The U.S.

Case Precedent
System:
Arguing Facts and Law at Trial

Tom C. Rawlings
Judge, Juvenile Courts
Middle Judicial Circuit
Sandersville, GA
(478) 553-0012
tom@sandersville.net
www.tomrawlings.com

Different Approaches of Civil

and Common Law
Framing the Question:
Civil Law Judge: What Should We Do This
Time?
Common Law Judge: What did we do last time?

Focus on Facts vs. Focus on Law

Civil Law: Weighing of Meticulous Legal
Arguments
Common Law: Elaborate Analysis of Facts
Oheler, Working with a Code: Is There a Difference Between
Civil-Law and Common-Law People? 1997 U. Ill. L. Rev. 71

Different Approaches of Civil

and Common Law
Use of Codes:
Civil Law: Detailed, thorough legislation.
Codes are to be understood and
interpreted by and from themselves.
Common Law: Code outlines the boundaries
of what is valid.
Views codes as a restatement of the law
that serves as noteworthy authority among
others
Oheler, Working with a Code: Is There a Difference Between
Civil-Law and Common-Law People? 1997 U. Ill. L. Rev. 71

What Exactly Is the Case

Precedent System?
Reliance on settled law, as found in case

decisions of higher courts, to decide new

cases.
Persuasive power of case decisions of sister
courts when issues of first impression arise.
Adding clothes to a naked statute.
Analogizing the facts of the present case to
previously-decided cases.
Effectiveness is dependent on a highlyindexed system of published case decisions.

State
Supreme
Court

State Court of
Appeals

Superior Court

Juvenile
Court

Probate
Court

Administrative
Law Judge

Misdemeanor
Court

Magistrate
Court

United States
Supreme Court

United States Court

Of Appeals

United States
District Court

State Supreme
Court

Stare Decisis: The Rule of

Precedent
Promotes the evenhanded, predictable,

and consistent development of legal

principles
Fosters reliance on judicial decisions
Contributes to the actual and perceived
integrity of the judicial process.
Adhering to precedent "is usually the wise
policy, because in most matters it is more
important that the applicable rule of law
be settled than it be settled right
PAYNE V. TENNESSEE, 501 US 808 (1991)

When and How?

At the trial court level, prior cases are
relied on more to determine how the
case should proceed and what the
outcome should be.
At the appellate court level, you are
much more likely to ask why.
The Key to Studying Common Law is
Learning to Spot Issues and Research
Cases.

A Practical Example
Statutory provisions regarding the
Admission of a Confession:
No person . . . shall be compelled in any
criminal case to be a witness against
himself. United States Constitution, Amendment V.
To make a confession admissible, it
must have been made voluntarily,
without being induced by another by the
slightest hope of benefit or remotest fear
of injury.
OCGA 24-3-50

A Practical Example
Judge-Made Rules Regarding Admission of
a Confession:

it is not a coercive tactic for a police officer to

threaten to arrest a person for committing a
crime in his presence, as he is constitutionally
authorized to do
To make a confession admissible, it must have
been made voluntarily, i.e., "without being
induced by another by the slightest hope of
benefit or remotest fear of injury." A reward of
lighter punishment is generally the "hope of
benefit" to which O.C.G.A. 24-3-50 refers. The
[*110] State bears the burden of demonstrating
the voluntariness of a confession by a
preponderance of the evidence.

A Practical Example
Judge-Made Rules Regarding
Admission of a Confession:
An accused must be warned that he has
the right to remain silent; that anything
he says can and will be used against him
in court; that he has the right to an
attorney, and to a free attorney if he
cannot afford one, prior to any
questioning.
Miranda v. Arizona, 384 U.S. 436 (86 S.
Ct. 1602, 16 L. Ed. 2d 694) (1966).

A Practical Example
Judge-Made Rules Regarding Admission of a
Confession:

The question of whether a waiver of rights and a

subsequent statement have been voluntary and knowing
depends on the totality of the circumstances. The totality
of the circumstances is determined through a
consideration of nine factors: 1) age of the accused; 2)
education of the accused; 3) knowledge of the accused as
to both the substance of the charge and the nature of his
right to consult an attorney and remain silent; 4) whether
the accused is held incommunicado or allowed to consult
with relatives, friends or an attorney; 5) whether the
accused was interrogated before or after formal charges
had been filed; 6) methods used in interrogation; 7)
length of interrogation; 8) whether or not the accused
refused to voluntarily give statements on prior occasions;
and 9) whether the accused has repudiated an
extrajudicial statement at a later date.
Reinhardt v. State (Georgia Supreme Court 1993)

Hypothetical
Charge: that on October 12, 2006, Smith

intentionally pushed over and destroyed 14

grave markers in the Sandersville City
Cemetery, with total damage exceeding
$5,000.
A person commits the offense of criminal
damage to property in the second degree
when he: (1) Intentionally damages any
property of another person without his
consent and the damage thereto exceeds
$500.00. Felony
OCGA 16-7-23

Hypothetical
16-1-6. Conviction for lesser included offenses
An accused may be convicted of a crime included in a
crime charged in the indictment or accusation. A crime is
so included when: (1) It is established by proof of the same
or less than all the facts or a less culpable mental state
than is required to establish the commission of the crime
charged; or (2) It differs from the crime charged only in
the respect that a less serious injury or risk of injury to the
same person, property, or public interest or a lesser kind
of culpability suffices to establish its commission.

