burden, innocence, & trial
A criminal defendant is never required to present evidence or offer an alternative theory of the
crime. If a defendant does so, however, a prosecutor may note the defense’s failure to offer
evidence in support of its theory of the case. Such comments do not imply that the burden of
proof has shifted to the defense, nor do they necessarily constitute an infringement on a
defendant’s exercise of the right to remain silent.
State v. Tamoe (2015)
The beyond-a-reasonable-doubt burden does not apply to threshold matters involving the
admissibility of evidence. In Midlands, the proponent of evidence need only prove these
evidentiary matters by a preponderance of the evidence.
State v. Wiseman (1975)
In assessing reliability under Rule 702(C), judges should consider whether the theory or
technique has been or can be tested, whether it has been subjected to peer review and
publication, whether it has a known error rate, and whether it has gained widespread acceptance
within the field. These factors, while relevant, are not necessarily dispositive. For example, lack
of publication does not automatically foreclose admission; sometimes well-grounded but
innovative theories will not have been published. There is no definitive checklist. Judges must
make such assessments based on the totality of the circumstances.
Tarot Readers Association of Midlands v. Merrell Dow (1994)
It was never the intention of this Court for its holding in Tarot Readers Association of Midlands
(1994) and its progeny to create a rigid and unyielding standard for expert opinions. So long as
the expert can sufficiently explain their expertise, training, and method for review, Tarot Readers
Assoc. shall not be used by trial courts to prohibit otherwise credible and admissible opinions
simply because there is not a known error rate or prior peer review of the expert’s analysis. Such
questions and potential challenges of credibility are better left to cross examination.
Omnidirectional Solutions v. Little Bird Word LLC (2023)
In Midlands, the definition of “hearsay” includes out-of-court statements by a witness who is on
the stand or by another person who has or will be testifying in a particular trial.
America’s Best Cookie v. International House of Waffles (2009)
Criminal defendants have a constitutionally protected right to refuse to speak with police officers
and to decline to testify in their own defense. No prosecutor or witness may comment (expressly
or implicitly) on a defendant’s exercise of either right or suggest that refusal to testify or
termination of a police interrogation demonstrates consciousness of guilt.
State v. Lazares (2016)
Under Rule 404(a)(1), the requirement that evidence be “pertinent” significantly exceeds the
comparably low bar of relevancy. “Pertinence” is a more exacting standard by which the trait
itself must directly relate to a particular element or facet of the crime charged.
State v. Nakajima (1986)
Trial judges must ensure that any scientific testimony or evidence admitted is not only relevant
but reliable. In determining reliability, judges should consider only the methods employed and
the data relied upon, not the conclusions themselves. The proponent of the evidence has the
burden of proving each section of Rule 702 by a preponderance of the evidence.
Davis v. Adams (1993)
Generally, law enforcement officers are not “experts” subject to MRE 702 or this Court’s holding
in Tarot Readers Association of Midlands v. Merrell Dow (1994) and its progeny. However, law
enforcement officers may have specialized training, skills, and experience beyond the average
citizen as contemplated in MRE 701 and may testify based on such specialized knowledge.
Insofar as a law enforcement officer is asked to provide an opinion based on that officer’s
general training, skills, and experience as a law enforcement officer (e.g., whether the officer
followed standard protocol in collecting evidence), the admissibility thresholds of MRE 702 and
Tarot Readers do not apply. Rather, the admissibility of a law enforcement officer’s non-expert
opinion is subject to the standards of MRE 701 and any other applicable rule of evidence.
Jeffries v. Polk County Police Department (2007)
For purposes of MRE 801(d)(2), police officers, prosecutors, informants, and others working
with law enforcement officials are not an “opposing party” of a criminal defendant.
Homel v. Arnzen (2015)
If a criminal defendant chooses to testify, the defendant’s credibility may be challenged just like
that of any other witness. It is not “burden-shifting” for a prosecutor to point out in cross
examination or summation that the defense has not produced certain evidence to support a theory
that has been advanced by the defense. The State may not, however, suggest that a defendant had
an affirmative duty to produce such documents to be found not guilty.
State v. Chatterjee (2017)
Under MRE 104(a), when evaluating the admissibility of evidence, a trial court is permitted to
rely on both admissible and inadmissible evidence. The use of underlying inadmissible evidence
does not make that inadmissible evidence admissible. Instead, the court is permitted to consider
the underlying inadmissible evidence to assess the admissibility of the offered evidence.
Previously upheld examples include using character evidence to make a ruling on hearsay
exceptions, using hearsay to make a ruling on character evidence, and using hearsay to decide
whether an expert has adequate foundation to testify.
Zomerfeld v. Noto (2012)
Midlands Rule of Evidence 703 does not permit experts to testify or to present a chart in a
manner that simply summarizes inadmissible hearsay without first relating that hearsay to some
specialized knowledge on the expert’s part. The court must distinguish experts relying on
otherwise inadmissible hearsay to form scientific conclusions from conduits who merely repeat
what they are told. The testimony of the former is admissible; that of the latter is not. Of course,
statements that would otherwise be admissible are not inadmissible simply because they are
offered by or through an expert witness.
