Refreshing Recollection

June 20, 2018 § Leave a comment

It happens sometimes that the witness simply can not recall something that you need to have in the record. Before you give up and move on to something else, consider MRE 612, which is entitled, “Writing Used to Refresh a Witness’s Memory.”

Actually, the title is a misnomer, because under MRE 612(a) you can use a “writing, recording, or object” to refresh the witness’s memory.

Here are the steps:

  1. Establish that the witness is unable to recall something;
  2. Counsel is unable to jog the witness’s memory through questioning. The court may allow leading questions;
  3. Counsel shows the writing, recording, or object to the witness and asks whether looking at it will help refresh her memory. If yes, she is allowed to read or look over it silently;
  4. If the witness after looking at it can then say she now recalls the matter independent of the writing, recording, or object, she may then testify to that independent recollection;
  5. If the witness can not recall the matter after that procedure, counsel may lay a foundation for admitting the writing’s, recording’s, or object’s contents under MRE 803(5), past recollection recorded exception to the hearsay rule (that’s for another day).

What is an “object?” The advisory committee note mentions a photograph as an example. But there is no requirement in the rule that the object have content or substance, as would a photograph, a map, or a hand-drawn sketch. In law school our evidence professor said that a pencil or a comb could be used, so long as they would help refresh the witness’s memory.

When I practiced, I liked to do step 3 a little differently. I would ask the witness whether there was something that would help jog his memory. Most times the answer was something like, “Yes, if I could look over the inventory I made,” or something to that effect, I would then hand the witness what he identified.

Remember that under the MRE the writing, recording, or object used in R612 need not meet the requirements of past recollection recorded unless and until the witness has no independent recollection after looking at it and must use it to testify (e.g., “I don’t remember well enough to testify without referring back to this list …”).

 

The Best Evidence Rule in Action

June 18, 2018 § Leave a comment

You won’t see many appellate cases in which the best evidence rule (MRE 1002, 1003, and 1004) comes into play. That’s because the appellate courts give great deference to the trial judge’s rulings on evidence.

But a recent case shows how the rule can come up at trial, how the trial judge deals with it, and how the appellate courts address it.

A contract dispute arose between Clifford Frisby and Ferrell Warden over sale of a home. Warden claimed that the parties had an agreement that he would perform certain work on the property and be given credit for the value of the work against the sale price. At trial he offered three documents into evidence to support his claim. Frisby objected to their authenticity. The chancellor ruled that they were admissible, and ultimately ruled in favor of Warden. Frisby appealed on several grounds, one of which was that the chancellor erred in admitting the three documents contrary to the best evidence rule.

In Frisby, et al. v. Warden, decided May 8, 2018, the COA affirmed. Judge Greenlee wrote the opinion for a unanimous court:

¶7. Frisby asserts that the chancellor improperly admitted the disputed handwritten contracts into evidence. According to Frisby, these documents were duplicates of original handwritten documents that he never signed. Therefore, he argues that pursuant to Mississippi Rules of Evidence 1002 and 1003, the duplicates were inadmissible because there was a genuine question as to their authenticity. In response, Warden asserts Frisby has
offered nothing to show that the chancellor abused her discretion nor that any substantial right has been affected. A review of the record indicates that the chancellor, in denying Frisby’s motion for reconsideration, explained the handwritten contracts were admitted into evidence pursuant to Mississippi Rule of Evidence 1004(c). We find this determination was not manifest error.

¶8. Frisby correctly asserts that pursuant to Rule 1002, known as the best-evidence rule, an original writing is generally required to prove its contents. Further, pursuant to Rule 1003, Frisby correctly asserts that a duplicate cannot be admitted when a genuine issue has been raised about the original’s authenticity. However, an exception to the best-evidence rule exists when the party against whom the original would be offered had control of the original, received notice that the original would be subject to proof at trial, and failed to produce the original at trial. M.R.E. 1004(c).

¶9. In the present case, Warden introduced duplicates of three handwritten documents into evidence in support of his complaint for specific performance. Frisby initially objected to their introduction, but allowed them to be introduced “for the purpose of this hearing,” while still contesting their authenticity. Thus, the hearing proceeded to determine the authenticity of the alleged contracts, with both parties presenting multiple witnesses.

