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.

How to make:

  • cite 402, not 401

  • object and immediately ask to be heard, because, remember, you have something clever to say

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:

  1. Don’t.

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 more ways there are to prove something, the less probative that specific fact becomes.

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. When explaining why probative value is limited, point out that there are non-prejudicial alternatives for proving the point, if true.

  5. Don’t say anything about inflaming anyone’s passions

Responding:

  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 very probative and why prejudice is limited IN THAT ORDER

  3. If OC argues 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.

404

Rule numbers to know:

404(a)(1)

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

404(a)(2)

Defendants can bring up their own good character traits to support their defense. However, the character trait the defendant talks about has to be “pertinent” to the charges.

  • State v. Kumar

    • “being a community caretaker” counts as a pertinent trait

    • being “law-abiding”

    • only applicable in conspiracy cases

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:

  1. Direct

    1. 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”

  2. Indirect

    1. 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”

Direct (Stating)

Both

Indirect (Tell stories)

can use as character evidence (405a)

can use if essential element (405b)

can’t use as character evidence (405a)

can use to attack truthfulness (608a)

can’t use to attack truthfulness (608b)

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

  1. Identity (if disputed)

    1. Signature crimes

      1. Evidence strongly connecting the defendant to a similar crime may be admissible if the crimes are sufficiently distinctive to qualify as "signature crimes."

    2. Crimes connecting the defendant to present charge

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

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

  2. Motive

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

      1. Defendant’s motive to kill store manager arose from manager firing him and testifying against him in a theft case

    2. 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

  3. Intent, knowledge, absence of mistake or accident

    1. P 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

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

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

      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

How to make:

  1. Say OC is offering it to prove action in conformity 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

    1. can say: “a propensity towards x (theft, etc)”

  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

Responding:

  1. Say: We’re not offering this as propensity evidence; instead, we’re offering it under one of the exceptions laid out under 404(b). Specifically, we’re offering this to prove X (knowledge, intent, etc.)

  2. Explain how this evidence shows 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

405(a)

When character evidence is admissible, it may be proved only by direct character evidence (reputation or opinion-based evidence). Inquiry into specific instances of conduct may be allowed on cross-examination at the court’s discretion.

404(b)

Direct and indirect character evidence is allowed when the character is an essential element of a charge, claim, or defense.

  • Essential element = entire case is about character and can’t be proved without

  • Essential element is 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.

  • Does this allow for ‘hostile’ portrayals?

608(a)

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

Bolstering

Truthfulness is only admissible after it’s been attacked; no bolstering

  • Bolstering exception: Defense intends to attack 608 character (notice given on character form), P may introduce evidence to support truthfulness during its CIC

  • Example of bolstering objection in Harvard v. Yale NCT (2015?)

608(b)

Indirect character evidence (specific instances of conduct) is not admissible to attack or support a character for truthfulness.

Exception:

On cross, if indirect character evidence (instances of conduct) is probative to the character for truthfulness or untruthfulness

Exception Applies to:

  1. the witness testifying

  2. another witness whose character the witness being crossed has testified about (aka, another witness’s character that the person has already talked about)

609

It’s admissible to use certain past convictions to attack a person’s character for truthfulness or untruthfulness.

Criteria for crimes punishable by death or prison for more than 1 year:

  • If witness isn’t defendant: subject to 403

  • If witness is defendant: probative value must outweigh prejudicial effect (not substantially)

Criteria for any other crime, regardless of punishment:

  • Involves a dishonest act or false statement

EXAMPLES IN 2024 CASE

  • If we are defense, try to use 404 and 609(a)(2) to keep any talk about Poe lying about duress in the earlier case out

    • Has to be MORE THAN a year, Poe’s conviction is a maximum of 265 days

406

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

  • must be truly habitual, meaning it occurs almost without thinking–a simple pattern isn’t enough

801

The definition:

“An out-of-court statement offered for the truth of the matter asserted.”

What the text means:

Declarant: the person who made the statement

  • must be a person; can’t be a machine

Statement: the person’s oral assertion, written assertion, or non-verbal conduct, if the person intended it as an assertion

  • Oral: person says something

  • Written: author writes an article

  • Non-Verbal: Declarant silently points toward something in response to a question

Truth of the matter asserted: what does the statement mean

Things that aren’t hearsay:

  1. Subsequent actions

  2. Effect on listener

  3. Notice

  4. Command

  5. (Most) Questions

    1. Question with truth value: “Would you like to help me with the evidence presentation, Kyle?”

    2. TV: there is going to be an evidence presentation

    4. How was your day? versus… Was your day as good as mine?

    Identifying truth value: add “it is true that” onto whatever the statement is.

