justices staff hope and council members of the audience my name is fred rock and this case is before you and it of concerns the word misleading when the jury is instructed either during the trial or when it's instructed the jury instructions in the end of the trial it's presumed that they take those seriously by those facts and case the jury in this case was given a limiting instruction for all testimony  frank weber turning spent many hours working by no means on his wells in the limited instruction was incorrect limiting instruction never tendered to the court there was no limit in instruction that should have ever been given with regard to well the one to correct the original all instruction to the jury on the second day we pointed out that was rocked and the judge specifically asked are you asking me to correct the instruction to the jury that the one given on day one was counsel would approach the bench would you do something to the court so you now it's correct that initial erroneous and limiting instruction i asked the judge to give direction tell the jury not to apply a limited instruction that they applied on day one and i said i think so he said well i'm not asking you think so are you asking me to give the women to give the correct instruction or not they said i'm asking you to structure this is ok and then he refused to give it he didn't say but wait and see how the second day goes and then decide if i need to go back a mistake had occurred the mistake had occurred on the most important witness we put on the stand purse card to his test in the state of her well one whether it was recall yes and testified to the additional matters was it brought court's attention now that he has testified and we can see it goes beyond state of mind and rule of evidence applies position position that even with this rule you know three three it did not apply and that he still made all his objections to the additional testimony that had been our of the day before there was not the second request to the court i don't believe the second question required edition of testimony was to cover matters that had been sustained in objections on the first day in total had been any test instruct the jury with regard to the first day's test it was never corrected court the court acknowledged it was a mistake before the second day acknowledged that i was going to go into areas that had been sustained in by adding the additional testimony with repeated objections and in the new testimony was that in the new test he didn't correct what had happened first day didn't correct the first impression that was one chance to make the first impression had been correct and the problem is the court knew it had been corrected and new mistake was made and from the tenor in the courtroom it's fairly not happy that the mistake had occurred but that's not the excuse for not correct you know with the jury and we don't just let the states continue i realize we're not looking for perfect trials but a fair trial is when you know you made a mistake on day one with instructions to the jury time of a trial especially with a jury that is not used to the nuances and sysiphus that all of us are the practice law or decisions as the court is that's different but to them they're taking this as the law they're taking the limited instruction they're paid they're trying to apply it they're trying to do what they have to do they were mis led and that's my theme today is this let the jury was misled there are many many cases where when you give misleading jury instruction and it could be just a phrase that there's been reversible error because a jury can be misled by that instruction and by what they're being told to do the jury doesn't hear all truth they don't hear all the evidence that may be relevant they hear what the rules allow them to hear and we try to apply those rules so that we get a fair trial based on the values within our system of what's more important or less important what's prejudicial or not protected in this instance they were being told that they could not  apply that that could lead to a different conclusion as to the weight of that testimony in truthfulness of what was going on between him and his attorney and what he really intended in his will with was it in his years of practicing there was an eleven year time period where he had been disbarred both in indiana and the state of illinois from practicing law the people on the jury were misled into believing that he had started the whole picture twenty percent of his possible legal career he was this far for white for taking money and the distributions from the state something directly related to  that office to sign an affidavit not even being able to reference the date or the exact will that was done the second time with frank never missed such a lack of credible circumstance here and it fits well with someone who was just part of living years in indiana and illinois but we couldn't bring that in because the argument was it was rules came from the supreme court it's the rule of law that i think we have to follow only one that can change that is clean court but i i hear him say that group was in the the committee reports even refer to north carolina saying they have the same rule in saying that this is a change where you can take testimony from a to see as proof of whether or not something's true and i read with some interest in caring for today well if that's that way and if we just totally ignore the state of mind hearsay rule then we can have people say the word that the earth is flat which round and they can say things like well you can make gold out of i don't brass or a particular like third one where he says that the test date or believe that the cubs win the world series and pat we should put all our money in seats behind the third base dugout because that i know i just don't believe that they're going to win but i do wish based on what's happened recently in the parade i attended i think some things are possible that might otherwise be part impossible when we're talking to someone who's planning their will but my my overall point is there was a cold too for the court just simply spend five minutes tell the jury yesterday we got it wrong and we've realized that the limited instruction where i told you yesterday specifically as to a point good instruction as to all frank weber's testimony that that should be limited and you can't accept words or statements made by clyde