The Way Forward CLE: Looking
Back at the First Year Since
Codification of the Virginia Rules of
Evidence
Moderator:
Douglas R. Kay, Esq.
Offit Kurman
Speakers:
Hon. Penney S. Azcarate
Fairfax County General District Court
Hon. John M. Tran
Fairfax County Circuit Court
FAIRFAX BAR ASSOCIATION
CLE SEMINAR
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SPEAKERS’ BIOGRAPHIES
Hon. Penney S. Azcarate
Hon. Penney S. Azcarate is a judge on the Fairfax County General District Court. Her
responsibilities include civil, criminal and traffic court. She presides over all matters within
the jurisdiction to include arraignments, preliminary hearings and trials. She is a current
member of the Committee on Domestic Violence Issues in Virginia’s Courts and the Law
Revision Committee. Judge Azcarate is President-Elect for the George Mason Inn of Court
and a member of the Community Criminal Justice Board and the Domestic Violence
Prevention, Policy and Coordinating Council.
Prior to being appointed to the bench, Judge Azcarate was a senior associate with Briglia &
Hundley, P.C. Her practice focused on a wide range of litigation matters, with an emphasis
on criminal defense and civil litigation. She was also a substitute judge presiding in various
counties to include Fairfax, Prince William, and Arlington.
Judge Azcarate received a B.S. degree in Criminal Justice from Old Dominion University
where she attended on a full military scholarship. Upon graduating, Judge Azcarate was
commissioned in the United States Marine Corps and served on active duty as a
Communications Officer. Judge Azcarate was stationed at Camp Pendleton during the early
1990s and served in Saudi Arabia during Operation Desert Storm. After obtaining the rank
of captain, Judge Azcarate transferred to the Marine Corps Reserves and attended law
school. She earned her J.D. degree from George Mason School of Law, where she was a
member of the Moot Court Board.
Upon completion of law school, Judge Azcarate worked for the American Prosecutors
Research Institute in Alexandria. She assisted and trained prosecutors throughout the
country on various issues to include vehicular homicide, prosecuting the drunk and
drugged driver and trial advocacy. During this time, Judge Azcarate published an article,
“Digital Imaging: The Technology and the Prosecutor” (The Prosecutor Magazine, vol.
34/no.1 Jan/Feb 2000).
Judge Azcarate accepted a position as an Assistant Commonwealth Attorney in Fairfax
County in 2000. In this position, Judge Azcarate handled various cases to include
misdemeanors and felonies. She tried hundreds of cases to both judges and juries to
include rapes, robberies, and murders. In addition, she continued her work in the Reserves
assisting Marines with various legal issues. Judge Azcarate was honorably discharged from
the United States Marine Corps Reserves as a major.
Hon. John M. Tran
On April 4, 2013, the Virginia General Assembly elected Judge Tran to serve on the Circuit
Court of Fairfax County. His term started on July 1, 2013. Judge Tran is the 63rd Circuit
Court judge to serve on the Fairfax Circuit Court bench.
The son of a South Vietnamese diplomat and an immigrant who found refuge in the United
States, he spent his entire adult life in the Washington Metropolitan Area and proudly
considers himself a Virginian.
Prior to his appointment on the bench, Judge Tran shaped his trial experience as a state and
federal prosecutor in Alexandria, Virginia in the late 1980’s and eventually joined the
highly regarded Old Town Alexandria litigation boutique law firm of DiMuroGinsberg, P.C.
The diversity of his 29-year career as a trial lawyer reflected trial dockets found in state
and federal courts throughout the country. Judge Tran has represented businesses and
individuals in matters ranging from simple contract disputes to complex commercial and
multi-jurisdictional litigation and criminal defense. On more than one occasion his business
clients brought him into matters touching on family law and probate matters.
Before leaving the practice of law, Judge Tran was an “AV” rated lawyer under Martindale
Hubbell, a Virginia Super Lawyer and Best Lawyer in the area of commercial litigation, and
inducted into the Class of 2010 Fellow of the Virginia Law Foundation and Class of 2011
Virginia Lawyer’s Weekly Leader in the Law.
He enjoyed his activities in various bar associations including his two term service on the
Virginia State Bar Council following his elections in the 18th Judicial Circuit, his 15 year
involvement with the Asian Pacific American Bar Association of Virginia and his
involvement as a Director on both the Alexandria Bar Association’s Law Foundation and
most recently alongside the multi-talented and dedicated members Fairfax Bar
Association’s Board of Directors.
Prior to joining the Circuit Court bench, Judge Tran was appointed a substitute judge and
served on the General District Courts and Juvenile and Domestic Relations District Court
throughout Northern Virginia.
Douglas R. Kay, Esq.
Doug is a principal at Offit Kurman, PC. He is an experienced trial lawyer with over 100
jury trials and countless bench trials in courts all over Northern Virginia and beyond.
Doug’s current practice focuses on complex commercial litigation matters, criminal defense
and personal injury.
Doug was born and raised in Fairfax County and currently lives about a mile from his
childhood home. He attended public schools in Fairfax before attending Virginia Tech.
After graduation, he attended California Western School of Law in San Diego, California
where he wrote onto the Law Review when his article was selected for publication in the
Cal. Western Law Review. The title of the article is Running a Gauntlet of Sexual Abuse:
Sexual Harassment of Female Naval Personnel in the U.S. Navy.
As a first year law student, Doug received a commissioned as an Ensign in the U.S. Navy as a
judge advocate. Upon graduation from law school and passing the Virginia bar in 1993, he
served on active duty in at Naval Air Station Whidbey Island in Washington State where he
primarily represented service members and the United States before courts martial but
also wrote hundreds of wills and provided family law advice to service members and their
families.
After completing his active duty service commitment, Doug returned home to Fairfax in
1996 and accepted a job from the Honorable Robert F. Horan, Jr. as an Assistant
Commonwealth’s Attorney for Fairfax County. Mr. Horan selected Doug to prosecute child
abuse cases – universally regarded as the toughest cases the job has to offer.
After three years working as a state prosecutor, Doug accepted a job with Venable as a
commercial litigation associate where he learned civil litigation. After three years with
Venable, Doug partnered with Steve Briglia, Jim Hundley and Ed Nuttall forming Briglia
Hundley Nuttall & Kay, P.C. where he maintained a busy trial practice for over 10 years.
Earlier this year Doug joined Offit Kurman, PC as a principal in its recently opened Tysons
Corner offices. He advises all sorts of individuals and businesses in a wide variety of areas,
but primarily with commercial disputes and criminal defense.
Doug has been active in the Fairfax Bar Association for many years. He is presently serves
as FBA Vice President.
Part One – Common Mistakes
A. The Top Three Evidence Mistakes (View from the Circuit Court Bench)
1.
John Crane - Expert Designations
2.
Hearsay - Commonwealth v. Wynn, 277 Va. 922 (2009)
3.
Impeachment - With Prior Inconsistent Statements, Recorded
Recollection Refreshed, etc. and the Laying an Adequate
Foundation.
B. The Top Ten Evidence Mistakes (View from the GDC Bench)
1.
Business records;
2.
Character evidence;
3.
Expert witness foundation
4.
Applicability of the best evidence rule (good side note as to
whether e-mails/texts are writings)
5.
Document speaks for itself
6.
Foundation for pictures
7.
Impeachment of prior convictions (defendant v. other witness)
8.
Testimonial v. not testimonial after Melendez
9.
Not hearsay v. hearsay exceptions
10.
Parole evidence rule exceptions (this could be a class by itself)
C. Analysis
1.
John Crane, Inc. v. Jones, 274 Va. 581 (2007)
Synopsis: Supreme Court examined the specificity required in order to
comply with Rule 4:1(b)(4)(A)(i) which provides:
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A party may through interrogatories require any other party to identify
each person whom the party expects to call as an expert witness at trial,
to state the subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to which the expert
is expected to testify and a summary of the grounds for each opinion.
