We discussed the first set of hearsay exceptions last week. The second set of exceptions applies only when the declarant is unavailable for some reason.

Louisiana Code of Evidence Article 804 lays out the exceptions to the hearsay rule when the declarant is “unavailable.” Unavailable has a specific meaning under the hearsay statute. A declarant is “unavailable” when:

• he is exempted from testifying because of a ruling by the court on the grounds of privilege;

• he persists in refusing to testify despite the court ordering him to do so;

• he testifies to a lack of memory of the subject matter of his statement;

• he is deceased, or has a then existing physical or mental illness, infirmity, or other sufficient cause that causes him to be unable to be present or to testify; or

• he is absent from the hearing and the party wishing to present his statement has been unable to procure his attendance by process (subpoena) or other reasonable means. He is not unavailable if a party wanting to present his statement has procured his absence or caused it by wrong-doing in order to prevent him from testifying.

If a witness is “unavailable” as defined above, then one of the exceptions below may apply. In order for a statement to be admissible hearsay, it must meet both one of the requirements above and one of the exceptions below:

1. Former testimony - testimony given at a prior hearing, but expert testimony at a prior hearing is not admissible under this rule.

2. Statement under belief of impending death - “A statement made by a declarant while believing that his death was imminent, concerting the cause or circumstances of what he believed to be his impending death.”

3. Statement against interest - a statement which was so far against his interest at the time he made it that a reasonable man would not have made the statement unless it were true. A statement by an accused in a criminal proceeding that tends to expose him to criminal liability is not admissible unless other corroborating circumstances clearly indicate that the statement is trustworthy.

4. Statement of personal or family history

5. Complaint of sexually assaultive behavior - A statement made by a person under 12 which is an initial complaint of sexually assaultive behavior or an otherwise trustworthy statement of sexually assaultive behavior.

6. Other exceptions - In a civil case, a statement not specifically covered by another exception if the court has made a determination that it is trustworthy after considering all pertinent circumstances. The party intending to introduce the statement must give written notice to the adverse party and the court that he intends to introduce the statement.

7. Forfeiture by wrongdoing - A statement offered against a party who has engaged in or acquiesced to wrongdoing that was intended to or did cause the declarant to be unavailable. The party seeking to introduce the statement must establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing.

If a statement contains multiple types of hearsay, each type must meet an exception in order to be admissible.

If you would like to set up a consult to discuss your case, give us a call at (318) 459-9111.

There are two sets of exceptions to the hearsay rule. The first set apply whether the declarant (the person who made the statement) is available to testify or not. The second set apply only when the declarant is unavailable for some reason. We will discuss the first set in this blog post and the second set next week.

Louisiana Code of Evidence Article 803 lays out the exceptions to the hearsay rule regardless of the declarant’s availability:

1. Present sense impression - “a statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

2. Excited utterance - “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

3. Then existing mental, emotional, or physical condition - “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition…offered to prove the declarant’s then existing condition or his future action.”

   • Some examples from the statute are: intent, plan, motive, design, mental feeling, pain, and bodily health.

4. Statements for purposes of medical treatment and medical diagnosis in connection with treatment - “Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or in the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.”

   • Still subject to the healthcare provider-patient privilege discussed on our blog August 24.

5. Recorded recollection - “A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.”

6. Records of regularly conducted business activity - “A memorandum, report, record, or data compilation…of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation…”

7. Absence of entry in records of regularly conducted business activity - Evidence that a matter is not included in the records described in (6) to show that it did not happen.

8. Public records and reports

9. Records of vital statistics

10. Absence of public record or entry

11. Records of religious organizations - records of births, deaths, marriages, etc…

12. Marriage, baptismal, and similar certificates

13. Family records - “Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.”

14. Records of documents affecting an interest in property

15. Statements in documents affecting an interest in property

16. Statements in ancient documents - ancient in this case being 30 years or older and the authenticity of which is established

17. Market reports, commercial publications

18. Learned treatises

19. Reputation concerning personal or family history

20. Reputation concerning boundaries or general history

21. Reputation as to character

22. Judgment of previous conviction

23. Judgment as to personal, family, or general history, or boundaries

24. Testimony as to one’s own age

Any of the above documents or information is admissible even though it is hearsay and whether or not the declarant is present to testify about it.

