The U.S. Case Precedent The U.S. Case Precedent System:System:

Arguing Facts and Law at TrialArguing Facts and Law at Trial

Tom C. RawlingsTom C. RawlingsJudge, Juvenile CourtsJudge, Juvenile CourtsMiddle Judicial CircuitMiddle Judicial Circuit

Sandersville, GASandersville, GA(478) 553-0012(478) 553-0012

tom@sandersville.nettom@sandersville.netwww.tomrawlings.comwww.tomrawlings.com

Different Approaches of Different Approaches of Civil and Common LawCivil and Common Law

• Framing the Question:Framing the Question:– Civil Law Judge: What Should We Do This Civil Law Judge: What Should We Do This

Time?Time?– Common Law Judge: What did we do last Common Law Judge: What did we do last

time?time?

• Focus on Facts vs. Focus on LawFocus on Facts vs. Focus on Law– Civil Law: Weighing of Meticulous Legal Civil Law: Weighing of Meticulous Legal

ArgumentsArguments– Common Law: Elaborate Analysis of FactsCommon Law: Elaborate Analysis of Facts

– Oheler, “Working with a Code: Is There a Difference Between Oheler, “Working with a Code: Is There a Difference Between

Civil-Law and Common-Law People?” 1997 U. Ill. L. Rev. 71Civil-Law and Common-Law People?” 1997 U. Ill. L. Rev. 71

Different Approaches of Different Approaches of Civil and Common LawCivil and Common Law

• Use of Codes:Use of Codes:– Civil Law: Detailed, thorough legislation.Civil Law: Detailed, thorough legislation.

•Codes are to be understood and Codes are to be understood and interpreted by and from themselves.interpreted by and from themselves.

– Common Law: Code outlines the Common Law: Code outlines the boundaries of what is valid.boundaries of what is valid.• Views codes as a “restatement” of the Views codes as a “restatement” of the law that serves as noteworthy authority law that serves as noteworthy authority among othersamong others

– Oheler, “Working with a Code: Is There a Difference Between Oheler, “Working with a Code: Is There a Difference Between

Civil-Law and Common-Law People?” 1997 U. Ill. L. Rev. 71Civil-Law and Common-Law People?” 1997 U. Ill. L. Rev. 71

What Exactly Is the Case What Exactly Is the Case Precedent System?Precedent System?

• Reliance on settled law, as found in case Reliance on settled law, as found in case decisions of decisions of higher courtshigher courts, to decide , to decide new cases. new cases.

• Persuasive power of case decisions of Persuasive power of case decisions of sister courtssister courts when issues of first when issues of first impression arise.impression arise.

• Adding “clothes” to a “naked” statute.Adding “clothes” to a “naked” statute.• Analogizing the facts of the present case Analogizing the facts of the present case

to previously-decided cases.to previously-decided cases.• Effectiveness is dependent on a highly-Effectiveness is dependent on a highly-

indexed system of published case indexed system of published case decisions.decisions.

State Court of Appeals

JuvenileCourt

Superior Court

ProbateCourt

MisdemeanorCourt

AdministrativeLaw Judge

MagistrateCourt

State Supreme

Court

United States Court Of Appeals

State SupremeCourt

United StatesDistrict Court

United States Supreme Court

Stare Decisis: The Rule of Stare Decisis: The Rule of PrecedentPrecedent

• Promotes the evenhanded, predictable, Promotes the evenhanded, predictable, and consistent development of legal and consistent development of legal principlesprinciples

• Fosters reliance on judicial decisionsFosters reliance on judicial decisions• Contributes to the actual and perceived Contributes to the actual and perceived

integrity of the judicial process. integrity of the judicial process. • Adhering to precedent "is usually the Adhering to precedent "is usually the

wise policy, because in most matters it wise policy, because in most matters it is more important that the applicable is more important that the applicable rule of law be settled than it be settled rule of law be settled than it be settled right right

– PAYNE V. TENNESSEEPAYNE V. TENNESSEE, 501 US 808 (1991), 501 US 808 (1991)

When and How?When and How?

• At the trial court level, prior cases At the trial court level, prior cases are relied on more to determine are relied on more to determine howhow the case should proceed and the case should proceed and whatwhat the outcome should be. the outcome should be.

• At the appellate court level, you At the appellate court level, you are much more likely to ask are much more likely to ask whywhy..

• The Key to Studying Common Law The Key to Studying Common Law is Learning to is Learning to Spot IssuesSpot Issues and and Research CasesResearch Cases..