¶10. During the hearing, Frisby testified as an adverse witness and explained that he had never seen the three alleged contracts before and that Warden had never been to his office. However, Warden testified that he drafted all three of the handwritten documents “so that [he] could have some kind of documentation on a deal [they] had on the house.” Further, Warden testified that while he originally had the original documents, he met Frisby at Frisby’s office, where Frisby made copies of the documents and retained the originals, and gave Warden copies. Michael Neill, the previous owner of the property, also testified for Warden. He testified that he deeded the property to Frisby in 2010, and that when he spoke with Warden in 2011 or early 2012, Warden said he was buying the house from Frisby and “doing odd jobs” to pay off the house. Further, Neill testified that he saw Frisby sign a document in 2014, but that he did not know the document’s purpose. Neill later testified that he had overheard Frisby and Warden discussing ownership of the house for labor.

¶11. As previously mentioned, the admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of discretion. Tunica Cty. [v. Matthews], 926 So. 2d [209] at 212 (¶5) [(Miss. 2006)]. Further, “the chancellor sits as the fact finder and is the sole judge of the credibility of a witness when resolving factual disputes.” Stokes v. Campbell, 794 So. 2d 1045, 1048 (¶11) (Miss. Ct. App. 2001). As such, it was the chancellor’s job as trier of fact to determine which version she found more credible. LeBlanc v. Andrews, 931 So. 2d 683, 689 (¶19) (Miss. Ct. App. 2006). The chancellor, after hearing all the evidence, accepted Warden’s testimony as the most credible, admitting the duplicates pursuant to Rule 1004(c). Because there was substantial credible evidence in the record to support the chancellor’s finding, this Court must accept them. Accordingly, this issue is without merit.

Not much to add. The chancellor found the documents to be what they purported to be — that’s authenticity — and her decision was supported by evidence in the record. It’s her call to make, she made it, and the COA affirmed it.

The testimony that Frisby copied the documents and kept the originals was enough to shoot down his demand to produce the originals, per MRE 1004(c).

Law and the Church

May 1, 2018 § 1 Comment

Church bodies wind up in court from time to time. Often the dispute is over which ecclesiastical entity or faction of the congregation will own or control church property or assets. Both sides tend to want to charge the other with heresy, or violation of church polity, or something along those lines, and they try to draw the court into their dispute.

It was a dispute over ownership of church property that brought First Presbyterian Church of Starkville (FPC) and The Presbytery of Saint Andrew into litigation. The Presbytery claimed that FPC, which wanted to withdraw from PCUSA, held the church property in trust for the denomination. FPC argued that it had opted out of any trust arrangement. Both sides filed motions for summary judgment. In his ruling in favor of FPC, the chancellor pointed out that the issue to be resolved was ownership of the property, and not doctrinal issues. The Presbytery appealed.

In Presbytery of St. Andrew, PCUSA v. First Presbyterian Church PCUSA of Starkville, Mississippi, the MSSC affirmed the chancellor’s ruling that FPC did not hold the church property in trust for the Presbytery. Judge Randolph’s April 12, 2018, opinion for the 7-2 majority explains the standard that the courts must apply in determining ecclesiastical legal disputes:

¶20. Mississippi has adopted the “neutral principles of law” approach for resolving church property disputes. See Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d 814, 824 (Miss. 2009); Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So. 2d 200, 206 (Miss. 1998).

The neutral-principles approach “relies on objective, traditional concepts of trust and property law. . . .” Id. at 205. “It calls ‘for the completely secular examination of deeds to the church property, state statutes and existing local and general church constitutions, by-laws, canons, Books of Discipline and the like. . . .’ ” Id. (quoting Protestant Episcopal Church in Diocese of N.J. v. Graves, 83 N.J. 572, 417 A.2d 19, 23 (N.J. 1980), cert. denied sub nom. Moore v. Protestant Episcopal Church in Diocese of N.J., 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981)). Religious documents must be carefully scrutinized in purely secular terms without relying on religious precepts. Church of God Pentecostal, 716 So. 2d at 205-06 (citing [Jones v.Wolf, 443 U.S. [595,] 604, 99 S. Ct. 3020, [61 L. Ed. 2d 775 (1979)]). If a deed, corporate charter, or religious document incorporates religious concepts in its provisions concerning ownership of the property, the court must defer to the authority of the ecclesiastical body so as to avoid resolving any religious controversy. Wolf, 443 U.S. at 604, 99 S. Ct. 3020 (citing Serbian Eastern Orthodox Diocese [v. Milivojevich], 426 U.S. [696,] 709, 96 S. Ct. 2372, [49 L. Ed. 2d 151 (19760])[sic]. Schmidt, 18 So. 3d at 824.