The case was one of several involving asbestos. A party had revealed in
deposition testimony several opinions but had failed to disclose them in its
expert designation. The court held:
a party is not relieved from its disclosure obligation under the Rule
simply because the other party has some familiarity with the expert
witness or the opportunity to depose the expert. Such a rule would
impermissibly alter a party's burden to disclose and impose an
affirmative burden on the non-disclosing party to ascertain the
substance of the expert's testimony.
an opponent's ability to depose an expert or familiarity with such expert
through prior litigation does not relieve a party from complying with
the disclosure requirements of Rule 4:1(b)(4)(A)(i)
2.
Hearsay - Commonwealth v. Wynn, 277 Va. 92 (2009)
Synopsis: The trial court ruled in favor of a defendant in a civil
commitment hearing under the Sexually Violent Predator’s Act.
Commonwealth appealed the trial court’s ruling that certain evidence was
inadmissible hearsay. The Commonwealth attempted to introduce testimony
from its expert about allegations of sexual misconduct by Wynn made by
children other than the victim involved in Wynn's two aggravated sexual
battery convictions. The Commonwealth also attempted to introduce the
expert’s written report. Both pieces of evidence were rejected by the trial
court on the grounds that the evidence constituted inadmissible hearsay
within hearsay.
The Virginia Supreme Court ruled in relevant part:
In McMunn v. Tatum, 237 Va. 558, 560, 379 S.E.2d 908, 909 (1989), the
Court decided whether an expert witness, in relating the basis for the
2
expert opinion, could testify about the hearsay opinions of other
persons. We concluded that Code § 8.01-401.1, which governs the
admissibility of expert witness testimony in a civil action, "does not
authorize the admission in evidence, upon the direct examination of an
expert witness, of hearsay matters of opinion upon which the expert
relied in reaching his own opinion." The Court explained that "[n]o
litigant in our judicial system is required to contend with the opinions of
absent 'experts' whose qualifications have not been established to the
satisfaction of the court, whose demeanor cannot be observed by the
trier of fact, and whose pronouncements are immune from crossexamination."
[P]ursuant to Code § 8.01-401.1, an expert witness may rely upon "facts,
circumstances or data made known to . . . such witness" in formulating
an opinion; those "facts, circumstances or data . . . , if of a type normally
relied upon by others in the particular field of expertise in forming
opinions and drawing inferences, need not be admissible in evidence."
Neither of these statutes, however, allows for the introduction of
otherwise inadmissible hearsay evidence during the direct examination
of an expert witness merely because the expert relied on the hearsay
information in formulating an opinion.
3.
Impeachment - With Prior Inconsistent Statements, Recorded
Recollection Refreshed, etc. and Laying Adequate Foundation
Rule 2:613. Prior Statements of Witness (Rule 2:613(a)(i) derived
from Code § 8.01-403; Rule 2:613(b)(i) derived from Code §§ 8.01404 and 19.2-268.1; and Rule 2:613(b)(ii) derived from Code §
8.01-404)
(a) Examining witness concerning prior oral statement.
(i) Prior oral statements of witnesses. -- In examining a witness in any
civil or criminal case concerning a prior oral statement, the
circumstances of the supposed statement, sufficient to designate the
particular occasion, must be mentioned to the witness, and the witness
must be asked whether the statement was made.
3
(ii) Extrinsic evidence of prior inconsistent oral statement of
witness. -- Extrinsic evidence of a prior inconsistent oral statement by a
witness is not admissible unless the witness is first given an opportunity
to explain or deny the statement and the opposing party is given an
opportunity to interrogate the witness thereon, or the interests of
justice otherwise require. This provision does not apply to admissions
of a party opponent.
Extrinsic evidence of a witness' prior inconsistent statement is not
admissible unless the witness denies or does not remember the prior
inconsistent statement. Extrinsic evidence of collateral statements is not
admissible.
(b) Contradiction by prior inconsistent writing.
(i) General rule. -- In any civil or criminal case, a witness may be crossexamined as to previous statements made by the witness in writing or
reduced to writing, relating to the subject matter of the action, without
such writing being shown to the witness; but if the intent is to
contradict such witness by the writing, his or her attention must, before
such contradictory proof can be given, be called to the particular
occasion on which the writing is supposed to have been made; the
witness may be asked whether he or she made a writing of the purport
of the one to be offered, and if the witness denies making it, or does not
admit its execution, it shall then be shown to the witness, and if the
witness admits its genuineness, the witness shall be allowed to make an
explanation of it; but the court may, at any time during the trial, require
the production of the writing for its inspection, and the court may then
make such use of it for the purpose of the trial as it may think best.
(ii) Personal Injury or Wrongful Death Cases. -- Notwithstanding the
general principles stated in this subpart (b), in an action to recover for
personal injury or wrongful death, no ex parte affidavit or statement in
writing other than a deposition, after due notice, of a witness and no
extrajudicial recording made at any time other than simultaneously
with the wrongful act or negligence at issue of the voice of such witness,
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or reproduction or transcript thereof, as to the facts or circumstances
attending the wrongful act or neglect complained of, shall be used to
contradict such witness in the case. Nothing in this subdivision shall be
construed to prohibit the use of any such ex parte affidavit or statement
in an action on an insurance policy based upon a judgment recovered in
a personal injury or wrongful death case.
Sample cross-examination:
Q.
Is it your testimony that the traffic light was red?
A.
Yes
Q.
Miss Jones, do you recall that you were subpoenaed to my office to
give a deposition over a year ago?
A.
Yes
Q.
Do you remember coming to my office with your attorney?
A.
Yes
Q.
At my office, isn’t it true we met in my conference room with a
court reporter who took down the answers to questions that I asked
you?
A.
Yes
Q.
In fact, before you gave testimony that day in my office you were
given the same oath that you were given here today?
A.
I suppose so.
Q.
You promised to tell the truth then?
A.
Yes
Q.
You have promised to tell the truth today?
A.
Yes
5
Q.
When you finished testifying, your testimony was typed up by the
court reporter word for word as you gave it in my office?
A.
Yes
Q.
You were afforded an opportunity to read that transcript and to
make any changes to it?
A.
Yes
Q.
In fact you made some changes and then signed the transcript
before a notary public again promising that your answers were truthful?
A.
Yes
Q.
Miss Jones, I am now going to read to you certain testimony from
that deposition transcript:
Q.
Prior to the car accident, did you notice the color of the
traffic light?
A.
Yes, I was sitting at the light and could see it clearly. The
traffic light was green.
Q.
Let me be sure I understand your response. You are saying
the traffic light was green?
A.
Q.
Yes.
Miss Jones, have I read the portion of the transcript accurately?
A.
I cannot remember what I said over a year ago, but I guess that
what you read is what I said.
Q.
You are no suggesting that I have misread your testimony are
you?
A.
No
Q.
I can show it to you if you like?
6
A.
That’s not necessary.
Q.
That was your testimony at your deposition?
A.
Yes
Q.
So was your testimony correct when you gave it at deposition or
is it correct today?
A.
4.
I don’t know.
Business records.
Rule 2:803(6) Business records. -- A memorandum, report, record, or
data compilation, in any form, of acts, events, calculations or conditions,
made at or near the time by, or from information transmitted by, a
person with knowledge in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to
make and keep the memorandum, report, record, or data compilation,
all as shown by the testimony of the custodian or other qualified
witness, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The term
"business" as used in this paragraph includes business, organization,
institution, association, profession, occupation, and calling of every kind,
whether or not conducted for profit.
Sample Witness Examination
Q.
Mr. Jones how are you employed?
A.
I am a supervisor of the data processing services of the credit card
authorization department for Guaranty Bank.
Q.
What re the responsibilities of your position?
A.
I review and periodically prepare printouts of calls received by
the bank from merchants across the U.S. who are presented with credit
cards and then call us to verify the validity of the credit card?
Q.
What brings you to court today?
7
A.
You sent me a subpoena seeking records for Visa card number
01234456 for the months of January through June 2012.
Q.
Did you bring those records with you today?
A.
Yes. They are in front of me now marked as Exhibit 1.
Q.
Please identify only the contents of Exhibit 1.
