Midlands Rules of Evidence

401 when to make

1. If you have something clever to say involving case law or some external source of law (the pleadings, special instructions, etc)
2. That’s it. That’s the list.

401 how to make

* cite 402, not 401
* object and immediately ask to be heard, because, remember, you have something clever to say
* *Objection relevance … This is not relevant and impressible under 402.*

401 responding

1. Start by explaining the relevance standard


1. *Under 401, evidence is relevant if it has any tendency to make a FOC more or less likely. That’s a low bar, and this evidence more than clears it.*
2. Don’t use adjectives to indicate that the evidence is “extremely” or “very” relevant. Relevance is binary.
3. Now you get to give a mini-closing (60-90 seconds)


1. Explain how this evidence supports a certain fact
2. Explain how that fact is important to your case
3. Bonus points if you fit in your theme

403 when to make

Don’t.

403 when to actually make

1. As a follow-up to a hearsay or character evidence (404, 607, 608, 609) objection where OC has given a permissible (but bullshit) use for the evidence


1. usually pre-planned
2. *Y/h that’s pretextual, but to the extent the court agrees, there’s hardly any probative value in…*
2. When you have something notably clever pre-planned
3. When you have a crier telling long, irrelevant stories

### The ___________ there are to prove something, the ___________ that specific fact becomes.

### The __more ways__ there are to prove something, the __less probative__ that specific fact becomes.

403 how to make

1. Don’t forget to say substantially
2. Ask to be heard


1. You have something clever to say, so you want to explain it upfront
3. Explain both why the risk of unfair prejudice is high and the probative value is low
4. Don’t say anything about inflaming anyone’s passions

403 responding (general, outline)

1. Restate the general rule and stress substantially


1. If OC failed to say substantially, note it: *OC misstated the rule…*
2. *Under 403, impressible evidence must be substantially more X than probative.*
2. Explain why evidence is probative and why prejudice is limited IN THAT ORDER
3. ^^If OC agures that there are less prejudicial ways to make your point: note that you (P/D) get to decide how to present it’s own case^^
4. ^^If misleading: explain probative value and say regardless, obj goes towards weight not admissibility^^
5. ^^If obj is stupid: point out that 403 doesn’t bar evidence simply because it’s bad for one side’s case^^
6. Say: *This isn’t the kind of evidence that will so inflame the jury’s passions that they’ll be unable to render a fair verdict.*

403 responding (good obj, prejudicial, OC notes rule standard/bar)

1. Restate the general rule and stress substantially


1. *Under 403, impressible evidence must be substantially more X than probative.*
2. Explain why evidence is probative and why prejudice is limited IN THAT ORDER
3. Say: *This isn’t the kind of evidence that will so inflame the jury’s passions that they’ll be unable to render a fair verdict.*

403 responding (bad obj, prejudicial, OC doesn’t note rule standard/bar)

1. Restate the general rule and stress substantially


1. If OC failed to say substantially, note it: *OC misstated the rule…*
2. *Under 403, impressible evidence must be substantially more X than probative.*
2. Explain why evidence is probative and why prejudice is limited IN THAT ORDER
3. ^^If obj is stupid: point out that 403 doesn’t bar evidence simply because it’s bad for one side’s case^^
4. Say: *This isn’t the kind of evidence that will so inflame the jury’s passions that they’ll be unable to render a fair verdict.*

403 responding (good obj, misleading, OC notes rule standard/bar)

1. Restate the general rule and stress substantially


1. *Under 403, impressible evidence must be substantially more X than probative.*
2. Explain why evidence is probative and why prejudice is limited IN THAT ORDER
3. ^^If misleading: explain probative value and say regardless, obj goes towards weight not admissibility^^
4. Say: *This isn’t the kind of evidence that will so inflame the jury’s passions that they’ll be unable to render a fair verdict.*

403 responding (good obj, prejudicial, less prejudicial ways to argue make point, OC notes rule standard/bar)

1. Restate the general rule and stress substantially


1. *Under 403, impressible evidence must be substantially more X than probative.*
2. Explain why evidence is probative and why prejudice is limited IN THAT ORDER
3. ^^If OC agures that there are less prejudicial ways to make your point: note that you (P/D) get to decide how to present it’s own case^^
4. Say: *This isn’t the kind of evidence that will so inflame the jury’s passions that they’ll be unable to render a fair verdict.*

404(a)(1)

Prohibited Uses: character evidence for propensity purposes (to show action in conformity therewith) is impermissible

404(a)(3)

Exceptions for a Witness: character evidence may be admitted under Rules 607, 608, and 609

404(b)(1)

