MS Evidence

Character Evidence

Victim’s Character in Criminal Case

D has introduced evidence of a bad character trait of the alleged victim, the prosecution may rebut only with evidence of the victim’s good character

• The prosecution may not rebut with evidence of the defendant’s bad character for the same trait

In any criminal case in Mississippi, the prosecution may introduce evidence of the peacefulness of the victim to rebut evidence that the victim was the first aggressor.

Character Evidence

Criminal Case - Sexual Assault of Child Molestation

Mississippi has not adopted Federal Rules 413 - 415, which allow evidence of a defendant’s prior acts of sexual assault or child molestation when the defendant is accused of committing such acts.

However, in a child sex abuse case, evidence that the defendant sexually abused other minors may be admissible under Mississippi Rule 404(b) (that is, to prove motive, intent, plan, etc.).

Such evidence must be “filtered through Rule 403, and accompanied by an appropriately drafted limiting or cautionary instruction to the jury.”

Dead Man Act

Mississippi no longer has a Dead Man Act

• These statutes provide that in a civil case, an interested person (or their predecessor in interest) is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased

Testimony of Child Victim by Closed-Circuit Television

Where the testimony of a child under the age of 16 will relate to unlawful sex acts committed upon them, the court may order that the child’s testimony be taken outside of the courtroom and shown in the courtroom by means of closed-circuit television.

• Requirements

  1. substantial likelihood of traumatic mental or emotional distress to the child if they are compelled to testify in open court

  2. AND if criminal prosecution, → compelled to testify in the presence of the accused

D is excluded from the room where the testimony is taken, arrangements must be made for the defense attorney to be in continual contact with the defendant by any appropriate private electronic or telephonic method throughout the questioning

• The defendant, the court, and the jury must be able to observe the demeanor of the child witness at all times during the questioning.

Cross Examination

Cross-examination is not limited to the subject matter of the direct examination and matters affecting the witness’s credibility.

• This is known as “wide open” cross-examination.

Expert Testimony

Mississippi’s version of this rule does not prohibit ultimate issue testimony about a criminal defendant’s mental state.

Expert Testimony

Court Appointed Experts

The Mississippi Rule on court-appointed experts is generally the same as the Federal Rule.

However, it specifies that the rule does not apply where the court, as required by law, appoints an appraiser for an immediate possession claim in an eminent domain case. * In this situation, the appraiser is not competent to testify as a witness in the case and their report is not admissible during the trial.

Prior Inconsistent Statement

Extrinsic evidence of a prior inconsistent statement is admissible if the witness is given an opportunity to explain or deny the inconsistent statement at some point during the trial (which may be before or after introduction of the extrinsic evidence)

Prior Convictions

When it comes to convictions for felonies that do not involve dishonesty or false statement, the standard is slightly different.

Rather than distinguishing between a criminal defendant and other witnesses, the balancing test depends on whether the witness is a party or a non-party.

The balancing tests are the same under the Federal Rules: for party-witnesses, the conviction is admissible only if its probative value outweighs its prejudicial effect (favors exclusion).

For non-party witnesses, the court applies the usual Rule 403 balancing test (favors admission)

Unavailability

Mississippi adds the following ground for unavailability: A child is unavailable as a witness if there is a substantial likelihood that the emotional or psychological health of the child would be substantially impaired if they had to testify in the physical presence of the accused

Hearsay Exception

Statements Made for Purposes of Medical Diagnosis or Treatment

The Mississippi exception adds the requirement that the statement must be supported by circumstances that substantially indicate its trustworthiness. It also specifies that “medical” pertains to emotional, mental, and physical health.

Hearsay Exception

Additional MS Exception

In Mississippi, a statement made by a child of “tender years,” describing any act of sexual contact performed with or on the child by another, is admissible if:

1. The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and

2. The child either (a) testifies at the proceedings or (b) is unavailable as a witness.

If the child is unavailable as a witness, the statement may be admitted only if there is corroborative evidence of the act (which can consist of any evidence such as doctors’ reports, inappropriate conduct by the child, expert testimony, eyewitness testimony, physical evidence, and so on).

Note that the Mississippi Rules intentionally did not define “tender years.”

• The commentary mentions that while many jurisdictions have similar exceptions for declarants under the age of 14 years old, the exception should not necessarily be limited to a specific chronological age.

• For example, a declarant may be over 14 but have a mental age that is lower than 14.

MS Privileges

1. lawyer-client

2. physician-patient

3. psychotherapist-patient

4. spouse-spouse

5. priest-penitent

MS Privileges

1. lawyer-client

A “lawyer” is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation

Nno attorney-client privilege regarding a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness

MS Privilege

2. physician-patient

3. psychotherapist-patient

Scope of Privilege

A patient has the privilege to refuse to disclose and to prevent any other person from disclosing:

1. Knowledge derived by the physician/psychotherapist by virtue of their professional relationship with the patient; or

2. Confidential communications, made for the purpose of diagnosis or treatment of the patient, among the patient, their physician/psychotherapist, and anyone participating in the diagnosis or treatment under the direction of the physician/ psychotherapist, including members of the patient’s family.

The privilege belongs to the patient, their guardian or conservator, or the personal representative of a deceased patient. The physician/psychotherapist is presumed to have authority to claim the privilege, but only on behalf of the patient.

Exceptions to Privilege

The privilege does not apply in the following situations:

1. Condition at issue

2. Breach of duty

3. Proceeding for hospitalization

4. Court-ordered Examination

5. Family law cases involving children

MS Privilege

4. spouse-spouse

Spousal Immunity

Governed by the doctrine of spousal incompetency

• If one spouse is a party in any civil or criminal case, the other spouse is generally not competent as a witness without the consent of both spouses.

• Like the federal privilege, what matters is that the spouses are married at the time of the testimony.

Exceptions

A spouse is competent to testify against the other

1. when called as a witness by the party-spouse;

2. in any controversy between the spouses in any type of case (for example, when the spouse was a victim of the charged crime); and

3. in the following criminal prosecutions involving children: for a criminal act against a child, for contributing to the neglect or delinquency of a child, for desertion or nonsupport of a child under the age of 16, or for abandonment of a child

Confidential Marital Communications

• Specifically provides that if anyone else is present, even a family member, the communication is not intended to be confidential and the privilege does not apply

Exceptions

Does not apply in:

1. a civil action between the spouses; or

2. a proceeding where one spouse is charged with a crime against the person or property of (a) any minor child, (b) the other spouse, (c) a person residing in the household of either spouse, or (d) a third person, committed in the course of committing a crime against any of these people.

MS Privilege

5. priest-penitent

A person has a privilege to refuse to disclose, and to prevent others from disclosing, a confidential communication made by the person to a clergy member in their capacity as a spiritual adviser.

This privilege may be claimed by the person, by their guardian or conservator, or by their personal representative if they are deceased.

The clergy member must claim the privilege on behalf of the person unless the privilege is waived.

Additionally, the Mississippi rule provides that a clergy member’s secretary, stenographer, or clerk must not be examined about any fact learned in that capacity without the clergy member’s consent.