Improperly Admitting Hearsay can still be Harmless Error

Posted by David Adelstein on September 03, 2016
Evidence / Comments Off on Improperly Admitting Hearsay can still be Harmless Error

images

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule.

What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of review, limited by Florida’s rules of evidence.

In Johnson v. State, 2016 WL 446889 (Fla. 4th DCA 2016)—yes, a criminal case—a defendant argued that the trial court erred in overruling a hearsay objection and admitting hearsay evidence / testimony. During the trial, the defendant objected when the responding police officer was asked to testify how the victim and the victim’s friend described the defendant. The trial court overruled this objection and the officer was allowed to testify. The appellate court correctly found that this testimony was hearsay as it was offered to prove the truth of the matter asserted–that the defendant was involved in the crime. There was not a hearsay exception that would otherwise allow the officer to recount the victim and the victim’s friend’s description of the defendant.

Unfortunately for the defendant, the trial court’s error was harmless. So, yes, the trial court erred by allowing the officer to offer hearsay testimony, but the error was deemed harmless error. If the error is harmless, then the appellate court will affirm the trial court. Remember, just because a trial court commits error during the course of the trial does not mean the error will result in a new trial or a reversal.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein on November 05, 2015
Evidence / Comments Off on Recipient of Trial Court’s Error Needs to Prove Harmless Error

Unknown

I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant).

Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling the appellant (losing party) to a new trial.

In Maniglia v. Carpenter, 40 Fla. L. Weekly D2485c (Fla. 3d DCA 2015), the plaintiff sued the defendant over injuries sustained in a car accident.   Less than a month after the accident, the plaintiff was involved in a golf tournament where he got inebriated and drove the golf car into the street, collided with a car, fell off the golf cart, and then got into a physical altercation with the police.   The defendant naturally wanted to introduce these events during trial for multiple reasons. First, the defendant wanted to establish that the plaintiff never told his treating chiropractor about these events, which could have affected the plaintiff’s credibility to the jury. And, second, these other events could have served as a jury instruction relating to other intervening causes for the plaintiff’s injuries.

The trial court granted a motion in limine finding that these events were unfairly prejudicial to the plaintiff. As a result, the jury never heard the true nature of the events and a verdict was entered against the defendant.

On appeal, the appellate court held that it was error for the trial court to exclude this evidence since the evidence was probative and was not outweighed by the danger of unfair prejudice. Based on this error, the appellate court held that the plaintiff was required to prove that the error was harmless – there was no reasonable possibility that the error contributed to the jury’s verdict. The plaintiff, however, was unable to meet this burden meaning that the defendant was entitled to a new trial.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Harmless Error and the “No Reasonable Possibility” Test

Posted by David Adelstein on February 07, 2015
Appeal, Burden of Proof / Comments Off on Harmless Error and the “No Reasonable Possibility” Test

Unknown

The terms “harmless error” and “reversible error” are well known terms in the trial and appellate world. In a nutshell, a harmless error is an error committed by the trial judge that does NOT impact the fairness of the trial; a reversible error is an error that does impact the fairness of the trial. 

A party appealing a trial judge’s ruling (appellant) aims to establish that the trial judge’s ruling, etc. amounted to reversible error. The party responding to the appeal (appellee) aims to establish that there was no error, but if there was, it was harmless. If an error amounts to reversible error, it could result in a new trial or even a reversal of the judgment.

Florida Statute s. 59.041 explains the harmless error standard:

No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.

However, what impacts a fair trial and results in a “miscarriage of justice” has long been established on a case-by-case basis. This, however, has led to uncertainty as to how to specifically define a harmless error–an error that does not result in a miscarriage of justice / the right to a fair trial–in civil matters. In other words, when does an error result in miscarriage of justice and when does it not and whose burden is it to establish the harmless error?

The Florida Supreme Court in Special v. West Boca Medical Center, 2014 WL 5856384 (Fla. 2014) addressed this exact issue in ruling that the “no reasonable possibility” test is the harmless error test to be applied to civil trials:

To test for harmless error, the beneficiary of the error [appellee] has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error [appellee] must prove that there is no reasonable possibility that the error contributed to the verdict.

