Rules of Evidence: Objections

Leading

MRE 611(c)
Only applies to direct or re-direct examination. Object if counsel asks a leading question during their direct or re-direct exam.
Ex: "You didn't enjoy dinner, did you?"

Argumentative

no number
Counsel cannot inject their opinions into their questions.
Ex: "You're a bad parent, aren't you?"

Counsel is Testifying

no number
Counsel cannot inject facts onto the record.
Attorney unconsciously saying "that's right" after every witness response in MT.

Asked and Answered

no number
Exactly what it sounds like. Typically presents when counsel re-asks a question because they didn't like the answer.

Badgering

MRE 611(a)(3)
Counsel cannot harass the witness, or cause them "undue embarrassment".

Outside Scope

MRE 611(b)
Re-directs can only be about preceding cross. Re-cross can only be about preceding directs.
HOWEVER: The initial cross examination is not limited to matters discussed on direct examination (thank god)

Relevance

MRE 401 & MRE 402
Evidence is relevant and admissible if: It makes a material fact more or less likely.

Relevance: General

MRE 104(a)
In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

Relevance: Conditional

MRE 104(b)
Facts can be "conditionally relevant."
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.

Ex: Defendant shoots victim with handgun
Before doing so, the defendant opened their nightstand.
This fact is relevant only if it is true that the defendants handgun was inside the nightstand.

MRE 104(e)

Bias and credibility are ALWAYS relevant.

Foundation

no number
Where did this come from?
If a question or a fact gets brought up out of nowhere, you can object that it is lacking in foundation.
Must lay foundation to explain how we got here.

Common Foundation Objections (2 E's)

Experts:
A doctor cannot just make a diagnosis. They must first show us that they are a doctor qualified to make that diagnosis.


Exhibits:
A witness cannot just start talking about an exhibit. They must first show us how they know and recognize it.

Personal Knowledge

MRE 602
Witnesses can only testify to things within their rationally based perception.
If a witness is testifying to something they do not know about, they lack personal knowledge.

Common examples:
-A lay-witness testifies to something they never saw
-A witness testifies to an exhibit they do not recognize

Speculation

MRE 602
Witnesses cannot ever testify to someone's mindset.

Common examples:
A witness says testifies the defendant was angry
The witness cannot say that for sure. They can only tell us the defendant was shouting, or red in the face, etc

Speculation also applies to hypotheticals: witnesses cannot see alternate timelines!!!

Laywitness Opinions

MRE 701
A non-expert can only give their opinion if:
-It is a non scientific or dependent on expert knowledge
-It is within their rationally based perception
-Relevant

Expert Foundation

MRE 702 (a,b,c,d)
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 ONLY IF they meet the prongs of 702

702(a)

Experts must establish that their knowledge is scientific, technical, or specialized, and that this is necessary to understand the evidence.

702(b)

Their testimony is based on sufficient facts or data

702(c)

Their testimony is a product of reliable principles and methods in their field.

702(d)

The expert has reliably applied these principles and methods to the facts of the case.

Expert Opinions

MRE 703 & 705

703:
Experts can have opinions on facts or data presented to them, as well as anything they observed personally.
If facts that support an expert's opinion are ordinarily inadmissible(not accepted/ not valid), they can be shown to the jury subject to a 403 test. (excluding relevant evidence)

705:
Experts can give their opinions without first testifying to all the underlying facts or data.
The expert may have to disclose those facts eventually though.

Richards v Mississippi BBQ

Experts and Hearsay
experts can rely on, and testify to, inadmissible evidence if it goes to their conclusions. This includes hearsay statements.

However, the statement must go to the conclusion, experts cannot be used to repeat hearsay statements they do not rely on in coming to their conclusion. that is called "backdooring"

Example:
Expert witness, a plane engineer. They can say "One of the service workers told me there was a bolt loose." THIS IS hearsay, however the conclusion the expert is trying to make (that the plane was unsafe) relies on the statement.

Kane Software v. Mars

Trial by Ambush
Experts don't get to make up new conclusions on the stand, whatever conclusion is included in their reports is all you get.
This is to head off experts making fake conclusions on direct exam, so the jury doesn't get poisoned by fake conclusions

If they start making up new conclusions on CX not in their affidavit, immedietely impeach by omission.

Prejudice

MRE 403
Substantially more prejudicial than proactive.
In order to meet 403, it must be so prejudicial that it overrides the jury's ability to fairly evaluate the fact. Makes the jury see red.

If you are objecting to 403 it is relevant. It is probative. Probative: having the quality or function of proving or demonstrating something; affording proof or evidence.