A Practical ExampleA Practical Example• Statutory provisions regarding the Statutory provisions regarding the

Admission of a Confession:Admission of a Confession:– No person . . . shall be compelled in No person . . . shall be compelled in

any criminal case to be a witness any criminal case to be a witness against himselfagainst himself. . United States Constitution, United States Constitution, Amendment V.Amendment V.

– ““To make a confession admissible, it To make a confession admissible, it must have been made voluntarily, must have been made voluntarily, without being induced by another by without being induced by another by the slightest hope of benefit or the slightest hope of benefit or remotest fear of injury.” remotest fear of injury.”

OCGA 24-3-50OCGA 24-3-50

A Practical ExampleA Practical Example• Judge-Made Rules Regarding Judge-Made Rules Regarding

Admission of a Confession:Admission of a Confession:– it is not a coercive tactic for a police officer it is not a coercive tactic for a police officer

to threaten to arrest a person for to threaten to arrest a person for committing a crime in his presence, as he is committing a crime in his presence, as he is constitutionally authorized to doconstitutionally authorized to do

– To make a confession admissible, it must To make a confession admissible, it must have been made voluntarily, i.e., "without have been made voluntarily, i.e., "without being induced by another by the slightest being induced by another by the slightest hope of benefit or remotest fear of injury." hope of benefit or remotest fear of injury." A reward of lighter punishment is generally A reward of lighter punishment is generally the "hope of benefit" to which O.C.G.A. § 24-the "hope of benefit" to which O.C.G.A. § 24-3-50 refers. The [*110] State bears the 3-50 refers. The [*110] State bears the burden of demonstrating the voluntariness burden of demonstrating the voluntariness of a confession by a preponderance of the of a confession by a preponderance of the evidence. evidence.

A Practical ExampleA Practical Example• Judge-Made Rules Regarding Judge-Made Rules Regarding

Admission of a Confession:Admission of a Confession:– An accused must be warned that he An accused must be warned that he

has the right to remain silent; that has the right to remain silent; that anything he says can and will be used anything he says can and will be used against him in court; that he has the against him in court; that he has the right to an attorney, and to a free right to an attorney, and to a free attorney if he cannot afford one, prior attorney if he cannot afford one, prior to any questioning.to any questioning.

– Miranda v. ArizonaMiranda v. Arizona, 384 U.S. 436 (86 , 384 U.S. 436 (86 S. Ct. 1602, 16 L. Ed. 2d 694) (1966).S. Ct. 1602, 16 L. Ed. 2d 694) (1966).

A Practical ExampleA Practical Example• Judge-Made Rules Regarding Admission of a Judge-Made Rules Regarding Admission of a

Confession:Confession:– The question of whether a waiver of rights and a The question of whether a waiver of rights and a

subsequent statement have been voluntary and subsequent statement have been voluntary and knowing depends on the totality of the knowing depends on the totality of the circumstances. The totality of the circumstances is circumstances. The totality of the circumstances is determined through a consideration of nine factors: determined through a consideration of nine factors: 1) age of the accused; 2) education of the accused; 1) age of the accused; 2) education of the accused; 3) knowledge of the accused as to both the 3) knowledge of the accused as to both the substance of the charge and the nature of his right substance of the charge and the nature of his right to consult an attorney and remain silent; 4) whether to consult an attorney and remain silent; 4) whether the accused is held incommunicado or allowed to the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; 5) consult with relatives, friends or an attorney; 5) whether the accused was interrogated before or whether the accused was interrogated before or after formal charges had been filed; 6) methods used after formal charges had been filed; 6) methods used in interrogation; 7) length of interrogation; 8) in interrogation; 7) length of interrogation; 8) whether or not the accused refused to voluntarily whether or not the accused refused to voluntarily give statements on prior occasions; and 9) whether give statements on prior occasions; and 9) whether the accused has repudiated an extrajudicial the accused has repudiated an extrajudicial statement at a later date.”statement at a later date.”

– Reinhardt v. State (Georgia Supreme Court 1993)Reinhardt v. State (Georgia Supreme Court 1993)

HypotheticalHypothetical• Charge: that on October 12, 2006, Charge: that on October 12, 2006,

Smith intentionally pushed over and Smith intentionally pushed over and destroyed 14 grave markers in the destroyed 14 grave markers in the Sandersville City Cemetery, with total Sandersville City Cemetery, with total damage exceeding $5,000. damage exceeding $5,000.

