Case Law

Question 1

State v. Shiek (1988)

Answer 1

Evidence regarding elements of crime inadmissible for entrapment

When a defendant pursues an affirmative defense of entrapment, he or she necessarily admits to the elements of the crime. Thus, when a defendant pursues an entrapment defense, the prosecution need not prove the elements of the charged crime, and any evidence offered for the purpose of contesting the elements of the charged crime is inadmissible at trial.

Question 2

State v. Heflin (1972)

Answer 2

Elements of entrapment defense

Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute. A valid entrapment defense has two related elements: (1) government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct. The government bears the burden of proving beyond a reasonable doubt that the defendant was predisposed to commit the crime. The defendant bears the burden of proving by a preponderance of the evidence that the government induced the defendant into committing the crime. The defendant should be found not guilty only if the prosecution fails to meet its burden and the defense meets its burden.

Question 3

State v. Jeffcott (1989)

Answer 3

Elements of predisposition

In determining a defendant was predisposed to commit a crime for the purposes of an entrapment defense, the trier of fact should consider the following factors: A. B. C. D. E. Whether government agents initially suggested the criminal activity; Whether the defendant demonstrated reluctance to commit the offense; Whether government agents repeatedly pressured or persuaded the defendant to perform the criminal activity; The defendant’s level of participation in the offense; The defendant’s character and reputation, including criminal history or lack thereof.

Question 4

State v. Veli and Pickerill

Answer 4

Entrapment must be persuasion, not just opportunity.

In determining whether a defendant was induced to commit a crime for the purposes of an entrapment defense, the trier of fact should consider whether government agents employed methods of persuasion or encouragement that create a substantial risk that a crime will be committed by a person who was otherwise unlikely to commit it. It does not sufficient for a government agent to merely provide a defendant with the opportunity, means, and facilities to commit the offense – though evidence of such may be relevant.

Question 5

State v. Dressel (2000)

Answer 5

Informant = Government Agent

An informant participating in a government investigation is a government agent for the purposes of an entrapment defense. As such, the actions of an informant are attributable to the state and may be the basis for showing that a defendant was induced to commit a crime.

Question 6

State v. Capaldi (2010)

Answer 6

Law enforcement officer is not party opponent In a criminal case.

A law enforcement officer is not considered a “party opponent” for the purpose of admissibility of a statement made by that officer under Midlands Rule of Evidence 801(d)(2). This remains true even when a law enforcement officer is designated as a “party representative” for purposes of Rule 615. Midlands allows prosecutors to designate a police officer to remain in the courtroom throughout trial. However, the same logic that allows the State to admit admissions by a criminal defendant as admissions by a party opponent under Rule 801(d)(2) does not permit defense attorneys to offer statements of a police officer as statements of the State of Midlands. This ruling should not be misconstrued to preclude the admissibility of a law enforcement officer’s outside-ofcourt statements under other applicable provisions of the Midlands Rules of Evidence.

Question 7

Zomerfeld v. Noto (2012)

Answer 7

Allowed to rely on inadmissible evidence when assessing admissibility

Pursuant to Midlands Rules of Evidence 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 merely permitted to consider the underlying inadmissible evidence in order to assess the admissibility of the offered evidence. In a jury trial, the jury may not always be privy to the underlying facts used to determine what evidence is admissible, but the Court may hear it. Previous upheld examples of this in Midlands 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.

Question 8

State v. Dousa (1980)

Answer 8

Evidence of coercion of informant by government agent is inadmissible

The means by which a law enforcement officer recruited an informant or obtained an informant’s participation do not in and of themselves support an argument that a defendant was induced into committing a crime. The pressure applied to an informant is not the pressure that was applied to the defendant. However, the interactions of a law enforcement officer with an informant may still be relevant to an entrapment defense if they impact or explain either the law enforcement officer’s or the informant’s interactions with the defendant.

Question 9

Lee v. State (2001)

Answer 9

Predisposition is fatal to entrapment defense.