A.
These are a printout of the computer records of the calls received
by the Bank from merchants seeking to verify the validity of Visa card
number 01234456 for the months of January through June 2012.
Q.
Was Exhibit 1 prepared in the regular course of the Bank’s
business?
A.
Yes
Q.
Do you know the circumstances of the preparation of Exhibit 1.
A.
Yes.
Q.
Please explain these circumstances to the jury.
A.
Exhibit 1 was prepared from data entered into the computer by
Bank employees. The data entered comes from records maintained by
the Bank personnel who receive the calls from the merchants to
ascertain the validity of the credit card. After the data is entered into
the Bank’s computer, a supervisor cross checks the data inputted. The
Bank’s computer stores the data and prints it out upon request.
Q.
Were the records of the merchants calls made at or near the time
the calls were received?
A.
Yes.
Q.
Was the computer that was used to produce this printout (Exhibit
1) standard equipment of the Bank?
A.
Yes.
Q.
Is the equipment reliable?
8
A.
Yes.
Q.
Please describe the equipment used to enter, store and retrieve
the information.
A.
The data is keyed directly onto the storage discs maintained by
the Bank. The entry screen verifies the card holder name and card
number which allows a cross-check later. Once the information is
entered and verified, the data is immediately available for any
requested reports. Only a limited number of Bank personnel have
access to modify data once it is entered.
Q.
Is this process you have described standardized and reliable?
A.
Yes.
Q.
How, if at all, is this process checked for accuracy?
A.
Periodically, supervisors check samples of the data for accuracy.
Q.
Is the computer storage secure?
A.
Yes.
Q.
How so?
A.
The Bank prides itself on cyber security measures used to prevent
hacking. We have never been hacked. Internally, only qualified users
have access to the data once entered and verified and only then by use
of unique user name and password so that we can see who has entered
the database and when. The database is backed up daily and all data is
stored in a locked vault.
Q.
Is this printout, Exhibit 1, an accurate representation of the data
stored in the computers of the Bank?
5.
A.
Yes.
Q.
I move for the admission on of Exhibit 1.
Character evidence.
9
Rule 2:608. Impeachment by Evidence of Reputation for
Truthtelling and Conduct of Witness
(a) Reputation evidence of the character trait for truthfulness or
untruthfulness. --The credibility of a witness may be attacked or
supported by evidence in the form of reputation, subject to these
limitations: (1) the evidence may relate only to character trait for
truthfulness or untruthfulness; (2) evidence of truthful character is
admissible only after the character trait of the witness for truthfulness
has been attacked by reputation evidence or otherwise; and (3)
evidence is introduced that the person testifying has sufficient
familiarity with the reputation to make the testimony probative.
(b) Specific instances of conduct; extrinsic proof. --Except as otherwise
provided in this Rule, by other principles of evidence, or by statute, (1)
specific instances of the conduct of a witness may not be used to attack
or support credibility; and (2) specific instances of the conduct of a
witness may not be proved by extrinsic evidence.
(c) Cross-examination of character witness. --Specific instances of
conduct may, if probative of truthfulness or untruthfulness, be inquired
into on cross-examination of a character witness concerning the
character trait for truthfulness or untruthfulness of another witness as
to whose character trait the witness being cross-examined has testified.
(d) Unadjudicated perjury. --If the trial judge makes a threshold
determination that a reasonable probability of falsity exists, any witness
may be questioned about prior specific instances of unadjudicated
perjury. Extrinsic proof of the unadjudicated perjury may not be shown.
(e) Prior false accusations in sexual assault cases. -- Except as otherwise
provided by other evidentiary principles, statutes or Rules of Court, a
complaining witness in a sexual assault case may be cross-examined
about prior false accusations of sexual misconduct.
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Rule 2:803(20) Reputation as to a character trait. -- Reputation of a
person's character trait among his or her associates or in the
community.
Federal Rule 608. A Witness's Character for Truthfulness or
Untruthfulness
(a) Reputation or Opinion Evidence. A witness's credibility may be
attacked or supported by testimony about the witness's reputation for
having a character for truthfulness or untruthfulness, or by testimony in
the form of an opinion about that character. But evidence of truthful
character is admissible only after the witness's character for
truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal conviction under
Rule 609, extrinsic evidence is not admissible to prove specific instances
of a witness's conduct in order to attack or support the witness's
character for truthfulness. But the court may, on cross-examination,
allow them to be inquired into if they are probative of the character for
truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined
has testified about.
By testifying on another matter, a witness does not waive any privilege
against self-incrimination for testimony that relates only to the
witness's character for truthfulness.
6.
Expert witness foundation.
Rule 2:702. Testimony by Experts (Rule 2:702(a)(i) derived from
Code § 8.01-401.3(A))
(a) Use of Expert Testimony.
(i) In a civil proceeding, if scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
11
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.
(ii) In a criminal proceeding, expert testimony is admissible if the
standards set forth in subdivision (a)(i) of this Rule are met and, in
addition, the court finds that the subject matter is beyond the
knowledge and experience of ordinary persons, such that the jury needs
expert opinion in order to comprehend the subject matter, form an
intelligent opinion, and draw its conclusions.
(b) Form of opinion. --Expert testimony may include opinions of the
witness established with a reasonable degree of probability, or it may
address empirical data from which such probability may be established
in the mind of the finder of fact. Testimony that is speculative, or which
opines on the credibility of another witness, is not admissible.
7.
Applicability of the best evidence rule (good side note as to
whether e-mails/texts are writings).
Rule 2:1001. Definitions
For purposes of this Article, the following definitions are applicable.
(1) Writings. "Writings" consist of letters, words, or numbers, or their
equivalent, set down by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or
electronic recording, or other form of data compilation or preservation.
(2) Original. An "original" of a writing is the writing itself or any other
writing intended to have the same effect by a person executing or
issuing it.
Rule 2:1002. Requirement of Production of Original
To prove the content of a writing, the original writing is required, except
as otherwise provided in these Rules, Rules of the Supreme Court of
Virginia, or in a Virginia statute.
12
Rule 2:1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a
writing is admissible if:
(a) Originals lost or destroyed. All originals are lost or have been
destroyed, unless the proponent lost or destroyed them in bad faith; or
(b) Original not obtainable. No original can be obtained by any available
judicial process or procedure, unless the proponent acted in bad faith to
render the original unavailable; or
(c) Original in possession of opponent. At a time when an original was
under the control of the party against whom offered, that party was put
on notice, by the pleadings or otherwise, that the contents would be a
subject of proof at the hearing, and that party does not produce the
original at the hearing; or
(d) Collateral matters. The writing is not closely related to a controlling
issue.
Brown v. Commonwealth, 54 Va. App. 107 (2009)1:
In Virginia, the best evidence rule is a legal term of art. Bell v. Dorey Elec.
Co., 248 Va. 378, 382, 448 S.E.2d 622, 624 (1994) (citing Black's Law
Dictionary 160 (6th ed. 1990)); see also Black's Law Dictionary 153 (7th ed.
1999). As a legal term of art, "the best evidence rule requires that 'where the
contents of a writing are desired to be proved, the writing itself must be
produced or its absence sufficiently accounted for before other evidence of its
contents can be admitted.'" Bradshaw, 16 Va. App. at 379, 429 S.E.2d at 885
(emphasis added) (quoting Randolph. 145 Va. at 889, 134 S.E. at 546; Butts,
145 Va. at 816, 133 S.E. at 769); see also Myrick, 13 Va. App. at 339, 412 S.E.2d
at 179 (stating that the best evidence rule excludes secondary evidence only
"when the terms of a writing or document are material").
1
Holding that a video is not a “writing” and a witness can testify as to its contents without violating the Best
Evidence Rule under Virginia law.
13
Turman v. Commonwealth, 2007 Va. App. LEXIS 354 (2007) (instant messages
were a writing but overruling best evidence objection.):
The best evidence rule provides that "where the contents of a writing
are desired to be proved, the writing itself must be produced, or its absence
sufficiently accounted for before other evidence of its contents can be
admitted." Randolph v. Commonwealth, 145 Va. 883, 889, 134 S.E. 544, 546
(1926). Only when sufficient evidence discloses that the primary evidence is
not available may secondary evidence be admitted. See generally Bradshaw v.
