1. How often can I get an expungement?

Early and often - if you were not convicted of any offense resulting from the arrest, you can expunge these arrests any time and as many of them as you want. If you were arrested for a felony but convicted of a misdemeanor, you can apply for an interim expungement of the felony arrest anytime, but cannot remove the record of the misdemeanor conviction until the delays discussed below have passed.

Immediately after the sentence is completed - Under some circumstances, a condition can be expunged immediately when the person seeking the expungement has completed their sentence:

• If the individual was convicted of a misdemeanor and sentenced pursuant to Article 894, they will need to set aside their conviction after successful completion of probation, and then will be able to file an expungement.

• If the individual was convicted of a felony and sentenced pursuant to Article 895, they will need to set aside their conviction after successful completion of probation, and then will be able to file an expungement.

• If the individual was convicted of a felony for the first time and is eligible for a first offender pardon, they may file for an expungement immediately upon completion of their sentence.

5 Years - for most misdemeanors after the date the individual was last serving any portion of their sentence (including probation).

10 years - for most felonies after the date they were last serving any portion of their sentence (including probation or parole).

As of August 1, 2020, the limitations on the number of arrests that can be expunged within a certain period of time (15 years for a felony, and 5 for a misdemeanor) have been repealed. It appears from this change in the law, that provided that an individual otherwise meets the requirements to expunge ALL of his arrests, he now no longer has to choose only one and wait 5 or 15 years to expunge another. He can expunge all of his arrests at once.

2. Are there any charges that can’t be expunged?

Yes. Sex offenses as defined in La. R.S. 15:541, and domestic abuse battery convictions cannot be expunged. Under certain circumstances, crimes of violence as defined in La. R.S. 14:2(B) and violations of the Uniform Controlled Dangerous Substances laws (Title 40) cannot be expunged.

3. How long will this process take?

Approximately 6 - 9 months.

The first step is to apply for a background check from Louisiana State Police. Once that is received, the Petition for Expungement must be filed within 30 days. There is a 60-day waiting period during which the State may file an objection to the Petition. Once the 60-day waiting period has passed, the Court will set the matter for a court appearance and either grant or deny the Petition. If it is granted, the Court will sign the order and the expungement will be granted.

There is often a delay between the signing of the order and the removal of the record because the Clerk of Court must send a copy of the order to each police agency involved in the case. Once each agency has removed the record from public access, they will send a certification letter stating so to the Clerk of Court. This entire process from background check request to receipt of final certification letter takes approximately 6 months.

4. Once I have gotten an expungement, can I tell people I’ve never been arrested?

Under most circumstances and with regard to the specific charge you have gotten expunged, yes. (If you have multiple arrests and are not able to expunge them all, you may still have to disclose those arrests depending on the wording of the question.)

5. Does an expungement make it like my charge “never happened?”

Short Answer: No.

Longer Answer: Expungements are different in every state. In Louisiana, an expungement removes the record from “public access” but does not result in the record’s destruction. In effect, this means that most background checks will not reveal the existence of the arrest; however, there are many exceptions to this rule. This also means that the arrest can be seen by law enforcement and the courts and can be used against you in subsequent prosecutions.

If you have a specific question about whether an expungement is a good idea for your circumstances, call us at (318) 459-9111 to set up a consult.

Effective August 1, 2020, the Louisiana legislature added subsection (L) to Louisiana Revised Statutes 14:95, which added an exception to the statute’s prohibition against concealed carrying of a firearm or other dangerous weapon on one’s person.

Subsection L allows any person (provided that person is not prohibited from possessing a firearm under La. R.S. 14:95.1 - the felon in possession of a firearm prohibition statute or any other state or federal law) to carry a concealed firearm on his person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency or disaster declared pursuant to the Louisiana Homeland Security and Emergency Assistance and Disaster Act.

The section further defines “in the act of evacuating” as: “the immediate and urgent movement of a person away from the evacuation area within 48 hours after a mandatory evacuation is ordered.” It also allows for the 48-hour window to be extended by an order issued by the governor.

My favorite of the new laws passed by the Louisiana legislature in 2020 is the law regarding Daylight Savings Time.

