Evidence Flashcards
What are the 9 areas of Wyoming Rules of Evidence?
- General Provisions; 2. Judicial Notice; 3. Presumptions; 4. Relevancy and Its Limits; 5.Privileges; 6. Witnesses; 7. Hearsay; 8. Authentication and Identification; 9. Contents of Writing Recording and Photographs; 10. Miscellaneous Rules
What are the 2 types of relevance?
Logical Relevance and Discretionary, Pragmatic or Policy Based Relevance
What is logical relevance?
Evidence that has any tendency to make a material fact more probable or less probable than it would be without the evidence. (FRE 401)
Evidence may not be logically relevant if what?
It involves some other TIME, EVENT, PERSON than one involved in litigation
What is discretionary or policy based relevance?
Even relevant evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, cumulative evidence
What are recurring logical relevance patterns where evidence admissible even though it does involve some other TIME, PERSON, EVENT not directly involved in litigation.
Causation, prior accidents or claims, intent or state of mind in issue, rebuttal evidence, comparable sales to establish value, habit evidence, business routine, industrial or trade custom.
3 areas of importance in discretionary policy-based relevance:
liability insurance, subsequent remedial measures, settlements
What is the general rule concerning liability insurance?
Not admissible to show person acted negligently or wrongfully or to show ability to pay.
When is liability insurance evidence admissible?
To show ownership or control; To impeach credibility of witness by showing interest or bias.
When is subsequent remedial measures admissible?
To show ownership or control; To impeach–feasibility of precautionary measures.
What does the rule about settlements not being admissible to prove fault, liability or amount of damage cover?
Actual compromises; offers to compromise; offers to plead guilty in a criminal case; withdrawn pleas of guilty; pleas of nolo contendere.
What information in the settlement is not admissible?
Admissions of fact, liability, or damage made in course of offer to compromise a claim disputed as to liability or as to amount.
What is character evidence?
The use of character to prove a material element in the case.
What are four preliminary questions regarding character evidence?
- Purpose of offer of character evidence; 2. method of proving character; 3. type of case-civil or criminal; 4. what trait of character is involved.
What are the 3 purposes for offering character evidence?
- Character directly in issue (the person’s character is a material element in the case. 2. Character as circumstantial evidence of person’s conduct at time of litigated event (character to prove conduct in conformity with character on occasion in issue); 3. Character to impeach the credibility of a witness (i.e., bad character for truthfulness to impeach the credibility of a witness who testifies at trial.)
What are the methods that you can use to prove character?
Specific acts of conduct; opinion; reputation.
What are the criteria for character evidence being admissible in civil cases?
not admissible when offered as circumstantial evidence to infer conduct at the time of the litigated event.
When is character evidence admissible in civil cases?
when the character of a person is itself a material issue in the case.
What are six examples of when character is a material issue in the case–i.e., character is one of the elements.
- defamation (plaintiff’s character where truth is a defense); 2. wrongful death (deceased’s character at issue as to kind of spouse); 3. misrepresentation/civil fraud (defendant’s character for truthfulness); 4. child custody (parent’s character at issue); 5. negligent entrustment (trustees character at issue); 6. self defense (victim’s character for violence)
If character evidence is directly in issue and therefore admissible, it may be proved by what?
Any one of the specific techniques: specific acts, opinion, reputation
When may character evidence be used in criminal cases?
Accused is permitted to offer evidence of good character for the pertinent trait in the form of reputation and opinion to show disposition in order to infer innocence.
When may the prosecution offer character evidence of the accused?
After the accused has offered character evidence of a pertinent trait.
How may the accused or the prosecution offer character evidence?
Through opinion or reputation.
When may an accused offer character evidence of the victim?
In homicide or assault cases as part of a self defense plea to show the character of the victim as circumstantial evidence to infer that on the occasion in question the alleged victim was the first aggressor.
When may specific instances of prior misconduct by the accused be offered?
To prove some relevant issue separate and apart from bad character: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
What is the general rule regarding writings?
They are not admissible until they have been authenticated. Writings are not self-authenticating.
What does it mean to authenticate a writing?
Laying a foundation showing that the writing is what it purports to be, i.e., that it is genuine.
What are the two general methods of authentication?
- Direct evidence; 2. Circumstantial evidence.
What are the direct evidence methods of authenticating a writing?
- Admission (yes that is the contract I entered into.” 2. Eyewitness Testimony–I saw him sign that contract.” 3. Handwriting Proof
What are the rules regarding handwriting proof?
- Lay witness: anyone familiar with another specimen of the signature (cannot use comparison and cannot become familiar for purposes of litigation). 2. Expert witness: compare disputed signature with another specimen signature. 3. Jury comparison: can make comparison themselves.
What are the forms of Circumstantial Evidence that may be used to authenticate a writing?
- Ancient Document Rule; 2. Solicited Reply Doctrine.
What is the rule on Ancient Documents?
- 20 or more years old; 2. regular on its face (no erasures or alterations); 3. found in a place of natural custody.
Solicited Reply Doctrine
A writing is authenticated if there is evidence that it came in reply to a communication sent to the alleged author, and that the solicited reply refers to the initial communication.
What is the quantum of proof for laying a foundation as to the authenticity of a document?
Sufficient evidence to justify a jury finding of genuineness. (Judge determines how much is sufficient while the jury determines whether it is credible.)
What six kinds of documents are self-authenticating?
- Certified copies of Public or Business Records; 2. Official Publications; 3. Newspapers and Periodicals; 4. Trade Inscriptions or labels; 5. Acknowledged documents; 6. Signatures on Certain Commercial Documents as provided by UCC.
Authentication of Photographs
Any witness can look at a photograph and state that it is a fair and accurate portrayal of persons/items/places. But if a camera speaks for itself (such as a videotape of a robbery in action) you must show the camera is working properly and chain of custody
Best Evidence Rule requires what?
(Also known as original document rule). Requires that a party seeking to prove the content of a writing (including films, photos, xrays, and recordings) must either 1. produce the original document or 2. account for the absence of the original. If the explanation of the absence of the original is reasonable, then a foundation has been laid for secondary evidence. Then either a copy or oral testimony may be admitted to prove the content of the original.
When would a party desire to admit a document rather than testimonial evidence and thus trigger the Best Evidence Rule?
- Legally operative documents; 2. Witnesses sole knowledge comes from a document.
What is a legally operative document?
Documents that by their existence create or destroy a legal relationship that is in dispute Deed, divorce decree, will, written contract.
What does the Best Evidence Rule NOT apply to?
Facts independent of the writing (witness has personal knowledge of the event aside from the writing–the writing doesn’t need to be produced; 2. Collateral Documents: writings of minor importance
Modifications to Best Evidence Rule
- Public Records: certified copies admissible in place of originals; 2. Voluminous documents: Summaries, charts or calculations are admissible in place of originals as long as 1. originals would be admissible if offered and 2. originals are made accessible to opposing party; 3. Duplicates: admissible to the same extent as original (no need to explain absence of original) unless 1. A genuine question is raised about authenticity of the original or 2. it would be unfair to admit the duplicate in lieu of the original. Handwritten copies are not duplicates.
What are the main issues regarding Witnesses and Testimonial Evidence?
- Competency; 2. Form of Examination of Witnesses; 3. Opinion Testimony; 4. Credibility and Impeachment
What common law Disqualifications for witnesses has been abandoned?
