December 17, 2019 § 2 Comments
“So long as there is substantial evidence in the record that, if found credible by the chancellor, would provide support for the chancellor’s decision, this Court may not intercede simply to substitute our collective opinion for that of the chancellor.” Hammers v. Hammers, 890 So. 2d 944, 950 (Miss. Ct. App. 2004).
The COA, in the case of Butler v. Mozingo, decided November 12, 2019, reversed and rendered a chancellor’s decision that a material change in the custodial parent’s home had adversely affected the child. The COA held that there was not substantial evidence in the record to support the chancellor’s ruling. You can read the opinion for yourself. There is nothing particularly noteworthy about it, other than to the parties.
An understandable first reaction might be to conclude that the chancellor simply screwed up. But consider this: what if the chancellor felt strongly that the best interest of the child demanded a change in custody, but the lawyer failed to get substantial evidence of adverse effect into the record, and the chancellor went ahead and did what she believed was best for the child, substantial evidence or not. I’m not saying that is what happened here; in fact, the attorneys involved are all competent and experienced. What I am saying is that it’s on the attorneys to give the judge the proof she needs to support her findings.
Several years ago a chancellor, now retired, told me of a custody modification case in which the defendant-mother’s inexperienced attorney faced off against an experienced, highly competent family lawyer. The judge told me that he had misgivings about the plaintiff’s case, and he felt that the plaintiff’s advantage was his skillful lawyer, not his facts. The inexperienced lawyer did not even put on proof of Albright factors, perhaps because he did not even know about them. The trial had not been concluded when the chancellor told me about it, so I can’t tell you how he handled it, but that sort of situation creates a conundrum for the trial judge. On the one hand, the judge should not aid or assist either side in a contested trial. On the other hand, though, the best interest of the child is the polestar consideration. Should the judge call or examine witnesses per MRE 614 to flesh out the record? Should the judge stop the trial and appoint a GAL? Or should the judge let things play out and then rule as the judge did in Butler, above?
That’s something for you to ponder. If you want the judge to rule in your favor, you must give the judge all the ingredients she needs to do so. If you don’t your case will fail, either at trial or on appeal.
September 3, 2019 § 4 Comments
It is elementary that until you get something into evidence it is not part of the record, and it cannot be considered by the court in making a decision.
Judge Westbrooks of the COA specially concurred in the case of Almasri v. Miss. Dept of Revenue, decided August 6, 2019, to remind attorneys and judges of that very point:
¶14. I agree with the majority’s opinion and write separately only to emphasize the importance of following procedures necessary to ensure that pertinent statements and representations are eligible for consideration as evidence and thereby designated as a part of the record.
¶15. The majority opinion notes that during the hearing on the MDOR’s motion to dismiss, counsel for Almasri indicated his client was unable to pay the required bond or assessment under protest. Though officers of the court, lone “statements by attorneys are not evidence.” Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 1092 (¶27) (Miss. Ct. App. 2012) (Court held circuit court erred by allowing expert witness’s baseless testimony; expert’s assertion was partially supported by lone attorney statement indicating plaintiff’s sobriety). As noted, there was no affidavit or sworn testimony supporting the attorney’s representation to the court; the lack thereof precluded Almasri’s alleged inability to pay from evidence in the chancery court, and consequently, the record this court considered on appeal.
¶16. To establish evidentiary value, it is imperative that attorneys take the opportunity to (1) reduce the statement(s) to written form by sworn affidavit or (2) provide sworn testimony to affirm any potentially relevant assertions. In instances where assertions, such as the one Almasri’s attorney made, may impact the outcome of a proceeding or appeal, the statements need to be a part of admitted (or proffered) evidence in the record. Lone statements or arguments of counsel simply are not enough.
To that very apt statement I would add that pleadings and motions are not evidence until they are admitted into evidence by the court. The same goes for exhibits to pleadings and motions. Even affidavits are not in the record until they are admitted into evidence.
I have had attorneys, while questioning a witness, pause and look over at me: “She is referring to Exhibit 2 to the complaint, your honor.” All I can do is inwardly wince.
June 4, 2019 § Leave a comment
Stacy, age 8, is injured in an automobile accident. Her medical bills are $17,000 for the hospital, $800 for ambulance and EMT, and $1,200 for miscellaneous doctors and other medical. Total is $19,000.
