The Legal Advocate

A blog brought to you by the national institute for trial advocacy

All posts by Alli Keefe

Regional P&A Advocacy – A NITA Public Service Program

Posted On By

On April 24 – 26, a group of NITA faculty went to Frankfort, KY for a public service program for 24 attorneys – all from a variety of organizations such as Disability Rights of Pennsylvania, Kentucky Legal Aid, Disability Rights of Ohio, and more. The program was led by Jayme Cassidy, who began teaching with NITA in 2004.

At the conclusion of the program, Cassidy stated, “It was a pleasure designing this program and working with the Prosecution and Advocacy attorneys. These passionate lawyers come from various backgrounds both personally and professionally. They came together with a common goal to learn how to represent their vulnerable clients more effectively. One performance at a time, these advocates dedicated themselves to elevating their lawyering skills using the NITA method. It was rewarding for the entire team to witness significant improvement each performance!”

Not only did Cassidy find the program to be rewarding, but the participants as well found that they learned a great deal during the three-day program.

“I received great guidance regarding my oral advocacy skills, and I felt comfortable with my peers and advisors . The documents were thoughtfully made for the program. This was well-structured, organized, and I would take a course like this again,” stated one participant.

Overall, the participants felt the opportunity to practice their skills in front of a knowledgeable team of faculty was very beneficial and appreciated the feedback.

Congratulations to Judge L. Felipe Restrepo, Mark Caldwell, and Spencer Pahlke – 2018 Award Receipents

Posted On By

NITA’s Executive Director Wendy McCormack attended the Educating Advocates Conference at Stetson University College of Law where many NITA folks were award recipients. A huge congratulations to Judge L. Felipe Restrepo, Mark Caldwell, and Spencer Pahlke on their awards.

Judge L. Felipe Restrepo, who became a NITA faculty member many  years ago and continues to teach at many of our public programs, received The Cornerstone Award which recognizes exceptional members of the advocacy teaching community who work tirelessly to create learning opportunities across the profession.

Similarly, Mark Caldwell, who is the Curriculum Project Manager here at NITA and has been a program director on countless programs over the years, received the Lifetime Achievement Award for excellence in advocacy – from teaching to representing clients, this Caldwell exemplifies the legal profession’s commitment to furthering the art, science, and skill of advocacy instruction.

Likewise, Spencer Pahlke, who has taken many NITA programs over the years, received the  Edward D. Ohlbaum Professionalism Award, for the ethical teaching of an entire generation of advocates – whose life and practice display sterling character and unquestioned integrity.

Hearsay Monthly Blog Theme: Part One

Posted On By

The Business Records Exception to Hearsay and the Admissibility of Underlying Scientific Evidence Contained in the Record

written by NITA guest bloggers Marina Tous Clots and Michael J. Dale – article originally published to The Legal Advocate on March 9, 2016

Everyone is familiar with the business records exception to hearsay contained in the Federal Rules of Evidence (FRE) and in corresponding state rules of evidence. And everyone knows that not everything contained in the business record comes into evidence pursuant to that exception. The most obvious exception to the business record exception is hearsay within the business record. However, for the hearsay within the document to come into evidence, the statement itself must be relevant, and then there must be a separate exception to hearsay or a non-hearsay purpose for the underlying statement within the business record.

But what if the business record itself or the record within the record contains scientific information? For example, suppose in a tort, employment, or child welfare case, a party wishes to put into evidence scientific tests where somebody’s substance abuse is at issue or to put into evidence a business record that contains within it a scientific test. Suppose the test is a hair follicle or a urinalysis test.

This blog post discusses why the scientific information may pass the business records exception yet may still be subject to other evidentiary concerns like relevance and probative weight.

Step One
The evidentiary starting point is FRE 801(c), which defines hearsay as “a statement that: 1) the declarant does not make while testifying at the current trial or hearing; and 2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

Under this definition, there is no room for doubt that scientific tests introduced to prove or disprove someone’s use of drugs fall within the definition of hearsay.

Step Two

The next and equally obvious point of evidentiary reference is the business record exception to hearsay. FRE 803(6) permits the introduction of business records, including scientific facts, regardless of whether the declarant is available as a witness. The elements of this exception, as we know, are:

  • the record was made and kept in the course of regularly conducted business activity;
  • the record is one that is routinely made and kept in the business’s usual practice;
  • the record was made at or near the time of the event that it records;
  • the record was made by a person with knowledge or from information transmitted by a person with knowledge; and
  • the proponent does not show a lack of trustworthiness in relation to the source of the information or the method of preparation.

All these conditions are shown by the testimony of a qualified witness or a certification that complies with FRE 902(11). Assuming that the proponent of the scientific tests can prove all of these elements, the business record exception will be met and the tests will overcome a hearsay objection.

However, even if the documents fall within the business record exception, the entire document will not necessarily be admitted into evidence. Again, as we know, business records oftentimes describe both the personal knowledge of employees and things told to employees by third parties.

Step Three
The third level of analysis occurs in situations where an out-of-court statement that falls within the business record exception contains another out-of-court declaration from a person other than the one who wrote the purported evidence. This is what we commonly refer to as hearsay within the business record or hearsay within hearsay. An example of hearsay within the business record would be a hair follicle or urinalysis test taken by an independent drug-testing agency and relied upon by a doctor when drafting her medical report.

