The U.S. Case Precedent System: Applications in the Appellate Courts

1. The U.S. Case Precedent System:Applications in the Appellate Courts Tom C. Rawlings Judge, Juvenile Courts Middle Judicial Circuit Sandersville, GA (478) 553-0012 tom@sandersville.net www.tomrawlings.com

6. The Appeal • As a general rule, an appeal from trial court to appellate court is an appeal of legal issues, not factual issues. • Factual issues are decided at the trial level, by the jury or judge sitting as finder of fact. • Obtained by simply filing a notice of appeal, usually within 30 days of the trial court’s judgment.

7. Right to An Appeal • In general, a criminal defendant has an automatic right to appeal at least to the next-highest court. • The Supreme Court of the United States, and usually the Supreme Court of each state, grant appeals only on writ of certiorari, which requires a finding that the case is of extreme importance and should be decided by the high court.

8. Role of the Appellate Courts • Creating Uniformity in the Law through Binding Precedent. • Example: Georgia Supreme Court • Until Court was created in 1832, different circuits followed different precedents and rules. • Outcome depended on which circuit you were in. • Determining What the Law Should Be. • Marbury v. Madison, US Supreme Court 1803

9. What Exactly Is the Case Precedent System? • Reliance on settled law, as found in case decisions of higher courts, to decide new cases. • Persuasive power of case decisions of sister courts when issues of first impression arise. • Adding “clothes” to a “naked” statute. • Analogizing the facts of the present case to previously-decided cases. • Effectiveness is dependent on a highly-indexed system of published case decisions.

10. Stare Decisis: The Rule of Precedent • Promotes the evenhanded, predictable, and consistent development of legal principles • Fosters reliance on judicial decisions • Contributes to the actual and perceived integrity of the judicial process. • Adhering to precedent "is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right • PAYNE V. TENNESSEE, 501 US 808 (1991)

11. State Supreme Court State Court of Appeals Superior Court Juvenile Court Misdemeanor Court Probate Court Administrative Law Judge Magistrate Court

12. United States Supreme Court UnitedStates Court Of Appeals United States District Court State Supreme Court

13. Hypothetical Case • John Smith was convicted of felony damage to property based on: • His confession; • What his wife told police in a statement; • The testimony of his accomplice; • His wife’s angry statement to a police department receptionist; and • Testimony as to the value of property he damaged.

14. The Appeal • Necessities: • Transcript: Usually a verbatim record of the proceedings below, together with copies of all documents and evidence filed. • Enumerations of Error: Short and plain, numbered statements of how the trial court erred in reaching its judgment. • Brief: A written legal argument, citing case and statutory authority, addressing each of the enumerations of error.

15. Deciding Whether To Appeal • Is there reversible error? • Consider the Standard of Review • Consider Deference and Discretion Given Trial Court • Consider the “3 W’s” of Appellate Practice: • Waiver, Whatever, and Who Cares?

16. Enumerations of Error • The evidence was insufficient to sustain the verdict. • The Court improperly allowed the prosecution to reject potential jurors based on race contrary to Batson v. Kentucky • The trial court improperly allowed officer Colbert to tell the jury what the defendant’s wife told him.

17. Enumerations of Error • The trial court improperly allowed the police receptionist to relate Mrs. Smith’s comments at the police station. • The trial court improperly admitted the defendant’s alleged confession. • The trial court improperly admitted hearsay evidence of the value of the grave markers. • The defendant’s trial counsel was ineffective.

18. 1. The evidence was insufficient to sustain the verdict. • “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of review.”

19. 1. The evidence was insufficient to sustain the verdict. • Q: Was the evidence “sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes for which he was convicted? • Jackson v. Virginia, 443 U.S. 307 (1979). • Why “beyond a reasonable doubt?” • In re Winship

20. Appellate Courts Correct Errors of Law, Not of Fact • “This is a court for the correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.” • Colley v. State, 225 Ga. App. 198 (1997)

21. 2. The Court improperly allowed the prosecution to reject potential jurors based on race contrary to Batson v. Kentucky • Was this issue raised? • No transcript, no objection, no review.