Effective August 1, 2020, if the United States Congress amends 15 U.S.C. 260(a) to authorize states to observe daylight saving time year-round, Louisiana will, by the enactment of La. R.S. 1:50, adopt daylight saving time as the year-round standard of time for the entire state.

So far, we’re still subject to springing forward and falling back, but if the US Congress acts to change that, Louisiana will spring forward and stay there!

The Louisiana legislature added subsection (3) to the manslaughter statute:

When the offender commits or attempts to commit any crime of violence as defined in R.S. 14:2(B), which is part of a continuous sequence of events resulting in the death of a human being where it was foreseeable that the offender’s conduct during the commission of the crime could result in death or great bodily harm to a human being, even if the offender has no intent to kill or to inflict great bodily harm. For purposes of this Paragraph, it shall be immaterial whether or not the person who performed the direct act resulting in the death was acting in concert with the offender."

This statute appears to be an attempt to re-establish that when an offender is engaged in a crime of violence, even if neither he nor his co-defendants are responsible directly for the death of someone, they could each be charged with manslaughter if a death results. The textbook example here would be a robbery that ended up with shots being fired by someone other than the robbers and an individual dying as a result. Although the robbers were not the shooters, under this version of the statute, they could still be charged with manslaughter as a result of the person’s death.

If you or someone you know is charged with a crime, call us at (318) 459-9111, to set up a consult.

This year, the Louisiana legislature added additional acts and penalties to the battery on a police officer statute.

The old version of the statute prohibited throwing bodily fluids at a law enforcement officer while the offender was incarcerated in any detention facility. The change in the law removes the requirement that the offender be incarcerated, so makes this law applicable to anyone and also criminalizes the throwing of water or any other liquid to the prohibited substances. This change vastly increases the potential individuals who could be prosecuted for this offense.

The new version of the statute also makes it enhanceable, meaning that a second or subsequent offense subjects the offender to a fine of not more than $1,000 and imprisoned with or without hard labor for not less than one year nor more than three years, with 15 days of that sentence without benefit of parole, probation, or suspension of the sentence.

It also makes the penalty for a battery that causes an injury requiring medical attention to be enhanceable, making the penalty for a second or subsequent offense, a fine of not more than $2,000 and imprisonment with or without hard labor for not less than two years nor more than five years, with 60 days of the sentence without benefit of probation, parole, or suspension.

These changes increase the penalties and make the possible behavior that is punishable much more expansive than the prior version of the law.

If you or someone you know is facing battery against an officer charges, or any criminal charges, give us a call at (318) 459-9111 to set up a consultation.

Effective August 1st, 2020, the Louisiana legislature added Louisiana Revised Statutes 14:98.5.1 to the mass of laws governing the potential penalties for those convicted of Driving While Intoxicated. This particular statute allows a court to order a person convicted of a second or higher offense of driving while intoxicated to undergo an assessment to determine whether a diagnosis of alcohol or drug dependence is appropriate in keeping with the diagnostic criteria of the most recent Diagnostic and Statistical Manual (DSM) published by the American Psychiatric Association. This assessment must be paid for by the person convicted. The assessment must consider whether the individual would benefit from a court-approved, FDA-approved, medication-assisted treatment program.

After the assessment, the court may refer the person to a rehabilitation center that offers the approved medication and treatments.

If you or someone you know is facing DWI charges, call us at (318) 459-9111 to set up a consult.

Although burglary and robbery are often used interchangeably, there are some very clear differences between the two of them.

Simple burglary is the unauthorized entering of a dwelling, vehicle, watercraft, or other structure (or cemetery) with the intent to commit a felony or theft therein. It is a felony that carries a penalty of up to a $2,000 fine and/or imprisonment with or without hard labor up to 12 years. (La. R.S. 14:62)

Simple robbery is the taking of anything of value that belongs to another from the person of another or his immediate control by use of force or intimidation. It is also a felony that carries a penalty of up to a $3,000 fine and/or imprisonment with or without hard labor for up to 7 years. (La. R.S. 14:65)

While both robbery and burglary may involve theft, burglary does not necessarily involve a theft. Any felony can lead to a charge of burglary. Robbery also must be from a person or their direct control, rather than from their home, as is required for a burglary.