no rules as proof of those statements as to their true something that nature i was wrong and  i can't for the life of me figure out even after the four hour drive here this morning why it is that there was a reluctance in the least on the part of the court not to go to the jurors explain  the state came yesterday we're going to correct it today and take care of it as the people versus taylor case did where they mistakenly put a slip opinion in with the exhibits and went into the jury room it got corrected because the court took to careful carefully reviewed with the jury that that should not be part of their consideration that they shouldn't think that way shouldn't be anything they should  that the court not only specific asked if i wanted that corrected correction to be made but when i said i think so repeated and said i don't want to know if you think so i want to know if you wanted or you don't and i said i did and that's very specific it feel like i had to come back to him a second time and say i still do i don't think it's necessary i think i think there's there's more to it to then say you're recalling your witness but i'm not going to let you rehash yesterday i took as a or i took as a direction that i'm not going to let you put frank whatever on the stand go back through everything we've heard about yesterday from him i'm going to let you put him on the stand for what i refused to let him testify to yesterday and we'll deal with that and that was the window and the opportunity that i thought i had at that point in time to put before the jury and i went as far as i could but in the closing in the closing the inferences drawn that were pushed forward to this  involved in their father's estate that went on when in fact the sisters denied any knowledge of the estate planning that was taking place and frank whether the night ever speaking to the sisters about that that they only talked about the guardianship case the order protection case the other matters that were going on but they all got confused because there was some la kessler thing i think is is pretty easy to talk about in the end but let me just say this first of all you have no authority cited i think that's councils conceded as you must that there are rules of evidence to balance what might be relevant evidence against other considerations like prejudice and such that applicable rule of balance here is from rule six zero nine that says that if you have an impeachment based on unrelated bad conduct criminal conviction you have a ten year limit and i don't know how more clearly you or the trial court could properly assess eight i think it's actually an unusual situation and a lot of different ways do i think the press or graham didn't really get it quite right actually i do think you did not get it quite right but the rule says what it says and i think what you need to do by may suggest if is find a way to reconcile rule six so too with this rule which says  witness can testify to something unless there is a foundation of personal knowledge now if you take that as a starting premise for pretty much anything any witness is then how do you get to the point that a person that declarant who at least in the case of will contest by definition isn't here new eyes a fact had the foundation have the personal knowledge to make the statement as to what his belief was if that can be proved of the wrong and i think that what you what you can do to reconcile what i'm telling you i think my professor graham has it wrong and rules of evidence may be read in a way is to come back to something that was actually the genesis of this north carolina connection if you look at the committee comments there aren't very many interesting leave of the rules of evidence but one of them is this very rule but it doesn't have to do with the several decades ago you'll see in the committee comments the appellate court accepted the view of the supreme court of north carolina that in order to bring in a state of mind exception to the hearsay rule you had to show  the on availability of the witness and you had to show that there was a a reasonable probability that the declar t knew what he was talking about interestingly that kind of brings back in the six o two that i just mentioned doesn't professor graham in all of his editions after that ruling came out in the last  the trial judge as a decision maker on the credibility of a witness who by the way testifying and that should be the jury's decision so the judge should do that and yet we do have rules of evidence the talk about this very topic the trial judge does have a gatekeeper rule to the side whether that witness has enough personality you have to as the proponent of the witness lay the foundation if he does and if talk about this will exception to the exclusion of the exception they only talk about the reasonable probability and i went back to the federal rule which actually is very similar but not identical to the on the rule three three and now let me go off a little bit different direction mr ross claimed to truck to the trial judge frank webber the same thing about any of that because the attorney client privilege is waived and will contest litigation and we always agreed it was that somehow opens up mr weber's testimony that anything my position wasn't is i think properly as that's not true frank whatever could only testify to what he could properly testify to as any other witness to privily was removed that's it and that's how we then get to the issue of state of mind exception and and where that came from you will have noticed i think in the britain presentations as well as mr ross comment this morning he has failed to identify a single question that he either did not get a chance actually asked frank whether on the second day or that he wanted to have the chance  instruction given you i think i do well yes i do all right what do you want me to say that's not the judge's role the judge the judge does not the proponent of anybody's case he is supposed to be neutral significance of it was there was no limitation i mean other words mr rudd had every opportunity to argue what you want i'm ira game and i want i'm gay ok so the argument was made to the jury where the side that will that ever pays the price of course that order was made of course as true as truthfully in fact of what occurred well it wasn't i don't know that that was articulated to the distinctive point of but it was certainly argued and