¶21. As the chancellor held, the underlying reason for the schism among FPC members and between FPC and the Presbytery is not the issue before this Court. The only issue to be decided is whether PCUSA ever had a trust interest in FPC’s property. We find that the chancellor properly found that it did not.

The opinion goes on to lay out an excellent summary of the law of trusts in Mississippi. We’ll talk about that tomorrow. For now, the main thing is to recognize that it’s not the court’s job to resolve doctrinal disputes or to usurp authority of religious governing bodies.

If you have a small-town, people practice, it’s practically inevitable that you will be asked to represent one side or another in a similar fracas. Feelings are hurt, emotions are raw, and things are said in anger that probably would be better left unsaid. The lawyers have their hands full trying to maintain control. My law partner decades ago handled some of these kinds of cases, and came to be known in the community as the “go-to” lawyer when schisms arose. He sued Ministers, Elders, Presbyteries, Bishops, Dioceses, and even Synods. In one of the last cases he handled before we went our separate ways, however, I told him that he had gone too far. He was suing an Apostle. To me, that just crossed a line.

Charging for Medical Records

April 11, 2018 § Leave a comment

Jane’s Law Blog reports that there is a petition for interlocutory appeal before the MSSC filed by Neurospine LLC, a medical provider, from sanctions assessed by Jasper County Circuit Court for overcharging for medical records. You can read the details at this link.

Although the case reported is from a circuit court, it is of interest to chancery practitioners as well, since medical records play a role in many chancery proceedings. Are you (or your client) being overcharged? Read the authority cited in Jane’s post and judge for yourself.

Jane Tucker’s blog is a helpful resource to keep up with decisions of the appellate courts, as well as filings, pending issues, and interesting oral arguments and briefs.

… And More on R41(b) Dismissal

March 27, 2018 § Leave a comment

Only yesterday we visited the notion of an MRCP 41(b) dismissal in a trial without a jury. The point there was that the motion is one to dismiss, not for a directed verdict.

Today we study the standard that the trial court is to apply in deciding how to rule on the motion.

In In the Matter of the Dissolution of the Marriage of Lewis, decided by the COA on March 20, 2018, Judge Wilson expounded on the topic:

¶13. In a bench trial, after the plaintiff “has completed the presentation of his evidence, the defendant . . . may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” M.R.C.P. 41(b). A motion for involuntary dismissal under Rule 41(b) is different from a motion for a directed verdict, which is made only in a jury trial. Ladner v. Stone Cty., 938 So. 2d 270, 273 (¶9) (Miss. Ct. App. 2006). “This distinction must be understood, because the standard of review for a dismissal is different than that for a directed verdict.” Id.

¶14. In ruling on a Rule 41(b) motion to dismiss, “[t]he judge must consider the evidence fairly, rather than in the light most favorable to the plaintiff,” as would be the case on a motion for a directed verdict or a motion for summary judgment. Century 21 Deep S. Props. Ltd. v. Corson, 612 So. 2d 359, 369 (Miss. 1992) (emphasis added). That is, the trial judge should give the plaintiff’s evidence only “such weight and credibility as he would ascribe to it if he were making findings of fact and rendering final judgment.” Gray v. Alumax Extrusions Inc., 477 So. 2d 1355, 1356-57 (Miss. 1985). If the judge “would find for the defendant” on the evidence presented, “the case should be dismissed.” Corson, 612 So. 2d at 369. “[T]he motion should be granted if the plaintiff has failed to prove one or more essential elements of his claim or if the quality of the proof offered is insufficient to sustain the plaintiff’s burden of proof.” Buelow v. Glidewell, 757 So. 2d 216, 220 (¶12) (Miss. 2000). “The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff’s evidence were all the evidence offered in the case.” Corson, 612 So. 2d at 369 (emphasis added).