Prohibited Uses: Other crimes, wrongs, or acts (OCWA) can’t be offered as propensity evidence

404(b)(2)

Permitted uses: OCWA is admissible to show knowledge, motive, intent, etc. List provided in the rule is non-dispositive, but very important

### Types of character evidence

Direct and Indirect

Direct character evidence

* Reputation or opinion evidence about a person’s character


1. “Person A is a dick” or “Person A has a reputation for being a dick”

Indirect character evidence

* Examples of conduct to show character


1. Storytelling
2. To prove someone is a dick, you might tell a story: “Every year, he sends an email complaining that every judge his team lost is bad and biased against him, and demands different judges next year”

### Things that aren’t character evidence (404b)

Identity, motive, intent, knowledge, absence of mistake or accident

Types of Identity Evidence

Signature crimes

Crimes connecting the defendant to present charge

If the crimes are _________ _________ to qualify as “_________ _________”, that evidence may be admissible to prove identity

If the crimes are sufficiently distinctive to qualify as “signature crimes”, that evidence may be admissible to prove identity

Evidence that the defendant was involved in _________ _________ is admissible to _________ the defendant to the _________ _________

Evidence that the defendant was involved in another crime is admissible to connect the defendant to the current crime

Ex. The gun used by the perpetrator in the current crime had been stolen by the defendant in a prior crime.

For a _________ _________ to be admissible to prove motive, _________ _________ must have happened during the event that serves as motive for the present crime.

For a prior crime to be admissible to prove motive, something specific must have happened during the event that serves as motive for the present crime

Prior criminal activity is not admissible to prove a _________ motive

Prior criminal activity is not admissible to prove a common motive, i.e. that a defendant who has committed several similar crimes must have a common motive to commit that type of crime

State can’t use defendant’s prior crimes to prove _________ _________, criminal intent, or _________ _________. A plea of not guilty isn’t enough to put _________ _________ _________ in issue

State can’t use defendant’s prior crimes to prove mens rea, specific criminal intent, or any other mental state. A plea of not guilty isn’t enough to put state of mind in issue

Defendant must go beyond denying _________ and _________ _________ a contrary intent, _________ of _________, or _________. Aka, the defendant must admit to _________ _________ but _________ the _________ _________ necessary for it to be a crime

Defendant must go beyond denying culpability and affirmatively present a contrary intent, lack of knowledge, or accident. Aka, the defendant must admit the act but the deny the mental state necessary for it to be a crime

Ex. 1: Defendant admits to killing wife, claims it was accidental. Evidence showing prior batteries against the wife is admissible.

Ex. 2: Currier charged with drug possession claims that he reasonably believed the package he was delivering contained an innocuous substance. Evidence showing knowing involvement in similar crimes is admissible.

404- how to make

1. Say OC is offering it to prove action in coromity therewith
2. Continue by saying: *They’re trying to prove that because person did X in the past, they’re more likely to do Y now.*
3. ^^Be prepared to cite the specific character trait the conduct goes to^^
4. ^^Be prepared to convert to a 403 if they give a proper, though pretextual, 404(b) exception^^
5. ^^If you don’t feel good about winning once they provide a 404(b) exception, ask for a limiting instruction^^

404- responding

1. Say: *Under 404(a)(1), character evidence is only impermissible if it’s being offered to prove action in conformity therewith.*
2. Continue to say: *We’re not offering this as propensity evidence; instead, we’re offering it udner one of the 404b exceptions. Specifically, we’re offering this to prove X (knowledge, intent, etc.)*
3. ^^You’re fine with a limiting instruction^^


1. ^^If you’re afraid you’ll lose, bring this up in the first response^^

405

Can use direct CE as CE. Can’t use Indirect CE as CE, unless C is an essential element.

What is essential element

Entire case is about character and can’t be proved without. VERY rare, examples include defamation or child custody cases

607

Any party, including the party who called the witness, may impeach the witness’s credibility

608(a)

Can use direct CE to attack truthfulness

* A person’s character for truthfulness may be attacked or supported using direct (opinion or reputation) character evidence.

What does bolstering mean

Evidence of truthfulness is only admissible after it’s been attacked.

