Objections and Rules of Evidence - XHS

Relevance Definition

401 - Relevant evidence is defined as evidence that has ANY tendency to make a FACT OF CONSEQUENCE more or less likely

402 - Irrelevant evidence is not admissible

More prejudicial than probative Definition

403 - evidence is SUBSTANTIALLY more prejudicial (meant to make the jury mad - 'inflame the passions of the jury') or misleading than probative

Lack of Foundation Definition

(no rule number) - The testimony is missing the necessary context

Lack of Personal Knowledge Definition

602 - The witness does not have personal knowledge (a way of knowing) the thing they're talking about

Speculation Definition

(no rule number) - Delving into the mindset of another person

Improper (Lay Witness) Opinion Definition

701 - A lay witness is offering an opinion that requires some sort of specialized or technical knowledge

Improper Expert Opinion Definition

702 - an expert witness is testifying to a conclusion thar is outside their method or area of expertise

Improper Character Evidence Definition

404(a) - evidence of a person's character is not admissible to prove action in conformity therewith (example - just because Regan is obnoxious, does not mean she would do something obnoxious, like steal an ostrich).

The things that are objectionable to character evidence

the following are inadmissible:

404(1) - pertinent character trait of the accused

404(2) - pertinent character trait of victim

404(3) - character of a witness

Exceptions to rule 404(3)

ADMISSIBLE:

• 608(a) - opinions about a witness' character, and testifying to their reputation BUT ONLY to prove untruthfulness (i.e. in my opinion… untruthfulness)

• 608(a) - opinion about a witness' character, and testifying reputation to prove TRUTHFULNESS only after opposing counsel attacks truthfulness using another witness' opinion or reputation

• 608(b) - asking on cross examination about the truthfulness or untruthfulness of that witness on the stand OR another witness' truthfulness/untruthfulness without using exhibits to prove this.

• 609 - asking if a witness has been convicted of a crime only for the purpose of proving truthfulness, and the witness' answers are consistent with previous court rulings

Things that are inadmissible under rule 404(3)

INADMISSIBLE:

• 608(a) - opinions about a witness' character that don't prove truthfulness or untruthfulness, but a different character trait

• 608(b) - using extrinsic evidence (outside evidence) that references specific instances of conduct to attack a witness’s credibility (truthfulness v untruthfulness) unless this evidence references a conviction of a crime.

• 609 - asking if a witness has been convicted of a crime to prove something other than truthfulness (such as propensity in conformity therewith - if Regan was arrested for kidnapping animals before, they'd do it again. Also, Regan was never convicted)

Exceptions to general character evidence

404(b) Character evidence (other crimes, wrongs, or acts) is admissible to show motive, opportunity, intent, plan, knowledge, identity, or absence of mistake/accident.

406(1) (in the MT Handbook) - evidence of a person's habits or routine practice of an organization, regardless of whether or not this has been witnessed or corroborated (it helps their side or not) is admissible as it is relevant to prove that the conduct of the person or organization, on a particular occasion, was in conformity with the habit or routine practice.

Methods of proving character

405(a) reputation or opinion (testifying to a witness' reputation, or another witness is giving their opinion - only admissible at certain times, see 'exceptions to rule 404(3)' card for these)

405(b) - specific instances of conduct (when essential - see guidelines to this in rule 608 of MT handbook)

406(2) - habit or routine practice can be testified to in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine (basically testifying to enough times that show the jury this is habit)

Hearsay

801 - hearsay is defined as an out of court statement being offered for the truth of the matter asserted

802 - hearsay is not admissible

Instances where a statement is not hearsay

801(d)(2) - admission by a party opponent

• Not used for the truth of the matter asserted, but rather to show:

  • subsequent action

  • effect on the listener

Exceptions to Hearsay

803(1) - present sense impression

803(2) - excited utterance

803(3) - then existing mental, emotional, or physical condition, statement of intent or plan

803(6) - records of regularly conducted activities

Expert Law

703 - experts can rely on evidence that is inadmissible for their conclusion, but they can only tell the jury what the inadmissible evidence is only if it's value is substantially more probative than prejudicial

