Gregory Chandler -- John Edwards Trial

I have blogged often about the waste of time and money
going after Roger Clemons. 

In the meantime, the federal government has wasted time
and money going after John Edwards. 

The only question is if the prosecutors at issue are rouges
are just foolish.  Let us hope that federal prosecutors focus 
time and money on useful matters.   

GREGORY CHANDLER, Attorney at Law

Gregory Chandler -- Best Evidence Rule Writings

I am interested in writings on the topic of the Best Evidence Rule
before the Federal Rules of Evidence became codified.

Anyone with such writings, please contact me.

Gregory Chandler, Attorney at Law 

Gregory Chandler - Memorial Day Greetings

On this Memorial Day weekend, I wish all military personnel and military veterans a good holiday.

Thank you. 

Gregory Chandler, Attorney at Law
Colonel, USAR 

Gregory Chandler - Voice Identification

In litigation, one need not be an expert to testify to matters that are of personal knowledge. One example is shown in United States v. Bush, 405 F.3d 909 (10th Cir. 2005).  The defendant, convicted of cocaine distribution, argued that it was error to allow the undercover officer to testify as a lay witness that it was the defendant's voice in an incriminating conversation that was surreptitiously recorded and played at trial. 

The appellate court affirmed, finding no error in admitting the voice identification testimony under Federal Rule of Evidence 701.  The undercover officer had sufficient familiarity with the defendant's voice from speaking to him in person and numerous times over the telephone.  Moreover, the testimony was helpful to the jury, since the defendant exercised his right not to testify and the jury never heard his voice. 

The 10th Circuit's reasoning is sound on the issue of a lay witness being able to testify about an individual's voice based on personal knowledge.  I must question, however, the court's comment about the defendant exercising his right not to testify because such a position injures a defendant's right not to testify at trial.  The 10th Circuit is clearly wrong in even raising the fact that the defendant invoked his right not to testify against himself.  As to this case, the 10th Circuit needs to take a continuing legal education course on the invocation of privileges. 

GREGORY CHANDLER, Attorney at Law      

GREGORY CHANDLER - The Art of the Objection

I lectured a group of United States Marine Corps recruits last year and showed some clips from the military court-martial movie, A Few Good Men.  My goal was to teach matters such as only obeying lawful orders.  As viewers of the movie may recall, two young Marines had been given an order to train another Marine.  Unfortunately, the training took the form of physical harassment and the Marine that received the training died.

I saw A Few Good Men on television recently, and I noticed a scene from the film that is helpful for trial attorneys. My recent viewing of the movie recalls a class I had at the national session of the  National Institute of Trial Advocacy in 1994.  In 1994, the movie A Few Good Men was less than two years old.   

Anyway, there is a scene in which a Marine prosecutor calls a United States Navy medical doctor to the stand to testify about the dead Marine.  The Navy doctor gave the deceased a medical checkup.  In addition, the Marine prosecutor offers the Navy doctor to the proceedings as an expert medical witness. 

The Navy Judge Advocate General (JAG) attorney, played by Tom Cruise, objects to the Navy medical doctor being presented as an expert witness.  In the view of the JAG defense attorney played by Cruise, the Navy medical doctor, an internal medicine doctor, did not have the required expertise to testify as an expert witness as to cause and manner of death. 

The military judge overrules the objection.  It appears that the objecting attorney expected the objection to be overruled.  As so often happens in trial litigation, an objection is helpful whether the objector wins or loses.  For example, even if the objection is lost, the objection is preserved for appeal.  In addition, an objection, may win points with the fact-finder. 

Whatever the reason for the objection, the defense suffers a blow because of an unfortunate move by a member of the defense team played by Demi Moore.  The JAG attorney played by Moore jumps up and makes a frantic statement that the defense "strenuously objects," and lectures the military judge that accepting the Navy internal medicine doctor as an expert is unfairly prejudicial to the Marines on trial. 