No bolstering exception

Defence intends to attack 608 character (notice given on character from), P may introduce evidence to support truthfulness during its CIC

608(b)

Indirect character evidence can’t be used to support or attack truthfulness

608(b) exception and who it applies to

On cross, the court may allow indirect CE to be inquired into if it’s probative

**Applies to:**

* witness testifying
* another witness whose character the witness testifying has testified about (aka, another witness’s character that the person has already talked about)

609

it’s admissible to use past convictions to attack a person’s character for truthfulness or untruthfulness

Criteria for crimes punishable by death or prison for more than a year

If witness isn’t the defendant: subject to 403

if witness is the defendant: probative value must outweigh prejudicial effect (not substantially)

Criteria for any other crime, regardless of punishment

involves a dishonest act or false statement

406

evidence of a person or organization’s routine or habit is admissible to prove action in conformity therewith

* has to be truly habitual; a simple pattern isn’t enough

801 who/what qualifies as a declarant

must be a person; can’t be a machine

801 what is considered a statement

the person’s oral assertion, written assertion, or non-verbal conduct, if the person intended for it to be an assertion

801 TOMA =

what does the statement mean

Things that aren’t hearsay:

1. subsequent actions
2. effect on listener
3. notice
4. command
5. (most) questions

Types of questions with truth value

Questions with assumptions

* The truth value of the question relies on the truth or falsity of the embedded assumptions

801 how to make (OC says in resp that statement isn’t offered for TOMA and instead offered for notice, etc, they’re correct)

1. Ensure there is a statement by a declarant offered
2. Object and state grounds
3. ^^If OC says it’s not offered for TOMA:^^


1. ^^If they’re right, ask for a limiting instruction^^

801 how to make (OC says in resp that statement isn’t offered for TOMA and instead offered for notice, etc, they’re incorrect)

1. Ensure there is a statement by a declarant offered
2. Object and state grounds
3. ^^If OC says it’s not offered for TOMA:^^


1. ^^If they’re clearly lying, explain why the TV is so important to them and argue 403. The prejudice is the statement being taken for it’s TV^^

801 how to make (OC says in resp that statement is admissible under exclusion or exception)

1. Ensure there is a statement by a declarant offered
2. Object and state grounds
3. ^^If OC says it’s offered under exception/exclusion, identify the statement and explain why it doesn’t meet the criterion for the exception/exclusion^^

801 how to make (you already know OC is offering for TOMA)

1. Ensure there is a statement by a declarant offered
2. Object and state grounds
3. ^^If you know the statement is being offered for TOMA, ask to be heard and explain you’re just asking for a limiting instruction if it’s significant^^


1. ^^*I don’t believe OC is going to use this evidence for TOMA. However, just to be sure, I’d ask for a limiting instruction that this evidence is not to be taken for its TV.*^^

801 exclusions

inconsistent statements

party opp

801(d)(1)

excludes prior inconsistent statements given under oath

* this is what allows for impeachment

801(d)(2)

excludes statements by a party opp that also meet one of 801(d)(2)(a-e)

improper impeachment how to object

under 801(d)(1)

* no direct contradiction

801 responding exception

1. Say: *Under 802, hearsay is generally not admissible unless it falls within a recognized exception or exemption.*
2. Continue with: *We’re offering this statement under one of the recognized hearsay exceptions. Specifically, we’re offering this statement under 803(x)*
3. Explain how the statement is covered by the exception.
4. End with: *This statement is not inadmissible hearsay.*

801(1)

Present sense impression

Criteria of 803(1) - 2

1. Statement describing an event or condition
2. Timely


1. should be minimal time for the declarant to reflect or fabricate the statement
2. spontaneous reaction to what they perceived, rather than a reflective or calculated account

803(2)

Excited Utterance

Criteria for 803(2) - 2

1. Startling event or condition


1. would cause a reasonable person to experience a sudden and intense emotional or physical reaction
2. Spontaneity


1. should be a direct and immediate response to the startling event or condition

803(3)

Present State of Mind

What is state of mind (803(3))

what the declarant is thinking about something, including what they plan to do about it and why.

803(3) criteria - 2

1. Statement of present state


1. should describe state as declarant was experiencing it; no past tense
2. Proving state of mind (SOM) or condition


1. must be offered to prove SOM or condition
2. not admissible to prove the truth of any underlying facts asserted in the statement

803(4)

Medical diagnosis

803(4) criteria

1. Made for medical diagnosis or treatment
2. Describes medical history, past or present symptoms, or the cause of condition

\

NOTE: Doctor’s statements are not included

803(6)

Records of regularly conducted activity

803(6) criteria - 3

1. A record


1. made by someone with knowledge or certified
2. Timely


1. made at or near the time of thing it describe
3. Part of regular business activity

LOPK when to make

* Make rarely and only if the witness *can’t* know what they’re saying is true
* Don’t make this

LOF when to make

Make if the witness hasn’t explained how they know a fact

LOF how to make

1. Object and state grounds
2. Ask to be heard and identify what information is missing to contextualize how the witness knows this fact is true (or do this on the first response)

IO how to make

1. Object and state grounds
2. Ask to be heard and explain what expertise is missing for the witness to come to an opinion (identify a specific area like psychology) and explain why the witness doesn’t qualify

SP how to make

1. Object and state grounds
2. Explain how it goes towards mindset (probably on the first response)

702(b)

Sufficient facts and data

705

Disclosure of facts

What does 705 disclosure of facts mean

An expert may testify to an opinion “without first testifying to the underlying facts or data”

* Aggarwal v. Solmani

What rule does 705/Aggarwal v. Solmani apply to?

