New Podcast: Judge Speaks On Rules Of Evidence

How can the Rules Of Evidence make or break the outcome of a court case? Collins & Lacy attorney, Jamie Williams, interviews Judge Daniel Coble of the Richland County Central Court in South Carolina. Listen here.

Michael Burney: Welcome to The Legal Bench.  I’m Michael Burney, Director of Business Development at Collins and Lacy Law Firm in Columbia, South Carolina. What should attorneys be mindful of when it comes to the power of the rules of evidence in a courtroom?  Joining Collins and Lacy attorney Jamie Williams is our special guest today, Judge Daniel Coble.  Judge Coble has been a magistrate judge for the Richland County central courts since July of 2017.  His previous position was that of Assistant Solicitor in the Fifth Circuit Solicitor’s Office.

Jamie Williams: Today we have Magistrate Judge Daniel Coble for Richland County.  Daniel, why don’t you tell us what you did prior to becoming a magistrate judge.

Judge Daniel Coble: Well Jamie, thanks for having me today.  I’m a big fan of the podcast and have listened to a lot of the episodes. Before becoming a magistrate judge back in July of 2017, I was an assistant solicitor for the Fifth Circuit.  I handled a wide range of cases from burglaries, robberies, a lot of DUIs in magistrate court too, so I saw a lot of magistrate court.  The best part of being an assistant solicitor was when I was a part of the homeless court. Creating that helped a lot of homeless folks and veterans get off the street and get their lives together, so I saw a lot of interesting cases while I was there.  Before law school I went to Clemson University “Go Tigers” also after that I went to USC law school, so I’m a little bit of both.  Obviously, you and I have known each other since the late 90s.  So, since 2017, I’ve been a full-time magistrate judge.  2018 I was made the associate chief judge for Richland County which just meant a lot more administrative duties with no more pay.  So, it’s been fun, but you get to meet a lot more people and handle a lot more issues, particularly with attorneys.  You kind of see the ins and outs and how that process works.  It’s been fun sitting on the bench so far.

JW: Alright, let’s talk about attorneys.  What are some things that attorneys can do better to help judges out or common mistakes you see them make in the courtroom?

DC: Before I criticize any attorneys, when I was an attorney, I know I made a lot of mistakes.  I got a lot of stuff wrong.  Whenever I give advice to young attorneys, I always have this revisionist memory about how I did it.  I’m sure I got it wrong all the time.  What I tell young attorneys is that it is always important to have a goal in mind with what you’re doing with your case.  Whether that is, either civil or criminal it doesn’t matter, know what you came to court for and what you want to get out of it.  I see a lot of times where attorneys, particularly young attorneys, they want to fight, they want to argue, they want to make objections, and it’s not really moving their case forward.  If they would take a step back, know what they want to get out of their case.  If it’s a civil trial, you don’t have to object to everything you only want to object to the serious issues that really hamper your case otherwise the judge might not take every objection seriously.  They might not know which ones you really care about.  So, I always tell attorneys to know what you want out of the case.  Know what you want when you’re in front of the judge, because ultimately it comes down to your credibility and that takes years and years to build but it can go away real quick if you’re not serious and professional in front of the court.  Judges, when you walk into their courtroom, they want to know that you’re a serious attorney.  They you’re prepared and you do that by knowing what you want to get out of your case.

JW: So, an example of an objection that you might not want to make all the time might be a leading question that the directed attorney asks.