- Lack of Religious Belief; 2. Infancy; 3. Mental Incompetency; 4. Prior Convictions; 5. Interest
What is a Dead Man Act?
A state statute (no such federal statute) that an interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or transactions with the decedent in a civil case unless there is a waiver.
In what courts do Dead Man Acts apply?
In federal court if the state whose substantive law applies has a statute.
What are objectionable questions in examination of a witness?
- Narrative: tell us everything relevant that happened on that day. 2. Leading: isn’t it true that the sound you heard was a pistol shot or was it otherwise? A leading question is one that suggests the answer. 3. Misleading; 4. Compound; 5. Argumentative
When is leading permitted?
- Cross examination; 2. Preliminary matters (name, time, place); 3. when having difficulty in eliciting testimony due to witness’s problem (fear, forgetfulness); 4. Adverse party or genuinely hostile witness.
What is the basic rule as to witness use of writings in aid of testimony?
Witness usually cannot read testimony from previously prepared document, but may use a writing in aid of oral testimony in two situations when the witness can’t remember. 1. Refreshing recollection; 2 recorded recollection.
What is the rule on Refreshing Recollection?
When witness memory fails, anything can be used to jog the memory of the witness. The writing is not admitted into evidence so there can be no objections such as hearsay, improper authentication, etc.
Can the party using the writing get it into evidence upon request?
No
What may an opposing party do with regard to a writing used to refresh recollection?
- Use it in cross examination; 2. introduce it into evidence.
What is the rule on recorded recollection?
A recorded recollection can be admitted in place of a witness’s own testimony even though it is hearsay because it is an exception to the hearsay rules. It must be: 1. Necessity: Must be necessary because witness not able to remember all or part of the transaction reflected in the writing; 2. Personal knowledge: The witness had personal knowledge of the transaction at some point; 3. Reliable: The witness must testify that the writing is accurate and that it was timely prepared when the event was still in her memory by either herself, under her instruction, or adopted by her. 4. Can only be read into evidence.
When is lay opinion testimony admissible?
- Rationally based on the perception of the witness (personal knowledge); 2. Helpful to the trier of fact–lay witness cannot give legal conclusion (grossly negligent)
What are the four basic requirements for expert testimony?
- Subject matter must be appropriate for expert testimony (must help the trier of fact). 2. Witness must be qualified to be an expert (knowledge, experience, education); 3. Expert should possess reasonable certainty or probability regarding the opinion (methodology must be reliable); 4. The opinion must be supported by a proper factual basis (must be relevant).
What two characteristics must expert testimony possess to be admissible?
The methodology must be reliable and the opinion must be relevant (fit the facts of the case).
Who must be convinced of the reliability and relevance of an expert opinion?
The judge–by a preponderance of the evidence.
What makes the expert qualified?
knowledge, experience, or education–need not be formal or academic
From where does an expert get the facts that support their opinion?
Either facts within the personal knowledge of the expert or facts supplied to expert in court by evidence (usually through hypothetical question) or facts which are of a type that experts in that field would reasonably rely upon to make opinion in their profession.
When is a Learned Treatise admissible?
Even though it is would be hearsay, it is admitted as an exception to the hearsay rule if it is proved to be reliable. Reliability is proven by: 1. reliance by your expert on direct examination; 2. admission on cross examination of your opposing expert; 3. testimony of an expert, or 4. judicial notice.
Rules regarding limitation on use of learned treatise:
- Expert must testify unless judge takes judicial notice; 2. treatise is admitted by being read to jury–not itself received as evidence.
How may testimony be impeached?
By cross-examination or extrinsic evidence.
What is the rule regarding the right to cross examine a witness?
Party has absolute right to cross-examine a witness who testifies live. If the witness refuses to answer any cross examination question after testifying on direct, the direct testimony must be stricken.
What is the limitation on cross examination?
Cannot exceed the scope of direct. One may cross-examine on any issues that were raised IMPLIEDLY or expressly on direct examination.
Collateral Matters Doctrine is what?
Impeachment by contradiction of the witness is limited. Cross-examiner is bound by the answers given by the witness as to collateral matters. No extrinsic evidence is allowed to contradict a witness as to a collateral matter. POLICY: judicial efficiency AND probative value is substantially outweighed by prejudice. A collateral matter is a matter not relevant the issue.
Credibility and Impeachment Rules focus on what?
one issue–the credibility of the witness.
When is a prior CONSISTENT statement admissible?
- Identification. A prior out-of-court statement of identification made by a witness who testifies at trial is excluded from the definition of hearsay and may be admitted. Because it is not hearsay it comes in for its truth.
Prior consistent statement not usually to rebut charge of prior inconsistent statement, but is used to rebut charge of recent fabrication or improper influence or motive. Must be a pre-motive statement. It is then admissible for its truth.
NOT used to bolster testimony of witness.
4 ways to impeach a witness:
- Bias; 2. Sensory defect; 3. Prior Inconsistent Statement; 4. Character
How may bias, interest or motive be shown for impeaching a witness?
May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness.
Prior Inconsistent Statement for impeaching a witness: rule
The credibility of the witness may be impeached by showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witness’s present in-court testimony. Not admissible for its truth (affirmative or substantive evidence), unless 1. given under oath AND 2. given at a trial, hearing or other proceeding or in a deposition (includes grand jury).
What is the rule regarding extrinsic evidence to prove a prior inconsistent statement?
Extrinsic evidence may be used, but a foundation must be laid. And the witness must be afforded the opportunity to explain or deny the making of the inconsistent statement.
A prior inconsistent statement of a party qualifies as what?
An admission.
What can one use to introduce character evidence for the purpose of impeachment? (3)
Prior convictions; ; Specific acts of deceit or lying; Reputation/opinion testimony.
How may prior convictions be used to impeach a witness?
- Any crime (felony or misdemeanor) if it involves dishonesty (meaning “deceit”) or false statement. (Fraud, larceny by trick, embezzlement, perjury) Judge has no discretion to exclude it. 2. A felony (crime punishable by more than one year) not involving dishonesty or false statement is admissible to impeach in the discretion of the court. 3. Convictions cannot be too remote–no older than 10 years. 4. Extrinsic evidence is admissible (certificate of conviction and no foundation necessary).
Specific act of deceit or lying may be used to impeach a witness in what way?
In cross-examination. Must be asked in good faith. Must be an act involving deceit or lying. No extrinsic evidence is allowed if the witness denies the act.
How do you get evidence for a bad reputation or bad opinion for truth and veracity in for the purpose of impeaching a witness?
Must use extrinsic evidence: the community mouth.
How may you rehabilitate your witness AFTER impeachment?
- Good reputation/opinion for truth may be shown if impeachment involved a character attack. 2. Prior consistent statement not usually to rebut charge of prior inconsistent statement, but is used to rebut charge of recent fabrication or improper influence or motive. Must be a pre-motive statement. It is then admissible for its truth.
Privileges: list
- Attorney-client; 2. Physician/Psychiatrist-Patient; 3. Spousal Immunity; 4. Confidential Marital Communications.
Attorney-Client Privilege definition:
Confidential communications between attorney and client made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client. Privilege survives death of client.
Attorney-Client Privilege elements:
- The right parties; 2. Confidential communication; 3. Professional legal relationship which means intent by client to establish a professional legal relationship (retainer negotiations are covered) and predominantly legal advice must be sought.
