Procedure
How many minutes does each side have for their direct examinations?
25 minutes
What is the definition of hearsay?
An out of court statement being used for the truth of the matter asserted.
Petrillo v. Martini and Peony Estates
Labels that are placed on commercially sold products for purposes of identifying the product and / or the contents thereof should not be excluded as hearsay. While Midlands has no general residual hearsay exception, commercial labels are relied upon by the public and are subject to legal requirements to ensure their accuracy and completeness. Thus, the reliability concerns that underlie the hearsay rule are not present with labels that are placed on commercially sold products.
401
Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.
What are the two rulings a judge can make regarding an objection?
Overruled or sustained
When do you use each type of impeachment?
Contradiction - The witness contradicted their previous statement.
Omission - The witness testified to something they neglected to include in their previous statement.
What is the difference between 803(1) and 803(2)?
Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it
Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
Tarot Readers Association of Midlands v. Merrell Dow
In assessing reliability under MRE 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, or 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.
What rules govern character evidence?
404, 405, 608, and 609
What is the difference between a lay witness and an expert witness?
Specialized knowledge (SKEET)
Direct - Only can use open ended questions and is conducted by the attorney that calls the witness.
Cross - Can use both leading and open ended questions and is conducted by the opposing side.
803(6)
Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by – or from information transmitted by – someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Jeffries v. Polk County Police Department
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.
702
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 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; and (d) the expert has reliably applied the principles and methods to the facts of the case.
What is a stipulation?
An agreement the parties come to prior to trial.
When admitting a picture into evidence, what are the foundation questions that must be asked before an attorney may move the picture into evidence?
1. What I just hand you?
2. How do you recognize it?
3. Is it a true and accurate depiction?
3. Has it been changed or altered in any way?
How does 804(a) and (b) interact with each other?
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure: (A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. Comment: This rule may not be used at trial to assert that a team has “procured” the unavailability of a witness by choosing not to call that witness. (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and Last Updated: September 2, 2021 - 14 - (B) is now offered against a party who had – or, in a civil case, whose predecessor in interest had – an opportunity and similar motive to develop it by direct, cross-, or redirect examination. (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. (3) Statement Against Interest. A statement that: (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. (4) Statement of Personal or Family History. A statement about: (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.
America’s Best Cookie v. International House of Waffles
The Court recognizes that practices differ in other jurisdictions. But 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.
403
The court may exclude relevant 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, or needlessly presenting cumulative evidence.
Why does the defense have to fill out a character evidence form?
Because the plaintiff/prosecution does not have the opportunity to call rebuttal witnesses.
What is the point of pretrial?
To draw the court's attention to issues already decided prior to trial (ex. stipulations), case law, to get judge's preferences, and to invoke any rules that need invoked (ex. 603).
803(18)
Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit
Midlands Television Studios v. Kosack
In lieu of submitting an entire deposition into evidence, a party may instead elect to read excerpts of a deposition onto the record. The excerpt must include the full question(s) asked and the full answer(s) given, unless both sides agree to specific redactions. Any excerpt read onto the record is still subject to the Midlands Rules of Evidence. Should a party elect to read excerpts of a deposition onto the record, that party cannot also submit the deposition itself into evidence
901(a)
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
On what bases may an attorney object?
A violation of the rules of evidence or a violation of case law.