Commonwealth, 16 Va. App. 374, 380, 429 S.E.2d 881, 885, 9 Va. Law Rep.
1335 (1993) (upholding trial court's refusal to admit secondary oral
testimony because no reasonable explanation offered as to the absence of the
original document). In general, the sufficiency of the evidence relating to
unavailability of the writing is a preliminary question addressed to the sound
discretion of the trial court. Id. at 379, 429 S.E.2d at 884.
In this case, S.J. sufficiently explained why she could not produce a
written document containing appellant's comments to her. She testified that it
never occurred to her to print or save the messages and that, even if it had,
she did not know how to perform either task. Any potential written, or saved,
statement vanished upon S.J. turning off her computer. Thus, it is clear that an
original printed message was unavailable, and the trial court properly allowed
S.J. to testify as to the content of the messages that appeared on her computer
screen. The trial court did not abuse its discretion in allowing S.J. to testify as
to the messages she received on her computer.
See also United States v. Harry, 2013 U.S. Dist. LEXIS 25726 (D.N.M. Feb. 19,
2013); State v. Winder, 2008 Kan. App. Unpub. LEXIS 537 (Kan. Ct. App. 2008)
(both analyzing text messages in context of best evidence rule).
8.
Document speaks for itself
9.
Foundation for pictures
Q.
I show you was has been marked as Exhibit 2. Can you tell the
jury what Exhibit 2 is?
14
A.
This is a photograph of the Bank’s data call center I was
describing previously?
Q.
Did you take this photograph?
A.
No.
Q.
Nevertheless, does this photograph fairly and accurately
represent the Bank’s data call center?
10.
A.
Yes.
Q.
I move for the admission on of Exhibit 2.
Impeachment using prior convictions (defendant v. other witness)
Rule 2:609. Impeachment by Evidence of Conviction of Crime
(derived from Code § 19.2-269)
Evidence that a witness has been convicted of a crime may be admitted
to impeach the credibility of that witness subject to the following
limitations:
(a) Party in a civil case or criminal defendant.
(i) The fact that a party in a civil case or an accused who testifies has
previously been convicted of a felony, or a misdemeanor involving
moral turpitude, and the number of such convictions may be elicited
during examination of the party or accused.
(ii) If a conviction raised under subdivision (a)(i) is denied, it may
proved by extrinsic evidence.
(iii) In any examination pursuant to this subdivision (a), the name or
nature of any crime of which the party or accused was convicted, except
for perjury, may not be shown, nor may the details of prior convictions
be elicited, unless offered to rebut other evidence concerning prior
convictions.
15
(b) Other witnesses. The fact that any other witness has previously been
convicted of a felony, or a misdemeanor involving moral turpitude, the
number, and the name and nature, but not the details, of such
convictions may be elicited during examination of the witness or, if
denied, proved by extrinsic evidence.
(c) Juvenile adjudications. Juvenile adjudications may not be used for
impeachment of a witness on the subject of general credibility, but may
be used to show bias of the witness if constitutionally required.
(d) Adverse Witnesses. A party who calls an adverse witness may not
impeach that adverse witness with a prior conviction.
11.
Testimonial v. not testimonial after Melendez
The fact in question is that the substance found in the possession of
Melendez-Diaz and his codefendants was, as the prosecution claimed,
cocaine--the precise testimony the analysts would be expected to
provide if called at trial. The "certificates" are functionally identical to
live, in-court testimony, doing "precisely what a witness does on direct
examination."
Absent a showing that the analysts were unavailable to testify at trial
and that petitioner had a prior opportunity to cross-examine them,
petitioner was entitled to "'be confronted with'" the analysts at trial.
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532 (2009)
12.
Not hearsay v. hearsay exceptions
Rule 2:801. Definitions
The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written assertion or (2)
nonverbal conduct of a person, if it is intended as an assertion.
(b) Declarant. A "declarant" is a person who makes a statement.
16
(c) Hearsay. "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.
Rule 2:802. Hearsay Rule
Hearsay is not admissible except as provided by these Rules, other Rules
of the Supreme Court of Virginia, or by Virginia statutes or case law.
Rule 2:803. Hearsay Exceptions Applicable Regardless of
Availability of the Declarant (Rule 2:803(10)(a) derived from Code
§ 8.01-390(B); Rule 2:803(10)(b) derived from Code § 19.2-188.3;
Rule 2:803(17) derived from Code § 8.2-724; and Rule 2:803(23) is
derived from Code § 19.2-268.2)
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(0) Admission by party-opponent. -- A statement offered against a
party that is (A) the party's own statement, in either an individual or a
representative capacity, or (B) a statement of which the party has
manifested adoption or belief in its truth, or (C) a statement by a person
authorized by the party to make a statement concerning the subject, or
(D) a statement by the party's agent or employee, made during the term
of the agency or employment, concerning a matter within the scope of
such agency or employment, or (E) a statement by a co-conspirator of a
party during the course and in furtherance of the conspiracy.
13.
Parole evidence rule exceptions (this could be a class by itself)
Va. Code § 11-2. When written evidence required to maintain
action
Unless a promise, contract, agreement, representation, assurance, or
ratification, or some memorandum or note thereof, is in writing and
signed by the party to be charged or his agent, no action shall be
brought in any of the following cases:
17
1. To charge any person upon or by reason of a representation or
assurance concerning the character, conduct, credit, ability, trade, or
dealings of another, to the intent or purpose that such other may obtain
thereby, credit, money, or goods;
2. To charge any person upon a promise made after attaining the age of
majority, to pay a debt contracted during infancy, or upon a ratification
after attaining the age of majority, of a promise or simple contract made
during infancy;
3. To charge a personal representative upon a promise to answer any
debt or damages out of his own estate;
4. To charge any person upon a promise to answer for the debt, default,
or misdoings of another;
5. Upon any agreement made upon consideration of marriage;
6. Upon any contract for the sale of real estate, or for the lease thereof
for more than a year;
7. Upon any agreement or contract for services to be performed in the
sale of real estate by a party defined in § 54.1-2100 or § 54.1-2101;
8. Upon any agreement that is not to be performed within a year; or
9. Upon any agreement or promise to lend money or extend credit in an
aggregate amount of $ 25,000 or more.
The consideration need not be set forth or expressed in the writing, and
it may be proved (where a consideration is necessary) by other
evidence.
18
Part Two – You be the Judge
CASE STUDY NO. 1
In 1996, at the commencement of the trial of Defendant Michael Rhynes (and
others) and at the request of the parties, the district court entered its
sequestration order from the bench as follows:
Well, I do grant the usual sequestration rule and that is that the
witnesses shall not discuss one with the other their testimony and
particularly that would apply to those witnesses who have completed
testimony not to discuss testimony with prospective witnesses, and I
direct the Marshal's Service, as much as can be done, to keep those
witnesses separate from the--those witnesses who have testified
separate and apart from the witnesses who have not yet given
testimony who might be in the custody of the marshal.
During the Government's case-in-chief, it presented the testimony of witness
D. S. Davis. Davis is a convicted felon and was, at the time of trial, serving a
seven-year sentence for participating in a drug conspiracy. Davis testified,
among other things, that he first met Alexander in 1990, when he (Davis)
asked another would-be witness Alexander to serve as an intermediary in a
drug transaction between Davis and Rhynes.
In response to an objection from Rhynes's lawyer, Michael Scofield, the
Government explained at the bench that it was "getting to the focal point of
Mike Rhynes." Specifically, the Government noted that Alexander was listed as
a witness for Rhynes, and it believed that Davis would testify that Alexander
had been approached to serve as an intermediary between Davis and Rhynes
but that Alexander had never completed a transaction between the two. In
response, Mr. Scofield stated:
Well, I didn't know what -- where he was going with Alexander, so I had no
information that they allege he was a member of the conspiracy. It sounded
like you're not alleging that now.