• A person commits the offense of A person commits the offense of criminal damage to property in the criminal damage to property in the second degree when he: (1) second degree when he: (1) Intentionally damages any property of Intentionally damages any property of another person without his consent and another person without his consent and the damage thereto exceeds $500.00. the damage thereto exceeds $500.00. FelonyFelony

– OCGA § 16-7-23OCGA § 16-7-23

HypotheticalHypothetical• 16-1-6. Conviction for lesser included offenses 16-1-6. Conviction for lesser included offenses

– An accused may be convicted of a crime included in a An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime charged in the indictment or accusation. A crime is so included when: (1) It is established by crime is so included when: (1) It is established by proof of the same or less than all the facts or a less proof of the same or less than all the facts or a less culpable mental state than is required to establish the culpable mental state than is required to establish the commission of the crime charged; or (2) It differs commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less from the crime charged only in the respect that a less serious injury or risk of injury to the same person, serious injury or risk of injury to the same person, property, or public interest or a lesser kind of property, or public interest or a lesser kind of culpability suffices to establish its commission.culpability suffices to establish its commission.

• § 16-7-21. Criminal trespass § 16-7-21. Criminal trespass – A person commits the offense of criminal trespass A person commits the offense of criminal trespass

when he or she intentionally damages any property of when he or she intentionally damages any property of another without consent of that other person and the another without consent of that other person and the damage thereto is $500.00 or less or knowingly and damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the maliciously interferes with the possession or use of the property of another person without consent of that property of another person without consent of that person.person.

Evidentiary Issues: 1Evidentiary Issues: 1• Jury Empaneled: 12 persons – 2 Jury Empaneled: 12 persons – 2

white, 8 black, 2 Hispanic. One white, 8 black, 2 Hispanic. One juror excused for cause because juror excused for cause because he once lived near the defendant.he once lived near the defendant.

• BatsonBatson violation? violation?

Evidentiary Issues: 2Evidentiary Issues: 2• Officer Colbert will testify that as Officer Colbert will testify that as

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

Evidentiary Issues: 2Evidentiary Issues: 2• Hearsay: OCGA § 24-3-1Hearsay: OCGA § 24-3-1

(a) Hearsay evidence is that which does not (a) Hearsay evidence is that which does not derive its value solely from the credit of derive its value solely from the credit of the witness but rests mainly on the the witness but rests mainly on the veracity and competency of other persons.veracity and competency of other persons.

(b) Hearsay evidence is admitted only in (b) Hearsay evidence is admitted only in specified cases from necessity.specified cases from necessity.

• U.S. Constitution, Amendment VI: “In U.S. Constitution, Amendment VI: “In all criminal prosecutions, the accused all criminal prosecutions, the accused shall enjoy the right . . . to be shall enjoy the right . . . to be confronted with the witnesses against confronted with the witnesses against him.”him.”

Evidentiary Issues: 2Evidentiary Issues: 2• Crawford v. Washington, United Crawford v. Washington, United

States Supreme Court (2004)States Supreme Court (2004)• Police interviewed defendant’s Police interviewed defendant’s

wife after husband stabbed wife after husband stabbed someone. She gave a tape-someone. She gave a tape-recorded statement, then refused recorded statement, then refused to testify at trial. Prosecutor to testify at trial. Prosecutor introduced her prior tape-introduced her prior tape-recorded statement. Defendant recorded statement. Defendant claimed violation of Sixth-claimed violation of Sixth-Amendment right to confront Amendment right to confront witnesses.witnesses.

Evidentiary Issues: 2Evidentiary Issues: 2

• Excluded from Evidence Are:Excluded from Evidence Are:– Testimonial Statements;Testimonial Statements;– Made Outside Court;Made Outside Court;– UNLESS Declarant UNLESS Declarant

unavailable AND defendant unavailable AND defendant had prior opportunity for had prior opportunity for cross-examinationcross-examination..

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

Evidentiary Issues: 3Evidentiary Issues: 3• Hearsay: Out-of-court statement Hearsay: Out-of-court statement

related by a third party.related by a third party.• ““Res Gestae” Exception to Res Gestae” Exception to

Hearsay Rule: OCGA § 24-3-3Hearsay Rule: OCGA § 24-3-3– ““Declarations accompanying an act, Declarations accompanying an act,

or so nearly connected therewith in or so nearly connected therewith in time as to be free from all suspicion time as to be free from all suspicion of device or afterthought, shall be of device or afterthought, shall be admissible in evidence as part of the admissible in evidence as part of the res gestae.”res gestae.”

Evidentiary Issues: 3Evidentiary Issues: 3• CrawfordCrawford problem? problem?

