The Unobjection and its Effect on the Record

May 5, 2020 § 2 Comments

What happens when one fails to object to clearly objectionable evidence? Should the chancellor even consider that evidence? Or is it to be considered along with all other competent evidence?

Those were questions that arose out of a trial in which heirs of Mary Cook sought to set aside deeds and financial transactions in favor of John Ward based on Ms. Cook’s incompetence. During the trial testimony was elicited by Ward’s own attorney, who made no objection to the hearsay responses. After the chancellor ruled against Ward, he appealed, and one ground was admission of the hearsay.

The COA affirmed in Ward v. Est. of Cook, et al., decided April 21, 2020. Judge Jack Wilson wrote for the unanimous court:

¶22. Ward next argues that the chancellor erred by considering hearsay testimony regarding what a bank teller told Lynn Cook III. However, Ward failed to object to the testimony at trial. Indeed, although Ward fails to provide a relevant record citation, it is appears that he is complaining about testimony that his own attorney elicited. A party cannot complain about testimony that his own attorney elicited. Shaheed v. State, 205 So. 3d 1105, 1111-1112 (¶20) (Miss. Ct. App. 2016). In addition, “[w]hen . . . hearsay goes into evidence without objection, the trial court has no opportunity to evaluate the proffered testimony under [Mississippi Rule of Evidence] 803(24), or any other exception. Thus, the failure to object to hearsay operates as a waiver of the issue on appeal.” Swinney v. State, 241 So. 3d 599, 610 (¶40) (Miss. 2018) (quoting Rubenstein v. State, 941 So. 2d 735, 764 (¶113) (Miss. 2006)). Finally, hearsay evidence that is admitted without objection becomes competent evidence for the trier of fact to consider. Shaheed, 205 So. 3d at 1110 (¶16). Therefore, this issue is entirely without merit.

Notice that the case law says that the hearsay becomes competent evidence for the court to consider, NOT that the chancellor must give it the same weight as other evidence. The chancellor could still find it to have little probative value, or find it not to be credible because of its hearsay nature. The chancellor is the finder of the weight and credibility to be assigned to evidence. In one case I had involving a will, an attorney sat mute through the examination of a witness by his opponent, not asserting a single objection, although nearly every question elicited hearsay testimony. I found that witness’s testimony not to be credible and discounted almost all of it.

Always be mindful in the course of a trial that you are not there solely to obtain a favorable ruling. You are also there to make a record that will win the case on appeal. You can’t do the latter if you fail to make timely objections. Oh, and you have to make sure that everything you need to prevail is in the record, as I pointed out in this old post.


Pitfall in Proving Parentage Produces a Pratfall

June 25, 2013 § 1 Comment

The COA decision in Ivy v. Ivy, decided December 11, 2012, is a tour de force analysis of the hearsay rule and the parentage presumption. It’s far beyond the scope of this humble blog to break the 30-page majority and 10-page dissenting opinions down in detail, but the case bears mentioning for a few points:

  • If you intend to offer a document into evidence that pertains to a material fact and is circumstantially trustworthy but not within any of the specific hearsay exceptions, it may not be admitted unless you first comply with MRE 803(24), which requires you to give the other side notice of it and an opportunity to “prepare to meet it.”
  • Even self-authenticated documents under MRE 902 require prior notice to opposing counsel before they may be admitted at trial.
  • The majority opinion’s analysis of the confusing welter of statutes for acknowledgment of paternity may be helpful to you, particularly in a wrongful-death setting as was the case here.

In Ivy, the battle was to determine who were the heirs at law and wrongful-death beneficiaries. There was a lot at stake, because the decedent had been killed in a car-train collision in Kemper County, which had the potential to produce a lucrative verdict or settlement.

The chancellor admitted into evidence an affidavit and DNA test that supported the conclusion that the decedent’s mother and siblings were the only heirs and wrongful-death beneficiaries. The COA ruled, after detailed analysis, that the chancellor should not have admitted the affidavit and DNA report into evidence. The case was remanded for “further proceedings consistent with this opinion.” To me, this means that the parties are headed for a do-over, with the COA majority opinion as a road map to a proper conclusion.


February 11, 2013 § 2 Comments

Police investigations and reports not infrequently play an evidentiary role in divorce and modification trials in chancery court.

A recent example is Heimert v. Heimert, handed down by the COA on November 13, 2012. In this case, Sheri and Walter Heimert had a history of physical altercations involving allegations of biting, strangling, hitting, and on and on, with the physical marks to show for it. The police were called multiple times to intervene, and two police reports, one from August, 2007, and the other from December, 2008, were offered into evidence. The December report showed that Sheri was charged with domestic violence. Her attorney objected that there was an inadequate foundation to admit it, but the chancellor let it in anyway, and Sheri complained on appeal that the report should not have been admitted.

The COA rejected Sheri’s argument. Judge Lee, for the court:

¶16. “Even though police reports, if offered in evidence to prove the truth of the matter asserted[,] are hearsay and the information within them may be based on hearsay, they may be admissible under the hearsay exception in [Mississippi] Rule [of Evidence] 803(8).” Rebelwood Apartments RP, LP v. English, 48 So. 3d 483, 491 (¶36) (Miss. 2010). Rule 803(8), entitled “Public Records and Reports,” states:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

¶17. The police report was taken after an investigation of domestic violence reported by Sheri. No assertion has been made that the document lacks trustworthiness. Sheri argues the police report was inadmissible because it was not authenticated. However, a document may be authenticated by the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1). Sheri was a knowledgeable witness, and she submitted the police report as part of discovery. Sheri testified she was familiar with the document; thus, Sheri’s testimony was sufficient to show that the document was “what it [was] claimed to be” – the police report from December 5, 2008. See Cassibry v. Schlautman, 816 So. 2d 398, 403-04 (¶¶20-23) (Miss. Ct. App. 2001) (finding medical records submitted by plaintiff in discovery were authenticated by plaintiff’s own testimony).

¶18. Further, Sheri testified consistently with the information in the police report, and Walter testified consistently with his version of events in the police report. Thus, even if the police report was admitted into evidence erroneously, the admission was harmless, as it was cumulative. Id. at 404 (¶24) (holding admission of hearsay may be held harmless where corroborating evidence exists). Sheri complains she was prejudiced by the report because it only contained information provided by Walter. However, this is not the case. The report clearly contains information gathered from both Walter and Sheri.

¶19. Sheri was familiar with the police report, and she submitted it as part of discovery. Further, the contents of the police report were corroborated by the testimony. We find the police report was properly admitted into evidence. This issue is without merit.

In other words, Sheri was hoist with her own petard. She herself corroborated the facts in the report in her testimony, and she herself had sifted the poison pill into the recipe by providing it in discovery, thus weakening her arguments against authenticity and trustworthiness.

One is left to wonder whether Sheri’s objections would have been upheld if Walter had been the sponsor of the report, and if Sheri had truthfully denied the facts in the report. What do you think? Don’t overlook this statement by Judge Lee: “The report clearly contains information gathered from both Walter and Sheri.”

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