Exceptions to attorney-client privilege:
Future crime or fraud; At issue exception (client affirmatively puts–apply to negate all communication in issue ); 3. Disputes between the parties to the professional relationship (action for fee or malpractice); 4. Joint-client exception (where 2 or more parties communicate with attorney about a matter of common interest. No privilege between them, but still exists as to 3rd parties. )
Physician/Psychiatrist-Patient Privilege: definition
The patient has a privilege against disclosure of confidential information acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment.
Key elements of Physician/Psychiatrist-Patient Privilege:
- Patient must be seeking treatment; 2. Information acquired must be confidential and necessary to facilitate professional treatment.
Waiver of Physician/Psychiatrist-Patient Privilege
Is common especially because of the Patient Litigant Exception. Privilege is waived if patient sues or defends by putting physical or mental condition in issue.
Neither of the husband-wife spousal privileges apply to what?
Intra-family injury case (assault of spouse or child, incest, child abuse.)
Spousal Immunity Privilege definition:
One spouse can’t be forced to give adverse testimony against the other in a criminal case.
Requirements of the spousal immunity privilege:
- Valid marriage at the time of trial; 2. Protects against any and all testimony; 3. Holder of the privilege is the witness spouse and not the party spouse. 4. Applies only in a criminal case.
Confidential Marital Communications Privilege definition
A husband or a wife shall not be required or , without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage.
Requirements of Confidential Marital Communications Privilege (and differences from Spousal Immunity Privilege):
- Married not necessarily at the time of the trial, but at time of protected communication (outlasts marriage); 2. Protects only confidences, not all testimony; 3. Hold of privilege is either spouse, not just witness spouse; 4. applies to all cases, civil as well as criminal.
Applicability of State Law in Federal Court: 3 situations where state evidence law will apply in federal court IF state substantive law applies
In civil actions or proceedings with respect to an element of a claim or defense as to which state law applies the rule of decision, state law will apply regarding 1. Presumptions and burdens of proof; 2. Competency of witnesses (dead man statutes); 3. Privileges (physician/psychiatrist-patient)
Federal privilege law in federal question or in federal criminal cases shall be governed by what?
the principles of the common law as they may be interpreted by the courts in the US in light of reason and experience.
Hearsay: definition
An out of court statement offered for the purpose of establishing the truth of the matter asserted in the statement. (truth of the content of the statement itself). Hearsay can come in by a witness testifying as to what the declarant said or by a writing of the declarant.
What is the rationale for the general rule excluding hearsay?
It denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue.
Nonhearsay includes what?
- Verbal acts or Legally Operative Facts;
- Out of Court Statement offered not for its truth but to show its effect on the person who heard or read the statement (e.g., to show notice to, or good faith of, or reason for action or inaction by the person who heard or read the out-of-court statement.
- Out of court statement offered not for its truth but as circumstantial evidence of declarant’s relevant state of mind.
A witness’s own prior statement can be hearsay, except for what?
- Prior Inconsistent Statements given under oath at a trial, hearing, other proceeding or deposition; 2. Prior Consistent Statements to rebut charge of recent fabrication or improper influence or motive; 3. Prior Statement of Identification made by a witness.
Exceptions to Rule Against Hearsay:6
- Admission of a party; 2. Former testimony; 3. Statement Against Interest; 4. Dying Declaration; 5. Spontaneous Statements; 6. Business Records
List the Spontaneous Statements under the Exceptions to Hearsay rule: 6
- Present state of mind in issue; 2. Statement of exciting intent to prove intended act; 3. Excited utterance; 4. Present sense impression; 5. Declaration of present physical condition; 6. Declaration of past physical condition.
Admission of a party: definition and rules
Declaration of a party offered against the party. Need not be against interest at the time of making the statement. Rationale: estoppel. No special reliability. Need not be based on personal knowledge (It must have been my dog that bit you.). Can be in the form of a legal opinion (I was negligent.)
What is vicarious admission?
A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during existence of the relationship.
What is the rule regarding the admissibility of Former Testimony exception to the hearsay rule?
Testimony given in earlier proceeding by person now unavailable is admissible if 1. party against whom testimony is offered had, during earlier proceeding, an opportunity to examine that person and motive to conduct exam was similar to the motive it has now, or 2. in civil case, party against whom testimony is offered was in privity (a predecessor in interest) with a party to earlier proceeding who had opportunity and similar motive to examine.
Requirements before former testimony admitted under hearsay exceptions rule
- Meaningful opportunity to cross (same issue and motive; same party); and 2. unavailability of the declarant.
What qualifies for unavailability of the declarant for the purpose of offering Former testimony under the hearsay exception rule?
Declarant is unavailable if court exempts declarant from testifying due to privilege, declarant refuses to testify because of privilege or other reason, declarant’s memory fails, declarant is sick, or proponent of statement cannot procure declarant’s attendance by process or other reasonable means.
Statement against interest definition:
Declaration of a person, now unavailable as a witness, against that person’s pecuniary, proprietary or penal interest (or statement which would expose declarant to civil liability or which would tend to defeat a civil claim by declarant) at the time the statement was made.
What is the limitation on Statement Against Interest Hearsay Exception?
A statement that 1. tends to expose declarant to criminal liability and 2. is offered in a criminal case by either the prosecution or defense, must be supported by “corroborating circumstances that clearly indicates its trustworthiness.
What is the difference between Statement Against Interest and Admission of a Party?
Statement against interest must be against interest as the time the statement made, whereas an admission of a party does not have to be so. That is what gives the Statement Against Interest its special reliability.
Statement Against Interest hearsay exception requires what?
1.Personal knowledge (person has to know that what he is saying is against his interest–for it to be reliable); 2. Unavailability of the witness.
Dying Declaration definition:
In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of the impending death.
Requirements of Dying Declaration exception to hearsay:
- State of mind–made under a sense of impending death; 2. Declarant need not die but must be unavailable at time of trial; 3. Admissible in homicide or civil case only; 4. Must concern the cause or circumstances of impending death.
Excited utterance definition:
Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or occurrence.
Requirements of excited utterance spontaneous statement hearsay exception:
- Startling event; 2. Made under stress of excitement; 3. concerns the facts of the startling event.
Things to look for with excited utterance:
- nature of event; time lapse and what is going on during time lapse; language of excitement.
Present Sense Impression definition
A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
Distinguish Present Sense Impression from Excited Utterance.
Unnecessary to have startling event or excitement; 2. Must have almost precise contemporaneousness–no appreciable time lapse.
Declaration of Present Pain, Suffering, or Physical Condition definition
A declaration of then existing physical (or mental) condition is admissible to show the condition. (It hurts!)
Declaration of Past Physical Condition definition:
Statement made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment.
What are the requirements of Declaration of Past Physical Condition:
- made to medical personnel; 2. pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)
When can a judge use hearsay?
PRELIMINARY QUESTIONS concerning the qualification of a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the COURT. But in making its determination it is NOT BOUND BY THE RULES OF EVIDENCE.
How can you impeach the hearsay declarant?
When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for that purpose if declarant had testified as a live witness.
What do writings which are hearsay still have to pass to be admissible?
Best evidence rule.
