Rules of Evidence

401

Test for relevant evidence.

Evidence is relevant if:

a) it has a tendency to make a fact more of less probable than it would be without evidence and…

b) the fact is of consequence in determining the action.

403

Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons.

The court may exclude evidence if its probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice

confusing the issues

misleading the jury

undue delay

wasting time

needlessly presenting cumulative evidence

404

Character evidence.

Prohibited uses:

a1) evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. 

Exceptions:

a2A) IGNORE

a2B) a defendant may offer evidence of an alleged victim’s pertinent trait and if the evidence is admitted, the prosecutor may…

i) offer evidence to rebut it

ii) offer evidence of the defendant’s same trait 

Prohibited uses:

b1) evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character

Exceptions:

b2) this evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

405

Methods of proving character.

a) when evidence of a person’s character or character trait admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.

b) when a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of a person’s conduct.

406

Habit or routine practice.

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.

602

Need for personal knowledge. 

A 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. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony. 

701

Opinion testimony by lay witness.

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

a) rationally based on the witness’s perception

b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue

c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702

702

Testimony by expert witnesses.

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of the fact to understand the evidence or to determine a fact in issue

b) the testimony is based on sufficient facts or data

c) the testimony is the product of reliable principles and methods

d) the expert has reliably applied the principles and methods to the facts of the case. 

Do you need to formally certify an expert in a field?

No. Not only that, but it isn’t permitted.

703

Bases of an expert’s opinion testimony.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in a particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

704

Opinion on the ultimate issue.

Not automatically objectionable:

a) an opinion is not objectionable just because it embraces the ultimate issue.

Exception:

b) in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. 

801(d)(2)

Statements that are not hearsay.

An opposing party’s statement, i.e., the prosecution offering the statements of Charlie Martin. 

803(1)

Present sense impression.

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

803(2)

Excited utterance.

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

803 (3)

Then-existing mental, emotional, or physical condition.

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove a fact remembered unless it relates to the validity or terms of the declarants will. 

803(8)

Public records.

A record or statement of a public office

A) if it sets out:

1) the office’s activities

2) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel

3) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation

AND

B) neither the source of information nor the circumstances indicate lack of trustworthiness