Whom should the judge order to pay the bills? Stacy? Her parents? Leave them unpaid? The questions seem almost absurd. Sould an 8-year-old child be expected to pay her own medical bills? Aren’t medical bills the kind of thing that parents provide for their children? But what if the parents don’t have the ability to pay? And if we leave the bills unpaid, what impact will that have on the ability of the parents to access medical care for Stacy in the future?
All of those questions are what the judge needs answered in the course of a minor’s settlement. But often those kinds of questions are left unasked. Worse … when I try to ask the petitioners (usually parents) why they want the bills to be paid out of the proceeds of a minor’s settlement, they have no clue about what I am asking. It’s obvious that the issue has never been discussed between attorney and client.
It’s been the expectation for a long time that medical bills for the child will be paid out of the child’s settlement proceeds. But that came into question after Gulfport Memorial Hospital v. Proulx, which you can read about at this link, which held essentially that medical providers do not have a statutory lien against settlement proceeds, and, therefore, they do not have the right to collect from them.
So when you ask the court to pay medical bills out of the minor’s settlement proceeds, you are asking the court to order the minor (or her guardian) to pay her own expenses. To accomplish that you have to put some evidence in the record that it is in the child’s best interest to order that. My suggestion is that you offer proof that: (1) the parents do not have the financial ability to pay; (2) ordering the parents to pay will impose undue financial hardship on the family; (3) the bills can not be left unpaid because those medical providers may refuse service in the future because of the unpaid balances.
I usually ask questions to elicit that information if the lawyers do not because I want justification in the record. Instead, what I get is blank stares. It doesn’t have to be that way. Prepare your witness. Be ready to put justification in the record for ordering the child to pay her own expenses.
June 3, 2019 § 1 Comment
UCCR 8.05 should make everyone’s job in chancery court a lot easier. But lawyers, in their eternal ingenuity for contriving ways to complicate nearly all of creation, turn them into an implement of torture that they inflict on the court.
Chancellor Haydn Roberts of Rankin County presented this material at the Bar’s Family Law Section Hot Tips Seminar recently:
How to Confuse, Frustrate and/or Anger a Judge with an 8.05
Seriously, it happens often!
Don’t Prepare an an 8.05
Rule 8.05 states: “Unless excused by Order of the Court for good cause shown, each party in every domestic case involving economic issues and/or property division shall provide the opposite party or counsel, if known, an 8.05 in compliance with subparts (a) and (b) of the rule
Speights v. Speights, 2016-CA-01691-COA
Prepare your client’s 8.05 in the lobby, hallway or parking lot immediately preceding trial
Most of us Judges aren’t stupid and can tell when an 8.05 is prepared in this fashion
Common errors when this happens include unsigned 8.05s, incomplete property asset listing, incomplete debt listing and amounts, confusing expenses, pages
AND MY FAVORITE – misspelled children’s names and inaccurate birthdays
Don’t Bring Copies
You need a minimum of 5 copies (6 with a GAL)
Copy for the witness
Gross income – “total income from all sources before deductions, exemptions or other tax deductions
Includes wages, investment income, gifts from friends, rentals, social security, pension, child support, etc…
Overtime hours count
Be careful as the Judge may ask for a recent loan application from your client, wherein he/she must report his/her income
See, 2017-CA-1476 SCT; Tracy Marie Miles Williams v. Brent Reid Williams; affirmed 01/17/19; and Trim v. Trim 33 So.3d 471 (Miss. 2010)
If your client’s expenses far exceed his/her income, and he/she doesn’t have much debt…SOMETHING ISN’T CORRECT
Single person in an apartment shouldn’t incur $1200/month in food and household items BUT single person raising multiple children will incur at least that much
Most client’s don’t have much “household maintenance”
Pet expenses, yard expenses, miscellaneous, entertainment should be ACTUAL and know what those items entail
Some insurance is listed as a deduction
Don’t use health insurance as a mandatory deduction and then also an “insurance expense”
Same with life insurance, property insurance, rental insurance, automobile insurance, personal property insurance, umbrellas
Expenses could be current, past, future
Expenses could be single, family/household, and/or spouse + child(ren)
Keep it realistic even if speculative
Fail to Update
Time Lapse between temporary hearing and final may mean different information
When you update an 8.05 tell the Court