Business Records definition:
Records made at or near the time by, or from information transmitted by, a person with knowledge are admissible if kept in the regular course of business and if it was the regular course of that business to make the record unless the source of information or circumstances of preparation indicate a lack of trustworthiness.
What is the rationale for reliability of business records?
Employees are under a business duty to be accurate in observing, reporting and recording business facts. Entry must be germane to the business.
What is the function of the business record exception to the hearsay rule?
Allows the record to substitute for the in-court testimony of the employees.
What is double hearsay?
Where the business record records what someone said.
Sixth Amendment Right of Confrontation:
Out of court statements, even if they fit a hearsay exception will not be admitted if
Even though an out-of-court statement qualifies as an exception to the rule against hearsay, the accused’s 6th Amendment right of confrontation may render the statement inadmissible when it is offerred against the accused in a criminal case.
- the out-of-court statement is offered against the accused in a criminal case. AND
- the declarant is unavailable at the trial AND
- the out-of-court statement was “testimonial” AND
- the accused had no opportunity to cross-examine the declarant’s “testimonial” statement when it was made, UNLESS the prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial.
Definition of testimonial for purposes of confrontation clause:
A hearsay statement is testimonial if declarant makes a statement that he or she anticipates will be used in the prosecution or investigation of the crime.
When are statements taken by police nontestimonial?
Statements taken by police in the course of an investigation are “nontestimonial” and not subject to the Confrontation Clause when they are made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
What are the five factors considered in determining whether statements are testimonial for purposes of the Confrontational Clause?
- Likely motivation and intent of the declarant making the statement (to get help or to provide evidence?) 2. Likely motivation and intent of interrogator (to safeguard the victim or secure the scene or to just get evidence?) 3. the temporal element (ongoing emergency or description of past events?) 4. Identity of person eliciting the statement (law enforcement connected or acquaintance/relative of the declarant?) 5. Degree, amount of, circumstances and location of police interrogation (preliminary on the scenes or sustained, structured interrogation?)
Lab Analysis Certificates are what?
Records prepared by laboratory technicians indicating blood, alcohol, DNA, or drug test results.
In order to be admitted, lab analysis certificates but be accompanied by what?
The lab technician who prepared the report UNLESS the technician is unavailable AND the defendant had a prior opportunity to cross examine them.
What is the exception to the requirement of confrontation of the Confrontation Clause?
It is the forfeiture exception where the defendant procured the unavailability of the declarant by wrongdoing that was done WITH THE INTENT OF KEEPING THE WITNESS FROM TESTIFYING.
What is W.R.E. Rule 201?
Judicial notice of adjudicative facts.
What is the scope of Rule 201? (See W.R.E. 201(a))
This rule governs only judicial notice of adjudicative facts.
What “kinds of facts” can be judicially noticed? (See W.R.E. 201(b))
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
When does a court have discretion to judicially notice facts? (See W.R.E. 201(c))
A court may take judicial notice, whether requested or not.
When is it mandatory for a court to take judicial notice of a fact? (See W.R.E. 201(d))
A court shall take judicial notice if requested by a party and supplied with the necessary information.
What is the rule regarding “opportunity to be heard” in judicial notice of facts? (See W.R.E. 201(e))
A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
Timing of taking judicial notice of a fact: (See W.R.E. 201(f))
Judicial notice may be taken at any stage of the proceeding.
Instructing a jury with regard to taking judicial notice (W.R.E. 201(g)
In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
W.R.E. 201 does not affect what?
This rule does not affect the Uniform Judicial Notice of Foreign Law Act, §§ 1-12-301 through 1-12-306. Also unaffected by this rule are § 16-3-108(d) and Rule 44.1, W.R.C.P.
What is the scope of the Wyoming Rules of Evidence? (See W.R.E. 101)
These rules govern proceedings in the courts of this state to the extent and with the exceptions stated in Rule 1101.
What is the purpose and construction of the Wyoming Rules of Evidence? (See W.R.E. 102)
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
What is meant that the Wyoming Rules of Evidence are procedural and not substantive?
Generally, the Rules of Evidence are procedural and not substantive. The Rules of Evidence are not intended, and cannot be used to change modify or enlarge a statute. Buckley v. Holstedt, 672 P.2d 829 (Wyo. 1983).
What Wyoming Rule of Evidence deal Rulings on Evidence?
W.R.E. 103
What is the effect of a erroneous ruling? (See W.R.E. 103(a))
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of Proof. – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
What is meant by record of offer and ruling? (See W.R.E. 103(b))
The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
What is the rule regarding evidence and the hearing of the jury? (See W.R.E. 103(c))
In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
Plain Error with regard to evidence rulings. (See W.R.E. 103(d))
Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
NO REVERSAL FOR INCOMPETENT EVIDENCE WHERE SUFFICIENT COMPETENT EVIDENCE (cite case)
Where there is sufficient competent evidence to sustain a finding in a case tried by the court without a jury, admission or exclusion of incompetent evidence is not a ground for reversal. Herman v. Speed King Mfg. Co., 675 P.2d 1271 (Wyo. 1984).
REJECTION OF EXPERT’S TESTIMONY HARMLESS ERROR WHERE TRIAL OUTCOME NOT AFFECTED (cite case)
Rejection of expert’s testimony as unqualified in a particular area, even if erroneous, would be harmless error where the disputed evidence was a small part of the total trial, the trial to the court was lengthy and complicated, and there was a vast amount of expert testimony adduced, including that of the expert in question on other matters, so that the exclusion complained of could hardly have affected the outcome of the trial. Herman v. Speed King Mfg. Co., 675 P.2d 1271 (Wyo. 1984).
PLAIN ERROR TO BE CONSIDERED (W.R.E. 103) (cite case)
This rule requires the court, where new ground, for objecting to the admission of evidence in a criminal trial are raised on appeal, to consider whether plain error nullified the conviction. Auclair v. State, 660 P.2d 1156 (Wyo.), appeal dismissed and cert. denied, 464 U.S. 909, 104 S. Ct. 265, 78 L. Ed. 2d 249 (1983).
CRITERIA FOR DETERMINING PLAIN ERROR: three and four part test (W.R.E. 103) (cite cases)
A three-part test exists for determining whether an error may achieve the status of plain error: (1) the record must be clear as to the incident which is alleged as error; (2) the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated; and (3) that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced. Bradley v. State, 635 P.2d 1161 (Wyo. 1981).
Plain error exists when: (1) the record is clear as to the incident which is alleged as error; (2) there was a transgression of a clear and unequivocal rule of law; (3) the party claiming the error proves that a substantial right has been denied to him; and (4) the denial of the substantial right materially prejudiced him. Porth v. State, 868 P.2d 236 (Wyo. 1994).
EVIDENTIARY ARGUMENT DEEMED NOT ERRONEOUS when in front of jury because: (W.R.E. 103) (cite case)
Evidentiary argument in presence of jury did not amount to error, where defendant allowed specifics of prosecution’s testimony to be given without objection, then moved to strike and proceeded to argue his position in front of jury, without requesting hearing or bench conference in order to discuss admissibility of evidence outside presence of jury. Espinoza v. State, 969 P.2d 542 (Wyo. 1998), cert. denied, 528 U.S. 818, 120 S. Ct. 59, 145 L. Ed. 2d 52 (1999).
