The U.S. Case Precedent System: Arguing Facts and Law at Trial

The U.S. Case Precedent System:Arguing Facts and Law at Trial Tom C. Rawlings Judge, Juvenile Courts Middle Judicial Circuit Sandersville, GA (478) 553-0012 tom@sandersville.net www.tomrawlings.com

Different Approaches of Civil and Common Law • Framing the Question: • Civil Law Judge: What Should We Do This Time? • Common Law Judge: What did we do last time? • Focus on Facts vs. Focus on Law • Civil Law: Weighing of Meticulous Legal Arguments • Common Law: Elaborate Analysis of Facts • Oheler, “Working with a Code: Is There a Difference Between Civil-Law and Common-Law People?” 1997 U. Ill. L. Rev. 71

Different Approaches of Civil and Common Law • Use of Codes: • Civil Law: Detailed, thorough legislation. • Codes are to be understood and interpreted by and from themselves. • Common Law: Code outlines the boundaries of what is valid. • Views codes as a “restatement” of the law that serves as noteworthy authority among others • Oheler, “Working with a Code: Is There a Difference Between Civil-Law and Common-Law People?” 1997 U. Ill. L. Rev. 71

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.

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

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

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)

When and How? • At the trial court level, prior cases are relied on more to determine how the case should proceed and what the outcome should be. • At the appellate court level, you are much more likely to ask why. • The Key to Studying Common Law is Learning to Spot Issues and Research Cases.

A Practical Example • Statutory provisions regarding the Admission of a Confession: • No person . . . shall be compelled in any criminal case to be a witness against himself. United States Constitution, Amendment V. • “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” • OCGA 24-3-50

A Practical Example • Judge-Made Rules Regarding Admission of a Confession: • it is not a coercive tactic for a police officer to threaten to arrest a person for committing a crime in his presence, as he is constitutionally authorized to do • To make a confession admissible, it must have been made voluntarily, i.e., "without being induced by another by the slightest hope of benefit or remotest fear of injury." A reward of lighter punishment is generally the "hope of benefit" to which O.C.G.A. § 24-3-50 refers. The [*110] State bears the burden of demonstrating the voluntariness of a confession by a preponderance of the evidence.

A Practical Example • Judge-Made Rules Regarding Admission of a Confession: • An accused must be warned that he has the right to remain silent; that anything he says can and will be used against him in court; that he has the right to an attorney, and to a free attorney if he cannot afford one, prior to any questioning. • Miranda v. Arizona, 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694) (1966).

A Practical Example • Judge-Made Rules Regarding Admission of a Confession: • The question of whether a waiver of rights and a subsequent statement have been voluntary and knowing depends on the totality of the circumstances. The totality of the circumstances is determined through a consideration of nine factors: 1) age of the accused; 2) education of the accused; 3) knowledge of the accused as to both the substance of the charge and the nature of his right to consult an attorney and remain silent; 4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; 5) whether the accused was interrogated before or after formal charges had been filed; 6) methods used in interrogation; 7) length of interrogation; 8) whether or not the accused refused to voluntarily give statements on prior occasions; and 9) whether the accused has repudiated an extrajudicial statement at a later date.” • Reinhardt v. State (Georgia Supreme Court 1993)

Hypothetical • Charge: that on October 12, 2006, Smith intentionally pushed over and destroyed 14 grave markers in the Sandersville City Cemetery, with total damage exceeding $5,000. • A person commits the offense of criminal damage to property in the second degree when he: (1) Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00. Felony • OCGA § 16-7-23

Hypothetical • 16-1-6. Conviction for lesser included offenses • An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. • § 16-7-21. Criminal trespass • A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.

Evidentiary Issues: 1 • Jury Empaneled: 12 persons – 2 white, 8 black, 2 Hispanic. One juror excused for cause because he once lived near the defendant. • Batson violation?

Evidentiary Issues: 2 • Officer Colbert will testify that as Officer Miller was speaking with Smith, he interviewed Smith’s wife, Georgia. Georgia Smith told him that she was with Smith when he and Groban were damaging the cemetery, and that Smith told her to “shut up” when she told them to stop. At trial, however, Mrs. Smith refuses to testify and invokes her “marital privilege.”