Witness/Client should know the differences and WHY there are differences
If Client has new employment, attach new pay stub
Make sure personal property matches
“Grandma’s antique roll top desk” on wife’s 8.05 is the same as “desk in bedroom” on husband’s 8.05
2012 Accord on wife’s 8.05 is the Blue Honda on husband’s 8.05
Watch the models, years, makes, account numbers, bank names, creditors’ names
Mark property value/equity as “unknown”
If you list an asset or debt as “unknown” and the opposite party has a value, the Judge will likely use that value
Be prepared to give a value even if it’s an educated guess
Be prepared to discuss the other party’s value(s) and why it/they are wrong
REMEMBER – asset value as to “stuff” is garage sale value, not brand spanking new
Who Needs Statements? [i.e., Documentation]
Debts should be corroborated by statements
Helps if they are at or near date of demarcation you are requesting
Bank accounts with substantial balances
This not a way to equalize income to expenses
If client makes church donations during a court matter, they should KNOW the following:
What service time they attend
May 6, 2019 § Leave a comment
Chris Vandenbrook wanted photographs of the condition of the marital home to be admitted into evidence in his divorce trial, but the chancellor refused unless he could pinpoint the exact date when they were taken. Chris appealed.
His case highlights two important evidentiary considerations: First, that the foundation for admission of a photograph is simply evidence sufficient to to support a finding that it is a true depiction of what the offeror purports it to be; and Second, that you are not likely to get a chancellor reversed based on her evidentiary rulings.
Here is how Judge Carlton of the COA spelled it out in Vandenbrook v. Vandenbrook, decided March 26, 2019:
¶40. Next, Chris contends that the chancellor erred in not admitting photographs of the condition of the marital home into evidence. The chancellor refused to allow the
photographs into evidence unless Chris could state the precise date the photographs had been taken. Chris had previously testified that he began taking the photographs at the time Emma filed for divorce, but he did not have his cell phone with the photographs present, and the chancellor did allow him more time to retrieve it. He contends that he satisfied the requirements of Mississippi Rules of Evidence 1001(d) and 901(b)(l) and therefore the chancellor should have allowed the photographs into evidence.
¶41. A chancellor’s decision not to admit evidence will not be overturned unless the chancellor abused her discretion to such an extent that a party has been prejudiced. In re Estate of Laughter, 23 So. 3d 1055, 1064 (¶42) (Miss. 2009). By asking Chris to authenticate the photographs by verifying the dates they were taken, the chancellor was merely requiring that Chris produce sufficient evidence to support a finding that the photographs were what he claimed they were.
¶42. We find error, albeit harmless error, in the chancellor not admitting the photographs into evidence. Mississippi Rule of Evidence 901(a) states: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Chris testified that he started taking the photographs from the time that Emma filed for divorce, and he testified that he took all the pictures himself. He further testified that they depict the condition of the marital home during a time that Emma was living there. We find that his testimony was sufficient to satisfy Rule 901(a) and that the court should have admitted the photographs. Even so, “[i]n order for a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Bower v. Bower, 758 So. 2d 405, 415 (¶46) (Miss. 2000). Although we find error, we deem it to be harmless. “The chancellor has the sole responsibility to determine the credibility of witnesses and evidence, and the weight to be given each.” Lee v. Lee, 798 So. 2d 1284, 1288 (¶14) (Miss. 2001). With this precedent in mind, we do not find that the exclusion of the photographs would have affected the chancellor’s custody determination.
I agree with Judge Carlton that the chancellor was saying, in effect, that she was not satisfied with the foundation that Chris had laid. She may have questioned whether the photos really did show the condition at the time that Chris was claiming, and she wanted more detailed proof. Or, it could be that a difference of a day or two when the pictures were taken could have made a difference. We don’t know from the record.
A previous post about how to get a photograph into evidence is at this link.
April 22, 2019 § 2 Comments
Aside from the fact that much of their attire is shiny new, and their shoes are not (yet) run down and scuffed up, it’s usually easy to spot rookie attorneys by the vexation they spread around them like pixie dust as they make their wake through a hearing. Here are five of the most vexatious:
The Leading Objection.