19
The Government replied, apparently in reliance on Davis's statements, that
Alexander had told Davis that Rhynes "did not have the drugs at that time,"
and Davis thereafter dealt directly with Rhynes.
Davis then concluded his testimony in support of the Government's case. He
maintained that Alexander had approached Rhynes on two occasions with
proposals of drug deals with Davis. According to Davis, Alexander passed
those offers to Rhynes, who did not accept either offer. Subsequently, Davis
approached Rhynes directly, and Rhynes agreed to sell him cocaine.
Thereafter, according to Davis, Rhynes sold him drugs on several occasions.
During Rhynes's defense, he testified on his own behalf; then, he called a
single witness to corroborate his testimony: Alexander. Alexander testified on
a number of subjects, before he was asked about the Government's earlier
witness, Davis. Alexander explained that, at a meeting between the two, Davis
told Alexander that the Government had offered Davis a deal in exchange for
information about Rhynes. Alexander then stated, "And he [(Davis)] went off
to do his time, and I hear from Tuesday he got up and said --," whereupon the
Government objected and requested a bench conference.
At the bench, Mr. Scofield advised the district court that he had discussed
Davis's testimony with Alexander: "I specifically told him about that testimony
and told him I was going to ask him about that, Your Honor. And I don't think
that violates the sequestration order." The district court indicated its belief
that the sequestration order had been violated. Mr. Scofield then responded,
"I'm sorry then, Your Honor. I've done wrong then because I don't know how
else I can prepare him to testify. I told him that that guy told him that he was a
drug dealer."
The district court nonetheless granted the Government's motion to strike
Alexander's testimony and to exclude him as a witness. The court did not
develop the record further, either by obtaining any additional testimony from
Alexander or by securing a proffer or testimony from Mr. Scofield.
Following a brief recess, which apparently included an off-the-record in
camera discussion, Mr. Scofield requested another bench conference to
20
discuss the witness exclusion issue. There, he apologized to the court and
attempted to deflect any sanction away from his client and onto himself,
stating:
Your Honor, as I told you in chambers, I now realize that the proper
thing for me to do in interviewing Alexander and preparing him to
testify was that I could have asked him all the details of whether he had
been a dealer and whether he had done drug deals with Michael Rhynes
and that sort of thing without telling him that Davis had said that he had
done that.
I wanted to specifically ask him about his relationship with Davis. And
as I told the court, I did tell him that Davis had said that he had done
these drug deals and that I wish I had been more alert in drawing that
line about just asking the questions without saying what Davis had said
in the court. I am concerned that my mistake will rebound to the harm
of my client and my client will be prejudiced and I would -- I'd asked the
court in chambers if you would revisit your decision to strike
Alexander's testimony and not let him testify further. The court
indicated that it would not, and I asked if I could make a proffer.
Scofield then made a proffer of the balance of Alexander's testimony.
According to Mr. Scofield, Alexander would have testified that he never dealt
drugs with Davis or anyone else. Alexander also knew Davis well enough to
form an opinion of Davis’s truthfulness.
YOU BE THE JUDGE – From United States v. Rhynes, 218 F.3d 310 (4th Cir.
2000) - Did Scofield violate the rule on sequestration of witnesses?
Rule 2:615. Exclusion of Witnesses (Rule 2:615(a) derived from
Code §§ 8.01-375, 19.2-184, and 19.2-265.1; Rule 2:615(b) derived
from Code § 8.01-375; and Rule 2:615(c) derived from Code § 19.2265.1)
(a) The court, in a civil or criminal case, may on its own motion and
shall on the motion of any party, require the exclusion of every witness
including, but not limited to, police officers or other investigators. The
21
court may also order that each excluded witness be kept separate from
all other witnesses. But each named party who is an individual, one
officer or agent of each party which is a corporation, limited liability
entity or association, and an attorney alleged in a habeas corpus
proceeding to have acted ineffectively shall be exempt from the
exclusion as a matter of right.
(b) Where expert witnesses are to testify in the case, the court may, at
the request of all parties, allow one expert witness for each party to
remain in the courtroom; however, in cases pertaining to the
distribution of marital property pursuant to § 20-107.3 or the
determination of child or spousal support pursuant to § 20-108.1, the
court may, upon motion of any party, allow one expert witness for each
party to remain in the courtroom throughout the hearing.
(c) Any victim as defined in Code § 19.2-11.01 who is to be called as a
witness may remain in the courtroom and shall not be excluded unless
pursuant to Code § 19.2-265.01 the court determines, in its discretion,
that the presence of the victim would impair the conduct of a fair trial.
Which do you agree with:
First, a rule that prohibits a witness from "hearing" the testimony of other
witnesses must include a prohibition against hearing that testimony not only
from another witness directly but also through intermediaries. This is a
necessary conclusion. And second, if Rule 615 precludes a person from acting
as an intermediary to relate to one witness the testimony of another, how can
we exempt an attorney from the proscription? Just as a discussion among
witnesses outside the courtroom would frustrate the rule that one witness
cannot hear the testimony of another, a discussion between a witness and an
attorney about another witness' testimony frustrates the rule.
Thus, while the [other appellate judges who disagree with me] endorse an
interpretation of Rule 615 that would prohibit witnesses from discussing
testimony among themselves or with anyone else, it maintains that the
"someone else" does not mean an attorney and that somehow an attorney has
22
a license to violate the proscription and frustrate the rule. Stated otherwise,
while two witnesses are prohibited from discussing testimony with each other
directly, they may conduct such a discussion through the ears and mouth of an
attorney. This conclusion is neither logical nor supported by precedent.
The lofty purpose of Rule 615 deserves greater deference than it would be
given if it were allowed to be engulfed by an attorney exception for trial
preparation. And the rule is forfeited altogether by arguing that even though
the truth-seeking purpose of Rule 615 might be debased by an attorney
exception, cross-examination will fill the gap. The rule is given, and we ought
to enforce it. And it is totally inconsistent with the "common practice" under
the rule to allow an attorney to tell a prospective witness what a prior witness
has said on the witness stand. The attorney in this case heard the order from
the court, and by telling a prospective witness about the testimony of a prior
witness, the attorney directly violated the court's order.
OR:
It is clear from the plain and unambiguous language of Rule 615 that lawyers
are simply not subject to the Rule. This Rule's plain language relates only to
"witnesses," and it serves only to exclude witnesses from the courtroom. Thus,
Rule 615 did not prohibit Mr. Scofield from discussing Davis's testimony with
Alexander.
The district court's bald Rule 615 order was then extended by the statement
that "the witnesses shall not discuss one with the other their testimony." Of
course, nothing on the face of this extending language addresses the conduct
of lawyers in any way. Moreover, the relevant authorities interpreting Rule
615, including court decisions and the leading commentators, agree that
sequestration orders prohibiting discussions between witnesses should, and
do, permit witnesses to discuss the case with counsel for either party:
In short, neither the bald invocation of Rule 615 nor the extending language
relating to discussions between witnesses served to circumscribe the conduct
of Mr. Scofield in any way.
23
To the extent that the Government asserts that Mr. Scofield frustrated the
purpose and spirit of sequestration, we disagree. The Government asserts that
Mr. Scofield's actions undermined the truthfulness of Alexander's testimony,
which, in the Government's view, is surely an act that runs afoul of the
sequestration order. On the contrary, lawyers are not like witnesses, and
there are critical differences between them that are dispositive in this case.
Unlike witnesses, lawyers are officers of the court, and, as such, they owe the
court a duty of candor, Model Rules of Professional Conduct Rule 3.3 (1995)
("Model Rules"). Of paramount importance here, that duty both forbids an
attorney from knowingly presenting perjured testimony and permits the
attorney to refuse to offer evidence he or she reasonably believes is false. Id.
Rule 3.3(a)(4), (c). Similarly, an attorney may not "counsel or assist a witness
to testify falsely." Id. Rule 3.4(b). And, if an attorney believes that a non-client
witness is lying on the witness stand about a material issue, he is obliged to
"promptly reveal the fraud to the court." Id. Rule 3.3, cmt. 4. Consequently,
lawyers' ethical obligations to the court distinguish them from trial witnesses.