FUNCTIONS OF OFFER OF PROOF (W.R.E. 103) (cite case)
In addition to insuring that the record will be sufficiently detailed to permit appraisal by an appellate court of the scope and effect of the ruling, the offer of proof serves the function of calling the nature of the error to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. Padilla v. State, 601 P.2d 189 (Wyo. 1979).
OFFER OF PROOF INSUFFICIENT: two examples (indecent liberties case and relief from decree of divorce case) (W.R.E. 103) (cite case)
In an indecent liberties case, defendant’s constitutional right to confrontation was not denied by the court’s refusal to admit the testimony of a witness regarding an assessment of the relationship between the victim’s father and the victim so that the factfinder might infer that the victim had a motive to lie. The purported testimony was not relevant, or was at most conditionally relevant, and the necessary preconditions were not met. Person v. State, 100 P.3d 1270, 2004 Wyo. LEXIS 190 (Wyo. 2004).
Husband’s motion for relief from decree of divorce, based on claim his wife had misled him about the value of an athletic club, was properly denied, because the husband’s offer of proof did not have the requisite level of clear and convincing evidence to sustain the claim; while the husband opined that the athletic club could fetch $740,000 on the open market, the wife’s assertion that the club had a negative value of $287,000 and was wallowing in debt was accurate. Richard v. Richard, 170 P.3d 612, 2007 Wyo. LEXIS 192 (Wyo. 2007).
FAILURE TO MAKE OFFER OF PROOF REGARDING EXCLUSION OF EXPERT TESTIMONY (W.R.E. 103) (cite case)
In a medical malpractice case, a court did not err by sustaining defendant doctor’s objection to testimony from plaintiff’s retained emergency medicine expert where plaintiff’s counsel made no offer of proof, counsel did not explain to the district court his plan to pursue the standard of care in six sub-categories, nor did he make an offer of proof to alert the court to how the proposed testimony would differ from earlier testimony. Further, the record did not suggest that such a plan of attack was apparent from the previous questions. Armstrong v. Hrabal, 87 P.3d 1226, 2004 Wyo. LEXIS 47 (Wyo. 2004).
REQUIREMENTS OF SUBDIVISION (A)(2) WERE NOT MET WHERE (W.R.E. 103) (cite case)
not only did appellant fail to make an offer of the substance of the evidence proposed to be presented if the objection were not sustained, but he advised the court that the transcript reflecting the same did not exist in a suitable or admissible form. Padilla v. State, 601 P.2d 189 (Wyo. 1979).
PROFFER OF EVIDENCE DESIRABLE (W.R.E. 103) (cite case)
It is desirable for the trial court to require a proffer of the evidence urged as admissible under Rule 404(b). Elliott v. State, 600 P.2d 1044 (Wyo. 1979).
OBJECTION TIMELY WHEN GROUNDS APPARENT (W.R.E. 103) (cite case)
An objection or motion to strike is timely if made when the grounds for the motion first become apparent. Longtree, Ltd. v. Resource Control Int’l, Inc., 755 P.2d 195 (Wyo. 1988).
IMPROPER EXCLUSION OF DOCUMENTS HARMLESS ERROR WHERE EXPERTS ALLOWED TO TESTIFY (W.R.E. 103) (cite case)
In an action to recover damages for injuries suffered as a result of tripping and falling into an open trench while crossing a street project, the court improperly excluded documents setting forth nationally recommended safety measures for the avoidance of pedestrian accidents during roadway construction and excavations. However, such error was harmless and did not mandate reversal. The plaintiff’s expert was allowed to render an opinion as to what would have been proper signs, barricades and lighting to properly safeguard pedestrians crossing the construction site and, in addition, a second expert witness, a general foreman for a Wyoming construction company, testified as to what a reasonably careful contractor should do to channel pedestrian traffic through the job site and also indicated that what was done by the defendant was inadequate. McCarthy v. Whitlock Constr. & Supply, 715 P.2d 218 (Wyo. 1986).
ADMISSION OF HEARSAY DEEMED HARMLESS (W.R.E. 103) (cite cases)
Admission of hearsay testimony concerning deceased declarant’s statements about how defendant was handling her funds was harmless, where testimony simply corroborated the wealth of appropriate evidence already presented. Clark v. Gale, 966 P.2d 431 (Wyo. 1998).
In ruling on a petition to modify child support, the district court did not err by admitting letters from contractors stating they had no work available for the father. While the mother made a hearsay objection, the letters did nothing more than corroborate the father’s testimony; therefore, admission of the letters was harmless for purposes of this rule. Lauderman v. State, 232 P.3d 604, 2010 Wyo. LEXIS 73 (Wyo. 2010).
ABSENT OBJECTION, APPELLATE COURT CONSIDERS ERRONEOUS HEARSAY ADMISSION ONLY WHERE PLAIN ERROR (W.R.E. 103) (cite case)
The state need not satisfy its burden and the court make a determination of admissibility even though the defense makes no objection to the receipt of hearsay evidence. In the absence of an objection, the erroneous admission of hearsay must rise to plain error before it will be considered by the appellate court. Schmunk v. State, 714 P.2d 724 (Wyo. 1986).
What does W.R.E. 104 refer to?
Preliminary Questions
What are the questions of admissibility in general that are considered to be preliminary questions? (See W.R.E. 104(a))
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
Preliminary question where relevancy conditioned upon fact: (See W.R.E. 104(b))
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Preliminary questions: in the hearing of the jury. (See W.R.E. 104(c))
Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.
Preliminary questions: testimony of accused (See W.R.E. 104(d)
The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.
Weight and credibility subject to W.R.E. 104(e)
This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
EVIDENTIARY ARGUMENT (W.R.E. 104) (cite case)
Evidentiary argument in presence of jury did not amount to error, where defendant allowed specifics of prosecution’s testimony to be given without objection, then moved to strike and proceeded to argue his position in front of jury, without requesting hearing or bench conference in order to discuss admissibility of evidence outside presence of jury. Espinoza v. State, 969 P.2d 542 (Wyo. 1998), cert. denied, 528 U.S. 818, 120 S. Ct. 59, 145 L. Ed. 2d 52 (1999).
SALES RECEIPT AS EVIDENCE OF UNLAWFUL CONVERSION (W.R.E. 104) (cite case)
In a prosecution for unlawful conversion by a bailee, a sales receipt is relevant evidence. After evidence was presented authenticating the document, the sales receipt should have been admitted into evidence. This admission would not have established that the sales receipt was genuine, for that question is one for the trier of fact. Epperson v. State, 600 P.2d 1051 (Wyo. 1979).
W.R.E. 105 refers to what?
Limited Admissibility: When evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
W.R.E. 106 refers to what?
Remainder of related writings or recorded statements: When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
W.R.E. 301 refers to what?
Presumptions in general in civil actions and proceedings.
Effect of presumption in civil action or proceeding: See W.R.E. 301(a)
In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.
Inconsistent presumptions under W.R.E. 301(b)
If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.
W.R.E. 302 refers to what?
Applicability of federal law in civil proceedings and actions. In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.
W.R.E. 303 refers to what?
Presumptions in criminal cases.
Scope of W.R.E. 303 (See W.R.E. 303(a))
Except as otherwise provided by statute, in criminal cases, presumptions against an accused, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.
Submission of a presumed fact to a jury. (See 303(b))
The court is not authorized to direct the jury to find a presumed fact against the accused. If a presumed fact establishes guilt or is an element of the offense or negatives a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury provided the basic facts are supported by substantial evidence or are otherwise established, unless the court determines that a reasonable juror on the evidence as a whole could not find the existence of the presumed fact.
Instructing the jury on a presumption in a criminal case. (W.R.E. 303(c))
Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient evidence of the presumed fact but is not required to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt.
FOLLOWING INSTRUCTION COMPLIES WITH THE MANDATE OF SUBDIVISION (C): (See W.R.E. 303(c)) (cite case)
“The element of malice may be inferred by the jury from the use of a deadly weapon in a dangerous and deadly manner if the facts and circumstances indicate such. Malice may also be inferred from all of the other facts and circumstances surrounding an alleged event.” Eckert v. State, 680 P.2d 478 (Wyo. 1984).
FAULTY INSTRUCTION NECESSITATING REVERSAL OF CONVICTION (See W.R.E. 303(c)) (cite cases)
Where the jury is instructed on second-degree murder and is also instructed that the use of a deadly weapon in a deadly or dangerous manner raises a presumption of malice, the jury then must be told explicitly that the presumption is permissive and not mandatory in nature, and the jury must be instructed that this element must be proven beyond a reasonable doubt. Where the trial court fails to so instruct and where it is then reasonable to conclude that if the jury had known that the presumption of malice was not mandatory, it may not have convicted the defendant of second-degree murder, this error cannot be regarded as harmless beyond a reasonable doubt, and the conviction must be reversed. Krucheck v. State, 671 P.2d 1222 (Wyo. 1983).
Defendant was entitled to reversal of his conviction for attempted second degree murder because the trial court violated Wyo. R. Evid. 303(b) and the Fourteenth Amendment, by failing to instruct the jury that presumptions of malice and intent raised from the use of a deadly weapon were not mandatory presumptions. Hernandez v. State, 162 P.3d 472, 2007 Wyo. LEXIS 115 (Wyo. 2007).
NOT ERROR TO INSTRUCT JURY “EVERY DEFENDANT IS PRESUMED TO BE MENTALLY RESPONSIBLE” (W.R.E. 303) (cite case)
It was not error for the court to instruct the jury that “every defendant is presumed to be mentally responsible.” The jury could not have thought that such a presumption was conclusive, as other portions of the instruction discussed circumstances when a person is not legally responsible for his conduct, and that the defendant must prove by a greater weight of the evidence his lack of mental responsibility. Brooks v. State, 706 P.2d 664 (Wyo. 1985).
DEADLY WEAPON INSTRUCTION APPROPRIATE (W.R.E. 303) (cite case)
Jury instructions, when read together, were adequate and appropriate for the purpose of informing the jury that the deadly weapon the state alleged to have been used by the defendant was his shoes and, even though shoes might not generally be considered a deadly weapon, the jury could find they could be so characterized under the circumstances of the case. Warren v. State, 835 P.2d 304 (Wyo. 1992).
INSTRUCTION SATISFIED THE REQUIREMENTS OF THE RULE (W.R.E. 303) cite case
In an action for misdemeanor check fraud, the trial court did not violate this rule when it instructed the jury on evidence constituting a prima facie showing of intent that a check should not be paid, and did not include the words prima facie; the permissive language of the jury instruction, together with the instructions which informed the jury of the state’s burden of proof, satisfied the requirements of this rule. Huff v. State, 992 P.2d 1071, 1999 Wyo. LEXIS 187 (Wyo. 1999).
UNEXPLAINED POSSESSION OF RECENTLY STOLEN PROPERTY (W.R.E. 303) (cite case)
An instruction that the jury may infer guilty knowledge from the unexplained possession of recently stolen property did not transgress constitutional standards. Harley v. State, 737 P.2d 750 (Wyo. 1987).
NO MANDATORY PRESUMPTION FOUND (W.R.E. 303) (cite case)
Instruction in terroristic threat prosecution which directed jury to consider inconvenience caused by summoning of police and fire agencies did not create a mandatory presumption that summoning of such agencies constituted a “serious public inconvenience.” Ellison v. State, 3 P.3d 845, 2000 Wyo. LEXIS 83 (Wyo. 2000).
W.R.E. 401 refers to what?
Definition of Relevant Evidence: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
TESTIMONY IRRELEVANT in sexual abuse case (See W.R.E. 401) cite case
District court did not abuse its discretion in refusing to allow defendant to present testimony that the victim’s younger half-siblings had behaved in an inappropriate, sexualized manner because it was not relevant; the alleged conduct of the half-siblings occurred ten years after the victim was sexually abused and five years after her initial disclosure, and the gap between the proffered evidence and defendant’s suggested conclusion would require too much speculation and confuse the jury. Ortiz v. State, 326 P.3d 883, 2014 Wyo. LEXIS 65 (Wyo. 2014).
“RELEVANT EVIDENCE” DEFINED (See W.R.E. 401) cite case
Evidence is always “relevant” if it tends to prove or disprove one of the elements of the crime charged. Grabill v. State, 621 P.2d 802 (Wyo. 1980).
Where defendant was charged with third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(i) after defendant offered to give his 15-year-old neighbor a massage and, during the course of the massage, rubbed the victim’s breasts and vaginal area and where defendant contended that the contact was unintentional but resulted from the slippery nature of massage oil and the proximity to genital areas during the massage process, the trial court did not abuse its discretion under Wyo. R. Evid. 404(b) in permitting the State to introduce evidence that defendant had previously been convicted for sexual contact with a 13-year-old girl and evidence that defendant married a 16-year-old girl after engaging in premarital relations with her because the evidence was relevant to prove that the contact was intentional for the purpose of sexual gratification. Further, the evidence was not more prejudicial than probative because an adult’s desire for sexual contact with a child was not something that would necessarily dissipate with the passage of time, and the passage of time did not make defendant’s acts any less probative than they might otherwise be. Vigil v. State, 224 P.3d 31, 2010 Wyo. LEXIS 16 (Wyo. 2010).
In criminal cases, evidence is always relevant if it tends to prove or disprove one of the elements of the crime charged. Moore v. State, 80 P.3d 191, 2003 Wyo. LEXIS 183 (Wyo. 2003).
SILENCE, AS WELL AS WORDS, MAY CONSTITUTE RELEVANT EVIDENCE. – Aguilar v. State, 764 P.2d 684 (Wyo. 1988).
DETERMINATION OF THE RELEVANCY OF EVIDENCE (W.R.E. 401) cite cases
rests largely within the discretion of the trial court. Hursh Agency, Inc. v. Wigwam Homes, Inc., 664 P.2d 27 (Wyo. 1983).
Rulings on the admission of evidence are within the sound discretion of the trial court and, in the absence of a clear abuse of discretion, its rulings will not be disturbed. This exercise of the sound discretion of the trial court includes its determinations with respect to adequacy of foundation, the relevance of the proffered evidence, the competency of the proffered evidence, the materiality of the proffered evidence, and its remoteness, and the court’s ruling with respect to any factor will be upheld on appeal absent the clear abuse of that discretion. L.U. Sheep Co. v. Board of County Comm’rs, 790 P.2d 663 (Wyo. 1990).