***

[T]he application of the no reasonable possibility test for harmless error in civil appeals will serve multiple purposes. The test acts in a manner so as to conserve judicial resources while protecting the integrity of the process. Additionally, the test strikes the proper balance between the parties. While the party that seeks relief  [appellant] must still identify the error and raise the issue before the appellate court, this test properly places the burden of proving harmless error on the beneficiary of the error [appellee]. Requiring the beneficiary of the error to demonstrate that there is no reasonable possibility that the error contributed to the verdict discourages efforts to introduce error into the proceedings.

Special, supra, at *4, 5.

Thus, under the “no reasonable possibility” test: (1) a harmless error is an error in which there is no reasonable possibility that the error contributed to the verdict and (2) the party responding to the appeal (appellee) has the burden to establish that the error was harmless.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

Trial Court’s Error is Harmless when there is No Reasonable Possibility Error Contributed to Verdict

Posted by David Adelstein on May 04, 2016
Appeal, Trial Perspectives / Comments Off on Trial Court’s Error is Harmless when there is No Reasonable Possibility Error Contributed to Verdict

images

Just because the trial court committed an error does NOT mean the error constitutes reversible error warranting a new trial. The trial court’s error could very well be harmless error.

When it comes to a trial court’s error, the recipient of the error should prove that “there is no reasonable possibility that the error contributed to the verdict.” Maines v. Fox, 41 Fla.L.Weekly D1062a (Fla. 1st DCA 2016) quoting Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256-57 (Fla. 2014). The trial court’s error is harmless if the recipient of the error proves there is no reasonable possibility that the trial court’s error contributed to the jury’s verdict.

In Maines, the trial court abused its discretion by preventing a defense expert from testifying that in his opinion the plaintiff did not suffer a traumatic injury as the result of the car accident. However, the defense expert was able to testify that only a very fragile person could have sustained a traumatic injury like plaintiff’s injury from the car accident. Hence, while the expert could not specifically testify that the plaintiff did not suffer the injury from the car accident, his other opinions clearly portrayed his causation opinion to the jury. For this reason, the First District held that while the trial court did commit an error, the error was nothing more than a harmless error–there was no reasonable possibility that this error contributed to the jury’s verdict in favor of the plaintiff.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

Preserving an Objection for Appeal

Posted by David Adelstein on May 20, 2018
Appeal, Expert Testimony / Comments Off on Preserving an Objection for Appeal

Preserving an objection for appeal.  Preserving an objection for appeal.  Preserving an objection for appeal.  Repeat again and again, because this is important.  The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida,  43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife.  Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder.   The jury found that the man was guilty of attempted murder.

An issue on appeal dealt with the scope of an expert’s testimony that tied the defendant to the scene of the crime.  Prior to the expert’s trial testimony, the defense argued that the prosecution’s expert was going to be rendering an opinion outside of his expertise as demonstrated by prior deposition testimony.  The defense argued to exclude this testimony.   The judge held that the prosecution needed to lay the proper predicate (foundation) for the expert’s opinion, and he will entertain an objection at a later time.  The prosecution’s expert rendered the opinion and the defense never renewed the objection.  Because the defense never renewed this objection and there was never a definitive ruling on the motion to exclude the testimony, the defense never preserved this issue for appeal. Pierre, supra (“But because Pierre [defendant] then failed to renew his objection during Silvia’s [prosecution’s expert] testimony or obtain a ruling on his earlier motion to exclude the testimony, this argument was not preserved for review either.”).  Moreover, the appellate court held that the trial court permitting this opinion, even if the trial court was wrong, was not a fundamental error (i.e., it was harmless error) because the jury could have convicted the defendant based on eyewitness testimony alone.