Moreover, the purpose and spirit underlying sequestration are not absolute;
indeed, we have aptly recognized that even the "powerful policies behind
sequestration" must bend to the dictates of the Constitution. Thus, to the
extent that they are implicated in this case, the policies and spirit of
sequestration must yield to the constitutional and ethical duties Mr. Scofield
sought to effectuate here. That is, in the context of a criminal trial like this one,
a defense attorney's duty to his client assumes constitutional stature: "In all
criminal prosecutions, the accused shall . . . have the Assistance of Counsel for
his defence." U.S. Const. amend. VI. To all clients, an attorney owes
competence. Model Rules Rule 1.1. To fulfill this basic duty, the attorney must
prepare carefully for the task at hand: "Competent representation requires . . .
thoroughness and preparation reasonably necessary for the representation."
Id. Rule 1.1(a).
Thorough preparation demands that an attorney interview and prepare
witnesses before they testify. No competent lawyer would call a witness
without appropriate and thorough pre-trial interviews and discussion. In fact,
more than one lawyer has been punished, found ineffective, or even disbarred
24
for incompetent representation that included failure to prepare or interview
witnesses.
In this context, Mr. Scofield's actions were necessary in the exercise of his
duties, both constitutional and ethical, as a lawyer. Faced with an allegation
that his prime supporting witness, Alexander, had been assisting, or
participating in, a drug conspiracy with Rhynes, Mr. Scofield had ethical (and
possibly constitutional) duties to investigate these allegations with Alexander
before he put Alexander on the stand. Mr. Scofield was thus compelled to
ascertain, if possible: (1) whether Davis's allegations were untrue (or, if true,
whether Alexander intended to invoke his Fifth Amendment rights); (2)
whether Alexander's denials were credible; and (3) why Davis would make
potentially false allegations against Alexander. Put simply, Mr. Scofield needed
to fully assess his decision to call Alexander as a witness, and, to fulfill his
obligations to his client, Scofield was compelled to discuss Davis's testimony
with Alexander. See Chandler v. Jones, 813 F.2d 773 (6th Cir. 1987) (finding
counsel's performance deficient for (1) failing to prepare witness for trial; (2)
improperly using leading questions; and (3) calling witness who was expected
to invoke the Fifth Amendment).
25
CASE STUDY NO. 2
Mary Arnold was injured in a car accident in 2005 caused by Jonathan
Wallace. Ms. Arnold sued Mr. Wallace for negligence. At trial in 2012, Ms.
Arnold called her treating physician, Dr. Gardner who testified that Ms. Arnold
suffered from neck and back pain, nausea and vomiting and post-concussive
syndrome secondary to the car accident. The opinion was based on the fact
that the symptoms emerged immediately following the accident.
On cross examination, Mr. Wallace sought to introduce the treatment records
of Ms. Arnold dating back to 1994. Dr. Gardner was just one of several
medical providers who had treated Arnold. The records revealed that over
the years Ms. Arnold suffered from a variety of physical ailments that
preceded the collision, including a deteriorating cervical disc, extreme stress,
dizziness, migraine headaches, blurred vision, and pain and numbness in her
limbs.
Ms. Arnold objected on the basis that Mr. Wallace failed to lay a proper
foundation that Dr. Gardner was a proper custodian for admission of business
records. Ms. Arnold refused to state further how the testimony of Dr. Gardner
was insufficient for a business record stating, defendant “hasn’t laid the
elements of the business records foundation, and I don’t want to tell him what
it is. That’s his job.”
YOU BE THE JUDGE? – Did the trial court err in overruling the foundation
objection?
The Supreme Court noted:
the regularity of [the documents’] preparation and the fact that the
records are relied upon in the transaction of business by the
person or entities for which they are kept and they are kept in the
ordinary course of business made contemporaneously with the
event by persons having the duty to keep a true record. The final test is
whether the documents sought to be introduced are the type
of records which are relied upon by those who prepare them or for
whom they are prepared.
26
Thereafter, Mr. Wallace asked Dr. Gardner several questions that elicited
responses recounting hearsay statements within the medical records. No
further objections were made to the hearsay statements and opinions within
the records. No further effort was made to keep out the opinions of the
various medical care providers found within the medical records.
Ms. Arnold relied upon Neeley v. Johnson, 215 Va. 565, 571, 211 S.E.2d 100,
106 (1975), where the Virginia Supreme Court held that the business records
exception does not include opinions and conclusions of physicians or others
recorded in hospital records. Arnold argued that pursuant to Neeley, the
factual nature of medical records is an element of the foundation and
therefore must be established prior to their admission in response to a
foundation objection. She concluded that Mr. Wallace failed to make such a
showing and therefore failed to lay an adequate foundation, and that the
circuit court erred in admitting the medical records.
Mr. Wallace responded that, pursuant to Neeley, the presence of opinion in a
proffered business record constitutes an independent ground for objection
which Arnold failed to assert at trial.
YOU BE THE JUDGE – Was the testimony and medical records admitted in
error?
Mr. Wallace submitted an expert designation of Dr. Hartman that included one
of his partners, Dr. Citrin. Ms. Arnold objected on the grounds that she had
previously retained Dr. Citrin but then had determined not to use Dr. Citrin.
Ms. Arnold contended that Dr. Citrin had confidential information obtained
from Ms. Arnold and that Dr. Hartman and Dr. Citrin were each precluded
from testifying. In a pretrial ruling on a motion by Ms. Arnold to exclude both,
Mr. Wallace agreed not use testimony of Dr. Citrin.
YOU BE THE JUDGE – How did the Court rule pretrial? Can Mr. Wallace call Dr.
Hartman?
Prior to trial, Ms. Arnold objected to Dr. Hartman who was on Mr. Wallace’s
witness list. When called, Ms. Arnold renewed her objection and was
permitted to voir dire Dr. Hartman about the contents of his file. Dr. Hartman
testified that Dr. Citrin did not reveal any confidential information he obtained
from Ms. Arnold; however, within the file there were hand-written notes that
27
Dr. Hartman testified he did know from whom the notes originated and
claimed were indecipherable.
YOU BE THE JUDGE – Should Dr. Hartman be permitted to testify at trial?
The Supreme Court stated that Ms. Arnold, as the party seeking
disqualification, bore the burden of offering sufficient evidence that Dr. Citrin
revealed confidential information to Dr. Hartman.
28
CASE STUDY NO. 3
Dr. Matthew A. Galumbeck and Plastic Surgery of Tidewater, P.C. appeal a
judgment in favor of the plaintiff Joseph Lopez ("Lopez"), administrator of the
estate of Maritess Q. Lopez ("Maritess"). Finding that the trial court did not
err, we affirm the judgment.
BACKGROUND
In 2008, Plaintiff Maritess Lopez ("Maritess") had outpatient surgery
performed by Defendant Dr. Galumbeck. After the surgery, Kenneth Hale
brought Maritess home. He noticed that she was not breathing normally, she
was unable to speak clearly and she had to be helped to his car by the nurses.
On July 31, 2008, the morning after the surgery, Carmelita Hale ("Hale"),
Maritess' sister, called Dr. Galumbeck's office and spoke to Nurse Marsha
Phillips. Hale told Nurse Phillips that Maritess was in pain, feverish and very
dizzy. According to Hale, Nurse Phillips expressed no concern and told her
those symptoms were normal.
Later that same day, Maritess died from aspiration pneumonia secondary to
the surgery. Mr. Lopez, her husband, qualified as administrator of her estate
and brought a wrongful-death action against Dr. Galumbeck and others.
At trial, Dr. Galumbeck testified that Nurse Phillips could not have answered
the phone call from Hale, because she was in the operating room with him at
that time. When asked how he knew that, Dr. Galumbeck stated that he had
reviewed the surgical log. At that point, Lopez' counsel objected and the trial
court held a side bar conference. The trial court then instructed the jury to
disregard the mention of any surgical log.
