record is sufficient to preserve error for appellate review. Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine.* * The Federal Rules of Evidence do not have a similar rule. Second Golden Rule for Litigators Do not assume that pretrial rulings of the Court will allow you to ignore the issue(s) as you prepare for trial Motion in Limine vs. the Objection at Trial Do not confuse a Court s ruling on a motion in limine pretrial with an evidentiary objection at trial. Many litigators walk away from the final pretrial conference with their heads hanging down after having had the Court issue rulings in limine which appear to gut their case. Remember, just because a Court has issued a ruling in limine does not necessarily mean that the evidence will not be admissible at trial. Also, just because the Court refused to issue a ruling in limine regarding certain evidence does not mean it will be admissible at trial. 5

12 Questions as to the Admissibility of Evidence Notwithstanding the Rules of Evidence, oftentimes the admissibility of evidence is dependent on case law. For example, Rule 702 provides as follows: Rule 702 Testimony of Experts Questions as to the Admissibility of Evidence 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 by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Questions as to the Admissibility of Evidence On its face, Rule 702 appears to be very straight forward. However, the pitfall of Rule 702, and the other rules regarding the admissibility of evidence, is that each rule must be analyzed not only from the plain language of the rule, but also, from the case law interpreting the various rules. 6

13 Examples Coal testing and analysis post Daubert Friday before trial Judge Jennifer Coffman excluded the coal testing evidence which ended the case. U.S. v. William Canan Last of the members of the Bluegrass Conspiracy. Hearsay exception pursuant to Fed. R. Evid. 804(b)(3) at trial. Confrontation Clause issue in Williamson post conviction. Third Golden Rule for Litigators Never appear for trial without a notebook of cases which will support your evidentiary arguments. Anticipate, anticipate, anticipate. The Stall No matter how many trials you may have had in your career, and regardless of your knowledge of the rules, it never fails that at some point during a trial you will find your ox being gored by the other side and they will be doing it by the rules. When those moments occur, and you simply cannot think of a rule which will cut off the bleeding, the experienced litigator will jump up and ask to approach the bench. The 4 or 5 second walk from the trial table to the bench is usually not enough time to come up with a good argument, however, it will give you enough time to apply a tourniquet. 7

14 The Good News Rule 403 The good news is that the framers of the rules drafted a rule which will always work regardless of whether you win the objection or not. Remember when all else fails, Rule 403 provides, Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion or the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence. Fourth Golden Rule for Litigators Know when to object and know when to keep quiet. Remember, jurors are ordinary people just like you and me. As such, jurors want to hear all of the evidence. Trial lawyers who object to every technical violation of the rules are considered obstructions by jurors. Typically, after a day or so of trial, jurors will begin to associate with one side or the other. Obviously, jurors are going to have a hard time associating themselves with the obstructionist litigator. Litigation Tips: Tip Number One Always go into the courtroom with an updated and an abbreviated copy of the Rules of Evidence and the Rules of Procedure for the type of case you are trying. 8

15 Summary Trial Guides from Elex Publishers 2014 Federal Rules of Evidence Summary Guide 2014 Kentucky Rules of Evidence Summary Guide 2014 Federal Rules of Civil Procedure 2014 Federal Rules of Criminal Procedure Social Media and Litigation Litigators need to be cognizant of social media from the very first meeting with the client. Social media is a double edged sword. Today, social media is being used as a pretrial discovery tool by investigators for civil cases, criminal cases, divorce cases, and now social media is also being misused by jurors. Although often overlooked, ensure that your voir dire touches on the jurors use of social media Preservation Letters and Subpoenas for Social Media Do not overlook preservation letters for electronically stored documents to include Facebook content, Twitter, YouTube, Instant Messaging and any others recently added within the past 24 hours. Do not forget that Social Media records can be subpoenaed. If subpoenas are issued soon enough, there is a strong possibility that you can even recover text messages and other forms of electronic communications. * When all else fails you can always request a private meeting with the National Security Agency to see if they will assist with data mining. 9

16 Computer Records As with any other records, computer generated records can only be admitted pursuant to a recognized exception to the hearsay rules set forth in Article VIII. REMEMBER, EVEN IF THE RECORD YOU ARE TRYING TO INTRODUCE WOULD FIT WITHIN ONE OF THE HEARSAY EXCEPTIONS, YOU STILL NEED TO ENSURE THAT YOU EITHER HAVE A STIPU- LATION FOR THE INTRODUCTION OF THE DOCU- MENT, OR YOU HAVE ONE OF THE RECOGNIZED AUTHENTICATION OR IDENTIFICATON REQUIRE- MENTS IN ARTICLE IX. Potpourri for Litigators Visual Tools in the Courtroom Most experienced litigators understand the need to use visual tools in the courtroom. A well thought-out visual presentation allows a fact finder to more fully understand your case. The use of pictures, videos, summary charts and other forms of demonstrative evidence oftentimes tips the scales in favor of a client s case. Potpourri for Litigators Read What the Judges Are Reading Public source documents are one of the best tools available to the litigator to understand what judges are thinking when they make evidentiary rulings at trial. The Federal Justice Academy Judicial Center Library is a great source of publications covering a myriad of trial issues which most often are directly linked to evidentiary issues. The Federal Justice Academy can be linked at 10

17 Potpourri for Litigators Capturing Screenshots and Other Internet Postings Capturing screenshots of Facebook pages and other internet posting can be valuable at trial. Although there are a significant number of tools available, Snagit is one of the easiest to use and interface with other trial exhibits. Internet Archive (The Wayback Machine) -6dHQgb4CFcvm7AodbUEAJQ (Snagit) Snagit Example 11

18 Fifth Golden Rule for Litigators The Fifth and final Golden Rule for Litigators is to have at least one book in your office library which you can use as you prepare for trial and also take to court with you. A book which will provide a concise and simple answer to the most trial issues which most litigators face on a regular basis. One of the best books available is Fundamentals of Trial Techniques by Thomas A. Maut which is currently in its third edition. Questions The art of being a trial litigator is fast fading as a specialty. Today, most civil cases are resolved through mediation and most criminal cases through plea agreements. As a result, it is incumbent upon those of us who still remember how a case is tried in the courtroom to pass along those skills to today s younger generation. As such, if any of you ever have a question, or just want to talk about trial evidence, you can always contact me at the following: Mark A. Wohlander, Wohlander Law Office, PSC, P.O. Box , Lexington, Kentucky 40591, at mark@wohlanderlaw.com, Office: (859) or Cellular: (859)

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