Attorney 1: Were you living with your wife when you moved to Kosciusko?
Attorney 2: Objection; leading.
Now, what did we accomplish in that exchange other than to impress on some observers that Attorney 2 knows the difference between a leading and a non-leading question? Well, one thing it accomplished was to break up the flow of the hearing, which is self-defeating. Another thing it accomplished is to pi$$ off the other attorney, who is likely to retaliate when Attorney 2 goes on direct, which in turn pi$$e$ off the judge who is straining to discern some substance amid this frivolity.
Maybe there is a case out there in which the appellate court reversed because the judge allowed a leading question. If so, it was certainly a jury trial and not a chancery bench trial. But I am not aware of any such case, so keep in mind that your objection is accomplishing nothing to protect your record.
My suggestion is that you save your leading objections for when the other side is drawing blood, like this:
Attorney 1: Isn’t it true that you could not have possibly admitted to your neighbor your adultery because you weren’t there that day?
Now that’s rightly objectionable, and should by all means draw an objection, which should be sustained. Why? Because it’s really the lawyer testifying, and it goes to the substance of the case.
Moral of the story: Save leading objections to protect your case. Don’t cheapen the objection by whipping it out every time you hear a leading question. We all know that you know what’s leading and what’s not; you don’t need to convince us.
Pleadings are NOT Evidence.
If you want the trial judge to consider a document or the testimony of a witness, you must get that document or oral testimony admitted into evidence. Exhibits to the pleadings and the pleadings themselves are NOT in evidence. They will not be used by the the judge as a basis for her ruling in your case unless and until they are in evidence.
Getting things into evidence does require a command of the rules of evidence. Study them. Know them. Click on the Categories button over there on the right and select “Evidence.” There are all sorts of posts about how to get business records, photos, hearsay, and the kitchen sink into evidence. Know how to do it, and how to authenticate. These are survival tools. You will die in the desert wasteland of litigation without a canteen full of evidence knowledge.
And equally important, keep in mind that only what is in evidence can be considered by the appellate courts (with the exception of offers of proof and documents marked for identification; look those up).
Moral of the story: Get proficient in evidence. It’s to a lawyer what human anatomy is to a doctor. And, if you are one of those characters who managed to be birthed out of the law-school womb into the legal world without having taken evidence, please have the common decency to forewarn your chancellor.
You Can NOT Question a Witness About the Substance of a Document that is not in Evidence.
There are all kinds of legitimate reasons why this is so. The mainmost being that we have no idea whether the information in it is admissible at all. Is it hearsay? Is it authentic? We have no way of knowing unless you lay the proper foundation.
This is a common rookie mistake. It usually draws an objection. When the opposing lawyer is slumbering or inexperienced or merely incompetent and fails to object, I sometimes will stop the questioning lawyer and “gently encourage” him to get the document into evidence before questioning the witness about it. That’s because I don’t want to hear a bunch of inadmissible twaddle that I will have to shake out of my head later when I am writing my opinion.
Are you confused about how to get that document into evidence? Well, not meaning to brag, but there is a helpful post at this link on how to get a document into evidence, step by step.
Moral of the story: Follow the process, step-by-step, to get that document into evidence. If it’s one that you anticipate will draw objections, be prepared to meet them by studying the applicable rules in advance. I am sometimes brought near to grateful tears when I see a lawyer in action who has actually studied the rules.
And Don’t Forget to Offer the Document into Evidence.
It happens from time to time. The lawyer lays the document before the witness, has him identify it, and then launches off into some more breathtaking realm of inquiry. After an hour or so of exhilarating rabbit hunting, the young Perry Mason confidently slaps his sheaf of notes down on the table and proclaims, “Tender the witness.” The document is still sitting there before the witness, unadmitted into evidence. Pity. It might have made the difference in the case.
Moral of the story: All those preliminary, foundational steps to admission are for naught if you don’t ask the court to admit the document into evidence.
Object When You Have to!
Don’t take my caveat above against leading objections to mean that you should never object or that you should curtail your objections. Object when it makes a difference.
Let me repeat that more loudly: OBJECT WHEN IT MAKES A DIFFERENCE!