Common uses:
-Prejudice
-Cumulative
Example: witness says they weren't there at the crime. Attorney asks "Okay so you weren't there.. So you can't tell us what happened, what it looked like, what they were wearing, did this, did that, etc..." All of those questions are implicitly answered by the fact that the client was not there.
-Misleading

403 Pitfalls

OVERUSED
Attorneys will often argue over relevance in 403 objections. If you are arguing 403, you admit it is relevant.
If you are arguing anything that is not relevance, you admit it is relevant.
"This is an issue of weight not admissibility" is often enough to defeat a 403 argument.

Improper Character Evidence

Evidence used to show action in conformity therewith.

ICE: Evidence Type

-Character traits
-Can be direct or indirect (Defined in MRE 405)
Direct: "John Doe is an angry person."
Indirect: Specific Acts (Dylan is on trial for assault. Someone says "Last time I was at the bar I saw Dylan throw a chair." He performed specifically with that character trait.)

ICE: Prohibited Purpose

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.

If you are not using character traits for a prohibited purpose, you can argue it in!
-Knowledge
-Notice
-Intent

Character permitted uses

MRE 405 & 406
You can use character traits for a non-prohibited purpose.

405

Reputation or opinion | 405 (a)
Not specific conduct!
"I think John Doe is a happy guy"
"Jane Doe is known for being helpful on campus"

Specific Conduct | 405 (b)
Very narrow!
Must be specific to an essential element of a charge, claim, or defense

406

Habits; 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.

"Jane Doe always does X when Y happens."

ICE Past Acts

MRE 404(b)(1)

Evidence of crimes, wrongs, or other acts are not admissible to show that someone had a character trait for the purpose of alleging that on a different occasion, that person was behaving consistent with that trait.

Ex: "John Doe threw a chair"
Evidence Type: John is a violent person
Prohibited Purpose: John was also violent on the day of the crim
This is commonly called "propensity" or "action in conformity"

Hearsay

MRE 800 series

Out of court statement used for the truth of the matter asserted.

Hearsay; Evidence Type

Out of court statements, with some kind of assertion
801(b) - Must come from a person!
How far removed from "person" depends on your judge
801(a)- Includes nonverbal conduct, if intended to assert something. Writing, or non-verbal conduct if intented to assert something
"Say something if this hurts." ( therefore the "saying nothing" would be meant to apply it does not hurt, which is a statement.)

Hearsay; Prohibited Purpose

Prohibited if:
-Used for the truth of the matter asserted.
-If there is no assertion, it can come in.

Common non-prohibited purposes:
-The simple fact the statement was made
-Notice
-Mental State
-Identification (Farrant & Petrillo)

Statutory Non-Hearsay

MRE 801(d)(2)
Named parties statements when elicited by the opposing party.

Case Law for 801(d)(2) Smith v. Doe

Defense can offer statements about Smith, and Plaintiff can offer statements about Doe.

Can capture agents of a named party (mostly employers)

Ex: Amazon is on trial. Smith v. Amazon. ANY employee of amazon can be brought in (and their statements) AS LONG AS the statement is within the scope of their employment.

Hearsay Exceptions

MRE 803(1,2,3)
Exceptions to the Rule Against Hearsay - Regardless of Whether the Declarant Is Available as a Witness

803(1)

Present-sense impression
This is someone literally narrating things as they see it

803(2)

Excited Utterance
Statements made following a startling event or condition

803(3)

Then-Existing Mental, Emotional, or Physical Condition
"I am so angry right now"
"My arm is broken"
"I hate my parents"

Unavailable Declarant

MRE 804
Exceptions to the Rule of Hearsay -When the Declarant Is Unavailable as a Witness

804(1-5): Defines criteria for when a witness is considered unavailable, and can be an exception to the hearsay rule.

804(a)(1-5)

804(a) defines when a declarant is considered unavailable to testify, including if they:

-Are exempt from testifying due to privilege
-Refuse to testify despite a court order
-Testify to not remembering the subject matter
-Are unable to testify due to death, illness, or other reasons
-Cannot be located with due diligence

Exceptions to 804

804(b) - these are hearsay but they are admissable.
Exceptions to the hearsay rule. Outline when statements made by an unavailable (defined in 804(a))declarant are admissible

804(b)(1)

Former testimony, even in other cases. Former testimony is admissible if the party had a similar motive and opportunity to challenge the prior testimony.

804(b)(2)

Statement under belief of imminent death.

804(b)(3)

Statements against the declarant's interest
-Why would someone pretend to be a coke dealer if they are on trial for being a coke dealer.