705 - an expert can state their opinion before testifying to the underlying facts and data that support this conclusion

Leading Question

no rule number - Asking close-ended questions on direct

Attorney Testifying

No rule number - the attorney is asserting facts that the witness has not stated

Narrative

no rule number - The witness is rambling on outside the scope of the question

Asked and Answered

no rule number - The attorney is repeating a question the witness has already answered

Badgering the witness

no rule number - ONLY TO BE USED SPARINGLY. The attorney crossing the witness has repeatedly cut them off without the witness giving them reason to do so, repeatedly asks the witness to answer "yes or no" when it is impossible for the witness to truthfully do so, is yelling at the witness, keeps repeating phrases such as "so that's a ___" or the likes after the witness has given a direct answer. Basically, it's a really really rude attorney that is unfairly manipulating the witness on cross examination

RULE NUMBER: the definition of relevance

401

RULE NUMBER: inadmissibility of irrelevant evidence

402

RULE NUMBER Lack of Foundation, Speculation, Leading Question, Attorney Testifying, Narrative, Asked and Answered, Badgering the Witness

none

RULE NUMBER: More prejudicial than probative definition

403

RULE NUMBER: Lack of Personal Knowledge

602

RULE NUMBER: Improper Opinion by Lay Witness

701

RULE NUMBER: Improper Expert Opinion

702

RULE NUMBER: Improper Character Evidence (definition)

404 (or 404(a) )

RULE NUMBER: Character evidence regarding character trait of the accused

404(1)

RULE NUMBER: Character evidence regarding character trait of the victim

404(2)

RULE NUMBER: character of a witness

404(3)

RULE NUMBER: Exceptions to rule 404(3) for the following

• opinions about a witness' character, and testifying to their reputation BUT ONLY to prove untruthfulness (i.e. in my opinion… untruthfulness)

• opinion about a witness' character, and testifying reputation to prove TRUTHFULNESS only after opposing counsel attacks truthfulness using another witness' opinion or reputation

608 (a) In the Mock Trial Handbook (exceptions to character evidence)

RULE NUMBER: Exceptions to rule 404(3) for the following

• asking on cross examination about the truthfulness or untruthfulness of that witness on the stand OR another witness' truthfulness/untruthfulness WITHOUT using exhibits to prove this.

608 (b) In the Mock Trial Handbook (exceptions to character evidence)

RULE NUMBER: Exceptions to rule 404(3) for the following -

• asking if a witness has been convicted of a crime only for the purpose of proving truthfulness, and the witness' answers are consistent with previous court rulings

609 In the Mock Trial Handbook (exceptions to character evidence)

RULE NUMBER: exceptions to general character evidence

404(b)

RULE NUMBER: Method of proving character testifying to reputation or opinion (following guidelines)

405(a)

RULE NUMBER: Specific instances of conduct, when an essential element to a charge, claim, or defense

405(b)

RULE NUMBER: Hearsay Definition

801

RULE NUMBER: Inadmissibility of Hearsay

802

RULE NUMBER: When a statement is NOT Hearsay - party opponent, subsequent action, effect on the listener

801(d)(2)

RULE NUMBER: Exception to Hearsay by present sense impression

803(1)

RULE NUMBER: Exception to Hearsay by Excited Utterance

803(2)

RULE NUMBER: Exception to Hearsay by then existing mental, emotional, or physical condition, statement of intent or plan

803(3)

RULE NUMBER: Exception to Hearsay by records of a regularly conducted activity

803(6)

RULE NUMBER: Exception to Character evidence by presenting evidence of a habit or routine practice, regardless of if it hurts opposing counsel and if this habit was witnessed

406(1) in the mock trial handbook

RULE NUMBER: Expert law - experts can make conclusion with inadmissible evidence, but can only reference it is value is more probative that prejudicial

703

RULE NUMBER: Expert Law - experts CAN state their opinion BEFORE testifying to underlying facts/data

705

What does action in conformity therewith mean?

Using someone's character to suggest they acted the same way this time - because they have x trait, they must have committed y act