Remember, it is important to preserve an objection for appeal, particularly if it will be the basis of a potential appeal. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

Tags: , , , , , ,

Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Posted by David Adelstein on March 21, 2015
Appeal, Standard of Review, Uncategorized / Comments Off on Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Unknown

The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004).  Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence.  If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof

On the other hand, the standard of review for the trial court’s interpretation of a contract, which is a question of law, is subject to the much more favorable de novo standard of appellate review. See Jenkins v. Eckard Corp., 913 So.2d 43 (Fla. 1st DCA 2005); RNK Family Limited Partnership v. Alexander-Mitchell Associates, 788 So.2d 1035 (Fla. 2d DCA 2001). This means the appellate court can examine the contract and reach a completely different legal interpretation than the trial court. See Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003). Best explained by the Fourth District Court of Appeal in Gilman Yacht Sales, Inc. v. FMB Investments, Inc.766 So.2d 294, 296 (Fla. 4th DCA 2000) (internal citations omitted):

The interpretation of a written contract is a question of law to be decided by the court. An appellate court is not bound to give the trial judge’s interpretation or construction of a contract any weighted presumption of correctness. To the contrary, a decision construing a contract is reviewable on appeal under a de novo standard of review, and therefore we are required to consider for ourselves anew the meaning of the disputed contractual language.

It is important for parties to know the standard(s) of appellate review they may confront when appealing a trial court’s ruling as the standard of review will dictate the amount of deference the appellate court is required to give the trial court’s ruling. A de novo standard of review is much more favorable than an abuse of discretion standard of review.  The appellate standard of review is an essential component of appellate practice and will be identified in an appellate brief.   And, besides the standard of review, a party defending an appeal (appellee) may argue that to to the extent the trial court erred, such error was nothing more than a harmless error that did not contribute to the verdict.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , , , ,

Application of the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on January 18, 2015
Appeal, Evidence, Standard of Review / Comments Off on Application of the Business Records Exception to the Hearsay Rule

estimate-request

Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial.

Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence.  

What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule?

 

Standard of Appellate Review

 

Whether evidence is admissible under an exception to the hearsay rule, such as the business records exception, is subject to a de novo standard of appellate review. See Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014).   

 

Application of Business Records Exception

 

Landmark American Insurance Company v. Pin-Pon Corp., 2015 WL 71849 (Fla. 4th DCA 2015) is recent a case where the appellate court remanded the dispute back to the trial court for a new trial as to damages because the trial court improperly allowed evidence to fall within the business records exception to the hearsay rule.  The evidence should have been deemed hearsay and should not have been admissible under the business records exception.

This case involved an insurance coverage dispute over damages a hotel sustained from a hurricane. After trial, the hotel received a judgment against its insurer. The insurer appealed and an issue on appeal concerned whether the trial court erred in admitting the hotel’s repair (damages) estimate.

The hotel, to support its repair damages, introduced into evidence a composite exhibit through its architect.   The exhibit contained the architect’s repair scope of work (to repair the damage stemming from the hurricane). The exhibit also contained cost information (pricing the architect’s repair scope of work) that was not prepared by the architect. Rather, the cost information was prepared by the hotel’s general contractor with subcontractor invoices and proposals as the supporting back-up.

Because documents within the composite exhibit (such as the cost information) were not prepared by the architect and, thus, would ordinarily constitute hearsay, the hotel tried to establish that the cost information generated by the contractor and subcontractors would be admissible under the business records exception to the hearsay rule.

The architect testified that in its normal course of business it prepared a repair scope of work (drawings) to address the hurricane damage. This repair scope of work was given to the hotel’s contractor to cost / price. The contractor then submitted the cost / pricing information to the architect for review. The architect testified that these were the types of records it would ordinarily maintain in its ordinary course of business.   Based on this testimony, the trial court ruled that the business records exception applied (since the cost information would be hearsay) and allowed this composite exhibit to be introduced as evidence.

The appellate court, in a detailed discussion about the business records exception to the hearsay rule, explained:

For a record to be admissible under the business records exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. However, the fact that a witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record.

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony.   To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Nonetheless, the fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule. Otherwise, every letter which plaintiff’s employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents.”

Pin-Pon Corp., 2015 WL at *7 (internal quotations and citations omitted).

The appellate court held that the architect did not properly lay the foundation for the cost documentation within the composite exhibit to establish that the documentation fell within the business records exception to the hearsay rule. In particular, the architect could not show: (i) the documentation was made by or from information transmitted by a person with knowledge, (ii) the documentation was made at or near the time of the event since the architect had no knowledge when the documentation was made, and (iii) whether the preparer of the documents had knowledge or received information from a person with knowledge.