If you have questions about a case and would like to set up a consult, give us a call at (318) 459-9111.

(All right, y’all. Full disclosure. Everyone hates hearsay. It is confusing. The exceptions are even MORE confusing. This is a very quick summation of the Rules of Evidence that define it and set up the exceptions.)

Hearsay is defined in Chapter 8 of the Louisiana Code of Evidence. Article 801 defines hearsay as: “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is generally not admissible, though there are exceptions, which we will discuss in our next blog posts. (La CE Art. 802, 803 & 804)

Some statements, despite being made outside of the present trial or hearing, are not hearsay, according to Article 801, and are therefore admissible:

• In a criminal case, a prior statement that is inconsistent with his testimony at the trial or hearing at which the declarant is testifying. In order for the prior inconsistent statement to be admissible, it must be brought to the attention of the declarant, and he must have been given the opportunity to admit the fact and there must be additional evidence to corroborate the prior statement.

• a prior statement that is consistent with his present testimony that is used to rebut allegations that he has recently fabricated this statement or that he has been improperly influenced or has an ulterior motive for his present testimony.

• A statement that is one of identification after seeing the person.

• An initial complaint of sexually assaultive behavior that is consistent with the declarant’s present testimony.

• A statement made during a Sexual Assault Nurse Examination (SANE) that has been documented in a report.

• A statement offered against a party that is:

  • That party’s statement;

  • A statement which the party has adopted or manifested his belief in its truth; or

  • A statement by the party’s authorized representative.

• A statement offered against a party that is:

  • Made by an agent or employee of the party concerning a matter within the scope of his employment and made during his term of employment; or

  • A statement made by a declarant while participating in a conspiracy to which the party is a co-conspirator after a prima facie case of conspiracy has been established.

• Statements that are events speaking for themselves under the immediate pressure of the occurrence.

The general rule is that a statement made outside of court (intended to be introduced at court to prove that the subject matter of the statement is true) is not admissible.

If you would like to set up a consult, give us a call at (318) 459-9111.

We discussed the first set of hearsay exceptions last week. The second set of exceptions applies only when the declarant is unavailable for some reason.

Louisiana Code of Evidence Article 804 lays out the exceptions to the hearsay rule when the declarant is “unavailable.” Unavailable has a specific meaning under the hearsay statute. A declarant is “unavailable” when:

• he is exempted from testifying because of a ruling by the court on the grounds of privilege;

• he persists in refusing to testify despite the court ordering him to do so;

• he testifies to a lack of memory of the subject matter of his statement;

• he is deceased, or has a then existing physical or mental illness, infirmity, or other sufficient cause that causes him to be unable to be present or to testify; or

• he is absent from the hearing and the party wishing to present his statement has been unable to procure his attendance by process (subpoena) or other reasonable means. He is not unavailable if a party wanting to present his statement has procured his absence or caused it by wrong-doing in order to prevent him from testifying.

If a witness is “unavailable” as defined above, then one of the exceptions below may apply. In order for a statement to be admissible hearsay, it must meet both one of the requirements above and one of the exceptions below:

1. Former testimony - testimony given at a prior hearing, but expert testimony at a prior hearing is not admissible under this rule.

2. Statement under belief of impending death - “A statement made by a declarant while believing that his death was imminent, concerting the cause or circumstances of what he believed to be his impending death.”

3. Statement against interest - a statement which was so far against his interest at the time he made it that a reasonable man would not have made the statement unless it were true. A statement by an accused in a criminal proceeding that tends to expose him to criminal liability is not admissible unless other corroborating circumstances clearly indicate that the statement is trustworthy.