¶15. “This Court applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [Rule] 41(b).” Id. The trial judge’s “decision on the motion is, for purposes of appeal, treated like any other finding of fact. In other words, his decision will not be disturbed on appeal unless it was manifestly wrong.” Gray, 477 So. 2d at 1357.

Applying the law to the case at hand:

¶16. “The chancellor’s findings of fact about cohabitation [and] de facto marriage . . . are entitled to substantial deference when reviewed on appeal.” Hughes v. Hughes, 186 So. 3d 394, 397 (¶6) (Miss. Ct. App. 2016) (quoting McMinn v. McMinn, 171 So. 3d 511, 518 (¶27) (Miss. Ct. App. 2014)). “We will not reverse a chancellor’s findings regarding the existence or nonexistence of a de facto marriage unless they are manifestly or clearly erroneous.” Id. at 403 (¶26) (citing Burrus v. Burrus, 962 So. 2d 618, 621 (¶15) (Miss. Ct. App. 2006)).

We’ll look at the concept of de facto marriage in a later post. At this point it’s important to bear in mind the standard you need to argue to convince the chancellor to grant — or deny — that 41(b) motion.

How Others See Us

March 9, 2018 § Leave a comment

Message I received recently from a County Court Judge in a far-flung corner of Mississippi:

We were overbooked this morning and I had to borrow a chancery courtroom. As soon as I walked over the threshold, my rules of evidence spontaneously burst into flames. What gives?!?

Who can argue with that? It’s happened to many a chancellor.

What Does MRE 105 Mean in Chancery?

February 21, 2018 § Leave a comment

MRE 105 allows the trial judge to admit evidence for a limited purpose when that evidence is otherwise objectionable. Here is the entire text of the rule:

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Juries are seldom a factor in chancery, so let’s focus on the rule absent that aspect. In a bench trial, you can ignore the phrase “and instruct the jury accordingly.”

Boiled down to its bench-trial essence, then, you must give the judge the opportunity on the record in the course of the proceeding to restrict the evidence to its proper scope, and you do that by making a timely request for the judge to do so.

The rule specifically requires you to request the court to limit the party or purpose. Most of the cases on point are criminal cases, but they are instructive. In Moss v. State, 977 So.2d 1201 (Miss. 2007), the court held that the trial judge is not required to give a limiting instruction sua sponte because the burden to request it is on counsel by the express language of the rule.  Similar holdings have been reached in civil cases. Owens v. Kelly, 191 So.3d 738 (Miss. App. 2015); Gilmer v. Morris Goodman Builders, Inc., 131 So.3d 1203 (Miss. App. 2013). There are many other cases that reach the same result.

One civil case that I found on the rule illustrates how it could play out in a non-criminal context. In a timber trespass case, the defendant claimed that it was error for the trial court to exclude testimony of conversations between him and his father that were intended to establish that the defendant believed in good faith that he had title to the property in question. The testimony was hearsay under MRE 801 and 802 insofar as it was offered as substantive testimony to rebut the plaintiffs’ claim of ownership. It would have been admissible, however, to rebut the plaintiffs’ claim for statutory damages based on the defendant’s good-faith belief based on the conversations. Since the defendant’s attorney never made a request per MRE 105, however, the trial judge could not be put in error for excluding the evidence. Taylor v. Galloway, 105 So.3d 1160 (Miss. App. 2012).

The request to limit the scope of the evidence must be made. If you don’t, you can’t challenge the chancellor’s ruling on appeal.

Understanding the MEC Privacy Requirements

January 8, 2018 § 2 Comments

Section 9(A) of the MEC administrative procedures imposes a duty to protect sensitive information of parties and children in filings with the court. Social Security numbers, names of minor children, dates of birth, and financial account numbers are prohibited and must be redacted. Attorneys are directed to use caution with personal identifying numbers (e.g., driver’s license numbers), medical records, employment history, individual financial information, and proprietary or trade-secret information.

There are exceptions, however, set out in Section 9(B). It states:

The redaction requirement shall not apply to the following:

  1. The record of an administrative or agency proceeding.
  2. The record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed. See Section 5(D) for a listing of restricted access cases.
  3. Documents filed under seal.
  4. Documents filed as Restricted Access if the private information is necessary and relevant to the case. See Section 5(D) for listing of restricted access cases.