it was no objection from my end it no you can argue but that what i argued about frank whatever or yeah ok just to make sure so the jury if there be side to could ever believe that that in as far as i was concerned because frank weber was out of the picture by july two thousand and seven and died on december twenty fifth two thousand and eight one of the two women called frank a day or two before and after claim you didn't know he had a will you claim you do nothing about it so anyway  limiting instruction and i suggested that when testimony is presented through frank weber this morning actually going to begin afternoon that you want some other ruling then you got yesterday second time that's a pretty good communication to the jury that the judge's ruling yesterday isn't being agreed with today because yesterday my objections were sustained so i think to the extent the court had an opportunity presented by counsel to correct the ruling he effectively did by overruling my objections which of course i had to make to preserve my record so i come back to what question what you've been single certainty i don't think there's been any real argument this morning from mr roth about manifest weight of the evidence i do just simply want to point out that in the briefs that have been filed i think the statement of facts that we presented considerably more detailed addressed all of the witnesses that testified stood just a select few there was certainly a lot of uncertainty in what was going on i think in being quite an old mind in the year two thousand and seven you've been diagnosed with alzheimer's in two thousand and six he was on medication our air sept already by two thousand and six he was having behavioral problems in two thousand and six he was having enough behavior problems in two thousand and seven actually also in two thousand and six that it was put on a medication to in effect control behavior sir will and another one a risk for it all and he was diagnosed by the  good some days are short term memory and decision making this terrible and so if you put that whole package together and you look at the document in question which is the july twelfth two thousand and seven affidavits prepared by mr kessler the second test for document the only connection to jim noles is he drove his dad there the cases are cited in the brief that's as a matter of law not enough to raise and do implement and that's i think where you come out at apparently and was he changed his mind of his own will it was a change of mind because the girls were the boys or both or all four of them were helping him change his mind that's quite a tussle for the jury to figure it out and it could go either way i argue to the jury the best proof of undue influence was out of the girl's activities not the boys i think there's some reasons for that night or to late in the brief in the section ame foundation that there is something about what's the test state or had a reason to believe that he would mean that he would be permitted to testify in him in and of himself if you were alive remember three is is if you look at the exact language of twenty eight zero three three a and the exception to the exclusion of the except unless it relates to the execution of revocation identification or terms of the clarence will so what testimony from frank where ever addressed any of those four copies that wasn't permitted in that was asked to be put in without that limiting instruction and i think one of the problems i guess is that there are periods being no authorities that tell this quarter us what is the scope of the execution is it anything more than i signed a will is that a is that also include i signed a will because signed will because i believed and so without there being anything in this record for you to be able to articulate yes that falls within one of those four terms i don't know how you can decide this case other than to affirm it and he got in on the second day what he asked again what is he complaining about thank you thank you  think from listening to the questions today the comments today the court can appreciate that there were a lot of facts in this case very fact rich the fact it's very clear it's it's when there is a question that's close to what the jury is instructed is important this comment about i have yet to hear the question th allowed to prove what that testimony says happened or if you believe on it that's that's plain weird says to prove what he's saying it doesn't say you have to then take a look at state of mind in addition to  trying to reconcile the two no it says what this person says as an exception to hearsay can be taken as evidence of the truth of what he is saying he believes what the facts he's relating to his attorney end of story it doesn't have to be reconciled with anything it only takes one call in a close big time game that can make a difference it only takes one little element along the road to getting to the jury that can throw them he says in one phone call made out about the time in two thousand and eight when twilight died isn't enough for an inference to argue to the jury that filed it after the death it was competing probates as to whether it's the will from july tenth or whether it's the affidavit that's why there was a hearing back in that time period and that's why there was testimony from john kes which proved incredible on major elements of it but the point is what we do know is we didn't give the jury the right instruction and we do know it was a mistake and we do know that it could have been corrected the court could have corrected it and we wouldn't be here today and there may very well been a different result i have had it interact interviews with the jury i can't talk about that but i know that this issue is important and would be important to a jury and we have to assume that they're going to follow whatever instructions we give them that's the only thing we can say well by implicit thanking the jury can assume that s two you've got to ask more questions that were sustained on objection on day one that the jury would then know that they can consider everything from day one without the lumia instruction i would say that's crazy it's it's not for us to presume that they're going to piece together because you've got to testified to a question on day one that there was a sustained that that therefore means we can consider everything in day one now that that's where we are out wave far