– Pitts v. StatePitts v. State (Georgia Supreme (Georgia Supreme Court 2006)Court 2006)

– An emergency (911) call can be An emergency (911) call can be admitted if admitted if the caller's primary the caller's primary purpose is not to provide evidence purpose is not to provide evidence against the accused, but rather, to against the accused, but rather, to thwart an ongoing crime or seek thwart an ongoing crime or seek rescue from immediate peril. rescue from immediate peril.

– How does that apply here?How does that apply here?

Evidentiary Issues: 3Evidentiary Issues: 3• Pitts v. StatePitts v. State (Georgia Supreme (Georgia Supreme

Court 2006)Court 2006)– Where the primary purpose of the Where the primary purpose of the

telephone call is to establish telephone call is to establish evidentiary facts, so that an evidentiary facts, so that an objective person would recognize objective person would recognize that the statement would be used in that the statement would be used in a future prosecution, then that a future prosecution, then that phone call "bears testimony" against phone call "bears testimony" against the accused and implicates the the accused and implicates the concerns of the Confrontation concerns of the Confrontation Clause.Clause.

Evidentiary Issues: 3Evidentiary Issues: 3• Is it Res GestaeIs it Res Gestae??

– Park v. State (Ga. Ct. App. 1998)Park v. State (Ga. Ct. App. 1998)– Four hours after the fight with which Four hours after the fight with which

her husband was charged, upset wife her husband was charged, upset wife at hospital asked victim why he didn’t at hospital asked victim why he didn’t fight back when her husband hit him.fight back when her husband hit him.

– Evidence showing the statements Evidence showing the statements were made "'while the parties were were made "'while the parties were still laboring under the excitement still laboring under the excitement and strain of the circumstances and and strain of the circumstances and in such proximity in time as to in such proximity in time as to preclude the idea of deliberation or preclude the idea of deliberation or fabrication”fabrication”

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

Evidentiary Issues: 4Evidentiary Issues: 4• Free and Voluntary Confession?Free and Voluntary Confession?

– ““To make a confession admissible, it must To make a confession admissible, it must have been made voluntarily, without being have been made voluntarily, without being induced by another by the slightest hope induced by another by the slightest hope of benefit or remotest fear of injury.” of benefit or remotest fear of injury.” OCGA § 24-3-50OCGA § 24-3-50

– State v. Ritter, (Ga. Supreme Ct. 1997)State v. Ritter, (Ga. Supreme Ct. 1997)• Officer lied, telling defendant victim had not Officer lied, telling defendant victim had not

died of his wounds and was “awake and ok.”died of his wounds and was “awake and ok.”• ““To make a confession admissible, it must have To make a confession admissible, it must have

been made voluntarily, i.e., "without being been made voluntarily, i.e., "without being induced by another by the slightest hope of induced by another by the slightest hope of benefit or remotest fear of injury." benefit or remotest fear of injury."

• ““The law is well established that use of trickery The law is well established that use of trickery and deceit to obtain a confession does not and deceit to obtain a confession does not render it inadmissible, so long as the means render it inadmissible, so long as the means employed are not calculated to procure an employed are not calculated to procure an untrue statement.”untrue statement.”

Evidentiary Issues: 4Evidentiary Issues: 4• State v. Ritter, (Ga. Supreme Ct. 1997)State v. Ritter, (Ga. Supreme Ct. 1997)

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

Evidentiary Issues: 4Evidentiary Issues: 4• But: Pollard v. State (Ga. Ct. But: Pollard v. State (Ga. Ct.

App. 1999)App. 1999)– Pollard stabbed victim, confessed.Pollard stabbed victim, confessed.– Victim died before confession, but Victim died before confession, but

officer did not tell Pollard that.officer did not tell Pollard that.– Confession properly admitted Confession properly admitted

because officer did not lie to because officer did not lie to Pollard, merely withheld the truth.Pollard, merely withheld the truth.

Evidentiary Issues: 4Evidentiary Issues: 4• Stowers v. State (Ga. App. 1992)Stowers v. State (Ga. App. 1992)

– Police questioned appellant in the Police questioned appellant in the presence of his mother; she presence of his mother; she encouraged him to tell the truth, and encouraged him to tell the truth, and officer echoed that encouragement, officer echoed that encouragement, telling appellant that "it would go telling appellant that "it would go easier on him to cooperate and tell easier on him to cooperate and tell the truth.”the truth.”

– Officer’s statement did not render Officer’s statement did not render appellant's statement inadmissible appellant's statement inadmissible because “he only urged appellant to because “he only urged appellant to tell the truth and did not promise a tell the truth and did not promise a lighter sentence or any other lighter sentence or any other benefit.”benefit.”