Because this documentation should have been deemed inadmissible, the appellate court remanded the case back to the trial court for a new trial on damages since there was a reasonable possibility that the error in admitting this evidence contributed to the jury’s verdict (i.e., the error in admitting this evidence was not a harmless error).

This case demonstrates the importance in properly laying the foundation so that documents are properly admitted into evidence.  As mentioned above, business disputes generally involve parties admitting evidence under the business records exception to the hearsay rule.  Thus, knowing how to properly lay the foundation for such evidence is important because if that evidence is improperly admitted there is a good chance that error in admitting the evidence will not constitute a harmless error

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Hearsay can Only be Admitted for Another Purpose if Such Purpose is a Material Issue

Posted by David Adelstein on January 10, 2016
Evidence / Comments Off on Hearsay can Only be Admitted for Another Purpose if Such Purpose is a Material Issue

Unknown

Sometimes, a party will try to introduce hearsay by arguing that that the document/testimony is not being offered to prove the truth of the matter asserted (hearsay), but instead, is being offered for another purpose. This is an avenue to admit evidence that would otherwise be excluded under the hearsay exclusion.  This was the situation in the employment litigation case, Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015).

In this case, the University terminated a tenured professor for cause and the professor sued. At trial, the University offered into evidence a report prepared by an investigator that summarized an investigation into findings of sexual harassment committed by the professor by victims not named in the report. The professor argued that the report contains numerous hearsay statements, particularly, the sexual harassment allegations by the unnamed victims. The University, however, stated that the report was not being offered for the truth of the matter asserted, but was offered to establish the reasonableness of the University’s actions in terminating the professor’s employment.

The appellate court held that it was harmful error for the trial court to admit the report with the hearsay statements into evidence. The court held, “when an out-of-court statement is being ‘offered for a purpose other than proving the truth of its contents[, it] is admissible only when the purpose for which the statement is being offered is a material issue in the case.” Mootry, supra, quoting King v. State, 684 So.2d 1388, 1389-90 (Fla. 1st DCA 1996).

The appellate court found that the reasonableness of the University’s actions was not a material issue in the dispute because the professor could only be properly terminated for cause if he breached his faculty agreement. The reasonableness of the University’s decision to terminate the professor had no bearing on whether the professor actually breached his faculty agreement. For this reason, the court held that the report was hearsay because it was actually being offered to prove the truth of the matter asserted that the professor sexually harassed students.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags:

State of Mind Hearsay Exception

Posted by David Adelstein on November 01, 2015
Evidence / Comments Off on State of Mind Hearsay Exception

images

Sometimes hearsay statements are introduced at trial not to show the truth of the matter asserted by the out-of-court statement, but to prove a certain state of mind of the person that heard the out-of-court statement. In this situation, the out-of-court statement would be admissible and not considered hearsay.

Florida Statute 90.803(3)(a) provides the following hearsay exception:

(a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, [is an exception to hearsay] when such evidence is offered to:

  1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action.
  2. Prove or explain acts of subsequent conduct of the declarant.

For example, in a medical malpractice action, a CT Scan interpreted by a radiologist revealed an aortic tear (Type I dissection) that needed to be repaired. A test was conducted by a cardiologist to determine the extent and precise location of the tear and the patient died during or immediately after the test. The plaintiff (estate) argued that the test performed caused another tear and this tear caused the patient’s death. During trial, and over the objection of the plaintiff, the cardiologist testified that he was told by the radiologist (the declarant) that read the CT Scan of the aortic tear (Type I dissection). The plaintiff argued that this constituted hearsay since what the radiologist told the cardiologist was an out-of-court statement. The appellate court held that this did not constitute inadmissible hearsay because the out-of-court statement was not offered to prove the truth of the matter asserted, but simply to prove that the cardiologist had notice of the aortic tear (Type I dissection).   See Dorsey v. Reddy, 931 So.2d 259 (Fla. 5th DCA 2006).

In a civil action involving the termination of a county employee, the terminated employee sued a third party for intentionally interfering with the employee’s employment causing the county to terminate the employee. The third party wanted a report introduced at trial. The report was prepared by another county employee that depicted various wrongdoings of the terminated employee. The trial court ruled that this report constituted hearsay. The appellate, however, found that the exclusion of the report was reversible error since the report was not offered to prove the truth of the matter asserted, but to prove the fact that the county had knowledge (notice) of the terminated employee’s alleged wrongdoings prior to terminating the employee. See Spatz v. Kirby, 705 So.2d 657 (Fla. 2d DCA 1998).

Finally, in a criminal action involving grand theft of a van, the defendant was arrested with a passenger in the van. The defendant’s defense was that he had the good faith belief that the van was owned by the passenger. At trial, the defendant called a witness. The witness testified that the day before the arrest, the defendant was driven to his house by the passenger.   The trial court, however, excluded the witness from testifying that the passenger told the witness in front of the defendant that the passenger owned the van. The appellate court held that this testimony was not hearsay because it was offered to prove the defendant’s state of mind–that the defendant had a good faith belief that the passenger actually owned the van. See Alfaro v. State, 837 So.2d 429 (Fla. 4th DCA 2002).

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

Purpose of Closing Argument

Posted by David Adelstein on May 28, 2015
Appeal, Trial Perspectives / Comments Off on Purpose of Closing Argument

We talked about the purpose of opening statements. Now, let’s talk about the purpose of closing argument.

One of my favorite all-time shows is Law and Order. Jack McCoy can certainly deliver a closing argument like no other where the purpose of his closing argument always seems abundantly clear. 

The purpose of closing argument is to help the jury understand the evidence presented to the law. See Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000).   It serves as the final opportunity for the lawyer to fully connect his/her client’s theme of the case (possibly explained during opening) based on the evidence presented at trial and the applicable law. See id. at 1028 (“Attorneys should be afforded great latitude in presenting closing argument, but they must confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.”) (internal quotation omitted); Jean v. State, 27 So.3d 784, 786 (Fla. 3d DCA 2010) (“Counsel should be permitted to present all legitimate argument [during closing]. In doing so, the trial court must afford counsel wide latitude in presenting the closing argument.”) (internal citations omitted).

The value of closing argument cannot be overstated. It allows the lawyer to summarize the evidence in the client’s favor while persuasively serving as an advocate for the client.

After the jury is selected and sworn, the judge should read a preliminary jury instruction (per Section 202.2 of Florida’s Standard Civil Jury Instructions) that explains when a lawyer will give a closing argument:

Instructions Before Closing Arguments: After all the evidence has been presented to you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision.
Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments.

There are, of course, things a lawyer should not do during closing argument such as personally vouch for the credibility of a witness or inject personal beliefs into the case. But there are indirect ways for a lawyer to go into the credibility of a witness or his/her theory of the case by focusing on that evidence supporting the theory and tying that evidence to applicable law.

If a party believes that the opposing party is giving an improper closing argument, it is imperative that they object. But, if they don’t object during closing argument, they must at least move for a new trial arguing that the opposing party’s argument constituted harmful or reversible error—that the unobjected to closing contained argument that is highly prejudicial and impaired fair consideration by the jury. See Murphy, 766 So.2d 1010 (explaining, however, that it is not improper to identify a witness as a liar or that he/she lied if supported by the evidence). Additionally, the party must establish that the unobjected to improper closing argument was incurable by a jury instruction (had it been timely objected to). See id. And, finally, the party must establish that the unobjected to, improper, harmful, and incurable closing argument damaged the fairness of the trial such that the public’s interest in the jury system requires a new trial. See id. Yes, this is a very difficult hurdle further supporting the importance of timely objecting to improper closing argument.

On the other hand, if a trial court gratuitously restricts an opposing party’s closing argument, such restriction could amount to an abuse of discretion. “[A]” trial court abuses its discretion when it fails to afford such latitude to defense [and plaintiff’s] counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury.” See Jean, 27 So.3d at 786.

Ok, let’s get back to some more Jack McCoy:

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com