4. Statement of personal or family history

5. Complaint of sexually assaultive behavior - A statement made by a person under 12 which is an initial complaint of sexually assaultive behavior or an otherwise trustworthy statement of sexually assaultive behavior.

6. Other exceptions - In a civil case, a statement not specifically covered by another exception if the court has made a determination that it is trustworthy after considering all pertinent circumstances. The party intending to introduce the statement must give written notice to the adverse party and the court that he intends to introduce the statement.

7. Forfeiture by wrongdoing - A statement offered against a party who has engaged in or acquiesced to wrongdoing that was intended to or did cause the declarant to be unavailable. The party seeking to introduce the statement must establish, by a preponderance of the evidence, that the party against whom the statement is offered, engaged or acquiesced in the wrongdoing.

If a statement contains multiple types of hearsay, each type must meet an exception in order to be admissible.

If you would like to set up a consult to discuss your case, give us a call at (318) 459-9111.

There are two sets of exceptions to the hearsay rule. The first set apply whether the declarant (the person who made the statement) is available to testify or not. The second set apply only when the declarant is unavailable for some reason. We will discuss the first set in this blog post and the second set next week.

Louisiana Code of Evidence Article 803 lays out the exceptions to the hearsay rule regardless of the declarant’s availability:

1. Present sense impression - “a statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

2. Excited utterance - “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”

3. Then existing mental, emotional, or physical condition - “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition…offered to prove the declarant’s then existing condition or his future action.”

   • Some examples from the statute are: intent, plan, motive, design, mental feeling, pain, and bodily health.

4. Statements for purposes of medical treatment and medical diagnosis in connection with treatment - “Statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or in the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment.”

   • Still subject to the healthcare provider-patient privilege discussed on our blog August 24.

5. Recorded recollection - “A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.”

6. Records of regularly conducted business activity - “A memorandum, report, record, or data compilation…of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation…”

7. Absence of entry in records of regularly conducted business activity - Evidence that a matter is not included in the records described in (6) to show that it did not happen.

8. Public records and reports

9. Records of vital statistics

10. Absence of public record or entry

11. Records of religious organizations - records of births, deaths, marriages, etc…

12. Marriage, baptismal, and similar certificates

13. Family records - “Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.”

14. Records of documents affecting an interest in property

15. Statements in documents affecting an interest in property

16. Statements in ancient documents - ancient in this case being 30 years or older and the authenticity of which is established

17. Market reports, commercial publications

18. Learned treatises

19. Reputation concerning personal or family history

20. Reputation concerning boundaries or general history

21. Reputation as to character

22. Judgment of previous conviction

23. Judgment as to personal, family, or general history, or boundaries

24. Testimony as to one’s own age

Any of the above documents or information is admissible even though it is hearsay and whether or not the declarant is present to testify about it.

If you have questions about a case and would like to set up a consult, give us a call at (318) 459-9111.

(All right, y’all. Full disclosure. Everyone hates hearsay. It is confusing. The exceptions are even MORE confusing. This is a very quick summation of the Rules of Evidence that define it and set up the exceptions.)

Hearsay is defined in Chapter 8 of the Louisiana Code of Evidence. Article 801 defines hearsay as: “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is generally not admissible, though there are exceptions, which we will discuss in our next blog posts. (La CE Art. 802, 803 & 804)

Some statements, despite being made outside of the present trial or hearing, are not hearsay, according to Article 801, and are therefore admissible:

• In a criminal case, a prior statement that is inconsistent with his testimony at the trial or hearing at which the declarant is testifying. In order for the prior inconsistent statement to be admissible, it must be brought to the attention of the declarant, and he must have been given the opportunity to admit the fact and there must be additional evidence to corroborate the prior statement.

• a prior statement that is consistent with his present testimony that is used to rebut allegations that he has recently fabricated this statement or that he has been improperly influenced or has an ulterior motive for his present testimony.