The angry military judge restrains himself and lectures the defense team that the Navy internal medicine doctor is indeed an expert witness and that the Court will accept his opinion.  The fact that the judge shouts that the internal medicine doctor is an expert witness is damaging to the defendants' case. 

The exchange between the defense team and the military judge highlights the fact that making trial objections is both an art and a science.  An objection is not made for the mere purpose of winning an objection.  Rather, an objection is made for the purpose of winning the case.  A good objection advances the goal of winning the case regardless of whether the objection is sustained or overruled. 

Unfortunately, many trial attorneys do not fully understand the art of the objection.  A good
litigator--trial or appellate--takes steps to advance the case even if such step is not successful.

For example, a litigator will often seek to discover medical documents showing a serious injury with the full knowledge that the alleged injured party has no serious injury and, therefore, cannot produce documents showing a serious injury.  An objection by the attorney for the alleged injured party is of little consequence because the asking party knows that the documents requested do not exist. 

With that in mind, we can now go back to the objection in A Few Good Men about the internal medicine doctor being held as an expert medical witness.   It appears that the reason for the objection to the doctor being viewed as an expert medical witness is not for preventing the internal medicine doctor from testifying as an expert witness.  Instead, the purpose of the objection--in front of the court-martial panel--was to cast doubt on the internal medicine doctor's testimony and boost the defense case. 

If the defense presents its own expert witness, the defense expert witness can be presented as more credible than the prosecution's expert witness.  In addition, in closing argument, the defense can argue that the prosecution witness is simply weak.  All seasoned trial litigators know that some points are saved for the closing argument. 

Finally, remember that there is an art in objecting. The reason for the objection is to help one's case without regards to actually winning the objection. 


GREGORY CHANDLER, Attorney at Law
Colonel, United States Army Reserve         
 

GREGORY CHANDLER-ADMISSION OF INCOMPLETE RECORDS

Typically, the admission of business records requires that the
business records be complete.  However, there are cases that
address the admission of incomplete business records. One such
case is United States v. Foster, 711 F. 2d 871 (9th Cir. 1983).  Here, the appellate court held that a ledger listing drug transactions was properly admitted even though it was incomplete, had several pages missing, and contained entries made out of sequence, since the entries actually made were made regularly and at or near the time of events. 

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER - REASONS FOR MEDICAL TESTIMONY HEARSAY EXCEPTION

THE RATIONALE FOR FEDERAL RULE
OF EVIDENCE 803(4)

Typically, statements made to a medical provider for medical treatment or medical diagnosis are viewed as hearsay exceptions.  In the Federal Rules of Evidence, this hearsay exception is stated in Rule 803(4).  Most state rules of evidence have a similar hearsay exception. 

Federal Rule 803(4) and the similar state rule, are based on two independent rationales that are thought to guarantee trustworthiness. 

First, an individual has a motive in providing truthful information in order to be correctly treated or diagnosed.  If the individual gives false information to medical personnel, the individual will be acting at his or her own peril.

Second, a statement is reliable if reasonable medical providers would rely upon it as a basis for medical diagnosis or medical treatment.  Thus, if the statement is "pertinent" to medical diagnosis or medical treatment, as Rule 803(4) requires, it is the type of statement upon which medical personnel would rely; if it is reliable enough for medical purposes, it is reliable enough for litigation matters.  

Most courts subject statements proffered under Rule 803(4) to a two-part reliability test.  First, the declarant must have a motive consistent with obtaining medical care or a medical diagnosis, or at least have the awareness that truthfulness is required to further such care.  Second, the content of the statement must be such as is reasonably relied upon by medical personnel for medical treatment or diagnosis.  This two-pronged test reflects the policy justification that support Rule 803(4), and it is consistent with the language of Rule 803(4).        