22. You Snooze, You Lose • “Patterson contends that the statements made by William Windsor to the two investigating officers were inadmissible under Crawford v. Washington, . . . and that the trial court erred in permitting the two officers to testify to those statements. However, because Patterson did not object to the statements on Sixth Amendment grounds at trial, he is procedurally barred from raising this issue on appeal.” • Patterson v. State, Georgia Supreme Ct. 2006

23. 2. The Court improperly allowed the prosecution to reject potential jurors based on race contrary to Batson v. Kentucky • Exception: “Harmful as a matter of law” • “To satisfy this standard, appellant must show that the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. • Brown v. State, 268 Ga. App. 629, 632 (Ga. Ct. App. 2004)

24. 5. The trial court improperly admitted the defendant’s alleged confession • An appellate court will uphold a trial court's findings as to disputed facts in a motion to suppress unless clearly erroneous, whereas the trial court's application of the law to undisputed facts is subject to de novo appellate review.

25. 3. The trial court improperly allowed officer Colbert to tell the jury what the defendant’s wife told him.

26. Ohio v. Roberts (U.S. Supreme Court, 1980) • Facts: • Roberts charged with forgery of Issacs’ checks. • At a preliminary hearing, Issacs’ daughter Anita testified she did not give Roberts permission to use checks. • At trial, Roberts testified Anita gave him permission. • Anita could not be found, was “unavailable.” Ohio statute allowed prosecution to use her testimony from the prior hearing.

27. Ohio v. Roberts (U.S. Supreme Court, 1980) • Issue: Conflict between evidentiary rules regarding use of hearsay and the Confrontation Clause. • Hearsay: testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. • Confrontation Clause: U.S. Constitution, Amendment VI. “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted “with the witnesses against him."

28. Ohio v. Roberts (U.S. Supreme Court, 1980) • Approach: One of determining “purpose” of Confrontation Clause: • Literally applied, would prevent evidence from any declarant not at trial. • Obviously intended to prevent use of some hearsay. Why? • “Reflects a preference for face-to-face confrontation at trial,” the “primary interest served by the right of cross-examination.” • In other words, ensures reliability of evidence. • But: there are times when you must use testimony from declarants who are not available at trial.

29. Ohio v. Roberts (U.S. Supreme Court, 1980) • THEREFORE, because the purpose of the clause is to ensure reliability, • we can admit hearsay evidence if the declarant is unavailable (out of necessity), and • The evidence falls within a “firmly rooted hearsay exception” or otherwise bears “sufficient indicia of reliability” or “particularized guarantees of trustworthiness.”

30. Results of Roberts • Applies Confrontation Clause to ALL hearsay, not just statements taken by police or statements intended to be used against the defendant at trial. • Subjective standard. What does “reliable” mean? • Would admit the confession of a co-conspirator who does not appear in court. Source: Counseller & Rickett, “The Confrontation Clause After Crawford v. Washington: Smaller Mouth, Bigger Teeth”, 57 Baylor L. Rev. 1 (2005)

31. Crawford v. Washington (U.S. Supreme Court, 2004) • Facts: • Crawford stabbed a man. Police tape-recorded an interview with his wife. Crawford claimed self-defense. • Wife refused to testify at trial, exercising her marital privilege. • To counter self-defense claim, prosecution offered wife’s tape-recorded statement. • Trial court admitted it, finding (1) witness unavailable and (2) sufficient reliability.

32. Crawford v. Washington (U.S. Supreme Court, 2004) • ISSUE: • Whether playing this tape for the jury violated Crawford’s Sixth-Amendment right to be confronted with the witnesses against him.

33. Crawford v. Washington (U.S. Supreme Court, 2004) • APPROACH: • Focus on history behind the protection. • Trial of Sir Walter Raleigh – typical civil-law trial in which prosecution offered the written statement of Cobham, an alleged co-conspirator implicating Raleigh. • “The Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face .” • “The principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.”

34. Crawford v. Washington (U.S. Supreme Court, 2004) • THEREFORE: • “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” • In other words, if the out-of-court statement is in the nature of testimony, it cannot be admitted unless (1) witness unavailable AND (2) the defendant has already had a full and fair cross-examination.

35. Crawford v. Washington (U.S. Supreme Court, 2004) • THEREFORE: • The Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . . The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.

36. 4. The trial court improperly allowed the police receptionist to relate Mrs. Smith’s comments at the police station • Trial court has wide discretion in admitting evidence. • “Whether the evidence's prejudice outweighed its probative value was a matter addressing itself to the discretion of the trial court." • Thomas v. State, 270 Ga. App. 181, 183 (2004).