Richards v. Mississippi BBQ (1997)
Appellants argue that the trial court improperly excluded testimony from the defense expert on
the basis that certain testimony amounted to “trial by ambush” under the precedent set by Kane
Software Co. v. Mars Investigations (1998). Appellants admit that the defense expert was
attempting to testify to certain underlying facts that were not expressly disclosed in the expert
report and that such facts contributed to the expert’s conclusions, but they argue that the
conclusion itself was disclosed and thus it was unnecessary for every underlying detail to be
disclosed. We hold that the Appellants’ argument has merit. Experts should not be expected to
include in their reports every basic scientific fact known to lay people and known realities of
their expertise that support their conclusion. Similarly, experts should not be expected to include
in their reports every underlying fact from a specific document so long as the experts explicitly
disclosed that they relied upon that document in forming their opinions and that document was
made available to the other party through discovery. Such requirements would lead to expert
reports that are hundreds, if not thousands, of pages long. For example, an accident
reconstructionist need not explain Newton’s laws of motion in their report. However, if an expert
wishes to testify that they believe the indentations on a vehicle’s door means that the vehicle
collided with a streetlamp at 45 MPH, then measurements, equations, and other relevant facts
that form the basis for that specific conclusion must be disclosed in the expert’s report.
Yu-Oh Industries v. Beckstein Alekri Inc. (2000)
MRE 801(d)(2) may be invoked in only one direction in a criminal case. Specifically, Rule
801(d)(2) permits the State to offer statements by a criminal defendant. Subject to MRE 106,
Rule 801(d)(2) does not permit the defense to offer the defendant’s own statements, even if the
State has already elicited other out-of-court statements by a defendant.
State v. Tate (1987)
Venue and identification of the defendant are necessary elements of every criminal prosecution.
Because Midlands does not permit motions for acquittal, the defense closing argument is the
proper place to bring it to the court’s attention that the prosecutor has failed to prove these
necessary elements of the charged offense.
State v. Singh (2019)
As long as the proponent of the statement produces evidence that would permit a reasonable jury
to find, by a preponderance of the evidence, that a given person made a particular statement, a
court assessing admissibility must assume that the statement was made by that person.
Kennedy v. Kennedy-Jones (2005)
Midlands does not permit parties to use their experts as weapons in a trial by ambush or unfair
surprise. Expert reports that are exchanged prior to trial must contain a complete statement of all
opinions the expert will testify to and the basis and reasons for them, the facts or data considered
by the expert in forming their opinions, and the expert’s qualifications. Experts are strictly
prohibited from testifying on direct and redirect examination about any opinions or conclusions
not stated in their report, and such testimony must be excluded upon a timely objection from
opposing counsel. For example, an expert may not testify on direct or redirect examination that
they formed a conclusion based on evidence that came out during trial that the expert did not
previously review. However, if an expert is asked during cross examination about matters not
contained in their report, the expert may freely answer the question as long as the answer is
responsive. When an objection is made under Kane Software, the trial court should ask the
proponent of the testimony to refer the trial court to where the proposed testimony is contained
or otherwise referenced in the expert’s disclosure to ensure that the record is clear.
Kane Software Co. v. Mars Investigations (1998)
In a wrongful death civil lawsuit, plaintiff counsel displayed the victim’s photo in a picture frame
at their counsel table, facing the jury for most of trial. Defense counsel objected that the display
was “cumulative and unduly prejudicial.” The trial court overruled. After a verdict for the
plaintiff, defendant appealed. The appellate court found no error. “It seems Midlands is the only
place in America where such practice is prevalent. We leave to each trial judge the question of
whether and how often a party may display a photo in a picture frame at the counsel table.”
Thornwell v. Bullie (2026)
For statements under MRE 801(d)(2)(E), proof of conspiracy need only be shown by a
preponderance. Given that the Midlands Rules of Criminal Procedure do not permit recalling
witnesses, the proponent of the evidence may request that a statement be admitted conditionally
so that further foundation of the conspiracy can be developed through other witnesses. Whether
the evidence will be admitted conditionally is within the sound discretion of the trial court.
State v. Bowling (2004)
During the guilt phase, evidence is not relevant if it is directed solely to the penalty to be given to
the defendant if found guilty. It also is improper for an attorney to comment on sentencing or
discuss potential penalties during the guilt phase of the trial. Such conduct is grounds for a
mistrial. However, prison sentences or potential prison sentences may be admissible for other
purposes, such as under Rule 609 or to show bias of testifying witnesses.
State v. Deters (2009)
Absent particularized reason to believe that the communication may have been sent by someone
else, the fact that an electronic communication (an email, text, or social media post) is listed as
coming from a number or account that is either known or purports to belong to a particular
person is sufficient foundation that the communication was sent by the person.
Ginger v. Heisman (2015)
It was not an abuse of discretion for the trial court to allow the forensic pathologist to testify to
the cause of death even though the pathologist was not tendered as an expert prior to providing
her testimony. Unlike other jurisdictions, Midlands does not require a party to “tender an expert”
before eliciting an expert opinion. Whether MRE 702 foundational requirements have been
satisfied is an evidentiary determination that rests within the sound discretion of the trial court.
State v. Richardson (2017)
Manslaughter is the unlawful killing of another human being without malice, either through
recklessness or in the heat of passion.
State v. Hubbell (2013)
A witness’s testimony that they conspired with the defendant to commit a crime will generally be
sufficient to satisfy the proof of conspiracy needed to trigger MRE 801(d)(2)(E).
State v. Chandramouli and Park (2026)