DC: So whenever I teach the rules of evidence, that’s something, I’ve gotten into the rules of evidence a lot because it’s important in trials to know the rules so that you gain confidence, because there’s nothing more intimidating than having a senior attorney as opposing counsel, you’re making you’re opening statement or you’re directing a witness and you know they’re about to stand up and make an objection.  You have no idea what it is, but you know they’re right.  You know they’re going to kill you.  You know they’re going to win.  But if you know the rules of evidence and you know what you’re doing then you don’t have to worry about what they object to.  You know how to respond to it.  You can anticipate it and it’s not as intimidating.  So, when it comes to objections, you’re absolutely right.  If you object to every single leading question, if you object to every hearsay statement, the train will move on its tracks and a judge, as we all know judges, they got to be home and they don’t want to be in court all day, and that goes twice as much for jurors.  You think about a juror, they might enjoy the trial for the opening statement for about the first two minutes, and other than that they have places to be, they have children, they have work, they have wives and husbands they have to get home to.  So, when you start objecting you run the risk of making them upset, kind of making them angry that you’re wasting their time and what it can also do it can backfire.  I’ve seen it before where an attorney will object over and over and over again to a statement that doesn’t mean anything, it’s worthless, and they might be right.  That might be hearsay or might be improper character evidence and I’ll keep it out, and now the jury’s thinking well what was that statement and they all of a sudden, you know in their own mind they’ve put some statement together and it hurts the party who was objecting, because what is that party trying to hide.  Now, you need to make objections strategically, so whenever I teach the rules of evidence, I talk about two different types of objections.  You have substantive and style objections. Substantive are the rules of evidence, hearsay, impeachment, character evidence.  The style is what you describe as leading or argumentative or accumulative.  Sometimes you’ll want to do that ethically, of course, but if you know, if Jamie Williams is cross-examining my witness and you’re just destroying him and making him look terrible, and if you’re on direct let’s say and you’re leading well  I might object to you leading and I want to throw you off your game a little bit.  Now every objection has to be based on reasonable grounds and have a good faith basis, otherwise you’ll make the judge mad and violate any ethical duties.  But, if you’re doing well, it’s just like in the game of golf, you want to get somebody’s head or you want to throw them off, don’t let the opposing counsel run over your witness or let their witness just destroy your case, throw them off a little bit.  If it’s proper or it’s appropriate.  If it’s not, remember the jurors won’t rule with people who they like, you know, who are confident and there’s a lot more to it, but it’s just knowing what your objection is for.  I always say that.  If you’re going to object that’s fine but know why you’re doing it.  Do you want to keep that piece of evidence out?  Do you really not want that statement coming in or is that attorney just doing a great job and you need to throw them off their game a little bit.  Just something to think about and that differs to with opening and closing.  There’s kind of an unwritten rule about objecting in someone’s opening statement or closing arguments.  It doesn’t mean you don’t it, but the judge will get pretty upset because there is a pretty big leeway with what can be said in opening and closing and there are ways to get around that.  So when it comes to opening statements you don’t have to necessarily object if someone starts making all these big promises and stuff that you don’t think is going to come into evidence, because then you just hold them to it.  You just remember what they said and then at the very end at the closing arguments you tell the jurors, you say hey remember when Mr. Williams got up here and promised that he was going to explain this, this, and this, well he didn’t do that.  The only note of caution is that if you’re a prosecutor and you say they didn’t prove something, just know that you might get your case overturned or mis tried really quick if you shift that burden.  Just different strategy.  The best way to learn it is to witness it, to go sit and there rarely are cases, jury trials in the Court of Common Pleas or even general session because that’s just kind of the way we’ve been moving the last few years.  But in the magistrate court, there are always jury trials and there are always some attorneys down there trying their cases so if you can get down there and watch them, it’s great experience.

JW: You mentioned that when you teach evidence, so you’ve been doing a lot, publishing a lot of writings on evidence.  People can follow you, you have a blog I think and then follow you on Twitter at danielmco.  When a new ruling comes out you already have a post coming out about it and even some old rules you kind of go through and analyze for folks.  Tell me how that blog works and what your goal is with educating people with it.