• A statement that is one of identification after seeing the person.

• An initial complaint of sexually assaultive behavior that is consistent with the declarant’s present testimony.

• A statement made during a Sexual Assault Nurse Examination (SANE) that has been documented in a report.

• A statement offered against a party that is:

  • That party’s statement;

  • A statement which the party has adopted or manifested his belief in its truth; or

  • A statement by the party’s authorized representative.

• A statement offered against a party that is:

  • Made by an agent or employee of the party concerning a matter within the scope of his employment and made during his term of employment; or

  • A statement made by a declarant while participating in a conspiracy to which the party is a co-conspirator after a prima facie case of conspiracy has been established.

• Statements that are events speaking for themselves under the immediate pressure of the occurrence.

The general rule is that a statement made outside of court (intended to be introduced at court to prove that the subject matter of the statement is true) is not admissible.

If you would like to set up a consult, give us a call at (318) 459-9111.

The Louisiana Code of Evidence tells us in Chapter 6 that there are limits on who can testify as a witness in a case. Article 602 requires that, in order for a witness to testify, he must have personal knowledge about the subject on which he is called to testify. Before he can testify, he must give an “oath or affirmation.” (La CE Art. 603) Article 604 & 605 prohibit judges presiding over the case and jurors hearing the case from testifying as witnesses in that case. (It seems like that one should go without saying, doesn’t it?)

Once a witness testifies, their credibility may be attacked by any party, including the party who called them to testify, however, their credibility can not be attacked until they have been sworn. (La CE Art. 607) Their credibility cannot be supported until it has been attacked. Just like character evidence, credibility can only be attacked by general reputation for truthfulness or untruthfulness, not by specific acts. (La CE Art. 608)

Although specific acts cannot be used to attack credibility, any witness may be asked about prior criminal convictions in criminal cases. (La CE Art. 609.1) Generally, a witness may only be asked the name of the offense for which he was convicted, the date thereof, and the sentence imposed. The details of his conviction may be raised if:

• the witness denies the conviction;

• the witness testifies to exculpatory facts or circumstances; or

• if the probative value of the facts outweighs the unfair prejudice, confusion of the issues, or misleading the jury.

If the witness has received a pardon or annulment based on innocence, his criminal record may not be asked about.

Finally, juvenile adjudications are generally inadmissible, except in certain proceedings involving the habitual offender statute.

If you have questions about witnesses in your case, give us a call to set up a consult at (318) 459-9111.

Louisiana Code of Evidence Article 515 establishes the Accountant-Client Privilege. It prohibits the disclosure of information provided to an accountant by a client for the purposes of obtaining professional accounting services. The communications that are protected are those between:

• The client or his representative and the accountant or her representative;

• The accountant and her representative;

• The client, accountant, or a representative of either and the accountant, lawyer, or representative of either who represents them on a matter of common interest;

• Among accountants or representatives of the same client; and

• Representatives of the accountant.

As always, there are exceptions:

1. If the communication is in furtherance of a crime or fraud.

2. If the communication was with a now-deceased client relative to an issue between parties who claim through the client (i.e. heirs to a succession).

3. If the disclosure is related to a breach of duty by the accountant to the client.

4. If the disclosure is regarding the authenticity of or capacity of a document signed by the accountant as a witness or notary.

5. If the communication is regarding a matter of common interest if it is to be used against one party by another related to the matter of common interest.

6. If the communication is regarding the identity of the client unless the disclosure would reveal the nature of the confidential communication.

7. If the communication is regarding information required to be disclosed by professional accounting standards.

8. If the communication is regarding an investigation by the State Board of Accounting.

9. If the communication is regarding an ethical investigation.

10. If the communication is related to domestic proceedings (i.e. divorce, child or spousal support proceedings).

If you have questions about whether a privilege might be applicable to your case, give us a call to set up a consult at (318) 459-9111.

