Hearsay
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.
5 Non-Hearsay Purposes
Identification
Notice
Effect on the listener
Questions
Impeachment
Trial Times
Total Trial: 3 hours
Statements per side: 14 mins
Direct per side: 25 mins
Cross per side: 25 mins
602
Rule 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. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
403
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons 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.
803 (1,2,3)
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(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.
(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 the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
Dolly v. Ringo
Unlike most other evidentiary rules, MRE 801(d)(2) may be invoked in only one direction. Under that rule, the plaintiff may offer statements by the defendant, and the defendant may offer statements by the plaintiff. But MRE 801(d)(2) does not permit the plaintiff to offer statements by the plaintiff or the defendant to offer statements by the defendant, even if the opposing party has already elicited out-of-court statements by the party during a preceding examination, subject to MRE 106.
603 & 615
Constructive swearing in and sequestration
603. Oath or Affirmation to Testify Truthfully Before testifying, a witness shall be presumed to have been sworn in, by an oath or affirmation to testify truthfully administered in a form designed to impress that duty on the witness’s conscience.
Rule 615. Excluding Witnesses from the Courtroom; Preventing an Excluded Witness’s Access to Trial Testimony.
(a) Excluding Witnesses. At a party’s request, the court must order witnesses constructively excluded so that they cannot hear other witnesses’ testimony. But this rule does not authorize constructively excluding: (1) a party who is a natural person; (2) an officer or employee of a party that is not a natural person, after being designated as the party’s representative; (4) a person authorized by a statute provided in the case materials to be present.
(b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude witnesses from the courtroom. But the court may also, by order: (1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and (2) prohibit excluded witnesses from accessing trial testimony.
Comment: This rule does not permit the actual exclusion of students portraying witnesses. Rather, it allows for the constructive exclusion of some witnesses.
901 (a)
Rule 901. Authenticating or Identifying Evidence (a) In General. 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.
Davis v. Adams
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 MRE 702 by a preponderance of the evidence.
Kaplan v. Sikora
Pursuant to MRE 801(d)(2)(D), a statement that would otherwise be hearsay is admissible against a party if: (1) the declarant is the party’s agent or employee; (2) the statement concerns a matter that is within the scope of the agency or employment relationship; and (3) the statement was made while the agency or employment relationship existed.
Richards v. Mississippi BBQ
MRE 703 does not permit experts to testify or 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. At the same time, statements that would otherwise be admissible are not inadmissible simply because they are offered by or through an expert witness.
How do you go about an Impeachment
witness directly contradicts their previous statement,
"is it your testimony today that (wrong statement)
- yes
"you prepared an affidavit for todays case"
"you would recognize it if shown to you today"
"can you look at the front page, this is your affidavit, and the last page, that is your signature"
"you are aware you had up to 24 hours to make any changes or corrections"
"please turn to page ___"
"(read contradicted line), I read that correctly"
(approach and retrieve affidavit)
703
Rule 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 the 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. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
401(a,b) & 402
Rule 401. Test for Relevant Evidence 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.
Rule 402. General Admissibility of Relevant Evidence Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; these rules; or other rules prescribed in Midlands.
803 (6,8)
(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) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
805
Rule 805. Hearsay Within Hearsay Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
611 (a-c)
Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Examinations. The initial cross examination is not limited to matters discussed on direct examination. Re-direct and re-cross examination are permitted. But any re-direct or re-cross examination may not go beyond the subject matter of the examination immediately preceding it and matters affecting the witness’s credibility.
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily the court should allow leading questions: (1) on cross- examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
701(a-c) & 702(a-d)
Rule 701. Opinion Testimony by Lay Witnesses 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; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Rule 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 the proponent demonstrates to the court that it is more likely than not that:
(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’s opinion reflects a reliable application of the principles and methods to the facts of the case.
Filteau v. Wanek
The application of various rules of evidence sometimes turns on who made a particular statement. 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, the court must assume for purposes of assessing its admissibility that the statement was made by that person.
801 (a-c, d(2(a)))
Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay
(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who made the statement.
(c) Hearsay. “Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.
(d) Statements That Are Not Hearsay. (2) An Opposing Party’s Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity;
Ginger v. Heisman
Emails or text messages are properly authenticated when the proponent has produced evidence, either direct or circumstantial, that would allow a reasonable jury to determine the author of the message. The fact that an email, text message, or other electronic communication is listed as coming from an address or number that is either known or purports to belong to a particular person is sufficient to lay the foundation that the communication was sent by the person in order to determine its admissibility, at least absent particularized reasons to believe that the communication may have been sent by someone else.
Lynch v. Miller
The elements of negligence are the following: (i) the existence of a legal duty owed by the defendant to the plaintiff(s); (ii) the defendant’s breach of that duty; (iii) harm suffered by the plaintiff(s); and (iv) proof that the defendant’s breach was the direct and proximate cause of the harm that the plaintiff suffered.
Tarot Readers Association of Midlands v. Merrell Dow
&
Omnidirectional Solutions v. Little Bird Word LLC
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.
It was never the intention of this Court for its holding in Tarot Readers Association of Midlands v. Merrell Dow (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 to credibility are better left to cross examination.
404
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence. (1) Prohibited Uses. 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. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. 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. (2) Permitted Uses. 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. (3) Notice in a Criminal Case. The prosecution in a criminal case shall provide written notice of such intent prior to witness selection in the Captains’ Meeting.
(lack of coincidence)