DC: So I started a blog back in 2018, so a little over 3 years ago and what I was doing was, it actually started in a notebook which is kind of embarrassing my little diary, but so when I first took the bench I realized you have to be a generalist as a judge, which means you have to know a little about a lot of things, so you don’t really specialize, so I would have to know something about chain of custody and I would learn it for that case real quick and then I learned a million other things and I would forget every single one of them and I remember I learned the chain of custody rule but I couldn’t remember exactly what it was.  So, I said I would write it down.  So I started writing it down and quote case law ________________, I remember that and it was taking me forever to write, and my handwriting’s terrible, so why not type this up.  So then I thought why don’t I do a blog and I kind of looked myself in the mirror and was embarrassed because I was going to be a blogger but sometimes you just have to suck it up and so I started writing a blog.  People made fun of me for a little bit, which is pretty fair, and then I kept going, kept writing, and I realized I enjoyed it and it was, I enjoyed it because as I wrote it down and I learned a little bit more I realized how complicated the Rules of Evidence are and there’s a purpose to learning them and it’s two-fold.  I tell young attorneys, are anybody, if you want to learn the Rules of Evidence it helps not only in trials and so most attorneys, you don’t need to know the Rules of Evidence if you’re a civil defense attorney.  If you’re in trial once a year, why would you waste your brain space with Rules of Evidence when you need to know the Rules of Civil Procedure, or other Rules of Arbitration, whatever it may be.  I completely understand that, but one benefit to knowing the Rules of Evidence and getting trial experience is, I believe it helps with your negotiations.  When two attorneys walk into a room, if it’s a young attorney and an experienced attorney, the mediator’s going to see that and they’re going to kind of know what’s going to happen at trial, because that’s ultimately what a case, you know, how much is this case worth if it goes to a trial and if it’s a trial dog, you know, if it’s one of those experienced attorneys who knows the Rules of Evidence, who is kind of intimidating a little bit, you know, maybe that level just rose a little bit.  There’s a benefit of knowing the rules and showing you’re prepared and so as I wrote about the Rules of Evidence, it became more interesting, something to focus on, because as a trial judge I’m in trial a lot so I need to know those.  There’s nothing worse than an attorney objecting to hearsay or impeachment and having no idea what they’re talking about which never happens with a judge, of course.  We make a correct ruling every time.  (lol) But being prepared is the most important thing and that blog kind of helped, it’s turned into more.  It’s a newsletter as well.  I’ve written several books.  I have a new book coming out the next month for the Rules of Evidence and it’s written in a way that I think is beneficial to trial attorneys.  So, most book rules are written by start at Rule 1 and go to the very end.  The problem with that and I noticed this is when someone would make an objection, they say objection, improper impeachment, that’s a specific instance of conduct.  Well, it’s hard to know which, you got to pick up the rule book and figure it out, now which rule is that.  That happens to be 608(b), but I barely know that most people might not know that, so you’re flipping through and you’re going through the book and you’re looking for it.  So, what I’ve written now is I’ve changed it from rule to topic.  So the table of contents is based on topics and, for instance just like I mentioned, impeachment specific instance of conduct, so when that issue arises you can go straight to the issue, see the caselaw, and see the explanation.  The blog has gone from a journal to a little Microsoft Word document to a blog website to a little more updated website and now a more enhanced book which will be free to everybody.  If you want to sign up for my newsletter, it’s once a week, it’s Daniel  You get some more information there.  You can always unsubscribe, you know, if after a few you don’t like it, it won’t hurt my feelings too much, but I will remember.  But that’s what I’ve done, and I enjoy, and I enjoy interacting with attorneys on legal issues on Twitter as much as I can.  The rules, judicial ________________ still apply so you got to be kind of careful how you use Twitter.  But I think it’s important for judges to use social media if they want.  I know people disagree and have different feelings on that.  If you go to other states where judges are elected you will see they are very interactive on Twitter because they have to be to get elected, and they have to raise money which is kind of weird thinking about it in this state.  If a judge complies with the ethical rules of the canids, I think it’s a benefit because you see what the judge is doing.  You can kind of see what they’re thinking and you can see who they’re interacting with because just because I don’t interact with someone on Twitter, if I’m not on Twitter, doesn’t mean I don’t see them out.  Doesn’t mean I’m not friends with them or friendly with them, so it kind of open the window up, puts a little sunshine on it so it’s a little more beneficial, so that’s just kind of how I use the everyday evidence to the Twitter, how it can benefit the legal community.