In a trial for attempted second-degree murder, the trial court did not err in admitting into evidence a knife that was located at the crime because the evidence was relevant under Wyo. R. Evid. 401, 402; there was no violation of Wyo. R. Evid. 403 because the facts that the knife had no blood on it and was not tested for fingerprints were issues for cross-examination. Those facts were not, however, grounds for excluding the knife on the basis of relevance. Hernandez v. State, 162 P.3d 472, 2007 Wyo. LEXIS 115 (Wyo. 2007).
In a murder case, the trial court properly refused to permit defendant’s expert witness on trace evidence to testify because the crux of defendant’s trial defense was that he was not involved in the murder and that the primary witnesses against him were liars with ulterior motives. Because the defense did not question the manner in which trace evidence was collected or processed and did not allege any improprieties in the recording of witness statements, the testimony of the expert witness would not have proved or disproved any fact of consequence to the determination of the case and was therefore irrelevant. Proffit v. State, 193 P.3d 228, 2008 Wyo. LEXIS 108 (Wyo. 2008).
Where defendant lived in a trailer with a number of individuals, including a woman and her 12-year-old daughter, where defendant attempted to engage the 12-year-old girl in sexual contact one afternoon after drinking, where the girl fought defendant off and reported the incident to her mother, who in turn spoke with law enforcement, and where defendant subsequently fled from the trailer, testimony regarding the events at the time the alleged incident occurred and immediately thereafter was relevant to bolster the victim’s credibility by showing that, at a relevant time, she exhibited a demeanor consistent with having experienced a traumatic event and to give the jury a reason as to why her previous statements and trial testimony may have appeared inconsistent. Further, the testimony was relevant as it provided the context of and likely reason for defendant’s flight from the home, which led to the subsequent police action; because the testimony was relevant, it did not qualify as victim impact testimony. Sweet v. State, 234 P.3d 1193, 2010 Wyo. LEXIS 91 (Wyo. 2010).
Trial court did not err in granting a wife’s motion to compel discovery in a dispute between the parties concerning an amount of money the husband owed the wife pursuant to the provisions of their divorce settlement agreement because the documents requested by the wife were relevant to her claim that the husband had replaced certain joint accounts, and owed her fees on those accounts. Wunsch v. Pickering, 249 P.3d 717, 2011 Wyo. LEXIS 62 (Wyo. 2011).
Because a California physician’s recommendation to use marijuana for medical purposes was not a valid prescription or medical practitioner’s order within the meaning of Wyo. Stat. Ann. § 35-7-1031(c) and was not a valid defense to the charge of felony possession of marijuana under Wyo. Stat. Ann. § 35-7-1031(c)(iii), evidence of a medical marijuana card from a California physician was properly excluded as irrelevant under Wyo. R. Evid. 401, 402; thus, the district court did not deny him his constitutional right under Wyo. Const. art. 1, § 10 to present a defense. Bruyette v. State, 253 P.3d 512, 2011 Wyo. LEXIS 101 (Wyo. 2011).
EVIDENCE OF OTHER INCIDENTS IS NOT NECESSARILY ADMISSIBLE (W.R.E. 401) cite case
When Rule 402, states specifically that, “Evidence which is not relevant is not admissible,” that language has meaning and should be applied in a proper case. McCabe v. R.A. Manning Constr. Co., 674 P.2d 699 (Wyo. 1983).
EVIDENCE OF INCIDENTS UNRELATED IN TIME, INTENT, AND LEGAL EFFECT (W.R.E. 401) cite case
Evidence of a sale that was going to occur after unlawful conveyances had been made was irrelevant to the charges of unlawful subdivision filed against defendant; the later sale was a separate and distinct transaction, completely unrelated in time, intent, and legal effect to the transactions for which defendant was convicted. McClellan v. State, 933 P.2d 461 (Wyo. 1997).
GENETIC TESTING (W.R.E. 401) cite case
Father’s contention that two genetic tests were irrelevant was rejected because the two paternity tests strongly indicating paternity were clearly relevant to the father’s paternity, as was the letter from the laboratory admitting that the first test indicating that the father had not fathered the minor child was a mistake. RK v. State ex rel. Natrona County Child Support Enforcement Dep’t, 174 P.3d 166, 2008 Wyo. LEXIS 1 (Wyo. 2008).
EVIDENCE OF UNRELATED INCIDENT ABUSE OF DISCRETION (W.R.E. 401) cite case
Evidence of the defendant’s guilty plea to breach of the peace occurring prior to, and in a different location from, the defendant’s alleged actions in resisting arrest, was irrelevant and its admission was an abuse of discretion. Oien v. State, 797 P.2d 544 (Wyo. 1990).
PHOTOGRAPHS ARE ADMISSIBLE (W.R.E. 401) cite case
if they correctly portray the subject matter, do not convey a false impression and if their probative value is such as to outweigh the possibility of undue prejudice from such circumstances as their gruesome character. Phillips v. State, 835 P.2d 1062 (Wyo. 1992).
PHOTOGRAPHS ADMISSIBLE TO ASSIST EXPERT TESTIMONY (W.R.E. 401) cite case
In a murder case, a court properly admitted photographs because the forensic pathologist who performed the autopsy relied during his testimony upon the photographs taken during that autopsy, and they helped the witness explain his conclusions as to how the injury and death occurred and that the death was not a suicide, but a staged suicide. Bhutto v. State, 114 P.3d 1252, 2005 Wyo. LEXIS 92 (Wyo. 2005).
Relevant photographs do not become inadmissible because the defendant concedes the fact and cause of the victim’s death. Following defendant’s stipulation, it was argued that the photographs were cumulative and unnecessary. Such claim does not deal with relevancy but concerns the quantum and sufficiency of evidence. Evidence has never been held irrelevant because there was other evidence that may prove the same facts. Rather, the test of relevancy is one of reasonableness and common sense and is to be liberally applied to favor admissibility rather than exclusion of evidence. Barnes v. State, 858 P.2d 522 (Wyo. 1993).
PHOTOGRAPHS OF HOMICIDE VICTIMS TAKEN DURING LIFE GENERALLY INADMISSIBLE. (W.R.E. 401) cite case
Photographs of homicide victims taken during life should be admitted to the jury only under very limited circumstances and are inadmissible unless they are relevant to some material issue and their relevancy outweighs the danger of prejudice to the defendant; where there is no purpose in introducing such pictures into evidence, such admission invokes the sympathy of the jury and constitutes error. Wilks v. State, 49 P.3d 985, 2002 Wyo. LEXIS 106 (Wyo. 2002).
PHOTOGRAPHS OF OTHER LOCATIONS IRRELEVANT (W.R.E. 401) cite case
In an action for negligent infliction of emotional distress, the trial court properly excluded as irrelevant plaintiff’s photographs of how other school playgrounds had been laid out because they were offered without any evidence of similarity of the underlying safety designs pertinent to the events contested in the cause of action. Contreras ex rel. Contreras v. Carbon County Sch. Dist., 843 P.2d 589 (Wyo. 1992).
TAPE RECORDINGS WERE RELEVANT (W.R.E. 401) cite case
Court did not err during defendant’s trial for sexual assault in holding that tape recordings, which indicated an attempt by defendant to influence the testimony of prospective witnesses, were admissible because the recordings were admissions of a party opponent; the recordings were also relevant because they showed indicia of guilt. Garza v. State, 231 P.3d 884, 2010 Wyo. LEXIS 67 (Wyo. 2010).