There are a few other privileges in Louisiana that permit a person to refuse to testify or to prohibit the testimony of another person under certain circumstances:

• A clergyman has a privilege against disclosing communications made to him in his “professional capacity as a spiritual advisor.”

• A person has a right to prohibit the disclosure of his vote provided it was conducted by secret ballot unless that vote was cast illegally.

• Trade secrets.

The State, in criminal cases, also has a privilege in cases involving confidential informants. Louisiana Code of Evidence Article 514 allows the government to refuse to disclose the identity of a person who furnished information to assist in the investigation of a crime. As always, there are exceptions:

1. The informer’s identity must be disclosed if he appears as a witness and testifies.

2. His identity must be disclosed if his identity has previously been disclosed.

3. HIs identity must be disclosed if the party seeking the disclosure “clearly demonstrates” that the interest of the government in concealing his identity is substantially outweighed by exceptional circumstances such that his testimony is essential to the defense or to a fair determination of guilt or innocence.

4. HIs identity must be disclosed if the prosecution objects to it remaining secret.

In a criminal case, if the Court orders the identity must be disclosed and the State objects, the Court shall suppress the informer’s evidence or declare a mistrial.

Next week, the Accountant-Client Privilege.

If your case involves a confidential informant and you are curious whether an exception applies, give us a call at (318) 459-9111 to setup a consult.

A healthcare provider is subject to rules of evidence regarding disclosure of patient’s health information. In all cases, a patient may prevent confidential communications made for the purpose of advice, diagnosis, or treatment between a patient and his representative and a healthcare provider and her representative (representatives include nurses and administrative staff of the healthcare provider).

The exceptions to this rule are:

1. When the communication is with regard to a personal injury claim.

2. When the communication is regarding a deceased patient in a wrongful death, survivorship, or workers compensation claim brought or asserted as a consequence of the death or injury of the patient.

3. When the communication is relied upon by the patient as a claim or defense.

4. When the condition has substantial bearing on the fitness of the patient in a custody or visitation proceeding.

5. When the communication has been used to commit a crime or fraud.

6. When the communication was made a part of a court-ordered examination.

7. In an interdiction or commitment proceeding if the communication was made to a current healthcare provider and the patient has refused to submit to a court-ordered evaluation.

8. When the communication is used as part of a peer-review committee or disciplinary body proceeding regarding professional standards.

9. When the communication is the BAC or drug testing results in an action for injury, death, or loss against the patient.

10. When disclosure is necessary to defend the healthcare provider against a malpractice claim by the patient.

11. When the communication is regarding issues of child abuse, elder abuse, or abuse of a victim with disabilities or who is incompetent.

12. After the patient’s death regarding the patient’s capacity to contract.

13. Regarding contesting the patient’s testament after his death.

In criminal cases, the healthcare provider records protected by this statute include those of psychotherapists, and there are additional exceptions:

1. If the communication is relevant to a health condition that is relied upon as a defense.

2. If the communication was used to perpetrate a crime or fraud.

3. If the communication was part of a court-ordered examination.

4. If the communication is the BAC or drug test results when the patient was under arrest or subsequently arrested.

5. If the communication was a tangible object removed from the body of a patient and in the patient’s body because of a crime charged (for example: a bullet).

6. If the communication was regarding child abuse, elder abuse, abuse of persons with disabilities or incompetent.

If you have questions about what healthcare provider-patient privileges might apply in your case, give us a call at (318) 459-9111 to set up a consult.

As with the spousal privilege, a lawyer or his client may refuse to disclose or prohibit the disclosure of confidential communications that were made for the purpose of “facilitating the rendition of professional legal services” to the client. This, more broadly than the spousal privilege, also includes “perceptions and observations of the mental, emotional, or physical condition of the client.” (La CE Art. 506).