Predisposition =/= mens rea Even if inducement has been shown, a finding of predisposition is fatal to an entrapment defense. The predisposition inquiry leads the fact finder to consider whether the defendant was an unwary innocent or, instead, a criminal who readily availed himself of the opportunity to perpetrate the crime. Thus, predisposition should not be confused with intent or mens rea: a person may have the requisite intent to commit the crime, yet be entrapped. Also, predisposition may exist even in the absence of prior criminal involvement.

Question 10

Filteau v. Wanek (1992)

Answer 10

Authentication, preponderance of the evidence

A statement’s admissibility will sometimes turn on the identity of the person making a statement. Because Midlands law contains a strong preference for jury determinations of important questions, courts must be careful not to usurp the jury’s role in this context. 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 the purposes of assessing the statement’s admissibility that the statement was made by that person.

Question 11

Grover’s of New Mexico v. R.G.D. Boots Co. (2014)

Answer 11

Email is sent by person purported, absent specific reason to believe it wasn’t

That an email is listed as coming from an address that either is known or purports to belong to a particular person is sufficient to lay foundation that the email was sent by the person in order to determine its admissibility, at least absent a particularized reason to believe that the email may have been sent by someone else. This ruling does not foreclose challenges to the admissibility of an email on other grounds.

Question 12

Ginger v. Heisman (2015)

Answer 12

Preponderance of the evidence shows author of text message

Discussing the admissibility of misleading text messages allegedly sent to voters by a candidate or his agents in an election fraud case, we reiterate that text messages received on a cell phone are properly authenticated when the proponent of the evidence shows, by a preponderance of the evidence, the author of the message. The evidence offered to meet this standard may include direct or circumstantial evidence of authorship.

Question 13

Illiadis v. State (1987)

Answer 13

Rule 801(d)(2) only goes in one direction

Rule 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.. The rule does not permit a defendant to offer statements from himself. This rule remains the same even if the State has already elicited out-of-court statements by a defendant during a preceding examination. Consider a case where the defendant made a variety of statements to a police officer, who was called by the State at trial. Rule 801(d)(2)(A) permits the State to elicit the defendant’s statements during the direct examination of the police officer, because those statements are being offered “against an opposing party” (i.e., the defendant). The State thus elected to admit only a few of the statements provided by the defendant. But when defense counsel attempted to elicit other, less inculpatory statements by the defendant on cross-examination of the police officer, the State properly objected because those additional statements would not be offered “against an opposing party.”

Question 14

America’s Best Cookie v. International House of Waffles (2009)

Answer 14

Hearsay can be by a person who is or will be testifying

Although practices may be different in other jurisdictions, in Midlands it is entirely possible for an out-of-court statement by a person who is or will be testifying in a particular trial to be excluded by the general rule against hearsay. Subject to Rule 801(d), hearsay is any out-of-court statement offered to prove the truth of the matter asserted in the statement. “And although the Midlands Rules of Evidence contain a variety of exceptions to the rule that hearsay is generally inadmissible, there is no categorical principle permitting receipt of any out-of-court statement simply because the person who made that out-of-court statement is or will be a witness in the trial.

Question 15

State v. Goodman (2013)

Answer 15

Informants are also not party opponents

The provisions of State v. Capaldi apply to informants working on law enforcement operations. Informants are not “party opponents” under Midlands Rule of Evidence 801(d)(2).

Question 16

State v. Chambliss (1985)

Answer 16

Definition of criminal conspiracy

Criminal conspiracy to commit a given crime occurs when a person agrees with another or others to commit an offense, attempt to commit an offense, solicit the commission of an offense, or aid another in the planning or commission of an offense.

Question 17

State v. Owens (2010)

Answer 17

Standard for establishing conspiracy under 801(d)(2)(e)

For a statement to qualify under the hearsay exclusion of Midlands Rule of Evidence 801(d)(2)(E), the proponent must establish the existence of said conspiracy by a preponderance of the evidence. In addition, the statements may be admitted conditionally subject to Rule 104, meaning that the proponent of such statements may lay proper foundation before offering the statements or the trial court may allow the proponent to admit the statements first and lay the foundation for the predicate conspiracy during the remainder of the trial. As Rule 801(d)(2)(E) makes clear, proof of conspiracy may be based in part on the statements themselves, but the proof must also include some independent corroborative evidence.