FRE 805 states that hearsay within the business record is not excluded from evidence if each part of the combined statements conforms with an exception to the rule against hearsay. This means the tests must satisfy an independent hearsay exception or non-hearsay test and they must be found to be independently relevant.

Relevance and Probative Weight
To illustrate this matter, it is useful to take a closer look at what the results of our example—hair follicle or urinalysis tests—tell us. These tests analyze organic samples for traces of drugs. Depending on the tissue or fluid used, the tests can determine whether there are existing traces of drugs for a specified period of time. In the case of urinalysis, the tests show the use of drugs for a period of time prior to the taking of the test, depending on the drug. For hair follicle testing, it is generally accepted to be longer, between six to twelve months of prior drug use. However, nothing on the face of the test explains any of this. The business record exception neither explains the relevance of the test nor whether it is accurate

Thus, the relevance problem is twofold: 1) What does the test show? In other words, what is its relevance? and 2) Was the test properly administered? If so, are the results accurate?

Independent Relevancy
FRE 401 provides that “[e]vidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”

The issue here is that generally, nothing on the face of drug test explains its significance, or what it proves. Therefore, one could think that there could be a potential objection regarding the relevance of the test.

However, it is generally accepted that FRE 401 is an evidentiary starting point and that there are very few things that are kept out by this rule. Even if nothing on the face of the test explains exactly what the results mean, courts generally accept them into evidence so that their significance can be explained at a later stage.

Once we have established that the underlying scientific tests within the record would be deemed independently relevant, the results would only show that during the period of time covered by the test, the person had taken drugs. The results do not specifically indicate the amount or frequency in which the drugs were taken. Nor do they show that the test was properly administered.

Probative Value: The Significance and Accuracy of the Results
The last and perhaps most significant issue is this: even if the underlying scientific tests eventually get admitted into evidence, their significance and accuracy can still be challenged. Thus, a qualified witness should testify on direct examination as to the proper administration of the test and the test’s meaning and accuracy. There are, in turn, at least two obvious ways in which to attack the underlying scientific evidence: 1) deposing the person who carried out the tests or a qualified witness to show inadequacies in the way the tests were carried out, and 2) offering an expert witness’s testimony to challenge the findings introduced on direct examination.

Conclusion
An exhibit may only be admitted into evidence after a full evidentiary foundation is established. Oftentimes we are faced with business records that contain underlying scientific evidence. In the case of hair follicle or urinalysis tests, nothing on the face of the test explains the relevance of the test nor whether it is accurate. In those instances, the question arises as to whether those underlying scientific tests are admissible into evidence. The answer is that the tests must independently be found to be relevant and then they must satisfy an independent hearsay exception or non-hearsay test. If the tests satisfy these requirements, they will come into evidence. Once the tests are admitted into evidence, they can still by attacked by deposing the qualified witness or by offering an expert witness’s testimony to challenge the accuracy of the results.

————————————————————————————————————————-

Marina Tous Clots is a Spanish attorney, a graduate of the University of Barcelona, and a dual-degree law student at Nova Southeastern University in Fort Lauderdale, Florida. She is a research assistant for Professor Michael J. Dale. She can be reached at m.tousclots@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

Congratulations to NITA Program Directors Hon. Christopher T. Whitten and Karen Steinhauser

Posted On By

NITA would like to give a huge shout out to Program Directors Hon. Christopher T. Whitten and Karen Steinhauser who are both recipients of prestigious NITA Awards and were presented with them at the April Board of Trustees Meeting in Boulder, CO.

Chris received The Hon. Robert E. Keeton Award which is given out to a NITA Faculty Member for outstanding service and excellence in teaching. The award is named for Robert Keeton, one of the original teachers at NITA’s National Session and a longtime contributor to many programs.

Chris has been teaching with NITA since 2005 and serves as program director for many of our public, public service, and in-house programs each year. This year, Chris has already taught at 8 NITA programs and still has more lined up for the rest of 2018. Thank you to Chris for your continuous support and dedication as a NITA Faculty Member.
 

Likewise, Karen was granted The Hon. Prentice H. Marshall Faculty Award which recognized a person who has developed and instituted new ideas in NITA’s methods for teaching trial skills, or has created new courses. Karen was met with overwhelmingly positive feedback when she implemented a lecture on implicit bias in the courtroom during the 2017 National Session.

Karen has taught with NITA on over 100 programs over the last 25 years. She will continue her third year as program director at the National Session this July in Boulder, CO. Thank you Karen for your innovative ideas and the passion you bring to your teaching.

Cook County Public Defenders – NITA Public Service Program

Posted On By

For the second year in a row, NITA and Cook County Public Defenders worked together on a public service training program in Chicago, IL. This year, NITA Program Director Richard Hutt led the 4-day trial skills program which covered topics such as: direct and cross examination, exhibits and evidentiary foundations, impeachment, opening statements, and closing arguments. Hutt worked closely with Chief of Professional Development at Cook County, Parul Desai, to develop the schedule that would be best suited for the training.

Furthermore, the program trained 22 Cook County Public Defenders who found the training to be very effective and helpful in developing their trial skills. One participant stated, “{The program had} excellent trainers! I learned great information and had great feedback from the trainers.”

Likewise, another participant stated, “It was a very fun and great experience. I learned a lot of tips and techniques to improve my trial skills.”

NITA is very grateful to have continued our partnership with Cook County for a second year in a row and to have had the opportunity to work with their Public Defenders.

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
Feature Products

Follow

Get every new post on this blog delivered to your Inbox.

Join other followers: