By George Stein the DUI Lawyer
About the Author
George Stein the DUI Lawyer has been a practicing DUI lawyer in Georgia for many years and is the author of “Georgia DUI Law, A Resource for Lawyers and Judges” (Lexis Law Publishing).
Perhaps the most valuable tool in the DUI lawyer’s arsenal is the pre-trial motion to suppress evidence incriminatory to a client’s cause. Such evidence most frequently takes the form of blood or breath test results or the record of the client’s past driving record or convictions.[1] Solid grounds for suppression can be found where that evidence was illegally obtained or where its probative value is outweighed by its prejudicial effect. Evidence so suppressed is no longer admissible as part of the State’s case in chief (DUI in Georgia). Yet, even when the motion to suppress is granted, the danger that evidence presents has not yet passed. The State has a powerful weapon of its own, that of impeachment. The ability to impeach allows the prosecutor to admit the exhibits (or raise the issues) not as substantive evidence, but solely for the purpose of contradicting some element of the defendant’s testimony. When so admitted, impeaching evidence may be used only to assail the defendant’s credibility, not to prove guilt.
Where evidence such as the result of a State administered blood test is admitted for purposes of impeachment, it matters not that such evidence was suppressed because it was illegally obtained. The United States Supreme Court, in a series of decisions collectively known as the Walder-Harris doctrine, has ruled that illegally obtained evidence, not admissible in the State’s case in chief, may be admitted for the limited purpose of impeaching a witness’s testimony. Walder v. United States, 347 U.S. 62 (1954); Harris v. New York, 420 U.S. 714 (1975). Skeptical about invoking the exclusionary doctrine too liberally, the Court reasoned that the purpose of the exclusionary doctrine is to act as a deterrent to illegal/unconstitutional searches and seizures conducted by law enforcement, not as a shield behind which the defendant can freely commit perjury. In Walder, the Court noted; that the evidence was illegally obtained “is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance upon the Government’s disability to challenge his credibility.” 347 U.S. 62. While this doctrine is rather broad with regard to the evidence admissible for purposes of impeachment, it is quite limited in another sense. In James v. Illinois, 493 U.S. 307 (1990), the Court held that in a criminal proceeding, only the testimony of the defendant may be impeached by illegally obtained evidence. Other defense witnesses may not be so impeached. Id.
Under the Walder-Harris doctrine, the State had initially been limited to impeaching only the defendant’s testimony given on direct examination. But in United States v. Havens, 446 U.S. 620 (1980), the Court eliminated the direct examination requirement, allowing the State to introduce illegally obtained evidence in order to impeach a defendant’s “answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination.” 446 U.S. 620 at 627. The scope of Havens is even broader in Georgia where the scope of cross-examination need not be limited to that of direct examination. State v. Jeridine, 137 Ga. App. 811, 224 S.E.2d 803 (1976). In effect, extrinsic rebuttal evidence may be admitted to impeach the defendant’s testimony on cross-examination even if that line of questioning is not squarely within the scope of direct. This gives the State almost free reign to inquire into matters not addressed on direct. In effect, the State seemingly has the ability to open the door for itself, or at the very least, the right to knock on it.
IMPEACHMENT IN GEORGIA
The Walder-Harris doctrine was incorporated into the Georgia case law in Jordan v. Ensley, 149 Ga. App. 67, 253 S.E.2d 414 (1979); and Knisely v. State, 155 Ga. App. 673, 272 S.E.2d 538 (1980), both of which were DUI cases in Georgia (DUI in Georgia). In Jordan, the court noted that “even though the test results were not admissible to prove that the appellee was driving under the influence of intoxicants, they were admissible, subject to proper foundation, as the basis for expert testimony that the appellee was not telling the truth . . .” . This is further codified by O.C.G.A. § 24-9-82, which states that, “A witness may be impeached by disproving the facts testified to by him.”
Contradictory evidence admitted under O.C.G.A. § 24-9-82 is only to be considered the limited purpose of impeachment. As such, it is subject to a limiting instruction upon the request of counsel (DUI Lawyer). Askea v. State, 153 Ga. App. 849, 267 S.E.2d 279 (1980). Note however, that the jury not likely to understand the distinction between substantive evidence and impeaching evidence, or if they do, they are apt to ignore it. Therefore, it is essential that defense counsel take appropriate measures to prevent the jury from hearing that evidence, regardless of the purpose for which it is admitted.
What is important to remember about impeachment is that this prosecutorial device is only available after the DUI defense lawyer opens the door. O.C.G.A. § 24-9-20(b) states that “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” In interpreting this provision, it has been held that inadvertent statements as to character not enough to place character in issue. Johnson v. State, 261 Ga. 419, 405 S.E.2d 686, 688 (1991). See also Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988)(“A defendant did not place his general good character in issue by inadvertence, but by design . . ..“). Nor may a witness be impeached upon a subject immaterial to the issues involved in the trial of the case. J.F. McKinney & Co. v. Darby, 56 Ga. App. 621, 193 S.E. 594 (1937). Further, if defendant testifies that he does not remember well enough to answer, provided he answers in good faith, he has not said anything that may be impeached via contradictory evidence. Waters v. State, 210 Ga. App. 305, 436 S.E. 2d 44 (1993)(discussed infra).
Just how is door opened, and how can this be avoided? Previously suppressed evidence may be admitted any time the defendant or defense counsel raises (or often merely hints at) an issue relating to that evidence. This can occur in any number of ways. Defense counsel may open the door via inartful inquiries of a witness on either direct or cross.[2] Alternatively, the defendant, while on the stand, may make a statement raising an issue previously off limits to the State.[3]
However it happens, once the defense opens the door, seemingly all bets are off. The prosecution may engage in sifting cross-examination as to that issue. So long as the defendant’s answers do not contradict what the suppressed evidence would tend to prove, the State is stuck with the answers it gets. But where the defendant’s testimony somehow contradicts what the suppressed evidence infers, the State may admit that evidence for purposes of impeachment.
Having explained the basic premise behind impeachment, it is instructive to review a number of decisions handed down by the Georgia courts dealing with these issues in order to better understand how the defendant may be impeached and ultimately how to avoid such impeachment.
ILLEGALLY OBTAINED EVIDENCE
Relying on the precedent established in the decisions of Jordan and Knisely, Georgia courts have been quick to admit illegally obtained evidence for the limited purposes of impeachment in a number of DUI proceedings.
In Gregg v. State, 216 Ga. App. 135, 453 S.E.2d 499 (1995), the defendant was arrested for DUI and administered a breath test, the results of which were .17. Defendant subsequently requested an independent blood test. While this additional test was being performed, the arresting officer requested of the administering laboratory technician, and was given, a sample of the defendant’s blood. The officer then took this sample to the State Crime Lab where it was tested and held for purposes of rebuttal evidence. The result of that blood test also showed a BAC of .17, but was suppressed pre-trial and not introduced as part of the State’s case in chief. However, the result of the State’s breath test was so admitted.
At trial, the .17 result of the breath test was largely discredited by defense counsel because of defendant’s exposure to methyl ethyl ketone just prior to being tested. Having opened the door to the reliability of the State’s test, however, the prosecution was then permitted to produce the result of its analysis of the defendant’s blood during taken his independent test. The court held that such evidence “was admissible not only to bolster directly the State’s intoximeter test results but also to undermine the credibility of any inference favorable to the defense that might have been drawn from the testimony of the defense expert . . .” Id. at 502. This unfortunate ruling arguably violates the holding of James v. Illinois, 493 US 307 (199)(supra). Here, it was a defense theory that was impeached by the suppressed evidence and not the testimony of the defendant.
As to the fact that the arresting officer took a sample of the defendant’s blood drawn by the independent testing facility, the court noted that “[n]othing in [O.C.G.A. § 40-6-392] prohibits a police officer from taking a portion of the blood legitimately drawn during an independent test requested by the person whose blood is drawn and sending the sample to the crime lab for subsequent testing, either for control purposes or for potential rebuttal evidence, or both.” 261 Ga. App. 135, 136.
In Shipman v. State, 221 Ga. App. 160, 471 S.E.2d 225 (1996), the results of the defendant’s breath test were suppressed pre-trial because of an invalid implied consent warning. At trial, the defendant testified that he was not impaired at any time on the evening of his arrest and that he had only had 3 beers in the 3 hours preceding the arrest. Defendant’s testimony as to his level of intoxication opened the door to the results of a breath test, .09, along with the testimony of the arresting officer that the defendant had demonstrated outward signs of intoxication for the purposes of impeaching the defendant’s credibility.
In Charlton v. State, 217 Ga. App. 842, 459 S.E.2d 455 (1995), the results of the defendant’s breath test were suppressed because he had not received the proper implied consent warning. At trial, defendant testified that he had only consumed 4 beers on the night of the arrest. Defendant’s expert, basing his opinion on the defendant’s testimony, testified that given the amount of alcohol consumed over that period time, the defendant’s blood alcohol content could not have been more than .05. In rebuttal, the State brought its own expert who testified that if what the defendant said were true, his BAC could not have been more than .01 or .02 and not the .09 that the breathalyzer had shown when the defendant blew into it. Note that in this case, it was the defense expert whose testimony was impeached by the illegally obtained breath test. Although such evidence was brought in to impeach the testimony of the defendant’s expert and not the testimony of the defendant, that expert based his testimony on that of the defendant. When the State’s expert relied on the breath test, which contradicted the defendant’s testimony, it also contradicted the defense expert’s testimony. Thus, no James violation occurred.
PRIOR CONVICTIONS
When evidence of prior convictions is suppressed pre-trial, it is because the trial judge found that such evidence did not comport with the mandates of O.C.G.A.
§ 24-2-2: “The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” Such evidence is not suppressed because it was illegally obtained. Thus, the case law defining the exclusionary doctrine is not applicable.
There are a number of Georgia cases which help establish the parameters of impeachment via prior convictions subject to pre-trial exclusion. Even if the court initially deems evidence of the defendant’s prior convictions unduly prejudicial, “[testimony may be admissible for the purpose of impeaching the veracity of a witness even if it would be impermissible if offered for the purpose of impeaching the defendant’s character.” Martin v. State, 205 Ga. App. 591, 593, 422 S.E.2d 876 (1992).
In Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988), the court held that incomplete candor may warrant impeachment under certain circumstances:
Where the defendant testifies and admits prior criminal conduct, he has not
placed his character ‘in issue’ within the meaning of O.C.G.A. § 24-9-20(b).
Rather, he has raised an issue which may be fully explored by the State on
cross examination. If, however, the defendant testifies he has committed a
crime, implying that this is his only criminal record, his testimony is again
subject to rebuttal by proof of other crimes he has committed.
Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988).
In Warren v. State, 197 Ga. App. 23, 24, 397 S.E.2d 484 (1990), a defendant was held not to have opened the door where he “volunteered that he had two previous convictions for driving under the influence . . . [but] did not imply that this constituted the entirety of his previous criminal record . . .” Id. Further, a passing reference to the defendant’s record does not place his character in evidence. Johnson v. State, 256 Ga. 604, 351 S.E.2d 623 (1987). Another limitation to the admissibility of prior convictions in Georgia is that nolo pleas are inadmissible for purposes of impeachment. Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44 (1993); Rocco v. State, 191 Ga. App. 655, 382 S.E.2d 391 (1989). Finally, “when a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under O.C.G.A. § 24-9-20(b).” Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988).
In Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987), defense counsel asked the defendant on direct if he had been driving in an unsafe manner on the night of the accident. To this he responded, “[n]o sir, I been driving for 25 years and I ain’t never had no wrecks or nothing . . .” Id. at 30. Focusing on the “or nothing” portion of defendant’s testimony on cross, the State successfully cornered the defendant in to acknowledging that he had two previous DUI convictions and several speeding tickets. The court found that by testifying as to his safe driving for the past 25 years, and implying that his driving record was clean, the defendant opened the door to cross examination as to that issue. Id. Had defendant not admitted to his prior convictions, the State likely would have been permitted to introduce the defendant’s prior driving record to impeach his testimony under the holding of Jones v. State, 257 Ga. 753, 759, 363 S.E.2d 529 (1988). It can be argued, however, that this testimony was merely an inadvertent statement and thus insufficient to place the defendant’s character in issue. Johnson v. State, 261 Ga. 419, 405 S.E.2d 686 (1991).
In Long v. State, 185 Ga. App. 277, 363 S.E.2d 807 (1987), the court allowed the State to go so far as to bring in evidence of 2 prior arrests for DUI in Georgia in order to impeach the defendant’s testimony that he had refused to take the breath test because he was not familiar with the terms in the implied consent warnings and that he had never heard this warning before. The court noted that the defendant opened the door to cross examination as to his familiarity with the implied consent warning by his testimony, despite the fact that the defendant also testified that he could not remember whether he was given an implied consent warning in either of his two previous DUI arrests. Arguably then, the State’s efforts to impeach were unsuccessful. Yet no instruction to disregard the evidence was given to the jury. In effect, the court endorsed the State’s attempt at impeachment despite its arguable failure. That the State was permitted to use evidence of prior arrests to impeach seemingly contradicts the holding in McCarty v. State, 139 Ga. App. 101, 227 S.E.2d 898 (1976), where the court noted that evidence of prior arrests, confinement or indictment may not be admitted into evidence for purposes of impeachment.
In Wyatt v. State, 179 Ga. App. 327, 346 S.E.2d 387 (1986), the defendant testified that he always stopped drinking after 1 drink when he was going to be driving. Apparently realizing that he had opened the door, the defendant attempted to limit his previous statement to only the past year. Despite this partial retraction, the State was permitted to impeach this testimony with evidence of his prior DUI convictions. Defendant’s testimony was held to have opened the door. Note, however, in Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44 (1993), the court held that the defendant had not opened the door to his previous driving record where he testified that he had been pulled over 3 or 4 times in the past, but then almost immediately retracted that statement and responded that he was not sure how many times he had been pulled over. Because he had not said anything contradictable, there was no permissible purpose for which to bring in evidence of his prior driving record or convictions. The door had not been opened. Id. at 45.
Note: In 2005, a draconian statute (HB170 ) become law. It permits prosecutors to bring into evidence the defendant’s reputation and character at trial, if he or she testifies!
Hypotheticals
Perhaps the most valuable asset in the DUI lawyer’s defense is a pre-trial motion to suppress evidence incriminatory to a client’s case. In a DUI prosecution, this evidence most frequently takes the form of either blood, breath or urine test results evincing the client’s Blood Alcohol Content (BAC) at the time of arrest, or the client’s previous DUI convictions. Because these two forms of evidence are often dispositive with a jury and therefore devastating to your client, suppression of this evidence can greatly improve your client’s chances of being acquitted. All too often, inexperienced counsel inadvertently will open the door by asking improper questions.
Because issues of impeachment invariably arise in the midst of trial, it is often necessary to think about such issues on one’s feet. To aid in this regard, the following hypotheticals are provided to foster a general knowledge of the effect of opening the door for impeaching evidence on previously excluded evidence.
1. Defense counsel has gained suppression of the state’s breath test results. In the midst of the cross-examination of the arresting officer, defense counsel inquires, “What did you do after you arrested Moe?” Officer McCrackin smiles widely and responds, “I gave him a breath test.” On redirect, the prosecutor seeks to elicit from Officer McCrackin the results of that test. Can he do so? Answer: While these determinations are always left to the discretion of the trial judge and rarely clear cut, the state will likely be permitted to ask McCrackin about the results of the breath test once the defense counsel opened the door. The best way to avoid this type of situation is not to ask open-ended questions on cross-examination.
2. Defense counsel is conducting a direct examination of a defense witness, Willy, who was with the defendant, Dan, who was arrested for DUI in Georgia. Counsel asks Willy if, in his opinion, Dan was intoxicated at the time of the arrest. Willy responds that Dan was not. Al then asks how Willy would know this. Willy responds that he saw how much Dan had to drink that night and further that he has known Dan for a long time. On cross examination, the prosecutor asks Willy if he has he ever seen Dan, in all the time that he’s known him, to drive after having too much to drink. Is this line of questioning permissible? May Willy be impeached by evidence that Dan has been convicted of DUI in Georgia before and that Willy was a witness in the previous trial as well? Answer: Because Willy opened the door to his long relationship with Dan, the prosecutor may inquire into that relationship on cross. Willy will be required to answer the question. See Wood v. State, 218 Ga. App. 563, 462 S.E.2d 625 (1995). However, because Willy is not the defendant in this case, the prosecutor will be stuck with whatever answers Willy gives and will not be permitted to impeach Willy’s testimony even if it is contradictory to the suppressed evidence. See James v. Illinois, 493 U.S. 307 (1990)
3. A prosecutor inquires of the defendant on cross-examination in a DUI proceeding: “Mrs. Robinson, are you a good driver?” Mrs. Robinson responds, “I prefer to be driven.” Has the state opened its own door? Assuming a pre-trial suppression of Ms. Robinson’s driving record, may the prosecutor seek to compromise Mrs. Robinson’s position by introducing evidence of her numerous traffic violations and two prior DUI convictions?
Answer: The prosecution’s question is likely an impermissible one. The state is arguably probing an off-limits issue prior to the defense having raised it. In effect, the state is opening the door for itself. Further, under Georgia law, a defendant’s non-responsive answers on cross technically are not grounds for impeachment. See Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988)
["… when a witness gives a non-responsive answer to a question impacting negatively on the defendant's character, this does not place the defendant's character in issue under OCGA § 24-9-20 (b)."]. However, the trial judge may well insist that the witness answer the question responsively, in which case, the state may be able to impeach her testimony depending on the subsequent answer.
4. On cross-examination, the defendant states that he had no idea what his Alco-Sensor reading was at the time of the roadside test because the officer refused to tell him. May the prosecutor introduce evidence of a videotape in which the officer does in fact give the defendant the numerical result of his breath test? Answer: This would seem a proper situation in which suppressed evidence may be admitted to impeach the defendant’s credibility. See Shipman v. State, 221 Ga. App. 160, 471 S.E.2d 255 (1996).
5. On cross-examination of the arresting officer, the officer states that the alco-sensor (the exact numerical readout of which should not to be used as evidence of the amount of alcohol in a person’s system) gave a positive reading for intoxication. Defense counsel then proceeds to pose a number of inquiries bringing into question the reliability of the alco-sensor, i.e., the effect of various quantities of alcohol on alco-sensor readings. On redirect, may the prosecutor elicit from the officer the exact numerical readout given by the alco-sensor? Answer: Yes. Defense counsel’s questions have been held to open the door to evidence of the machine’s capability for quantitative measurement of blood alcohol levels. See Price v. State, 222 Ga. App. 655, 475 S.E.2d (1996).
6. During pretrial motions, the breath test result is suppressed due to an inadequate implied consent warning. At trial, the defendant takes the stand and his lawyer asks him, how many beers did you drink the night you were arrested? Response: “Four beers.” A defense expert witness testifies that, based on the defendant’s testimony, the defendant would not be a less safe driver. On cross-examination, the prosecutor attempts to use the results of the Intoxilyzer 5000. Is he permitted to do so for impeachment purposes?
Answer: Yes. By admitting to drinking only 4 beers, the client has opened the door and the Intoxilyzer 5000 results (in conjunction with expert testimony) may be used to show that he drank more than 4 beers. This would have avoided if the client had answered that he doesn’t remember.
Where evidence such as the result of a State administered blood test is admitted for purposes of impeachment, it matters not that such evidence was suppressed because it was illegally obtained. The United States Supreme Court, in a series of decisions collectively known as the Walder-Harris doctrine, has ruled that illegally obtained evidence, not admissible in the State’s case in chief, may be admitted for the limited purpose of impeaching a witness’s testimony. Walder v. United States, 347 U.S. 62 (1954); Harris v. New York, 420 U.S. 714 (1975). Skeptical about invoking the exclusionary doctrine too liberally, the Court reasoned that the purpose of the exclusionary doctrine is to act as a deterrent to illegal/unconstitutional searches and seizures conducted by law enforcement, not as a shield behind which the defendant can freely commit perjury. In Walder, the Court noted; that the evidence was illegally obtained “is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance upon the Government’s disability to challenge his credibility.” 347 U.S. 62. Under the Walder-Harris doctrine, the State had initially been limited to impeaching only the defendant’s testimony given on direct examination. But in United States v. Havens, 446 U.S. 620 (1980), the Court eliminated the direct examination requirement, allowing the State to introduce illegally obtained evidence in order to impeach a defendant’s “answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination.” 446 U.S. 620 at 627.
See also, Oregon v. Hass, 420 U.S. 714 (95 S. Ct. 1215, 43 L. Ed. 2d 570) and Charlton v. State, 217 Ga. App. 842, 459 S.E.2d 455 (1995).
[1]While there are many forms of impeachment and many types of evidence that can be admitted to impeach the credibility of a defendant’s testimony, this article limits itself to these two, most common to the DUI trial.
[2] See Wood v. State, 218 Ga. App. 563, 462 S.E.2d 625 (1995) in Hypothetical 2.
[3] See Sheffield v. State, 184 Ga. App. 141, 361 S.E.2d 28 (1987), and Long v. State, 185 Ga. App. 277, 363 S.E.2d 807 (1987), infra.
About the Author
George Stein the DUI Lawyer has been a practicing DUI lawyer in Georgia for many years and is the author of “Georgia DUI Law, A Resource for Lawyers and Judges” (Lexis Law Publishing). THE COMMANDMENTS OF EFFECTIVE APPELLATE PREPARATION By George Stein the DUI Lawyer You sit there and do nothing – you let the question slide. You rationalize with yourself and say as a good DUI lawyer “was it a good trial tactic?” However, was it a good appellate tactic? An effective trial attorney or DUI lawyer must not only be able to handle himself or herself in a courtroom. The effective practitioner must also be able to use the trial as a productive springboard for the appeal in the event that his or her client loses. The major problem many attorneys encounter is not identifying the landmines that can sabotage your client’s appeal, and thus issues will be lost when raised in the appellate court. There are some “appellate commandments” that practitioners should keep in mind at DUI and other trials. Remembering these, and not violating them, will set the stage for an appeal where all claims can be fully considered on the merits. This article will examine the primary commandments and how they are interpreted in major jurisdictions across the country. Obviously, like so much of the law, each commandment has exceptions to the rule, and these will be discussed also. COMMANDMENT NUMBER ONE – THOU SHALT KNOW THE PURPOSE OF AN APPEAL. This rule sounds almost too elemental for inclusion in this article. However, a surprising number of lawyers forget that an appeal is available to re-examine alleged errors of law, and not errors of fact. Trying to re-evaluate the evidence considered by the jury, and arguing this to the appellate court, is a sure-fire way to lose an appeal. The one exception to this rule is raising a sufficiency of evidence claim in a criminal proceeding under Jackson v. Virginia, 443 U.S. 307 (1979). Counsel should remember that arguing under Jackson about the evidence raised at trial should be directed to showing how the facts do not support one or multiple essential elements of the crime(s). Juries are allowed to disregard evidence that contradicts what was shown by opposing counsel. Arguing discrepancies in evidence on appeal, versus arguing absence of evidence, will be unsuccessful. In any event, counsel should be aware that a Jackson v. Virginia challenge is very rarely successful on appeal and should rarely be the strongest issue counsel puts forth in any post-conviction challenge. Additionally, raising “newly found” evidence on appeal (usually attempted via a witness’ affidavit) is also improper in most circumstances. The time for presenting evidence was at trial before a jury, and not before black-robed appellate judges. Also, trial lawyers commonly get “tunnel vision” when preparing for trial by focusing strictly on getting evidence before the jury and examining witnesses. Potential errors of law can arise at any stage of the trial’s proceedings, and a lawyer has to be on his or her toes at all times. Failure to address the legal issues while focusing only on the factual ones will likely waive appealable issues. COMMANDMENT TWO – THOU SHALT OBJECT (AND OBJECT AGAIN WHEN NECESSARY). Every trial attorney faces the situation at least once during a career where he or she debates about objecting to a comment from opposing counsel or an unsolicited statement from a witness. An internal conflict arises because making the objection may belabor a particular topic to the judge or jury that the attorney wishes to minimize. What an attorney must realize is failure to make the objection will likely waive the issue for any future appellate review. The Georgia case of Smith v. State, 277 Ga. 213, 586 S.E.2d 639 (2003), best articulates the rule that attorneys need to remember about objecting: “Georgia ‘has long followed the contemporaneous objection rule, which provides that counsel must make a proper objection on the record at the earliest possible time to preserve for review the point of error.’”. Smith at 218, citing State v. Laroque, 268 Ga. 352, 353, 489 S.E.2d 806 (1997). This appears to be a universal rule among jurisdictions across the United States.[i] Notice from the Smith rule that there are multiple components to lodging a proper objection, and these typically apply to any jurisdiction. The trial attorney should object in a timely fashion (i.e. – immediately or as soon as possible) to any issues he or she feels are errors of law or inadmissible evidence, and to which the attorney has a valid legal objection. An attorney should not object just because a particular matter is damaging to his or her client. An attorney should also state every objection – if an issue at trial can be objected to on multiple bases, the practitioner should state them all. On appeal, if an argument is made on a legal basis that was not stated at trial, the issue is waived.[ii] If the objection is sustained and the judge offers a remedy for any harm done by opposing counsel or the witness, but the objecting attorney is not satisfied with the correction, the attorney should make another objection and/or move for mistrial. Also, the trial attorney should put on the record why he or she believes the remedy was inappropriate. Finally, if the attorney is worried about the harm that may come to his client by stating a lengthy objection in front of the jury, then the lawyer should request either a bench conference or ask that the jury be excused while the objection is made. In either event, the objection should be transcribed by the court reporter for preservation on the record. While the contemporaneous objection rule is usually rigidly enforced by appellate courts, there are a handful of exceptions to the rule that excuse an attorney for not making an objection at the proper time. One exception is where the trial attorney’s repeated objections will anger the judge or alienate the jury.[iii] The better practice when faced with this situation is to request a continuing objection to any reoccurring objectionable material, questions or testimony that the attorney finds problematic.[iv] One of the trickiest areas where attorneys may be forgiven for failing to object is the plain error doctrine. This theory holds that some errors are of such great proportion affecting the fairness of a trial that an appellate court will still consider the issue on the merits even in the absence of an objection. What makes this doctrine so tricky is that different states apply the doctrine in differing ways. Both Florida and Washington, for instance, apply the doctrine for issues involving sentence enhancement without utilization of proper procedures.[v] New York will examine matters where a defendant is not permitted to call witnesses on his or her behalf in absence of an objection.[vi] Georgia is one of the most liberal jurisdictions in applying plain error to appellate issues. Georgia appellate courts will examine the properness of a presumption of innocence charge in absence of an objection[vii]; questions or comments from the trial judge giving the appearance that he or she is taking a prosecutorial role[viii]; and statements from the defendant’s attorney with respect to his or her client’s competency to stand trial.[ix] However, the trial attorney who relies on the plain error doctrine to save issues for appeal will likely find many potential claims waived by the failure to lodge contemporaneous objections. When in doubt – object. It is the far better practice. COMMANDMENT THREE – THOU SHALT OBEY THE APPELLATE COURT RULES. Every lawyer should know this – every court has rules that must be obeyed. Some are rigidly enforced, some are not. Appellate courts are no exception to this axiom. A trial attorney may not believe he or she has to know a great deal about the appellate court rules if that practitioner is not going to typically handle any appeals. However, there are some particular rules an attorney should be aware of to preserve the appeal for his or her client. The most obvious, and most important, is to know the procedures and deadlines for filing either a motion for new trial or a notice of appeal. In most jurisdictions, the deadline is typically thirty days from the entry of the final judgment or final disposition of the criminal case.[x] New York has a special exception for motions to set aside the verdict, which need to be entered after the guilty verdict and before the sentence is announced.[xi] California is a notable exception to this generalized rule. This state allows a notice of appeal to be filed sixty days after the rendition of the judgment or the making of the order being appealed.[xii] Both the motion for new trial and/or the notice of appeal must also be filed in the trial court that rendered the judgment.[xiii] Mistakenly filing the notice of appeal with the appellate court instead of the trial court can potentially lead to missing the thirty day deadline, and prejudicing the defendant’s appeal.[xiv] Another area where attorneys frequently make critical errors involving court rules is interlocutory appeals. Whereas direct appeals commonly involve longer time periods for filings, interlocutory appeals are usually governed by far-shorter deadlines. Also, interlocutory appeals frequently require additional filings by counsel because they operate like discretionary appeals – an appellant is asking permission from the court to appeal the issue. For example, in Georgia, a party’s attorney must first seek permission from the trial judge to issue a certificate of immediate review for any interlocutory order that a party finds objectionable.[xv] Upon issuance, the objecting party has ten days in which to file his or her application for interlocutory appeal with the appropriate appellate court.[xvi] An opposing party may (but is not required to) file a response within ten days from the application’s filing.[xvii] In the event the application is granted, the appellant then has ten days in which to file a notice of appeal in the trial court.[xviii] Note that some jurisdictions require a notice to be filed with ten business days and also require counsel to inform the court of their intentions to make oral arguments. The lesson to take away from all this is the rules can be very technical, and failure to abide by them can severely prejudice a client’s case. Failing to abide by the rules can lead to messy accusations from clients – bar complaints, ineffective assistance of counsel claims, or legal malpractice actions. A trial attorney does not need to master appellate court rules; however, learning a few keys ones can avoid major headaches in the future. COMMANDMENT FOUR – THOU SHALT PROTECT THY RECORD. The effective lawyer understands that, to represent your client’s interests, he or she must be able to exclude from trial any inadmissible evidence that is detrimental to the client’s position. However, a truly effective attorney also recognizes that there are at least two litigators in any courtroom dispute, and a situation may arise where evidence that is favorable to your client is excluded and/or your client’s motion is denied. If the evidence is favorable or the motion’s denial lacked merit, and the attorney believes the judge’s ruling is in error, the effective attorney will know how to protect his or her client’s record and preserve the issue for consideration on appeal. There are multiple areas where your client’s record can be irreparably harmed. Responses to motions, proffers regarding excluded evidence, and filing proposed jury charges are all examples of where the effective litigator will take the proper steps to make sure the record is complete in the event appellate review is needed. It is obvious that knowing and using the court rules are essential in this regard. Timely filing responses, making complete proffers, and ensuring that jury charges are complete and accurate when filed are all appropriate responses to the above-specified topics. It should also be evident that the topic of record preservation is VERY broad and encompasses many sub-topics. To demonstrate this, this article will focus on two small areas: transcript recordation and proffers. Think about all the potential areas where a transcript may prove invaluable: Jackson-Denno hearings (to determine the voluntariness of post arrest confessions), opening and closing arguments, and sidebars with the presiding judge. The rule regarding transcripts is akin to that for objections: if you did not preserve the problematic statements in some recorded format, then there is no error to review on appeal. Practitioners should also recognize that the rules differ from state to state. In Georgia, argument of counsel is statutorily exempt from recordation in proceedings by a court reporter (in other words, the attorney must request that argument be transcribed).[xix] Voir dire also does not have to be recorded except in death penalty cases.[xx] The appellate courts have consistently held that failure to have those proceedings recorded will effectively destroy any argument on appeal pertaining to those matters.[xxi] There is one provision in Georgia law to correct unrecorded portions of the record. Under O.C.G.A. § 5-6-41(f), a party complaining that the record is incomplete may move the court to correct any such error, and the trial court shall hold a hearing to determine if the record is complete and truthful. Lawyers should be aware of the rule in some states that do not require a court reporter be present in misdemeanor case and therefore should hire a private court reporter. Many states have similar provisions within their laws. For example, California court rules do not require voir dire or opening argument to be included in the record sent to appellate courts.[xxii] Like other states, Texas also has rules about what portions of a trial need to be transcribed. Interestingly, Texas places the burden of what portions of the transcript need to be transmitted to the appellate court upon the appellant. Tex. R. App. P. Rule 34.6(b) provides that: “At or before the time for perfecting the appeal, the appellant must request in writing that the official reporter prepare the reporter’s record. The request must designate the exhibits to be included. A request to the court reporter–but not the court recorder–must also designate the portions of the proceedings to be included.” Failure to request transmission of any transcript portions to the appellate court will likely invalidate any argument on the missing portions on appeal.[xxiii] Texas court rules also provide for correcting omissions and inaccuracies in transcripts and clerk’s records either by direction of the appellate court or agreement of the parties.[xxiv] Regarding the clerk’s records specifically, those portions that need to be transmitted to the appellate court are clearly specified within Texas court rules.[xxv] In the event your evidence or witness testimony is excluded from trial, your best (and possibly only) method of preserving the issue for appellate review is via a proffer. A proffer, or an offer of proof, is the presentation of the testimony itself or a summary by counsel of the missing witness’s testimony.[xxvi] Georgia has rather liberal rules regarding how an attorney can make a proffer. For testimonial evidence, an attorney may have the missing witness testify at the post-trial hearing or by submitting an affidavit of the missing witness.[xxvii] Alternatively, counsel can summarize on the record at trial what he or she expected the missing witness’s testimony to be.[xxviii] In any event, the proffered evidence that a Georgia attorney seeks to present at a trial must still be admissible under all other evidentiary rules.[xxix] Florida’s rule on proffers is incorporated into state statute. See § 90.104(1)(b). Florida case law specifically provides that proffers are for the benefit of reviewing courts – “(t)here is a long-standing rule in Florida that requires the party against whom a ruling of exclusion has been made, to make a proffer of the proposed testimony so that the trial and the appellate courts may be able to evaluate its weight, relevancy and competency in determining the effect of its exclusion.”[xxx] Case law in this state indicates that attorneys need to ensure that excluded testimony is on the record in some format because appellate courts will not cull the record to speculate as to the value of excluded information. New York has long-standing case law that directs how attorneys should make offers of proof: “It is a cardinal and well-settled principle that offers of proof must be made clearly and unambiguously. ‘Before a party excepts on account of the rejection of evidence, he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fails to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appears that it was so understood by the court which rejected the evidence.’”[xxxi] This rule places the burden upon the attorney to make a clear and unambiguous presentation as to what the evidence would have shown. To make a successful proffer, the excluded information must be carefully tailored to show that it would have been relevant to a key portion of the client’s case. For example, in driving under the influence cases, a defendant who does not show in a proffer that his involuntary intoxication evidence demonstrated temporary insanity will not prevail on appeal. A past history of blackouts resulting from voluntary intoxication will be unsuccessful.[xxxii] In contrast, a defendant who proffers expert testimony showing that she suffers from battered women’s syndrome, which lead her in turn to abuse her children, will prevail on appeal arguing that the trial court erred by excluding that same testimony.[xxxiii] Thus, if a general statement can be made on the topic or record preservation, it should be that an effective attorney will ask him or herself: have I done everything to state my client’s position on this excluded evidence, the denied motion, or done what is necessary to review the particular matter on appeal? And if I have, is the record sufficiently made so that the appellate court can understand what my position is on the issue? COMMANDMENT FIVE – THOU SHALT LISTEN TO THY CLIENT. An unfortunate but frequent occurrence in criminal practice is that attorneys will not listen to their clients. Let’s face it – the criminal defendant frequently acts like a person drowning in the middle of the ocean. He or she recognizes that the situation looks precarious, and the defendant will thrash around looking for any reason to get the charges dismissed. This frequently leads to conflict in the attorney-client relationship. The client wants the attorney to file a demurrer on the indictment, get the judge kicked off the case, get the prosecutor disbarred, etcetera, etcetera, etcetera…in short, throw “everything but the kitchen sink” at the case. The attorney wants to focus on the major issues and only those that he or she considers meritorious. The attorney may “tune out” the client if such a relationship develops. Attorneys should resist such feelings. Every once in awhile, the client does find something in the case that is not right and that the lawyer has overlooked. Failing to recognize this may happen can lead to a major issue being overlooked which could prove critical in the case. Indeed, some case law indicates that attorneys should get input on how the case is handled from the client him or herself: “She (the attorney) was obliged to consult with the petitioner throughout the proceeding and to discuss possible alternative defenses, as she did. Even when strategic decisions are of such a nature that ‘the power of decision on them must rest with the lawyer . . . that does not mean that the lawyer should completely ignore the client in making them.’”[xxxiv] In the author’s practice, I have had the pleasure of associating with countless criminal defense attorneys. A number of these have appeared as witnesses on their own behalf at habeas corpus hearings where ineffective assistance of counsel has been alleged. Out of this number, a sizeable proportion admitted on the record that their clients did suggest issues to be considered for appeal and the attorney used those issues in the appellate brief. Although I did not keep statistics as to whether these issues lead to reversals of convictions, the fact that a trained legal professional would include those issues means that the defendants were not crazy or ignorant in their assertions. That said, the best practice for effective attorneys facing an appeal is to listen to his or her client, read his or her correspondence, and listen to family members who have contact with the client. This does not mean that the attorney has to use every issue raised by the client – a lawyer must still discern those issues to raise only those claims that have the best chance of prevailing on appeal. However, if the practitioner has identified claims raised by the client that do have merit, the lawyer needs to make sure those issues are correctly preserved for future appellate review (such as preserving objections on the point at trial, raising the claim in a properly filed motion for new trial, etc.). COMMANDMENT SIX – THOU SHALT HAVE EFFECTIVE PRACTICES. At this point, the reader is likely thinking: “Well, that is obvious…the only good lawyer is an effective lawyer.” However, there is a surprising number of lawyers who use the same method or strategy over and over again, despite knowing that the strategy has not worked and will not likely work at any future point. Attorneys’ trial tactics will generally be given great deference when reviewed upon appeal. Even if the reasoning behind making a decision at trial is questionable, appellate courts will generally defer that reasoning as strategy when evaluating whether counsel was effective or not.