The privilege does not just apply to the lawyer if she has employees or other people assisting with the representation. The privilege established in Article 506 extends to communications between:

• the client or his representative and the lawyer or her representative;

• the lawyer and her representative;

• the client, lawyer, or their representatives and lawyers or representatives of a party with a common interest;

• between representatives of the client or the client and his representative;

• among lawyers and representatives who represent the same client; and

• between representatives of the client’s lawyer.

There are (aren’t there always?) exceptions:

1. If the lawyer’s services were sought for the purpose of enabling what the client knew to be fraud, there is no privilege.

2. If the communications were made in furtherance of a fraud, there is no privilege.

3. If the communications were made with a client who is now deceased and the communication is relevant to an issue between parties who claim through the client. (For example: if the communication was regarding a provision in the deceased client’s will and the parties are the client’s heirs.)

4. If the communication is regarding a breach of the lawyer’s duty to the client.

5. If the communication is regarding the authenticity of a document signed by the lawyer or his representative as a notary or witness.

6. If the communication is relevant to a matter of common interest between two or more clients and is made to them by a lawyer or representative they have in common and is subsequently used by one client against another in a civil suit.

7. If the communication is regarding the identify of a client or his representative unless such disclosure would reveal the reason for the legal services or the nature of a confidential communication.

All communications made to our office are confidentially maintained, even during consultations. If you are seeking representation for your case, give us a call at (318) 459-9111 to set up a consult.

The Louisiana Code of Evidence has two privileges that apply to spouses. Article 504 is the Spousal Confidential Communication Privilege and Article 505 is the Spousal Witness Privilege.

The Spousal Confidential Communication privilege covers statements made to one’s spouse in private and not intended for further disclosure. This means that any statement made to your spouse when only the two of you are present and with the intention that your spouse will not tell another person, is subject to this privilege and either spouse may refuse to testify regarding that statement and prohibit the other spouse from testifying regarding that statement. This privilege only applies to communications made during the marriage.

As always, there are exceptions to this rule. In criminal cases, if one spouse is accused of a crime against the person or property of the other spouse, or against a child of either (note that the statute does not limit this privilege to minor children). This privilege also does not apply in civil cases:

• brought by one spouse against the other;

• in commitment or interdiction proceedings; or

• when the communication is presented to “protect or vindicate” the rights of a minor child of either spouse.

The Spousal Witness Privilege gives either spouse the privilege not to testify against the other spouse or to prohibit their spouse from testifying against them. This privilege, unlike the confidential communication privilege, terminates when the marriage ends. This means that a former spouse may no longer prohibit their former spouse from testifying against them. Further, a spouse accused of a Crim against the other spouse or “a child” may not prohibit other spouse from testifying against him (Note that this statute is even more broad than Article 504 in that it grants an exception for a spouse accused of a crime against “a child” without being limited to a child of either spouse).

Next week: Lawyer-Client Privilege.

If you have questions about whether a privilege applies to your case, give us a call at (318) 459-9111 for a consult.

The short answer to this question is: yes, under some circumstances.

The Louisiana Code of Evidence contains multiple “testimonial privileges”. (La CE Chapter 5). The privileges that exist in Louisiana are:

• Spousal Confidential Communication;

• Spousal Witness;

• Lawyer-Client;

• Health-Care Provider-Patient;

• Clergyman;

• Political Vote;

• Trade Secrets;

• Identity of Informer; and

• Accountant-Client.

A testimonial privilege essentially allows one party to refuse to testify against another or allows one party to prevent another from testifying against him.

In the coming weeks, we will discuss each of these privileges in much more depth, but going in, it is vital to know that these privileges exist between the parties to them automatically. They can, however, be waived if one of the parties voluntarily discloses the content of the communication or consents to the disclosure of the content of the communication.

Come back next week for some discussion of the Spousal Confidential Communication and Spousal Witness Privileges. If you have questions until then about whether one of these privileges might apply in your case, give us a call at (318) 459-9111.