Evidentiary Issues: 5 Evidentiary Issues: 5 2.2. Josh Groban, who has already pleaded guilty Josh Groban, who has already pleaded guilty

to being involved in damaging the graveyard, to being involved in damaging the graveyard, will testify that he, the defendant, and some will testify that he, the defendant, and some other friends went to the graveyard to smoke other friends went to the graveyard to smoke marijuana on the morning of October 12, marijuana on the morning of October 12, 2006. Josh had already been there the day 2006. Josh had already been there the day before and will admit that he pushed over “a before and will admit that he pushed over “a few” gravestones at that time. As the group few” gravestones at that time. As the group was leaving the graveyard on October 12, was leaving the graveyard on October 12, Josh pushed over more gravestones and saw Josh pushed over more gravestones and saw the defendant doing the same.the defendant doing the same.

3.3. Kim Smith, the defendant’s sister, will Kim Smith, the defendant’s sister, will testify that she was with Josh and her testify that she was with Josh and her brother at the graveyard on October 12, but brother at the graveyard on October 12, but she did not see him push over any she did not see him push over any gravestones.gravestones.

Evidentiary Issues: 5Evidentiary Issues: 5• O.C.G.A. § 24-4-8: “The O.C.G.A. § 24-4-8: “The

testimony of a single witness is testimony of a single witness is generally sufficient to establish a generally sufficient to establish a fact. However, in . . . felony cases fact. However, in . . . felony cases where the only witness is an where the only witness is an accomplice, the testimony of a accomplice, the testimony of a single witness is not sufficient. single witness is not sufficient. Nevertheless, corroborating Nevertheless, corroborating circumstances may dispense with circumstances may dispense with the necessity for the testimony of the necessity for the testimony of a second witness . . . .”a second witness . . . .”

Evidentiary Issues: 5Evidentiary Issues: 5• Does any evidence corroborate Groban’s Does any evidence corroborate Groban’s

statement?statement?– Sister’s testimony shows he was there.Sister’s testimony shows he was there.– ““Slight evidence from extraneous source identifying Slight evidence from extraneous source identifying

defendant as a participant in the crime is sufficient to defendant as a participant in the crime is sufficient to corroborate accomplice testimony.”corroborate accomplice testimony.”

Smith v. State, 238 Ga. 640, 641 (235 SE2d 17) (1977) Smith v. State, 238 Ga. 640, 641 (235 SE2d 17) (1977)

– Hill v. State, 236 Ga. 831, 831-834 (Ga. 1976)Hill v. State, 236 Ga. 831, 831-834 (Ga. 1976)• the state produced a witness by the name of Alvin the state produced a witness by the name of Alvin

Hawkins who testified that he and the two defendants on Hawkins who testified that he and the two defendants on trial participated in the armed robbery of the whiskey trial participated in the armed robbery of the whiskey store. He identified two of the ski masks used in the store. He identified two of the ski masks used in the robbery and these masks were admitted into evidence robbery and these masks were admitted into evidence without objection. He testified that defendant wore the without objection. He testified that defendant wore the grey ski mask during the robberies which the witness grey ski mask during the robberies which the witness identified as State's Exhibit No. 3. Another state's identified as State's Exhibit No. 3. Another state's witness had testified that the two masks received in witness had testified that the two masks received in evidence looked similar to the ones worn by two of the evidence looked similar to the ones worn by two of the robbers.robbers.

• Insufficient to corroborate; merely cast on defendant a Insufficient to corroborate; merely cast on defendant a grave suspicion of guilt.grave suspicion of guilt.

Evidentiary Issues: 6Evidentiary Issues: 6• Mr. James Thompson, city Mr. James Thompson, city

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

Evidentiary Issues: 6Evidentiary Issues: 6

• What are the issues?What are the issues?

Evidentiary Issues: 6Evidentiary Issues: 6• To sustain this conviction for criminal damage To sustain this conviction for criminal damage

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

• Bereznak v. StateBereznak v. State, Ga. Ct. Appeals 1996, Ga. Ct. Appeals 1996

ConclusionsConclusions• Key to Litigating in U.S. Trial Courts is Key to Litigating in U.S. Trial Courts is

presenting admissible presenting admissible factsfacts to the court to the court or jury;or jury;

• Key to admitting evidence is Key to admitting evidence is understanding how to use case law to understanding how to use case law to demonstrate the admissibility of that demonstrate the admissibility of that evidence;evidence;

• Citation of Citation of case authoritycase authority also builds a also builds a record for the appeal.record for the appeal.

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

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