Both burglary and robbery have higher level offenses:

• Simple Burglary of an Inhabited Dwelling (La. R.S. 14:62.2) is an unauthorized entry of an inhabited dwelling, house, apartment, or other structure used in whole or in part as a home with the intent to commit a felony or theft inside. It carries a penalty range of 1 to 12 years at hard labor.

• Aggravated Burglary (La. R.S. 14:60) an unauthorized entry of an inhabited dwelling, or any structure, watercraft, or moveable where a person is present with the intent to commit a felony or theft inside if the offender (1) is armed with a dangerous weapon, (2) arms herself with a dangerous weapon once inside, or (3) commits a battery while entering, inside, or leaving the structure. It is a felony which carries a penalty of 1 to 30 years at hard labor.

• First Degree Robbery (La. R.S. 14:64.1) is the taking of anything of value that belongs to another from the person of another or his immediate control by use of force or intimidation when the offender leads the victim to reasonably believe he is armed with a dangerous weapon. It carries a penalty range of imprisonment for 3 to 40 years at hard labor without benefit of probation, parole, or suspension of sentence.

• Second Degree Robbery (La. R.S. 14:64.4) is the taking of anything of value that belongs to another from the person of another or his immediate control when the offender intentionally inflicts serious bodily injury. It carries a penalty range of imprisonment for 3 to 40 years at hard labor.

• Armed Robbery (La. R.S. 14:64) is the taking of anything of value that belongs to another from the person of another or his immediate control by use of force or intimidation while armed with a dangerous weapon. It carries a penalty range of imprisonment for 10-99 years at hard labor without benefit of probation, parole, or suspension of sentence.

If you would like to set up a consult to discuss your robbery or burglary charge, call us at (318) 459-9111.

Some aspects of a person may make them not criminally responsible for their behavior. Chapter I, Subpart C of Title 14 of the Louisiana Revised Statutes addresses those states that impact a person’s culpability for an offense. These may be characteristics of the person (age), mental states of the person (intoxication, insanity), a level of knowledge that the person has (mistake of fact, mistake of law), or defenses a person may be able to raise (self-defense, justification, or defense of others).

The criminal code states that the following people are exempt from criminal responsibility:

• A person under the age of 10 (La. R.S 14:13);

• A person who, because of a “mental disease or mental defect” is incapable of distinguishing right from wrong with respect to the alleged criminal conduct (La. R.S. 14:14);

• A person who is intoxicated when the intoxicated state was involuntary on the part of the offender and the intoxicated state directly caused the commission of the crime (La. R.S. 14:15);

The criminal code also establishes the following specific defenses:

• A person who is intoxicated and that intoxication has precluded the presence of specific intent or special knowledge required for a particular crime (La R.S. 14:15);

• Reasonable ignorance of a fact or a mistake of fact which precludes the presence of any mental element required in that crime (La. R.S. 14:16);

• A mistake of the law when the offender reasonably relied on an act of the legislature in repealing an existing criminal law or otherwise purporting to make the conduct lawful, or reasonably relying on a final judgment of a court making the criminal law unconstitutional (La. R.S. 14:17);

• The conduct was justified (La. R.S. 14:18) because:

  • it was “an apparently authorized and reasonable fulfillment of any duties of a public office;”

  • it was “a reasonable accomplishment of an arrest which is lawful under the Code of Criminal Procedure;”

  • the conduct is otherwise authorized by law;

  • it is reasonable discipline of a minor by her parents, teachers, or tutors;

  • when it is the result of a failure to perform a duty which is physically impossible;

  • when the crime (other than murder) is committed because of threats of death or great bodily harm and the offender reasonably believes the person making the threats has the ability to follow-through; or

  • when the crime is in defense of a person or property.

Self defense is codified in La. R.S. 14:19 and allows for the use of force under the following circumstances:

1. to prevent a forcible offense against the person or trespass against property in his lawful possession, provided that the force is reasonable and “apparently necessary” to prevent the offense; or

2. to prevent the entry by or to compel the exit of another into a “dwelling, place of business, or motor vehicle” in which the person is located at the beginning of the conflict and the person reasonably believes that the use of force is is necessary to prevent the entry or compel the exit.