JW: Let me put you on the spot a little bit here.  What’s a topic or rule that may be recently, and I know with COVID recently might be a little bit bigger cause things have slowed down, but maybe a rule that’s changed a little bit by the Courts, or may be interpreted a little bit different now, or maybe there’s a case that provides more clarification on it.  I know South Carolina a pretty small state and our juris prudence isn’t as expansive as some larger states like Florida and Georgia and even North Carolina, so is there a rule, an important case that’s come out recently?

DC: That’s a great question.  I recently wrote an article for the SC Lawyer last September where I gave a case update of all the big Supreme Court Rules of Evidence cases that came out in 2019.  And so, I’m actually writing another article on another case this September but there’s been several that have come out.  Once recently I believe it was State v. Perry, is about expert testimony, which in civil cases that’s big-time stuff whether it’s Daubert or for us it’s counsel but they kind of created a Daubert counsel hearing.  I blogged about it.  I wrote a post about how I interpreted it because it was a very in-depth piece by Justice Few that discussed the procedure for handling expert testimony.  It reiterated and emphasized to trial judges that they needed to follow this procedure, so you have Rule 702 which is expert testimony and you have to make sure that you look at state v. counsel lays out the factors that you have to make sure the expert is qualified and that it is appropriate to have them.  So if you have expert testimony make sure you I believe it’s State v. Perry, you can check my blog I have it on there as well, it’s State v. Counsel is the big case but Daubert counsel to make sure that you’re following that new precedent.  Make sure you’re following those rules.  I might have it mixed up.  State v. Perry, there was another one that came out when it comes to character, prior bad acts.  So that’s a big one in the criminal world where we talk about prior bad acts, now it can apply in Civil but rarely.  In criminal cases, I believe it was State v. Perry for this case, they overturned an older Supreme Court case, State v. Wallace, where you Lyle so any prior bad act evidence we try to keep that out under the theory that just because you did something bad in your life before doesn’t mean you did it again.  Also, we don’t want to focus on a prior bad act.  We want to focus on the act at hand.  So, they kind of overturned State v. Wallace which had created merely a similarity test between two prior bad acts to let that into evidence and they kind of brought back Lyle which had never gone away and held ___________________________ relevancy not just similarity.  So, I believe that might be State v. Perry.  That’s a big one prior back act, evidence, and criminal cases.  That always will go up to appeal and you can always get your case overturned so you have to be very careful with that.  Another big one was State v. Cross, and this was a criminal case where when defendant was charged with, I believe CSC, Criminal Sexual Conduct 1st degree with a minor.  There are certain enhanceable crimes that you can be charged with.  Shoplifting for instance, so shoplifting a third.  The state has to prove that you not only stole something from the store but also that it was your third offense and so that third offense means you’ve done it before which the state has to prove which is a prior bad act which is pretty prejudice to the defendant, because as soon as a jury hears you’ve shoplifted twice before, it’s kind of hard to overcome that you didn’t do it this time.  It kind of puts that in the jury’s head.  When it comes to CSC cases, Criminal Sexual Conduct cases that rely on enhancability of prior convictions, this is Justice James he said you have to bifurcate the trial.  First you have a trial based on the facts of the case of the actual underlying criminal sexual conduct, whatever the assault or battery is.  If the state proves that you did commit the criminal sexual conduct, then you have a second trial where the state then proves that it’s your third or some prior bad act, prior conviction of CSC.  So, this is based on Rule 611.  611 is a rule I always, 611(a) is called control by the court, so whenever I teach new magistrate judges, I always teach them that this is probably your most important rule that’s called control by the court and in magistrate court it’s kind of like the wild wild west but I just say whatever attorney is getting out of hand, use whatever power you want and cite Rule 611(a) and get them back in control.  My favorite quote from Senator Dick Harpootleion, and this is someone talking about him, they describe what makes him so intimidating or powerful and what it’s like in the courtroom and the attorney said Dick Harpootlione goes into the courtroom, pisses in every corner, marks it his own, and creates anxiety and anxiety is your friend, and so that’s absolutely the truth and so if you’re the judge you don’t want him doing that in your courtroom or any attorney.  If you don’t take control of your courtroom someone else will.  Usually it’ll be another attorney, might be a witness, might a juror.  So, you want the judge to be in control.   So, 611(a) is a very important rule.  611 was cited in the State v. Cross which kind of, Justice Few descended about it, about how it was interpreted, so the way it’s interpreted now it’s kind of changed it a little bit or given it room to grow, room for arguments, so those are some of the big cases when it comes to the Rules of Evidence.  You know a lot of the cases interpreting them, you know our Rules of Evidence was just adopted in 1995, so in my recent book I’ve looked through every single Supreme Court case we’ve every had on the Rules of Evidence to try to cite them, to see if there’s anything useful and so they only really start coming up in 1998 by the time they get to appeal so there’s 22/23 years of cases from the Supreme Court on our Rules of Evidence.  Luckily, the rules before, the common law rules, are very similar so are the federal rules of evidence which were adopted in the 70s, so its kind of adopted a lot of that so not much has changed.  You never know when a new case is going to come out and it’s always the important thing about looking at a case is you can find a fact pattern similar to yours and what you’re looking for and just knowing that a judge, you know that have to make a quick ruling.  Understand what they’re going through and whether it’s important to keep it out or not.  Hearsay can be one of the most complicated and convoluted ones because it’s for the truth of the matter asserted and so all the rules can be kind of complicated and burdensome to understand but with that practice and reading caselaw they can kind of be a little more clearer.  So, to answer your question in a longwinded, only thing I enjoy talking about the Rules of Evidence is yes, there’s been a few cases in the last few years.