I have seen lawyers sit there and let the other side get rank hearsay in. I have seen documents full of hearsay and other objectionable material pass through with a nod and “no objection.” If it’s hearsay, object. If the document is unauthenticated, object. If it’s completely irrelevant, object. And so on.
One baffling non-objection I have seen lately is to the question, “How many times have you been arrested?” Look at MRE 609. Arrests don’t mean anything. Anyone can be arrested for anything. I can have you arrested for practically nothing (okay, I will have to file a false affidavit, which will get me kicked off the bench, which I won’t do, but there are plenty of people who do file false affidavits out of revenge, or spite, or for no good reason at all). It’s the conviction that counts, and there are limitations on that. Read the rule.
The judge is not a mushroom to be buried in excrement from which wisdom is expected to sprout.
Morel of the story: Object when it makes a difference, and you will be more effective and make a more effective case. BTW … a little fungus humor never hurt anyone.
February 25, 2019 § Leave a comment
Judicial estoppel is the principal that prevents you from taking inconsistent positions in the course of litigation. An example might be where one admits adultery in a pleading, but then tries to deny it at trial.
A question of judicial estoppel arose in the adverse possession trial between the Winters and the Billings. The Winters claimed ownership of some land by adverse possession. In answering interrogatories, Mr. Billings stated seven times that he had not spoken with Mr. Winters about the land, but at trial he tried to testify that he had given Mr. Winters permission to use the land. Winters objected on the ground of judicial estoppel, and the chancellor overruled the objection. After the chancellor entered judgment in favor of the Billings, the Winters appealed on several grounds, one of which was that the judge erred in not ruling that the inconsistent statements were barred by judicial estoppel.
In Winters v. Billings, a COA decided January 15, 2019, the court affirmed the judge’s ruling on judicial estoppel. Judge Greenlee wrote for the court:
¶24. The Winterses assert that because Mr. Billings made seven statements in sworn interrogatories that he never spoke with Mr. Winters about the land, the chancellor should have judicially estopped Mr. Billings from asserting that he gave Mr. Winters permission to use the land.
¶25. “Judicial estoppel is designed to protect the judicial system and applies where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Kirk v. Pope, 973 So. 2d 981, 991 (¶31) (Miss. 2007) (internal quotation mark omitted). Our supreme court has held that there are three elements of judicial estoppel: “A party will be judicially estopped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions.” Clark v. Neese, 131 So. 3d 556, 560 (¶16) (Miss. 2013).
¶26. The chancellor found that the jointly-submitted pretrial order indicated that “Mr. Billings gave Mr. Winters and his family ‘permission’ to use the disputed strip of property” and that the pleadings were amended to conform to that pretrial order. Furthermore, the chancellor noted that Mr. Winters indicated in his own testimony that he spoke with Mr. Billings about the land, and only the contents of that conversation were disputed. We also note that the interrogatories were vague as to their actual subject, but they meant to elicit general responses and do not focus on permission or lack thereof. “A chancellor sits as a fact-finder and in resolving factual disputes, is the sole judge of the credibility of witnesses.” Tice v. Shamrock GMS Corp., 735 So. 2d 443, 444 (¶3) (Miss. 1999). In this position, the chancellor may assess the materiality and relevance of answers to interrogatories, along with any inconsistent testimony thereto at trial and decide on its credibility. Mr. Billings’s assertion was not inconsistent with a prior position taken during litigation, the chancellor had not accepted the previous position, and the chancellor’s holdings indicated that at most Mr. Billings inadvertently may have taken the inconsistent positions.
¶27. Under our limited standard of review, we hold that the chancellor’s holding was not manifestly wrong or clearly erroneous, nor did the chancellor apply an incorrect legal standard. Thus, we affirm.
- It’s not too far a stretch for the chancellor to suppose that Mr. Billings’s inconsistencies might have been inadvertent. The case took around 3 years to make it to trial, and lots of words get thrown around in a three-year span, some of which may be spoken or written based on misunderstanding. That pre-trial order was likely the nail in the coffin, so to speak, for the judicial estoppel argument.