Question 18

Kopel v. State (1989)

Answer 18

Evidence of defendant’s proclivities for criminal conduct similar to alleged offenses is allowed under the umbrella of 404(b)

In an entrapment case, a criminal defendant’s proclivities for criminal conduct similar to the crime(s) charged, as shown by specific past examples, are natural friends of the litany of permissible uses of character evidence already contained under the umbrella of 404(b). Rule 404(b) plainly allows specific instances of past conduct to prove that a criminal defendant has committed a newer crime alleged at trial. In the instant case, the evidence of past bribes, blackmail and insider trading demonstrated several uses already written in 404(b) itself, such as “intent,” “knowledge,” “absence of mistake,” and “lack of accident.” Several of the other participants in the past bribery acts were even participants in the acts of bribery brought to trial in the instant case, which helped prove that the defendant was aware of the criminality of his acts and that he intended to break the law.

Question 19

Smith v. State (1995)

Answer 19

Limitation of Kopel v. State

Evidence admissible under Kopel v. State is neither wide-sweeping nor practically all-inclusive. The case of Kopel v. State is merely an affirmation of law that already exists in the text of the statutory rule itself, Rule 404(b). Under Rule 404(b), Kopel evidence is to be introduced only if it is relevant to rebut the facts alleged in a legal defense offered at trial.

Question 20

Davis v. Adams (1993)

Answer 20

Judge must determine not only if scientific evidence is relevant, but if it is reliable

Under the Midlands Rules of Evidence, trial judges must ensure that any scientific testimony or evidence admitted is not only relevant but reliable. In determining whether expert testimony is sufficiently reliable, 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.

Question 21

Tarot Readers Association of Midlands v. Merrell Dow (1994)

Answer 21

Standards for assessing reliability of scientific evidence under 702(c)

In assessing reliability under Rule 702(c) of the Midlands Rules of Evidence, judges should consider, among other factors, 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. Some expert fields, meanwhile, have no known error rate because a strict mathematical rate of success cannot be applied to the expert’s methodology. Indeed, there is no definitive checklist in making a preliminary assessment of whether reasoning or methodology underlying expert testimony is scientifically reliable. Judges must make such assessments based on the totality of the circumstances, and the proponent of such expert testimony must meet the threshold proof requirement of a preponderance of the evidence.

Question 22

Pahlke v. Piper (1996)

Answer 22

Binding impact of a pre-trial “Tarot Readers Hearing”

Under Rule 702, a court may qualify an expert witness to testify to expert conclusions in front of a jury either during the trial itself, or before the trial in a special hearing (a “Tarot Readers hearing”) under which the factors of expert foundation are scrutinized, at a Tarot Readers hearing. Either party may demand a Tarot Readers hearing prior to trial to settle issues of expert foundation based on Tarot Readers Association of Midlands v. Merrell Dow (1994) or its progeny. The effect of a court order from an Tarot Readers hearing for a specific expert witness is binding on the rest of the trial, and the proponent need not lay any additional foundation of the ruled-upon issue during trial, although the proponent may freely elect to re-lay that foundation at trial when they are in front of the jury in order to bolster the weight the jury gives the expert’s conclusions. If the parties elect to forgo a Tarot Readers hearing, the proponent must offer all of the necessary foundation under Midlands Rule 702, Adams, and Tarot Readers before an expert can testify to his or her conclusions.

Question 23

Richards v. Mississippi BBQ (1997)

Answer 23

Limits the ambit of rule 703.

Experts can’t be conduits to hearsay, must relate hearsay statements to specialized knowledge before eliciting Midlands Rule of Evidence 703 does not afford an expert unlimited license 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, as required under Midlands Rule of Evidence 702. 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 admissible if offered through any other witness are not rendered inadmissible simply because they are offered by an expert witness. Thus, this case does not apply to and does not render inadmissible (a) statements that are not hearsay; (b) statements that qualify as party opponent statements under Rule 801(d)(2); and (c) statements that qualify as exceptions to the hearsay rule.