Only 702(b)

* Doesn’t give expert a license to not go into depth about the method

702(c)

Reliable method

Tarot Readers Assn. v. Merrell Dow

It’s up to the judge to decide whether an expert’s method is reliable based on the evidence presented

What factors are important for testing 702(c)

* Can the method be tested? Has it been tested?
* Is the method accepted in the field?
* “Not dispositive”, but pretty important
* Judges make decision based on totalitytested of the circumstances

702(c)/Tarot how to make

1. Say: *Objection under 702(c). METHOD isn’t reliable because X.*


1. not accepted in the field; no none error rate; etc
2. Identity witness’s method as explained (or note that the witness has not given a method)
3. Be prepared to voir dire

702(c)/Tarot responding

1. Say: *Under case law Tarot Readers v. Merrell Dow, it’s up to the trier of fact, in this case, your honor, to decide whether this method is reliable to a reasonable degree based on the evidence presented.*
2. Explain the evidence presented re: expert’s method


1. *Insofar as NAME’s testimony, X*


1. Method is the gold standard; relied on the same method as the US government; etc

702(d)

Reliable application of method

Davis v. Adams

Under 702(d), the proponent has to prove that the expert reliably applied the method

* must be proven by a preponderance of evidence
* can’t just say that they applied the methods reliably; it’s up to the trier of fact to decide that

702(d)/Davis how to make

1. Say: *Objection, under 702(d) and the case law Davis v. Adams.*
2. Ask to be heard and continue with: *Under this case law, an expert cannot simply state that their methods were reliably applied without laying a sufficient foundation. It’s the proponent’s responsibility to prove that this method is reliable.*
3. End with: *That fails to meet the preponderance standard in Davis v. Adams.*

703

Experts can’t be a conduit to hearsay

Richards v. Mississippi BBQ

Experts have to prove they used the hearsay statements in coming to their conclusions

* Inadmissible evidence under 703 must connect with the expert’s knowledge

Under this case law (Richards), expert testimony is not a ________ for the ________ ________ of inadmissible hearsay. In order for this evidence to come in under ________, NAME has to ________ ________ the hearsay to a ________. That ________ has to be ________ on the ________ before this evidence is ________ ________.

Under this case law, expert testimony is not a vehicle for the wholesale introduction of inadmissible hearsay. In order for this evidence to come in under 703, NAME has to explicitly connect the hearsay to a conclusion. That connection has to be said on the record before this evidence is allowed in.

Otherwise ________ evidence ________ ________ by an ________ is not somehow ________ into ________ evidence ________ because an ________ ________ on it.

Otherwise inadmissible evidence relied upon by an expert is not somehow transmogrified into admissible evidence simply because an expert relies on it.

________ does not ________ admitting hearsay on the ________ that is the ________ for an ________ ________ when, in fact, the expert ________ ________ to the out-or-court statements other than ________ them to the ________. In this case, ________ is ________, and the usual rules ________ the ________ of evidence control.

703 does not authorize admitting hearsay on the pretense that is the basis for an expert opinion when, in fact, the expert adds nothing to the out-or-court statements other than transmitting them to the jury. In this case, 703 is inapplicable, and the usual rules regulating the admissibility of evidence control.

Kane Software v. Mars

* Can’t testify to facts or conclusions not in the report

Kane Software how to make

1. Say: *Objection under the case law Kane Software v. Mars.*
2. Ask to be heard and continue withL *Under this case law, it’s impermissible for experts to testify to facts or conclusions not expressly stated in their report.*
3. Explain the facts or conclusions testified to, and explain how this is not expressly stated in the report
4. Note that the burden is on the proponent to show exactly where in the report X is stated

702(b), Case law, category

702(b), Aggarwal v. Solmani, Underlying facts

702(c), Case law, category

702(c), Tarot Readers Assn. v. Merrell Dow, Method

702(d), Case law, category

702(d), Davis v. Adams, Application

703, Case law, category

703, Richards v. Mississippi BBQ, Hearsay