In cases involving allegations of sexual assault, Louisiana Code of Evidence Articles 412, 412.1, and 412.2 govern what evidence may be admissible and place restrictions (with some exceptions) on what information may be presented at trial.

Opinion and reputation evidence with regard to the past sexual behavior of the victim in a sexual assault case is not admissible. There are no exceptions to this rule. (La CE Art. 412)

Evidence of specific instances of prior sexual acts may be admissible under the following circumstances:

• Evidence of the victim’s past sexual behavior with the defendant may be admissible to show consent to the conduct that led to the sexual assault allegations.

• Evidence of other sexual behavior within 72 hours prior to the alleged sexual assault may also be admissible to show that there is a source (other than the defendant) of semen or any injuries alleged to be the result of the sexual assault.

Evidence of what a victim was wearing is not admissible to show consent. (La CE Art. 412.21)

There are also some specific rules with regard to cases in which sex trafficking is alleged. In those cases, the past sexual behavior of the person alleged to have been trafficked may be admissible if presented by the State to prove a pattern of trafficking.

With regard to a defendant accused of a sexual assault, evidence of other crimes, wrongs, or bad acts may be admissible: in cases in which a victim is under the age of 17, the State may introduce evidence of other crimes, wrongs, or bad acts that tend to show “a lustful disposition towards children”. In order to introduce such evidence, the State must provide notice to the defendant and the evidence must meet the admissibility requirements of Code of Evidence Article 403.

So now that we’ve covered whether or not you can use character evidence, how exactly can it be presented?

Louisiana Code of Evidence Article 405 state that character evidence may only be introduced through testimony as to general reputation. Specific instances may not be referenced (but stay tuned for the exception to this rule). This means that a witness can only testify about the character of an individual by discussing his reputation in the community.

In order to testify as to reputation evidence, a witness must first establish that he is familiar with the individual’s reputation in the community, and then may testify solely as to that general reputation. For example, a witness may testify as to another witness’ reputation for truthfulness, but not specific acts of that witness being honest.

The exception to this rule; however, is when the character trait is an essential element of the offense. For example, in a case of defamation, the defendant’s reputation for truthfulness would be an essential element because the information used to defame the victim must be untrue. This exception is very limited, so under most circumstances, character evidence is limited to a person’s general reputation.

And although this isn't character evidence, specifically, it is sort of related: Code of Evidence Article 406 states that evidence of a “habit or routine practice” is admissible to show that a person (or business) acted in conformity therewith. For example, if a man walks a block down the street from his home every Monday morning to eat breakfast at the local Waffle House and eats the same breakfast there every time, and this information was somehow relevant to his case, that evidence would be admissible.

If you have questions about what type of evidence might be admissible at your trial, set up a consult by calling us at (318) 459-9111.

Character evidence is probably the most common type of evidence we get questions about: can I talk about how bad a person a victim was? Can I tell the jury about a specific bad thing the victim did? The very short answer is rarely, but sometimes.

First of all: what IS character evidence? Louisiana Code of Evidence Article 404 says that it is “evidence of a person’s character or a trait of his character, such as a moral quality.” Which pretty much defines the word using the word. Dictionary.com defines character as: “(1) the aggregate of features and traits that form the individual nature of some person or thing. (2) one such feature or trait. (3) moral or ethical quality.” Is a person honest, trustworthy, friendly, angry, aggressive, quick to fight, a peacemaker? These are all examples of character or traits of character that a person might want introduced at a trial.

So can you introduce those traits?

In general, evidence of a person’s character is not admissible for the purpose of showing “that he acted in conformity therewith on a particular occasion.” So, no. In general, you cannot introduce character evidence to show that the person acted in keeping with that evidence at a specific time. There are some exceptions, however:

1. You may introduce a pertinent trait of the accused, but it must be restricted to showing moral qualities pertinent to the crime. For example, if the defendant is charged with fraud, it may be relevant to show that he has a dishonest character.