JW: Let me put you on the spot again with maybe a hypothetical, and you might not have an answer to this, I don’t know.  Well this has come up for me in depositions but not in trial.  You know, we have pretty strict rules in South Carolina that you don’t make formal objections with specifics in depositions unless you’re going to go seek an order, but people still like to do it and explain their objection.  One I have gotten fairly frequently recently is when I ask one expert opinion about what he thinks about another expert witness in the case or what he thinks about his methods, because my practice it’s a lot of the same expert witnesses over and over again and I’ve heard what they think about each other’s practices and I don’t mean as people but the way they interpret certain things or the way they might extrapolate evidence to say it applied to the entire case and I’ve had objections saying that I’m pitting one witness against the other and my response is typically well they are both experts and they’re allowed to give their opinion.  Does that go too far to how far they can give their opinion?

DC: No that’s a great question.  That’s the first thing I thought about when pitting.  Pitting normally doesn’t involve the expert.  It’s normally just another witness when you say, you know you saw John Smith, your neighbor, testify.  Do you think he was telling the truth?  And that’s pitting and we don’t like that because we want the jury to judge credibility.  We don’t want other witnesses judging credibility among others.  So pitting kind of is with the credibility.  That’s a good question.  I would have to look up the specific caselaw, but I think you’re right in a sense of experts can give their opinions as long as it’s in their scope.  The issues you could run into if it’s outside their scope, but if it’s two experts in the same field you have defense the plaintiffs have theirs on the same common issue so they’re probably in the exact same field then that shouldn’t be an issue because they’re giving their opinion about what’s already been brought up so the door’s already been open to it.  If it’s rebuttal evidence in a sense of you asking the question.  I could see where they could say that’s pitting and you know there’s nothing wrong with asking the question and seeing how far you can get with it and every judge, I think could decide it differently.