Section 5(D) designates certain cases as “Restricted Access” (RA), meaning that persons other than the attorneys of record and clerks will only be able to view remotely the case’s docket page; as with other unsealed cases, the public may view documents on file in RA cases at the terminal in the clerk’s office.

Cases designated as RA include:

Debt Collection; Garnishment; Replevin; Child Custody/Visitation; Child Support; Divorce, both fault and irreconcilable differences; Modification; Paternity; Termination of Parental Rights; Birth Certificate Correction; Conservatorship; Guardianship; Minor’s Settlement; Protection from Domestic Abuse Law.

Note that adoption is not listed. That’s because adoptions are under seal, and so are exempted under 9(B)(3), above.

Also not listed are estates. That means that the redaction requirements do, indeed, apply to them.

Even if your case is not designated in the rule as an RA case, you may still move the court to restrict a document or the entire case for good cause, per Section 5(D)(3).

Just because your case falls in an RA category does not mean that can or should ignore your client’s right to privacy. Social Security numbers, financial account numbers, passwords, and personal identifying numbers should always be scrubbed from documents filed with the court, exchanged in discovery, and introduced into evidence, unless your client has specifically authorized you to release that specific information.

And remember that MRCP 5.1 extends the MEC privacy rules to districts using non-MEC electronic filing.

Family Values

November 28, 2017 § 2 Comments

A point I have harped on often around here is that you should not spare your effort to produce proof on valuation of assets — particularly retirement funds, equity, and the like. It can make a huge difference in what your client takes away in equitable distribution and/or alimony, and if you have to appeal it may be the difference between affirmance and reversal.

A recent example is the COA’s decision in Inge v. Inge, decided October 3, 2017. Denise Inge appealed, complaining that the chancellor had erred by not finding the present value of the parties’ future retirement benefits. The COA found no error. Judge Wilson succinctly rejected her argument for a 10-0 court:

¶19. Moreover, to the extent that Denise’s complaint is that the chancellor failed to make findings as to present values of the parties’ respective future benefits, we simply note that Denise failed to present such evidence or calculations. The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. See Pruitt v. Pruitt, 144 So. 3d 1249, 1252-53 (¶11) (Miss. Ct. App. 2014). The chancellor received evidence of the future payments that each party could expect to receive under their respective retirement plans and concluded that it was fair and equitable for each party to keep his/her own benefits. Again, we cannot say that the chancellor abused her discretion. The division of assets, as a whole, was fair and equitable. Dogan [v. Dogan], 98 So. 3d [1115] at 1124 (¶20) [(Miss. Ct. App. 20120]. [My emphasis]

Let that sink in: The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. In other words, it’s up to you to make a record. The more thoroughly you do that the better equipped you will be on appeal.

A few other points to ponder (with links to some previous posts):

The Right to Confrontation

November 6, 2017 § Leave a comment

I posted here previously about the case of Miller v. Smith, in which the COA had ruled that there was no error when the chancellor excluded the parents from the courtroom during a child’s testimony in a child-custody case. Here is a link to my post.

The MSSC reversed the COA in the latest version of Miller v. Smith, decided October 26, 2017. Here is what Chief Justice Waller wrote for the court on the point:

¶19. The issue regarding Miller’s removal from the courtroom during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).

The Confrontation Clause of the Sixth Amendment

¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal cases. . . . So [Miller’s] first argument fails.” Miller [v. Smith], 2016 WL 6876509, at *3 (¶ 17) [(Miss. Ct. App. Nov. 22, 2016)].

¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369, 1374 (Miss. 1990). [Fn omitted] In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).

¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions.” To the extent we held in the case of In Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.

Article 3, Section 25 of the Mississippi Constitution

¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the Mississippi Constitution. “No person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation “[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.

Harmless-Error Analysis

¶24. While the removal of Miller was error, the issue may be reviewed under harmless error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).

¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal.”).

¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss. 2007). In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.

¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith [sic] must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did not result in any injury to the defendant . . . .”).

¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.

So, Article 3, Section 25 of the Mississippi Constitution requires that the parents, in cases such as this, be provided with means such as closed-circuit tv to observe the testimony of the child(ren) if the court decides that it is not in the child’s best interest for the parents to be present during the testimony. I imagine the 21st century equivalents FaceTime and Skype would suffice.

If your client is excluded over your objection, be prepared to explain how it prejudiced your client.

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