- Just because your claim of judicial estoppel is shot down by the trial judge, it does not mean that you can’t cash in on the inconsistencies. As the COA said, ” … the chancellor may assess the materiality and relevance of answers to interrogatories, along with any inconsistent testimony thereto at trial and decide on its credibility.” In other words, you can hammer away at the witness about his credibility and apparent inability to get his story straight. That sort of thing can be loads of fun, particularly on cross-examination.
August 14, 2018 § 5 Comments
It was back in 2012 that I reported the death of Evidence as a required course at both the Ole Miss and MC law schools. You can re-visit that post at this link, if you care to.
Among my several points bewailing that Evidence was no longer a required course was this:
I shiver at the thought of lawyers setting foot in my court room who have no grasp of the nuances of the best evidence rule, parol evidence, hearsay, or even how to get a document into evidence. I shiver for myself and for their poor clients. Some point out that the MRE is so much easier to understand and apply than the old mix of statutes and case law. True. But having a set of rules and understanding them enough to use them properly and effectively are entirely different things. Rules only take you so far. There are cases interpreting those rules that one must learn about. And the rules are neither crystal clear nor do they address everything one needs to know. Cite me a rule, for example, on what objection applies in any given situation. Or tell me how MRE 803(3) pertaining to wills applies in a will contest? Or when does past recollection recorded apply instead of refreshed recollection, and vice versa? Some elucidation is required for even the most astute student.
Well, the worm has, so to speak, turned. In her address to the Ole Miss law alumni at the Mississippi Bar Convention last month, Dean Susan Duncan reported that Evidence is returning to the OM Law curriculum as a required course. A legislator with whom I visited told me that MC Law is following the same path.
I would not want to take my ailments to a doctor who has not studied Human Anatomy. Evidence is the Human Anatomy of the legal profession.
July 17, 2018 § 1 Comment
Comments on this blog are limited to lawyers, judges, and other legal professionals. Yet I still get comments frequently from lay-people.
A recent proposed and unapproved comment by a frustrated pro se litigant highlights the tension between reasonable access to justice and the judge’s role as impartial tribunal:
I had a Judge finally rule that all evidence from previous case could be submitted to this new case. Of course, Defendants lawyers objected. Defendants lawyer then said that not of it was evidence, some were marked for I.D. only. The Judge said he wouldn’t even look at the I.D. ones. Being Pro Se, after spending about 8,000.00 on attorneys fees and not using my evidence, almost every bank statement, cancelled check sheet from the bank. I was asked by Judge, “What is it? I said a bank statement. Other attorney objected, said it was hearsay, and I had to put it in as I.D. After a couple times I just handed it to the other attorney but the Judge stated I had to say what it was. Therefore, it was objected to as hearsay. Printouts from a bank. Please..Check written out the casinos, lawsuits Plaintiff was hit with and depleted our funds, are not admissible. I.D. only which the next Judge will not use. I always thought that was depleting marital assets. Writing a brief for Supreme Court and this is way out of my league.
- In a contested case, the judge absolutely can not assist one side or the other over evidentiary hurdles, objections, or lack of basic litigation skills. A judge who does so has crossed, or is dangerously close to crossing, the line into advocacy.
- I have often said that I have never seen anyone who acted pro se in a contested case leave the courtroom in better shape than when they entered.
- ” … this is way out of my league.” Yes, it is. It takes lawyers around 3 years to absorb the basic knowledge base and elementary analytical skill to know how to get into the courtroom, and several years of experience on top of that to do a creditable job in litigation. Appellate cases require even more. There is a learning curve for every courtroom advocate. It’s painful to watch a pro se litigant try to master the same curve in a few hours that took a college-and-law-school-trained lawyer several years to master herself.
- The lawyer in this case was zealously representing his client, which is precisely his ethical duty. It may have seemed unfair to the pro se litigant, but she was not being treated unfairly; she was simply overmatched, and, again, the judge could not help her without becoming her advocate.
- No judge is going to let a lawyer overreach and take advantage of a pro se litigant, but that is solely in the interest of maintaining a neutral, fair playing field. A judge can not help one side to its benefit or to the other’s detriment.
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:
- Establish that the witness is unable to recall something;
- Counsel is unable to jog the witness’s memory through questioning. The court may allow leading questions;
- 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;
- 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;
- 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 …”).