AMTA Objections & Impeachment

Rule 401

Relevance (if testimony/evidence does not make a fact in the case more or less probable.)

Rule 401 delivery

- Objection to Rule 401 Your Honor, may I be heard?

- X doesn't make any fact in today's case more or less likely. It's not relevant to today's case

Rule 401 rebuttal

You're Honor, the bar of relevance in today's case is extremely low. X is relevant because of X.

Rule 403.1

Prejudicial clause (Exclusion of relevant evidence on grounds of prejudice)

Rule 403.2

Cumulative clause (presentation of needless cumulative evidence)

Rule 403.3

Misleading clause (evidence is meant to mislead the jury)

Rule 403 delivery

- Objection to Rule 403 Your Honor, may I be heard?

- This testimony/evidence is more prejudicial/misleading than it is probative. It is meant to simply inflame the passions of the jury

Rule 403 rebuttal

Your Honor, for something to be excluded under rule 403, the prejudicial/misleading nature must substantially outweigh the probative value. X is probative because of X.

Rule 404

Improper character evidence/action and conformity therewith (Evidence of any other crime, wrong, or act is not admissible to prove a person's character to show that on a particular occasion the person acted in the same manner)

Rule 404 delivery

- Objection to Rule 404 Your Honor, may I be heard?

- This testimony/evidence is trying to show action and conformity therewith. Just because X was doing X in the past, does not mean they were on the day in question

Rule 404 rebuttal

Your Honor, we are not trying to show action and conformity therewith. We are trying to establish that X.

Rule 602

Lack of foundation (witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Basis for allowing evidence into trial hasn't been met)

Rule 602 delivery

- Objection to Rule 602 Your Honor, may I be heard?

- Opposing counsel has not laid the foundation that this witness could know X

Rule 602 rebuttal

- Your Honor, we can lay that foundation (ask questions)

- Your Honor, we have laid that foundation. The witness testified to X. That's enough for the witness to know X

Speculation

the forming of a theory or conjecture without firm evidence

Speculation delivery

- Objection your honor to speculation, may I be heard?

- The witness just testified that X. The witness would have to jump inside the mind of X to know that

- The witness just testified that X. The witness cannot know that without speculating

Speculation rebuttal

- Your honor, pursuant to rule 701, the witness can testify to their opinion as long as it is rationally based. (witness speculates into expert territory)

— explain that the witness saw X or heard X, and that's enough for them to testify to their opinions

Rule 701

improper lay witness opinion (witness testifies to something an expert would)

Rule 701 delivery

- Objection your honor to rule 701, may I be heard?

-The witness just testified to X. Pursuant to rule 701c, the witness cannot testify in such a way that would require specialized knowledge

Rule 701 rebuttal

- Your honor, pursuant to rule 701, the witness can testify to their opinion as long as it is rationally based. Now your honor, the witness saw X, and it doesn't require specialized knowledge to know X

Rule 702

Improper expert opinion (expert witness has not laid foundation of the reliability of their methods)

Rule 702 delivery

- Objection your honor, rule 702c, may I be heard?

- Pursuant to rule 702c, an expert witness must testify to their methods and the reliability of those methods. This witness has not done that.

Rule 702 rebuttal

- Your honor, we have laid that foundation. The witness testified to X, X and X

- Your Honor, pursuant to case law Tarot Readers v Merrell Dow, the list of factors experts need to prove reliability is non-dispositive (just meet one- theory/technique has been or can be tested, subjected to peer review and publication, whether it has a known error rate, and whether it has gained widespread acceptance within the field)

Rule 801

Hearsay (statement other than one made by the declarant while testifying at the trial/hearing, offered in evidence to prove the truth of the matter asserted.)

Rule 801 delivery

- Objection your honor to Rule 801, may I be heard?

- This is an out of court statement being used to prove the truth of the matter asserted (specify statement)

Rule 801 exceptions (admissable)

- 803(1): Present Sense Impression

- 803(2): Excited Utterance

- 803(3): Then-Existing Mental, Emotional, or Physical Condition

- 803(4): Statement Made for Medical Diagnosis or Treatment

- 803(6): Records of Regularly Conducted Activity

- 803(8): Public Records

- Rule 804 provides hearsay exceptions for when the witness is unavailable. Note that unavailability on its own is not a hearsay exception. It is a threshold condition to Rule 804.

Rule 801 rebuttal

- Your honor this isn't hearsay. X is our party opponent in today's case.

- Pursuant to rule 801d2a, a statement made by an employee of the party opponent is admissible.

- Your honor, this statement falls under an exception to hearsay. It is a X statement

Rule 703

Bases of an Expert's Opinion Testimony (Experts can rely upon otherwise inadmissible facts/data if experts in the field would reasonably rely upon those facts or data in coming to a conclusion on the subject. The expert can be made aware/personally observe the data. If probative value outweighs the prejudicial, the opinion is allowed. But it is not allowed if it allows for hearsay to be admitted without relating it to specialized knowledge)

Rule 703 delivery

- Objection Your Honor to Rule 703, may I be heard?

- Pursuant to case law Richards v Mississippi Barbecue, this expert is acting as a conduit to hearsay. They are simply summarizing inadmissible hearsay without relating it to any specialized knowledge

Rule 703 rebuttal

Your Honor, this expert is applying the hearsay to their conclusions using their specialized knowledge

Impeachment

- Confirm testimony: its your testimony that x

- You remember preparing affidavit

- And you swore to include every relevant and accurate detail to your knowledge

- You were also aware that you had all the time between making your statement and trial to make modifications?

- Would you recognize a copy of your affidavit today?

- Is this a fair and accurate copy?

- Is that your signature under the statement

- Turn to page. Please read silently as I read a loud

- You said that x.