2. You may introduce evidence of the character of a victim when

   • The victim has engaged in an overt act or hostile demonstration toward the defendant prior to the alleged crime, or

   • When the defendant has pleaded self-defense and there is a history of “assaultive behavior” between the defendant and the victim and they have lived together in a “familial relationship”

(Evidence of a non-victim and non-defendant witness’ character will be discussed in a later blog post.)

But what about specific evidence of prior criminal (or non-criminal but “bad” behavior”)?. Louisiana Code of Evidence Article 404(B) prohibits the use of “evidence of other crimes, wrongs, or acts…to prove the character of person in order to show that he acted in conformity therewith.”

As you surely already know if you have been following this blog series for the lsat three weeks, there are exceptions: such evidence may only be admissible to prove: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In order for the State to use such evidence against a defendant, it must provide reasonable notice to him.

Finally, in prosecutions for domestic abuse battery or cruelty to juveniles, the State may introduce evidence of other crimes, wrongs, or bad acts provided that the evidence is otherwise admissible under Code of Evidence Article 403 and it must provide notice to the defendant before the evidence may be introduced.

Next week we’ll talk about how you can introduce this character evidence. In the meantime, if you have questions about what evidence might be admissible in your case, give us a call at (318) 459-9111 to set up a consult.

We get lots of questions about what evidence is, what type of information can be used against a person in a trial, and why certain information can’t be used at a trial. Each case is different and none of what follows should be considered to be applicable in all cases, but in this post and over the coming few weeks, we’re going to cover some common rules of evidence and some examples of how they might apply.

The first question we’re going to cover: is there a general rule about what information can be prevented at my trial?

The answer: Yes. That rule is relevancy. In Louisiana, relevancy is defined in the Code of Evidence Article 401. It says that relevant information is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In non-lawyer-speak, that basically means that a party can present any information that will make the trier of fact (jury or the judge, whoever is hearing the case) believe it is more or less likely that that element of the case (crime, defense, or an element of a civil case) occurred.

Examples of relevant evidence:

(*Please note that other rules of evidence may impact the admissibility of the evidence described below, we are simply providing examples for the purpose of relevancy here*)

• A defendant is being tried for simple battery after striking the victim, but witnesses are available who can testify that the victim and the defendant were members of a boxing team and they were engaged in a bout;

• An alleged victim of a theft gave statements to the defendant on a recorded telephone line that the defendant had permission to use his credit card; or

• A witness to a car accident saw the driver of the vehicle who struck the plaintiff tail-gating the plaintiff for several minutes before rear-ending the plaintiff’s vehicle at a red light.

In general, relevant evidence is admissible (meaning: able to be presented at trial) and irrelevant evidence is not admissible. The following is an example of evidence that would likely be found to be irrelevant: the fact that the defendant had been seen drunk at a party (not driving) a month before her arrest for driving while intoxicated.

Even relevant evidence may not be admissible in all cases. A court may decide that the evidence, although relevant, should be excluded because its probative value (its value as proof of something) is outweighed by:

1. the danger of unfair prejudice;

2. confusion of the issues;

3. misleading the jury; or

4. undue delay or waste of time.

Some examples:

• Evidence that is relevant but that would so poison the minds of the jury against one of the parties that it should not be presented to them;

• Evidence that is relevant, but that would only serve to make the case more complicated than necessary to decide, and so much more complicated that it would risk the reliability of the verdict;

• Evidence that would cause the jury to infer information or facts that are not true; or

• Evidence in cases where more than one witness can testify to the same information allowing them all to testify would be overly burdensome to the trial, even though all of their testimony is relevant.

Even if none of the above exceptions applies, relevant evidence may still not be admissible because another rule of evidence may apply. Stay tuned next week when we talk about one of those specific exceptions: character evidence.

If you or someone you know is facing criminal charges or has been involved in an accident and has questions about seeking legal representation, you can call our office at (318) 459-9111.