This statute does not permit the use of force in either circumstance when it results in a homicide, but La. R.S. 14:20 states that a homicide is justifiable when:

• Committed by a person who reasonably believes he is in danger of losing his life or receiving great bodily harm and the killing is necessary to save himself.

• Committed by a person to prevent a violent or forcible felony that he reasonably believes involves danger of death or great bodily harm. He must also reasonably believe that his own life or safety would be at risk if he attempted to stop the felony without deadly force.

• Committed by a person to prevent unlawful force against a person lawfully in a building, business, or motor vehicle by a person he believes is in the midst of committing a burglary or robbery.

A person who is the aggressor in a conflict cannot claim self-defense unless he first withdraws from the conflict in good faith and in such a way that his opponent knows or should know that he intends to withdraw. (La. R.S. 14:21) It is also justifiable to use reasonable force or violence or to kill in defense of another under those circumstances when that person could have defended himself and when it is reasonably believed that the intervention is necessary to protect the other. (La. R.S. 14:22)

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

Louisiana Revised Statutes Title 14, Section 29 defines homicide as “the killing of a human being by the act, procurement, or culpable omission of another,” and separates it into 5 “grades”:

• First Degree Murder (La. R.S. 14:30),

• Second Degree Murder (La. R.S. 14:30.1),

• Manslaughter (La. R.S. 14:31),

• Negligent Homicide (La. R.S. 14:32), and

• Vehicular Homicide (La. R.S. 14:32.1).

First Degree Murder is the killing of a human being when the offender has specific intent to kill and or to inflict great bodily harm:

1. “and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated or first degree rape, forcible or second degree rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles.”

2. on a fireman, peace officer, crime lab employee engaged in the performance of their duties or because of his status.

3. on more than one person.

4. for money.

5. on a victim who is younger than 12 or older than 65.

6. when engaged in drug distribution.

7. when engaged in “ritualistic acts.”

8. when the offender has been served with a protective order protecting the victim.

9. when the victim is a witness to a crime or a family member of a witness and the killing was done to influence or prevent his testimony or in retribution for his testimony.

10. when the victim is a taxi driver engaged in his work duties.

11. “and the offender has previously acted with a specific intent to kill or inflict great bodily harm that resulted in the killing of one or more persons.”

12. on a correctional center employee.

The penalty for first degree murder is death or life imprisonment without benefit of probation, parole, or suspension of sentence.

Second degree murder is the killing of a human being when:

1. the offender has specific intent to kill or inflict great bodily harm.

2. the offender is engaged in the perpetration or attempted perpetration of aggravated kidnapping, second degree kidnapping, aggravated escape, aggravated arson, aggravated or first degree rape, forcible or second degree rape, aggravated burglary, armed robbery, assault by drive-by shooting, first degree robbery, second degree robbery, simple robbery, terrorism, cruelty to juveniles, or second degree cruelty to juveniles, but has no specific intent to kill or inflict great bodily harm.

3. the offender distributes drugs and the purchaser dies as a result of consuming those drugs.

4. the offender distributes drugs and the purchaser provides them to another person who dies as a result of consuming the drugs.

The penalty for second degree murder is life imprisonment without benefit of probation, parole, or suspension of sentence.

Manslaughter is a homicide:

1. which would be a first or second degree murder except it was committed in “sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” But not if the offender’s blood had cooled or an average person’s blood would have cooled prior to the killing.

2. a homicide committed without specific intent to kill or inflict great bodily harm if the offender is engaged in a felony not listed in the first or second degree murder statute or when resisting arrest under circumstances that do not rise to the level of first or second degree murder.

The penalty for manslaughter is imprisonment at hard labor for not more than 40 years, unless the victim was under the age of 10 at the time of his death, in which case the penalty is imprisonment for not less than 10 years nor more than 40 years at hard labor without benefit of probation, parole, or suspension of sentence.

Negligent homicide is the killing of a human by criminal negligence or by a dog or other animal when the owner is reckless and criminally negligent in confining or restraining it. The general penalty for negligent homicide is imprisonment with or without hard labor for not more than 5 years and/or a fine of up to $5,000. If the victim was under the age of 10 at the time of his death, the penalty is imprisonment at hard labor for not less than two nor more than 5 years, without benefit of probation, parole, or suspension of sentence. If the victim was killed by a dog, the penalty shall be imprisoned with or without hard labor for not more than 5 years and/or fined up to $5,000.