Evidentiary Issues: 2 • Hearsay: OCGA § 24-3-1 (a) Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons. (b) Hearsay evidence is admitted only in specified cases from necessity. • U.S. Constitution, Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

Evidentiary Issues: 2 • Crawford v. Washington, United States Supreme Court (2004) • Police interviewed defendant’s wife after husband stabbed someone. She gave a tape-recorded statement, then refused to testify at trial. Prosecutor introduced her prior tape-recorded statement. Defendant claimed violation of Sixth-Amendment right to confront witnesses.

Evidentiary Issues: 2 • Excluded from Evidence Are: • Testimonial Statements; • Made Outside Court; • UNLESS Declarant unavailable AND defendant had prior opportunity for cross-examination.

Evidentiary Issues: 3 Wanda Brown, the receptionist at the police station, will testify that early in the evening of October 12, 2006, a woman whom she now recognizes as Mrs. Georgia Smith came running into the police station, exasperated and yelling, “My damn husband and his friend have done gone and messed up the cemetery. Will you please come get his wasted ass out of my house!” Mrs. Smith then ran out the front door of the police station.

Evidentiary Issues: 3 • Hearsay: Out-of-court statement related by a third party. • “Res Gestae” Exception to Hearsay Rule: OCGA § 24-3-3 • “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.”

Evidentiary Issues: 3 • Crawford problem? • Pitts v. State (Georgia Supreme Court 2006) • An emergency (911) call can be admitted if the caller's primary purpose is not to provide evidence against the accused, but rather, to thwart an ongoing crime or seek rescue from immediate peril. • How does that apply here?

Evidentiary Issues: 3 • Pitts v. State (Georgia Supreme Court 2006) • Where the primary purpose of the telephone call is to establish evidentiary facts, so that an objective person would recognize that the statement would be used in a future prosecution, then that phone call "bears testimony" against the accused and implicates the concerns of the Confrontation Clause.

Evidentiary Issues: 3 • Is it Res Gestae? • Park v. State (Ga. Ct. App. 1998) • Four hours after the fight with which her husband was charged, upset wife at hospital asked victim why he didn’t fight back when her husband hit him. • Evidence showing the statements were made "'while the parties were still laboring under the excitement and strain of the circumstances and in such proximity in time as to preclude the idea of deliberation or fabrication”

Evidentiary Issues: 4 Officer Miller testifies that on October 20, 2006, after hearing from Josh Groban that John Smith was involved in the crime, he went to the home of the defendant to interview him. The officer will say that Smith invited him in and they sat on the couch and had the following exchange: Miller: “Mr. Smith, what do you know about the damage done to the graveyard a few days ago?” Smith: “Nothing.” Miller: “Come on, Smith, if you go ahead and tell me it will probably go easier on you. You will feel better. Clear your conscience! We’re not after you, anyway. We’re after Josh Groban.” Smith: “Well, I didn’t do anything myself. Josh Groban did it all. All I did was cheer him on and show him which headstones he should knock down.” Miller did not read Smith his Miranda warnings. Mr. Smith testifies that, while he did tell Officer Miller those things, it was only after Miller had forcefully come into his house, told him he was under arrest, and handcuffed him. He says he just told Miller what he thought he wanted to hear because he was afraid of him.

Evidentiary Issues: 4 • Free and Voluntary Confession? • “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50 • State v. Ritter, (Ga. Supreme Ct. 1997) • Officer lied, telling defendant victim had not died of his wounds and was “awake and ok.” • “To make a confession admissible, it must have been made voluntarily, i.e., "without being induced by another by the slightest hope of benefit or remotest fear of injury." • “The law is well established that use of trickery and deceit to obtain a confession does not render it inadmissible, so long as the means employed are not calculated to procure an untrue statement.”

Evidentiary Issues: 4 • State v. Ritter, (Ga. Supreme Ct. 1997) • “[The officer’s] representation regarding the victim's state of health constituted an implied promise that Ritter could not be charged with murder if he gave a statement to the police, but could only be charged with aggravated assault on a victim who was represented to be not only still alive but actively recovering . . . . Given Detective Cox's testimony that the representations were made to induce Ritter to speak based on the detective's assessment that Ritter would invoke his right to remain silent if he knew the full extent of the charges against him, the evidence supports the conclusion that Ritter was induced to talk to the police under the belief that he was incriminating himself only in regard to an aggravated assault charge and thus his confession was based upon the hope that he faced a lighter possible criminal penalty than he actually was facing.”