JW: Yeah, okay.  Let me give you one more hypothetical and I’d like to see where your brain goes on this one.  I do a lot of cases with voluminous amounts of documents.  The facts of my cases originally started many times more than 10 years ago.  So it’s difficult for people to find records but when they do it could be a lot of those records and so for example there may be a lot of records in storage somewhere of the original record and then there may be a spreadsheet type document that is said to summarize what’s in the original documents in storage, but a party might not want to produce those documents in storage.  Is that proper not to produce those documents even assuming that the summary of the documents is accurate and there’s no reason to believe they’re not accurate except for nobody has actually put their eyes on them.  So, say all the testimony is that these are accurate, but nobody has a chance to dispute it because they haven’t looked at them.

DC: That’s a great hypothetical.  So that falls under the Best Evidence Rules.  The Best Evidence Rules is 1001 through I believe 1008, I think the federal rules has an extra one, and so I’ll get to your question, so the Best Evidence Rules, I get these objections all the time.  They’ll say objection Your Honor, that violates best evidence, that’s not the best evidence.  Well, if we had a rule that you had to provide the best evidence you’d be out of a job.  Every attorney would be out of a job because the best evidence doesn’t exist.  That witness usually refuses to testify.  So best evidence doesn’t mean you have to have the best evidence.  What it mean, it goes back to the olden days and there’s a long history about the best evidence rules, but back in the day when we had 4 xerox machines and iPhones and cameras and everything of that nature, if I had a contract there’s usually one copy of it or it’s a paper copy and so we would want that document in court because that’s the best evidence of whatever the contract is.  So to think about the best evidence rule, think about if you had a witness get up and say I was sitting in my hotel room and I watched a movie, I watched a video of a politician giving a speech and the politician said XYandZ.  And let’s say they’re trying to prove the truth of that video, hearsay so ignore all that, they’re trying to prove the truth of that video.  They’re wanting to show the video of what they saw was the most accurate thing.  Would we rather have the guy who saw it and he tells us what he saw on the video or the best evidence the actual video.  We want him to provide the actual video.  Now that’s kind of generic example, but you need to think about it in the sense of has someone seen the actual documents.  So back to your case, under Rule 1006, which is summaries, which can go into demonstrative evidence and I don’t have the rule in front of me but I believe you, it’s required to have the other party inspect the documents and so the purpose of that goes back to best evidence because then you need to confirm, because then it kind of goes back to how do you know this summary is what it says it is and the reason for 1006 is as a benefit to the parties and to the jury and the judge, you don’t have to put in thousands and thousands of pages of documents, but you want to make sure it’s accurate and that it actually reflects what it says.  So, I think in that example that’d be the perfect example of a violation of the best evidence rule since the best evidence is the actual document.  So, if you can’t look and say, because you can’t say that the summary is correct or that it’s accurate, or that it’s even needed.  It’s voluminous and do we even know what it’s like, so knowing what the actual underlying document is is important.  That goes back to, I believe it’s 1002, which talks about duplicate.  So, duplicates are fine.  People complain about duplicates but nowadays you talk about Xerox machine for 100 years or however long, we’ve been making copies forever and now everything is so easily able to be copied that that’s why the best evidence rule rarely comes into play except when someone is describing something they read or they saw and they don’t have any second hand knowledge of it.  So, in this case if there’s no secondhand knowledge to be able to describe about those rules then I think it would violate the best evidence rule, or that be an argument that could be made.

JW: Alright, thank you Daniel.  I really appreciate you coming on and maybe we’ll have you back again real soon.

DC: Well I appreciate you having me on.  I’m always a big fan of podcasts and I look forward to being here again next time.

MB: For the latest business news of interest to South Carolina businesses, join us for the next episode of The Legal Bench.

About Michael Burney

Michael Burney is Director of Business Development for Collins & Lacy. He has extensive experience in sales, journalism, corporate marketing and ad agency management. At Collins & Lacy, he works to connect Insurance companies, TPAs, adjusters, captive and self-insured companies with the firm’s talented defense attorneys. He is also the host and producer of the firm’s podcast, The Legal Bench.