Vehicular homicide is the statute which covers deaths caused by offenders who are operating a motor vehicle while under the influence of alcohol or drugs. The penalty is a fine of not less than $2,000 nor more than $15,000 and/or imprisonment with or without hard labor for not less than 5 years nor more than 30 years. At least 3 years of the term of imprisonment must be without benefit of probation, parole, or suspension of sentence. If the driver’s BAC is above .15 or he has a prior conviction for Driving While Intoxicated, then the minimum sentence is 5 years. If the accident results in the deaths of more than one person, each victim shall constitute a separate offense and the sentences must run consecutively to one another.

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

Louisiana’s criminal laws are contained in Title 14 of the Louisiana Revised Statutes. It is divided into multiple subparts dealing with crimes against persons, crimes against property, sex offenses, etc…

Assault is contained in Chapter 1, Part II, Subpart B. It is defined in §36 as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.”

Louisiana does not “grade” its offenses, but there are several types of assault of increasing levels of seriousness:

1. Simple Assault

   • This offense is a misdemeanor that criminalizes assault.

   • The penalty is a fine of up to $200 and/or imprisonment of up to 90 days.

2. Aggravated Assault

   • This offense is a misdemeanor that criminalizes an assault when the offender uses a dangerous weapon.

   • The penalty is a fine of up to $1,000 and/or imprisonment up to 6 months.

3. Aggravated Assault with a Firearm

   • This offense is a felony that criminalizes an assault committed with a firearm.

   • The penalty is a fine of up to $10,000 and/or imprisonment with or without hard labor for up to 10 years.

There are also multiple specific assault statutes if the assault is committed under certain circumstances:

• Aggravated assault on a dating partner,

• Domestic abuse aggravated assault,

• Assault by drive-by shooting,

• Aggravated assault on a peace officer,

• Aggravated assault upon a utility service employee with a firearm,

• Aggravated assault with a motor vehicle upon a peace officer,

• Assault on a school teacher,

• Assault on a child welfare worker, and

• Harassment of a school or recreation athletic contest official.

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

Louisiana’s criminal laws are contained in Title 14 of the Louisiana Revised Statutes. It is divided into multiple subparts dealing with crimes against persons, crimes against property, sex offenses, etc…

Battery is contained in Chapter 1, Part II, Subpart B. It is defined in §33 as “the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” Battery does not require any injury to the victim. It also does not require intent to cause injury. It merely requires the intent to commit the battery, itself, with all intended and unintended consequences that follow from that.

Louisiana does not “grade” its offenses, but there are several types of battery of increasing levels of seriousness:

1. Simple Battery

   • This offense is a misdemeanor that criminalizes battery.

   • The penalty is a fine of up to $500 and/or imprisonment of up to 6 months.

2. Second Degree Battery

   • This offense is a felony that criminalizes a battery in which the offender intentionally inflicts a serious bodily injury.

   • The penalty is a fine of up to $2,000 and/or imprisonment with or without hard labor for up to 8 years.

3. Aggravated Battery

   • This offense is a felony that criminalizes a battery committed with a dangerous weapon.

   • The penalty is a fine of up to $5,000 and/or imprisonment with or without hard labor for up to 10 years.

4. Aggravated Second Degree Battery

   1. This offense is a felony that criminalizes a battery in which the offender intentionally inflicts a serious bodily injury with a dangerous weapon.

   2. The penalty is a fine of up to $10,000 and/or imprisonment with or without hard labor for not more than 15 years.

There are also multiple specific battery statutes if the battery is committed against individuals with specific jobs:

• Battery of a police officer,

• Battery of a school teacher,

• Battery of a school or recreational athletic contest official,

• Battery of a correctional center employee,

• Battery of a bus operator, and

• Battery of a child welfare or adult protective services worker.

There are also multiple specific battery statutes that criminalize battery on people of a specific status or relationship.

• Simple battery of persons with infirmities,

• Battery of a dating partner, and

• Domestic abuse battery.

If you would like to set up a consult to discuss your battery case, 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.