37. 4. The trial court improperly allowed the police receptionist to relate Mrs. Smith’s comments at the police station • Is it “harmless error”? • " Whether a constitutional violation constitutes harmless error depends on whether the State can prove beyond a reasonable doubt that the error did not contribute to the verdict. This Court has found violations of the standard stated in Crawford to be harmless because the evidence against the defendant was overwhelming or because the hearsay was cumulative of other evidence.” • Willingham v. State, 279 Ga. 886, 887-888 (Ga. 2005)

38. 4. The trial court improperly allowed the police receptionist to relate Mrs. Smith’s comments at the police station • What if this issue had not been decided? • Binding precedent vs. Persuasive authority • The highest courts are more free to abandon precedent.

39. Let’s Suppose. . . .What do you do when there is no case “on point”? • Smith v. State, Georgia Supreme Ct. 1982. • Smith and his accomplice, Potter, were charged with conspiracy to commit murder and tried separately. • At the first trial, Smith was convicted. • At the second trial, of Potter, the court dismissed the charges against Potter because of insufficient evidence.

40. Let’s Suppose. . . .What do you do when there is no case “on point”? • Existing rule: In a joint trial of two co-conspirators, a failure of proof as to one is a failure of proof as to both. • “Issue of first impression”: We know that’s the case in a joint trial, because the evidence is identical. But what if they are tried separately? • Therefore, certiorari granted.

41. Let’s Suppose. . . .What do you do when there is no case “on point”? • Answer: you can convict one and not the other, because: • Witnesses and evidence in one trial may not be available in the other; • The prosecution may do a poor job in one trial and a good job in the other; • Plus, we have cases from four different jurisdictions that all agree this is the right answer.

42. 7. The defendant’s trial counsel was ineffective. • “To prevail on an ineffectiveness claim, a defendant must show that his trial counsel's performance was deficient and that, but for the deficient performance, there is a reasonable probability the trial would have ended differently.” • Strickland v. Washington, 466 U. S. 668 (1984)

43. 7. The defendant’s trial counsel was ineffective. • How do you prove it? • Requires a “motion for new trial” prior to appeal, with a new attorney. • Must show that trial lawyer "made errors so serious that he was not functioning as the 'counsel' guaranteed by the Sixth Amendment.” • whether trial counsel "adequately investigated the facts and the law; • whether the omissions charged to him resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.

44. A Bad Example • FACTS: Child ate rat poison and died. Parents sued manufacturer of rat poison. • Argument: Company could have added ingredient that would have made child vomit. • STATUTE: Makes a company liable for damages caused by a product that is not “merchantable” or “reasonably suited to the use intended.”

45. Banks v. ICI AmericasGeorgia Supreme Court, 1994 • FACTS: Child ate rat poison and died. Parents sued manufacturer of rat poison. • STATUTE: “The manufacturer of any personal property . . . shall be liable in tort [civilly responsible], irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” OCGA § 51-1-11 • Argument: Company could have added ingredient that would have made child vomit.

46. Question Presented • What does “merchantable and reasonably suited to the use intended” mean? • Romanian equivalent: vandabil in conditii de siguranta

47. Existing Rule • “A product that is properly prepared, manufactured, packaged, and accompanied with adequate warnings and instructions cannot be said to be defective.” • Center Chemical Co. v. Parzini, (Georgia 1975) • Evidence of alternative safer designs rejected in Mann v. Coast Catamaran Corp. (1985) • Where a product is reasonably suited for its indended use, such cannot be considered defective design.”

48. Court’s Analysis • Court relies on The Restatement of Torts, legal treatises, and Cases from other jurisdictions • Answer: In determining whether a product is “merchantable” and “reasonably suited” under the statute, the Court and jury can consider whether there were alternative designs available to the manufacturer at the time the product was manufactured. Court must balance risk against usefulness of product. • Why? “This court has conducted an exhaustive review of foreign jurisdictions and learned treatises. That review has revealed a general consensus. . . .”

49. Problems • Until this case, manufacturers did not have to worry about the “alternative design” risks. • How can you order your business and legal affairs if the Court is going to go and change the rules? • Roper v. Simmons (U.S. Supreme Court 2005). • Juvenile death penalty case.

50. Conclusions • Facts must be developed at the trial court level. The appellate courts merely apply those facts to the law. • The appellate process is designed to force parties to confront and fully address legal issues at the trial court level. • Courts must honor the decisions of courts above them if the present case fits within the logic and facts of the binding precedent. Part of the art of lawyering is distinguishing your case from binding precedent. www.tomrawlings.com