16-7-21. Criminal trespass

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

Evidentiary Issues: 1
Jury Empaneled: 12 persons 2

white, 8 black, 2 Hispanic. One

juror excused for cause because he
once lived near the defendant.
Batson violation?

Evidentiary Issues: 2
Officer Colbert will testify that as

Officer Miller was speaking with

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

Evidentiary Issues: 2

Hearsay: OCGA 24-3-1

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

U.S. Constitution, Amendment VI: In all

criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with
the witnesses against him.

Evidentiary Issues: 2
Crawford v. Washington, United

States Supreme Court (2004)

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

Evidentiary Issues: 2
Excluded from Evidence Are:

Testimonial Statements;
Made Outside Court;
UNLESS Declarant unavailable
AND defendant had prior
opportunity for crossexamination.

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

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

related by a third party.

Res Gestae Exception to Hearsay
Rule: OCGA 24-3-3

Declarations accompanying an act, or

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

Evidentiary Issues: 3
Crawford problem?

Pitts v. State (Georgia Supreme Court

2006)
An emergency (911) call can be admitted
if the caller's primary purpose is not to
provide evidence against the accused,
but rather, to thwart an ongoing crime
or seek rescue from immediate peril.
How does that apply here?

Evidentiary Issues: 3
Pitts v. State (Georgia Supreme
Court 2006)

Where the primary purpose of the

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

Evidentiary Issues: 3
Is it Res Gestae?

Park v. State (Ga. Ct. App. 1998)

Four hours after the fight with which
her husband was charged, upset wife at
hospital asked victim why he didnt fight
back when her husband hit him.
Evidence showing the statements were
made "'while the parties were still
laboring under the excitement and
strain of the circumstances and in such
proximity in time as to preclude the
idea of deliberation or fabrication

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

Evidentiary Issues: 4

Free and Voluntary Confession?

To make a confession admissible, it must

have been made voluntarily, without being
induced by another by the slightest hope of
benefit or remotest fear of injury. OCGA 243-50
State v. Ritter, (Ga. Supreme Ct. 1997)
Officer lied, telling defendant victim had not died of

his wounds and was awake and ok.

To make a confession admissible, it must have been
made voluntarily, i.e., "without being induced by
another by the slightest hope of benefit or remotest
fear of injury."
The law is well established that use of trickery and
deceit to obtain a confession does not render it
inadmissible, so long as the means employed are not
calculated to procure an untrue statement.

Evidentiary Issues: 4

State v. Ritter, (Ga. Supreme Ct. 1997)

[The officers] representation regarding the victim's

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

Evidentiary Issues: 4
But: Pollard v. State (Ga. Ct. App.
1999)

Pollard stabbed victim, confessed.

Victim died before confession, but
officer did not tell Pollard that.
Confession properly admitted because
officer did not lie to Pollard, merely
withheld the truth.

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

Police questioned appellant in the

presence of his mother; she encouraged
him to tell the truth, and officer echoed
that encouragement, telling appellant
that "it would go easier on him to
cooperate and tell the truth.
Officers statement did not render
appellant's statement inadmissible
because he only urged appellant to tell
the truth and did not promise a lighter
sentence or any other benefit.

Evidentiary Issues: 5
2.

Josh Groban, who has already pleaded guilty to

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

3.

Kim Smith, the defendants sister, will testify

that she was with Josh and her brother at the
graveyard on October 12, but she did not see him
push over any gravestones.

Evidentiary Issues: 5
O.C.G.A. 24-4-8: The testimony of
a single witness is generally
sufficient to establish a fact.
However, in . . . felony cases where
the only witness is an accomplice,
the testimony of a single witness is
not sufficient. Nevertheless,
corroborating circumstances may
dispense with the necessity for the
testimony of a second witness . . . .

Evidentiary Issues: 5

Does any evidence corroborate Grobans statement?

Sisters testimony shows he was there.

Slight evidence from extraneous source identifying
defendant as a participant in the crime is sufficient to
corroborate accomplice testimony.

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

Hill v. State, 236 Ga. 831, 831-834 (Ga. 1976)

the state produced a witness by the name of Alvin Hawkins

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

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

will testify that he regularly monitors

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

Evidentiary Issues: 6
What are the issues?

Evidentiary Issues: 6

To sustain this conviction for criminal damage to

property in the second degree, the State was
required to offer probative evidence which would
sufficiently allow the jury to conclude Bereznak
intentionally caused in excess of $ 500 damage to
the property of another person without that
person's consent. Our cases detail several proper
methods for proving the value of the damage. A lay
witness may give her opinion as to that value so long
as she states the facts on which she bases her
opinion or otherwise shows she had the opportunity
to form a correct opinion. The cost of an item, so
long as it is coupled with other evidence of its
condition before and after the damage, may allow
the jury to determine the value of damage to
everyday items. Evidence of the cost to repair an
item may also suffice.
Bereznak v. State, Ga. Ct. Appeals 1996

Conclusions

Key to Litigating in U.S. Trial Courts is

presenting admissible facts to the court or
jury;
Key to admitting evidence is understanding
how to use case law to demonstrate the
admissibility of that evidence;
Citation of case authority also builds a
record for the appeal.
NEXT:The U.S. Case Precedent System:
Applications in the Appellate Courts.
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