[xxxv] However, appellate courts will not hesitate to provide editorial opinions about procedures or tactics it finds disturbing or straying from decent practices.[xxxvi] The point here is every attorney should practice the steps highlighted above and also periodically assess their trial methods to see if what he or she is doing actually works. Using these commandments and an honest evaluation of practice style will ensure that a lawyer not only has good trial skills, but good tactics to preserve issues for appeal if and when needed. [i] California - People v. Ledesma, 39 Cal. 4th 641, 729, 140 P.3d 657 (2006); Florida - Occhicone v. State, 570 So. 2d 902, 906 (1990); New York - People v. Mercado, 91 N.Y.2d 960, 963, 695 N.E.2d 711 (1998); Texas - Allen v. State, 108 S.W.3d 281, 282-83 (2003); Washington - State v. Wicke, 91 Wn.2d 638, 642, 591 P.2d 452 (1979). [ii] Practitioners should be aware of opposing counsel who may “cheat” – i.e. try to get information that was excluded at trial before an appellate court by including it in a brief. The appropriate method to respond to such a tactic is to show where in the record the information was excluded in a responding brief and to argue that the matter is waived accordingly. [iii] People v. Hill, 17 Cal. 4th 800, 820-22, 952 P.2d 673 (1998). [iv] People v. Hill, 17 Cal. 4th 800, 820-22, 952 P.2d 673 (1998). [v] McGriff v. State, 497 So. 2d 1296 (1986); State v. Fero, 125 Wn. App. 84, 104 P.3d 49 (2005). [vi]People v. Boone, 78 A.D.2d 461, 435 N.Y.S.2d 268 (1981). [vii] Tillman v. Massey, 281 Ga. 291, 637 S.E.2d 720 (2006); O.C.G.A. § 5-5-24(c); [viii] Paul v. State, 272 Ga. 845, 537 S.E.2d 58 (2000). [ix] Almond v. State, 180 Ga. App. 475, 349 S.E.2d 482 (1986). [x] Florida - Fla. R. App. P. 9.140; Georgia – O.C.G.A. §§ 5-6-38; New York – N.Y. C.L.S. C.P.L. § 460.10; Texas - Tex. R. App. P. Rule 21.4(a) and Tex. R. App. P. Rule 26.2; Washington - Wash. RAP 5.2. [xi] N.Y. C.L.S. C.P.L. § 330.30 [xii] Cal. Rules of Court, Rule 30.1 [xiii] California - Cal Rules of Court, Rule 8.304; Florida - Fla. R. App. P. 9.140; Georgia – O.C.G.A. §§ 5-6-37; New York – N.Y. C.L.S. C.P.L. § 460.10; Texas - Tex. R. App. P. Rule 25; Washington - Wash. RAP 5.2. [xiv] Tello v. State, No. 04-05-00833-CR (Tex.. App. 4th Dec. 21, 2005). [xv] O.C.G.A. § 5-6-34(b). [xvi] Id. [xvii] Id. [xviii] Id. [xix] O.C.G.A. § 17-8-5 [xx] Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975); Floyd v. State, 281 Ga. App. 72, 635 S.E.2d 366 (2006) [xxi] Floyd v. State, 281 Ga. App. 72, 635 S.E.2d 366 (2006); Hurston v. State, 278 Ga. App. 472 (4), 629 S.E.2d 18 (2006) [xxii] Cal. Rules of Court, Rule 8.320 (2007) [xxiii] Solis v. State, No. 13-03-00262-CR (Ct. App. Tx. 13th Dist. Jul. 20, 2006) [xxiv] Tex. R. App. P. Rules 34.5(c) and 34.6(e) (2007) [xxv] Tex. R. App. P. Rule 34.5(a) [xxvi] Goger, Daniel’s Georgia Handbook on Criminal Evidence, § 1-20 (2005 ed.) [xxvii] Roberts v. State, 263 Ga. 807 (2), 439 S.E.2d 911 (1994) [xxviii] Cain v. State, 277 Ga. 309 (4), 588 S.E.2d 707 (2003) [xxix] Smart v. State, 277 Ga. 111 (4), 587 S.E.2d 6 (2003) [xxx] Nava v. State, 450 So.2d 606, 609 (1984), overruled on other grounds Brazell v. State, 570 So.2d 919 (1990) [xxxi] People v. Williams, 6 N.Y.2d 18, 23, 159 N.E.2d 549 (1959), citing Daniels v. Patterson, 3 N.Y. 47 (1849) [xxxii] Crossley v. State, 261 Ga. App. 250, 582 S.E.2d 204 (2003). [xxxiii] Pickle v. State, 280 Ga. App. 821, 635 S.E.2d 197 (2006). [xxxiv] Johnson v. Commissioner of Corrections, 222 Conn. 87, 96, 608 A.2d 667 (1992), citing I ABA Standards for Criminal Justice (2d Ed. 1980) c.4, standard 4-5.2, commentary, p. 4.68. [xxxv] State v. Clayton, 62 Ohio St. 2d 45, 48-49, 402 N.E.2d 1189 (1980). [xxxvi] United States v. North, 910 F.2d 843, 895 (D.C. App. 1990) (independent counsel’s decision to refer to Adolf Hitler in closing argument was “(u)nquestionably inflammatory” and “reflected remarkably poor judgment by” counsel); Benge v. Johnson, 312 F.Supp. 978, 1011 (S.D. OH. 2004) (closing argument that denigrates opposing counsel is unprofessional and strongly discouraged). This Summer, researchers in California discovered that obese, or formerly obese, people who have had gastric bypass surgery can register blood alcohol levels well above the legal limit after consuming just one glass of wine. And in another study, at the University of North Dakota, scientists have concluded there can be a drastic affect in the metabolism of alcohol based on your zinc intake. In the American Journal of Clinical Nutrition, researchers conclude that people with low zinc intake had nearly two times the level of detectable alcohol versus people consuming the same number of drinks without any such zinc deficiency. Plus, the study found that the alcohol levels remained higher for longer durations for those with low zinc levels. The Georgia DUI laws do not set different standards of alcohol detection for the differing persons in our population. Rather, Georgia DUI laws have a one-size-fits-all standard, proscribing a breath alcohol or blood alcohol level of 0.08 grams or more within three hours of driving. Georgia DUI laws further mandate that all breath alcohol tests must be run on an outdated and unreliable device known as the Intoxilyzer 5000. The Intoxilyzer 5000 was first introduced in the 1980’s and remains the only evidentiary breath testing device permitted under Georgia DUI laws. George Stein and his seasoned legal team of Georgia DUI lawyers are well trained and knowledable in dealing with the inaccuracies and unreliability of the Intoxilyzer 5000. We strive to attack this device for our clients by utilizing scientists, doctors and other experts. Clearly, with all the medical research now available concerning diet, zinc, and other conditions, the Intoxilyzer 5000, with its one-size-fits-all parameters is an outmoded method in the 21st Century. About Stein & Ward: Stein & Ward, LLP is a law firm dedicated to contested DUI and vehicular homicide cases in Georgia. George Stein represents clients all across Georgia and is the author of the book entitled Georgia DUI Law (Lexis Publishing Co.) Read the latest DUI related articles at the Stein & Ward websites: www.GeorgeStein.com and www.TheDUILawyer.com. CONTACT INFORMATION:
During the course of a jury trial, you hear the prosecution ask a question that refers back to evidence you successfully excluded at an earlier point in the case. The time is 4:00 p.m., the jury’s attention is fading, and the trial judge has lost all patience with everyone in the courtroom. You begin to feel uneasy as you ask yourself: “Should I face the wrath and object? Or should I let this one slide?” You know full-well the question is improper, but you also consider your setting, your client’s interests, and the prospect of belaboring a point you’d rather see as “water under the bridge.”
George Stein " The DUI Lawyer "
Stein & Ward
1355 Peachtree Street NE, Suite 150
Atlanta, Georgia 30309
Toll Free: 888-38-COURT