My view is that modifications should be made to Rule 803(4).  The rule is a product of the pre-1970s thinking.  Today, individuals are more skilled at tactics such as what is sometimes known as "doctor shopping."  Such individuals know how to tailor their statements to medical personnel in order to acquire unnecessary drug prescriptions and unneeded medical care.  Sometimes, an individual is coached to make statements to advance a litigation position.    

In essence, rule-makers should update and modify Rule 803(4) and similar state rules to make the rules more relevant in the 21st century. 


GREGORY CHANDLER, Attorney at Law 

GREGORY CHANDLER - LITIGATION OF FORGERY ALLEGATIONS

I have been involved in litigation in which a party alleges forgery.  Having studied at the FBI crime laboratory, I am also familiar with handwriting analysis.  In researching a case, I came across United States v. Garcia, 448 F. 3d 294 (5th Cir. 2006).  In this case, the Fifth Circuit affirmed drug convictions.  The court found no abuse of discretion in the exclusion of testimony by the defendant's handwriting expert that signatures on the defendant's confession and consent to search form were forged. 

Although the handwriting expert's opinion was based on the examination of photocopied documents, the expert stated that she did not know how many times the documents had been photocopied and admitted that the best practice is to look at original signatures and not photocopies. 

GREGORY CHANDLER, Attorney at Law 

GREGORY CHANDLER - EXCLUSION OF EXPERT WITNESSES

Often, during a jury trial, the issue of the exclusion of expert witnesses arises.  The exclusion of an expert witness is the issue in United States v. Olofson, 563 F. 3d 652 (7th Cir. 2009).  The appellate court affirmed a conviction for illegally transferring a machine gun, finding no abuse of discretion when the defendant's firearm expert was excluded from the courtroom during the testimony of the federal government's expert. 

The Seventh Circuit rejected the argument that merely because Federal Rule of Evidence 703 contemplates that an expert may render an opinion based on facts or data made known at trial necessarily means that an expert is exempt from a Federal Rule of Evidence 615 sequestration order.

GREGORY CHANDLER, Attorney at Law

GREGORY CHANDLER - INSURANCE FRAUD

While preparing a brief last week, I came across an interesting case involving insurance fraud.  In United States v. Danford, 435 F.3d 682 (7th Cir. 2005) the defendant was convicted of insurance fraud after staging a fake robbery of his jewelry store.  At his trial, one of the employees testified to a statement made by the store manager, indicating that the defendant had asked the manager how to disarm the store alarm.  The store manager's statement was made well before the robbery occurred. 

Rejecting the argument that the store manager's statement was testimonial the Court stated that "the conversation between [the witness] and the store manager is more akin to a casual remark. 

Accordingly, the Seventh Circuit held that the district court did not err in admitting testimony under Federal Rule of Evidence 803(1), the present-sense impression exception to the hearsay rule. 

GREGORY CHANDLER, Attorney at Law 

Gregory Chandler - Cinco De Mayo

   A good Cinco De Mayo to all.

Gregory Chandler, Attorney at Law

Gregory Chandler - Authentication by Circumstances

At times, a party's own behavior or circumstances act to authenticate evidence in litigation.  An example is United States v. Fraser, 448 F. 3d 833 (6th Cir. 2006).  In the trial court the defendant was
charged in a check fraud scheme.  The prosecution introduced a book, written by the defendant, that detailed a check fraud scheme that was virtually identical to the conduct the defendant was charged with. 

The Sixth Circuit affirmed and held that the book was sufficiently authenticated as the defendant's by his reference to it on his website, his picture on the book's cover, and his name as the author.


GREGORY CHANDLER, Attorney at Law

Gregory Chandler - Authentication of Telephone Calls

The authentication of telephone calls is often a problem in litigation.  In United States v. Portsmouth Paving Corp., 694 F. 2d 312
(4th Cir. 1982) the Fourth Circuit held that a telephone
conversation was properly authenticated under Rule 901(b) (6) by evidence that a call had been placed to a defendant's office.

GREGORY CHANDLER, Attorney at Law