    1. Anytime you see an out-of-court statement you should ask yourself:

      1. Is there any reason this statement would be important even if the witness were lying

Questions with truth value:

  1. Loaded questions

    1. contain an assumption or presumption that may influence the response

    2. the truth value lies in the presumption embedded within them

      1. Ex. “Have you stopped cheating on exams"?” assumes the person being questioned has cheated in the past

  2. Yes/no questions with assumptions

    1. includes implicit assumptions

    2. truth value depends on the truth or falsity of the embedded assumptions

      1. Ex. “Do you still beat your dog?” assumes the person has beaten his dog in the past

Takeaway

Questions can have truth value if they make assumptions about facts. The truth value of the question relies on the truth or falsity of the embedded assumptions.

How to make:

  1. Ensure there is a statement by a declarant offered

  2. Object and state grounds

    1. End with: That statement is hearsay and impermissible under 802.

  3. If you know 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. X is an out-of-court statement. I don’t believe that OC 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 understood for its TV.

  4. If OC says it’s not offered for TOMA:

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

    2. 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 its TV

  5. If OC says its offered under exception/exclusion, identify the statement and explain why it doesn’t meet the criterion of the exception/exclusion

Exclusions:

801(d)(1)

Excludes inconsistent statements given under oath

  • This is what allows impeachment

801(d)(2)

Excludes statements by a party opponent

  • has to also meet one of the 5 elements of the rule:

    1. made by the party in individual or rep. capacity

    2. is one the party manifested or believed to be true

    3. was made by a person whom the party authorized to make a statement on the subject

    4. was made by an agent or employee on a matter within the scope of that relationship while it existed

    5. was made by the party’s co-conspirator during and in furtherance of the conspiracy

Responding:

Exception and Exclusion:

  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.

803

803(1) Present Sense Impression

  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

  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

  1. Statement of present state

    1. should describe state as declarant was experiencing it; no past tense

  2. Proving state of mind 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

  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

  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

Lay Testimony

LOPK

  • Make rarely and only if the witness can’t know what they’re saying is true

  • Don’t make this

LOF

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

  • Object. State grounds. 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)

Improper Opinion

  • 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

Speculation

  • Object. State ground. Explain how it goes toward another person’s mindset

Expert Testimony

Rules and Case Law

702(b)

702(c)

702(d)

703

Aggarwal v. Solmani

Tarot Readers v. Merrel Dow

Davis v. Adams

Richards v. Mississippi BBQ

Underlying facts

Method

Application

Hearsay

Underlying Facts

702(b) Sufficient facts and data

  • Need to have enough info to know what they’re talking about

  • Based on what’s been done in the field

705 Disclosure of facts

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

    • Aggarwal v. Solmani

  • Only applies to 702(b)

    • Doesn’t give them a license to not go in depth about the method

Method

702(c) Reliable method

  • Why would we trust an expert if their method sucks?

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.

  • Can the method be tested? Has it been tested?

  • Is the method accepted in the field?

  • “Not dispositive”, but pretty important

    • judge’s make decision based on totality of the circumstances

How to make

  1. Say: Objection. Under 702(c), NAME isn’t a reliable expert because X.

    1. not accepted in the field; no known error rate; etc

  2. Identify witness’s method as explained (or note that the witness has not given a method)

  3. Be prepared to voir dire

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; he relied on the same method as the US Federal Government; etc

Application

702(d) Reliable application of method

  • Did they do it right?

Davis v. Adams

Under 702(d), the proponent has to prove by a preponderance of evidence that the expert reliably applied a method

  • Can’t just say that they applied methods reliably; it’s up to the trier of fact to decide that

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.

Hearsay

Richards v. Mississippi BBQ

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

  • Can’t be a conduit to hearsay (703)

Inadmissible evidence offered under 703 must connect with expert’s knowledge

Phrases

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

703 does not authorize admitting hearsay on the pretense that it is the basis for expert opinion when, in fact, the expert adds nothing to the out-of-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

  • Can’t testify to facts not in the report

  • Can’t make conclusions not stated in the report

  • Can’t expound (explain or present) on conclusions that are contrary to/not in the report

How to make

  1. Say: Objection under the case law Kane Software v. Mars.

  2. Ask to be heard and continue with: Under this case law, it’s impermissible for experts to testify to facts or conclusions not expressly stated in their report.

DON’T SAY “RATIONALLY-BASED PERCEPTION”

  • This opinion is rationally-based on the witness’s perception