Evidentiary Issues: 4 • But: Pollard v. State (Ga. Ct. App. 1999) • Pollard stabbed victim, confessed. • Victim died before confession, but officer did not tell Pollard that. • Confession properly admitted because officer did not lie to Pollard, merely withheld the truth.

Evidentiary Issues: 4 • Stowers v. State (Ga. App. 1992) • Police questioned appellant in the presence of his mother; she encouraged him to tell the truth, and officer echoed that encouragement, telling appellant that "it would go easier on him to cooperate and tell the truth.” • Officer’s statement did not render appellant's statement inadmissible because “he only urged appellant to tell the truth and did not promise a lighter sentence or any other benefit.”

Evidentiary Issues: 5 2. Josh Groban, who has already pleaded guilty to being involved in damaging the graveyard, will testify that he, the defendant, and some other friends went to the graveyard to smoke marijuana on the morning of October 12, 2006. Josh had already been there the day before and will admit that he pushed over “a few” gravestones at that time. As the group was leaving the graveyard on October 12, Josh pushed over more gravestones and saw the defendant doing the same. 3. Kim Smith, the defendant’s sister, will testify that she was with Josh and her brother at the graveyard on October 12, but she did not see him push over any gravestones.

Evidentiary Issues: 5 • O.C.G.A. § 24-4-8: “The testimony of a single witness is generally sufficient to establish a fact. However, in . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness . . . .”

Evidentiary Issues: 5 • Does any evidence corroborate Groban’s statement? • Sister’s testimony shows he was there. • “Slight evidence from extraneous source identifying defendant as a participant in the crime is sufficient to corroborate accomplice testimony.” • Smith v. State, 238 Ga. 640, 641 (235 SE2d 17) (1977) • Hill v. State, 236 Ga. 831, 831-834 (Ga. 1976) • the state produced a witness by the name of Alvin Hawkins who testified that he and the two defendants on trial participated in the armed robbery of the whiskey store. He identified two of the ski masks used in the robbery and these masks were admitted into evidence without objection. He testified that defendant wore the grey ski mask during the robberies which the witness identified as State's Exhibit No. 3. Another state's witness had testified that the two masks received in evidence looked similar to the ones worn by two of the robbers. • Insufficient to corroborate; merely cast on defendant a grave suspicion of guilt.

Evidentiary Issues: 6 • Mr. James Thompson, city manager, will testify that he regularly monitors the cemetery; that he last viewed the cemetery on October 10, 2006, and that there was no damage to any grave; that he went to the cemetery the morning of October 13, 2006, and found 14 grave markers pushed over, some completely broken; that he obtained an appraisal of the cost to repair or replace the markers; and that the total cost is $5,215.

Evidentiary Issues: 6 • What are the issues?

Evidentiary Issues: 6 • To sustain this conviction for criminal damage to property in the second degree, the State was required to offer probative evidence which would sufficiently allow the jury to conclude Bereznak intentionally caused in excess of $ 500 damage to the property of another person without that person's consent. Our cases detail several proper methods for proving the value of the damage. A lay witness may give her opinion as to that value so long as she states the facts on which she bases her opinion or otherwise shows she had the opportunity to form a correct opinion. The cost of an item, so long as it is coupled with other evidence of its condition before and after the damage, may allow the jury to determine the value of damage to everyday items. Evidence of the cost to repair an item may also suffice. • Bereznak v. State, Ga. Ct. Appeals 1996

Conclusions • Key to Litigating in U.S. Trial Courts is presenting admissible facts to the court or jury; • Key to admitting evidence is understanding how to use case law to demonstrate the admissibility of that evidence; • Citation of case authority also builds a record for the appeal. • NEXT: The U.S. Case Precedent System: Applications in the Appellate Courts. www.tomrawlings.com

The U.S. Case Precedent System: Arguing Facts and Law at Trial