Dr. Galumbeck also testified that he was not paid for the surgery. Another side
bar conference was held, also off the record. Dr. Galumbeck alleges that during
the side bar conference, he attempted to offer documents into evidence that
show he was never paid for the surgery. According to Dr. Galumbeck, the trial
court rejected the evidence.
29
During cross-examination, Dr. Galumbeck was asked about the contents of his
website, namely whether it states that he offers board-certified
anesthesiologists for all operations at his surgical center. Dr. Galumbeck's
counsel stated "Objection. May we approach?" Another side bar discussion
was held off the record. At the conclusion of that discussion, the trial court
overruled the objection and Lopez' counsel was permitted to question Dr.
Galumbeck about whether his website indicated that he offered only boardcertified anesthesiologists. Dr. Galumbeck admitted his website stated that his
anesthesiologists were board-certified, even though Dr. Flor is not boardcertified. When Lopez offered a copy of the website into evidence, counsel for
Dr. Galumbeck objected to the relevance of the exhibit. The document was
admitted into evidence.
At the end of the day, after the court adjourned, counsel for Dr. Galumbeck
recorded a statement with the court reporter that he called a "proffer." In his
statement, counsel summarized his arguments and some of the trial court's
rulings regarding counsel's attempts to introduce Defendant's rejected Exhibit
A, the surgical log, and Defendant's rejected Exhibit B, the payment records.
Counsel also restated his objections about the admission of evidence that Dr.
Flor was not a board-certified anesthesiologist.
The following morning, Dr. Galumbeck made a motion for a mistrial based on
the misconduct of Juror Conway. According to Dr. Galumbeck's counsel, he
saw Juror Conway shake the hand of Dr. Waisman, one of Lopez' expert
witnesses, and tell him "good job," after Dr. Waisman had testified and the
jury was leaving the courtroom. Counsel for Dr. Galumbeck further alleged
that Juror Conway "shook his head and made a gesture with his right fist, as if
to say, I'm with you" towards Lopez.
The trial court stated that it would allow counsel to question Juror Conway
about these incidents. Counsel for Dr. Galumbeck objected, stating that he
believed it would be improper for him to question the juror and then have the
juror remain on the jury. The trial court overruled the objection.
Outside of the presence of the other jurors, the trial court asked Juror Conway
if he had spoken to the plaintiff's expert. Juror Conway responded that he
30
"didn't talk to him. [He] just shook his hand and said 'good job.'" The trial
court asked what he meant by that, and Juror Conway responded that he
"thought [the expert] did a good job in dealing with . . . what he was asked to
do." The trial court asked if this interaction in any way indicated that Conway
was biased, and Juror Conway responded that it did not. The trial court then
asked if Juror Conway had ever shaken hands with Lopez, and Juror Conway
responded, "I have never touched Mr. Lopez."
The trial court then allowed counsel for both parties to question Juror
Conway. Counsel for Lopez asked if Juror Conway could "fairly and impartially
decide this case," to which Juror Conway responded "Absolutely."
Counsel for Dr. Galumbeck then asked Conway if he had nodded his head at
Lopez as he walked by. Conway responded, "Oh, I've nodded my head at
several people in here. What, can you not nod your head or what?" He further
explained that he might have acknowledged Lopez with a nod "like 'how are
you,'" but reiterated that he was impartial. The trial court ultimately denied
Dr. Galumbeck's motion for a mistrial.
Dr. Galumbeck then moved for a mistrial based on the admission of evidence
about Dr. Flor's lack of board certification. The trial court said that it had
already ruled on that issue and denied the motion. Counsel for Dr. Galumbeck
asked to state his motion for the record, but the trial court denied his request,
stating: "This is denied, you can cite your objections later." When counsel for
Dr. Galumbeck asked if the court was not permitting him to state his motion
for the record, the trial court responded: "Not now. You will be [allowed] later.
We've got to get the case moving."
YOU BE THE JUDGE: Issue 1 – Juror Misconduct
Standard -- a mistrial will not be declared automatically upon a showing of
juror misconduct, but that the trial judge, in the exercise of a sound discretion,
must determine whether remarks made about the case by a juror to persons
not jurors demonstrate that prejudice might result. The burden to establish
this probability of prejudice is upon the party moving for a mistrial. This view
31
is based upon the universal rule that fraud will not be presumed and upon the
reluctance to presume prejudicial misconduct.
YOU BE THE JUDGE: Issue 2 – Surgical Log
It is the obligation of the petitioner/appellant to ensure that the record is
sufficient to enable the Court to evaluate and resolve the assignments of
error. When the appellant fails to ensure that the record contains transcripts
or a written statement of facts necessary to permit resolution of appellate
issues related to the assignments of error, any assignments of error affected
by the omission shall not be considered.
We will not consider testimony which the trial court has excluded without a
proper showing of what that testimony might have been." A necessary
corollary to this rule is that we will not consider an objection made to the trial
court without a proper showing of what that objection was. As with excluded
evidence, absent a transcript or written statement of the facts that captures
the arguments made at trial, this Court has no basis upon which to review the
trial court's ruling.
YOU BE THE JUDGE: Issue 3 – Board Certification
With regard to the information found in Plaintiff's Exhibit #3, a printout of Dr.
Galumbeck's website, Dr. Galumbeck did specifically object to its introduction
on the grounds that it was irrelevant. We note, however, that Defense Exhibit
#5, offered by Dr. Galumbeck and admitted into evidence, contains the same
printout of his website to which he now objects. We have repeatedly held that
HN6 "where [a party] unsuccessfully objects to evidence which he considers
improper and then on his own behalf introduces evidence of the same
character, he thereby waives his objection."
YOU BE THE JUDGE: Issue 4 – Medical Bills
Dr. Galumbeck argues that the trial court abused its discretion by allowing
copies of Maritess' medical bills into evidence. Dr. Galumbeck contends that
there was no claim for medical expenses in this case, therefore this evidence
was irrelevant. He further asserts that the trial court compounded this error
32
by refusing to allow him to present evidence that demonstrates that Maritess
did not pay her medical bills.
33
CASE STUDY NO. 4
In 2006, Plaintiff Narmina Barber was a passenger in an automobile driven by
her husband when Defendant Billy Wakole Sr. made a sudden left turn in front
of their vehicle hitting the passenger side of the Barber's vehicle. Although
Barber felt pain at the time of the accident, she declined to go to the hospital
but later sought several types of treatment with limited success for headaches
and neck pain.
Prior to the accident, Barber was "always full of energy, ready to work, ready
to clean the house, ready to go out and party, just always go, go, go." Since the
accident, she has often been irritable because of the pain and the limitations
that the pain places on her activities with family and friends. She periodically
has had to hire people to assist her with thoroughly cleaning her home. Her
friends now describe her as depressed and without energy.
As a result of her injuries, Barber brought this action against Wakole, who
admitted liability for the accident but disputed the extent of Barber's
damages. At trial, Barber entered two exhibits of her medical expenses — one
for $948 and one for $4,173. In her complaint, Barber requested $50,000 in
damages.
Prior to closing argument, Wakole objected to any argument by Barber that
would amount to using Civil Model Jury Instruction 9.000 as a mathematical
formula utilizing each type of damage as a line item. Wakole's counsel argued
that this Virginia law prohibited such an argument because that case held that
counsel may not propose a method to the jury by which the jury ought to
calculate damages. Counsel did not dispute that Barber put on evidence of
pain, suffering, and inconvenience but argued that assigning a monetary value
to each category would amount to nothing more than speculation. The court
overruled Wakole's objection.
During Barber's closing argument, she presented a chart from which the jury
could calculate damages, which she called a formula, and argued for $50,000
in damages, including compensation for medical bills, past inconvenience, "full
and fair compensation for the injuries she sustained," future medical
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expenses, past pain and suffering, and her pain and limitations that she will
have for the remainder of her life. Barber argued to the jury that the law
recognizes "human losses" and asserted that three years and nine months
after the accident, she still suffered from headaches and neck pain for which
medical treatment afforded little relief. She also argued that she has been
greatly inconvenienced by this accident in terms of her daily life and her
relationships with others.
Barber's counsel presented the jury with a chart detailing various amounts
sought for different categories of damages. At one point, counsel argued that
Barber hoped to live an additional thirty-five to forty years but did not assign
a per diem rate to this expectation. What Barber did was ask for a fixed dollar
amount for each category of damages. The jury returned a verdict for $30,000
in damages.
YOU BE THE JUDGE – Is this proper closing argument?
The values placed upon the elements of intangible damages were "estimates
of counsel" that "instill[ed] in the minds of the jurors impressions not founded
on the evidence." In fact, "an expert witness would not be permitted to testify
as to the market value of pain and suffering." Thus, counsel's use of these fixed
values was "speculation" that was "unsupported by evidence, amounting to
his giv[ing] testimony in his summation argument." Although wide latitude is
generally given by the court during closing argument, "[c]ounsel has no right
to testify in the guise of making argument, nor to assume the existence of
evidence that has not been presented." The circuit court's error in allowing
counsel to assign values to the elements of damages was compounded in
allowing counsel to insert these values into a calculation to be used by the jury
in arriving at Barber's damages. "[T]he use by plaintiff's counsel of a
mathematical formula" setting forth the claim of intangible damages on any
"fixed basis" is improper. "Verdicts should be based on deductions drawn by
the jury from the evidence presented and not the mere adoption of
calculations submitted by counsel."
Or
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It has long been recognized that plaintiff is allowed to ask for a "fixed amount"
for non-economic loss caused by the defendant's negligence. As long as there
is evidence to support an award of non-economic damages, plaintiff is allowed
to break the lump sum amount into its component parts and argue a "fixed
amount" for each element of damages claimed as long as the amount is not
based on a per diem or other fixed basis.
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CASE STUDY NO. 5
The complaining witness (the victim) was a 41-year-old woman who lived
with her husband and two daughters, ages 12 and 17. The victim had
completed only the seventh grade in school and had difficulty in reading,
writing and comprehending directions. She had known Jerry Lee Anderson
(the defendant) for several years because he had worked on her family's
vehicles.
In 2009, the victim encountered the defendant at a food market. He told her
that her husband had asked him to check the brakes on her van, that he would
be at home "in a little bit" and that she could bring the van over when she was
ready. The victim, who had her daughters with her, drove the van to the
defendant's home in Pittsylvania County after leaving the store. The defendant
looked under the van's hood and told her that she would need to take the van
somewhere to be put on a lift. He invited her to come into the house and said
he would give her the phone number of a place that had a lift.
Leaving her daughters to wait in the van, the victim followed the defendant
into the house. As she entered the door, the defendant closed it behind her
and started "kissing on [her] [and] rubbing on [her]." She told him to stop and
struggled with him and he said, "I got you where I want you." As the struggle
continued, the defendant seized her arms with sufficient force to leave visible
bruises. The defendant forced her down onto a couch. She felt a cold, hard
object touch the left side of her head. She testified that she did not see the
object but heard a "click" that sounded like the cocking of a gun. Assuming
that a gun was being held to her head, she "froze." While she felt the cold
object still against her head, she submitted to an act of oral sodomy while the
defendant sat astride her chest.
The defendant then put the object she felt against her head, but never saw,
into his pocket and told her that she could leave. He told her that he would kill
her and her family if she told anyone what had happened and reminded her
that he knew where she worked and where she lived.
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The victim had been in the defendant's house about 15 minutes, according to
her younger daughter who had waited in the van. The daughter testified that
her mother was red-faced and crying when she came out of the house but did
not say why. When they returned home, the victim's husband was away at
work. The victim told her daughters to watch television while she went into
her own room where she could be heard crying.
The victim said nothing about the incident to her husband or daughters but on
the following day she called Dr. Regina Curtis, a licensed clinical professional
pastoral counselor at the Cross Roads Christian Counseling Center. The victim
had been Dr. Curtis' client since 2004. The victim was "very upset and
emotional." She named the defendant and said that he had "done bad things to
her." Asked to specify the act that the victim described, Dr. Curtis said "oral
sex." Dr. Curtis advised her to discuss the matter privately with her husband
but nobody else until they received legal advice.
The victim worked as a volunteer at the Cross Roads Christian Counseling
Center and knew Danville Police Officer Michael Klauss, who served on the
center's board. After discussing the matter with her husband, she called
Officer Klauss "around the beginning of May" and left a message asking him to
return her call. He called her back and she asked if he could meet with her
personally. Officer Klauss met with her on or about May 7 and she gave him a
full account of the incident. After speaking with Officer Klauss, she reported
the matter to the Pittsylvania County Sheriff's Department, although she had
been afraid to do so previously. This resulted in an interview by Deputy
Sheriff C. L. Eikost at her home, in the presence of her husband and Officer
Klauss. She described the incident to the deputy, who noted that she still had
visible bruises on her arms.
J. Todd Barrett, an investigator with the sheriff's department, had the victim
make two recorded telephone calls to the defendant, which Barrett audited.
During these calls, the defendant did not deny the victim's statements
concerning the incident. Investigator Barrett then went to the defendant's
home and interviewed him. At first, the defendant denied that anything had
happened between him and the victim on May 1. Later, when confronted with
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the content of the two telephone calls from the victim, the defendant changed
his account and admitted that he had oral sex with the victim on May 1 but
asserted that "it was her idea."
Indicted for fellatio by force in violation of Code § 18.2-67.1, the defendant
waived trial by jury and the case came to a bench trial in the Circuit Court of
Pittsylvania County. The Commonwealth presented the testimony of the
victim, her younger daughter, Dr. Curtis, Officer Klauss, Deputy Eikost and
Investigator Barrett. The defendant took the stand in his own defense and
presented three witnesses to his good reputation for truth and veracity. When
asked on cross-examination whether he contended that the encounter with
the victim was "completely consensual," the defendant answered, "Yes,
Ma'am."
In his opening statement, defense counsel stated that the evidence would
show that the victim had made prior statements inconsistent with her
testimony at trial,1 particularly "regarding the firearm."
In his cross-examination of the victim, defense counsel asked her whether she
had told Deputy Eikost that she "saw a gun." She denied having made that
statement and said that she had tried to explain that she felt what she thought
was a gun and heard its "click" but had not seen it.
Defense counsel objected to the testimony of Dr. Curtis and Officer Klauss
when they were asked to recount what the victim had told them about the
assault, on the ground that it was inadmissible hearsay. The
YOU BE THE JUDGE – Was the Prior Consistent Statement properly admitted?
"the repetition of a story does not render it any more trustworthy." For that
reason, there is a general rule excluding [464] the prior consistent
statements of a witness that are offered for the purpose of buttressing his
testimony at trial. Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309, 8
Va. Law Rep. 2735 (1992) (citing cases). Nevertheless, in Virginia, there are
two well-recognized exceptions to this general rule of exclusion. Prior out-ofcourt statements made by a witness, consistent with his testimony at trial,
39
may, in those circumstances, be admitted for the purpose of rehabilitating the
witness after his credibility has been challenged.
Circumstances triggering the first exception are attacks on the credibility of
the witness suggesting that he has a motive to falsify his testimony, such as
bias, interest, corruption or relationship to a party or a cause, or that his
testimony at trial is a "recent fabrication" designed to serve such a motive.
In Virginia, there is a second exception to the general rule of exclusion: Where
the opposing party has attempted to impeach the witness by offering a prior
inconsistent statement made by the witness, prior consistent statements
made by the witness are admissible to support the witness.
Va. Code §18.2-268.2:
Notwithstanding any other provision of law, in any prosecution for criminal
sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, a
violation of §§ 18.2-361, 18.2-366, 18.2-370 or § 18.2-370.1, the fact that the
person injured made complaint of the offense recently after commission of the
offense is admissible, not as independent evidence of the offense, but for the
purpose of corroborating the testimony of the complaining witness.
4837-8889-5509, v. 2
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