GANG AFFILIATION (W.R.E. 401) cite case
In defendant’s murder case, court properly excluded an officer’s testimony regarding the victim’s gang affiliation because the victim’s membership in the gang was tenuous. Sanchez v. State, 126 P.3d 897, 2006 Wyo. LEXIS 15 (Wyo. 2006).
EVIDENCE DEMONSTRATING DEFENDANT’S INTENT DEEMED RELEVANT (W.R.E. 401) cite case
In a criminal case, evidence that tends to prove or disprove one of the elements of the charged crime is relevant. In an instance in which specific intent is an essential element of the crime charged, evidence that tends to demonstrate the defendant’s intent, or lack thereof, is relevant. Jennings v. State, 806 P.2d 1299 (Wyo. 1991).
In a premeditated murder prosecution, defendant claimed he killed his wife’s lover in the sudden heat of passion. Evidence of his prior assault on his wife’s ex-husband and his threat against her other boyfriend was properly admitted under Wyo. R. Evid. 404(b), as it was relevant to rebut defendant’s claims and to show motive–jealousy–and intent. Taylor v. State, 203 P.3d 408, 2009 Wyo. LEXIS 30 (Wyo. 2009).
DOCTOR’S TESTIMONY CONCERNING VICTIM’S INJURIES (W.R.E. 401) cite case
In a trial for attempted murder, a doctor’s testimony concerning potential injuries from bullet wounds such as those inflicted upon the victim was probative of the defendant’s intent and premeditation. Any prejudice – arousing the jury’s sympathy – was inconsequential. Geiger v. State, 859 P.2d 665 (Wyo. 1993).
VICTIM’S TESTIMONY CONCERNING INJURIES (W.R.E. 401) cite case
In a trial for attempted murder, testimony from the victim concerning the extent and effect of his injuries was relevant and clearly justified as proof of the element of intent to kill. The nature of the injuries demonstrated the defendant’s aim and close proximity to the victim when she fired her pistol at the victim four times. Geiger v. State, 859 P.2d 665 (Wyo. 1993).
Testimony of victim and his wife, taken in their totality, was not victim impact testimony, but was relevant and admissible because the context in which the testimony was given showed that it related to victim’s injury which was caused by a deadly weapon, and in order to convict defendant for aggravated assault and battery, the state had to prove he used a deadly weapon. Baier v. State, 891 P.2d 754 (Wyo. 1995).
EVIDENCE OF VICTIM’S RELATIONSHIP WITH FATHER (W.R.E. 401) cite case
In an indecent liberties case, defendant’s constitutional right to confrontation was not denied by the court’s refusal to admit the testimony of a witness regarding an assessment of the relationship between the victim’s father and the victim so that the factfinder might infer that the victim had a motive to lie. The purported testimony was not relevant, or was at most conditionally relevant, and the necessary preconditions were not met. Person v. State, 100 P.3d 1270, 2004 Wyo. LEXIS 190 (Wyo. 2004).
TESTIMONY OF VICTIM’S FELLOW EMPLOYEES (W.R.E. 401) cite case
Testimony in trial for murder of a pizza delivery person by two of the victim’s fellow employees that they never saw the victim alive again was relevant and admissible; the witnesses were examined as to the specific events of the evening up until the time they discovered the victim’s death in order to establish a timeline, and no material prejudice accrued to the defendant as the prosecutor did not explore whether the witnesses were traumatized by never seeing the victim again, and the witnesses did not elaborate. Wilks v. State, 49 P.3d 985, 2002 Wyo. LEXIS 106 (Wyo. 2002).
TESTIMONY ABOUT “911” CALL (W.R.E. 401) cite case
In a trial for attempted murder, testimony about a “911” call and the transcript of the actual telephone call had probative value without being extremely inflammatory or unduly prejudicial. The tape was descriptive of the commission of the crime and the crime scene, which was probative of how, when and where the shooting occurred. Geiger v. State, 859 P.2d 665 (Wyo. 1993).
EVIDENCE OF SEAT BELT NONUSE ALLOWED (W.R.E. 401) cite case
In a case where the introduction of seat belt evidence is not prohibited, the introduction of evidence of seat belt nonuse is allowed where an offer of proof is made to show a causal relationship between nonuse and injuries to the occupant. Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo. 1992).
PHOTOGRAPHS OF OTHER LOCATIONS IRRELEVANT (W.R.E. 401) cite case
In an action for negligent infliction of emotional distress, the trial court properly excluded as irrelevant plaintiff’s photographs of how other school playgrounds had been laid out because they were offered without any evidence of similarity of the underlying safety designs pertinent to the events contested in the cause of action. Contreras ex rel. Contreras v. Carbon County Sch. Dist., 843 P.2d 589 (Wyo. 1992).
EVIDENCE OF SADISTIC TORTURES INADMISSIBLE (W.R.E. 401) cite case
In a prosecution for the act of anal intercourse with his son, evidence of defendant’s sadistic tortures committed upon another member of defendant’s household was inadmissible as differing markedly from the charged offense, as irrelevant, and as unfairly prejudicial. Britton v. State, 845 P.2d 1374 (Wyo. 1992).
VICTIM IMPACT EVIDENCE ADMISSIBLE (W.R.E. 401) cite case
Victim impact evidence could be admitted in the guilt phase of trial for credibility purposes. Barnes v. State, 858 P.2d 522 (Wyo. 1993).
Fourteen-year-old kidnapping victim’s testimony that she was really scared and that she kept throwing up was relevant because it helped to show defendant’s control over the victims, thus proving an element of the kidnapping; the evidence was not offered for nor did it go to establish the impact on the victim’s life after the crime. Moore v. State, 80 P.3d 191, 2003 Wyo. LEXIS 183 (Wyo. 2003).
In defendant’s aggravated assault case, a court properly allowed victim impact evidence where the testimony that the victim was scared and terrified for her life and that of her son while defendant was making stabbing motions with the knife went towards proving that they were threatened by his actions. The testimony regarding the victim’s emotional state during and in the immediate aftermath of the assault tended to disprove the assertion that the accusations were calculated. Jensen v. State, 116 P.3d 1088, 2005 Wyo. LEXIS 101 (Wyo. 2005).
TESTIMONY ON IMPACT OF TERRORIST THREATS RELEVANT (W.R.E. 401) cite cases
In a prosecution for terrorist threats to a nursing home, the court neither abused its discretion nor violated a clear rule of law when it admitted testimony concerning the impact of the threatening phone calls on the individuals at the home. This testimony was relevant because it was probative of the risk of serious public inconvenience, and was not unduly prejudicial. McCone v. State, 866 P.2d 740 (Wyo. 1994).
TOXICOLOGY REPORT RELEVANT IN WRONGFUL DEATH ACTION (W.R.E. 401) cite cases
In a wrongful death suit against an electric company, arising out of the decedent being electrocuted when an aluminum surveying rod he was using contacted a high voltage power line, the court did not abuse its discretion when it admitted a toxicology report which showed the presence of amphetamines and cannabinoids (marijuana) in the decedent’s urine at the time of his death. The evidence was relevant to support the theory that the decedent’s conduct was consistent with impairment of his faculties and was not unfairly prejudicial. Furman v. Rural Elec. Co., 869 P.2d 136 (Wyo. 1994).
DRAFTING OF LOAN AGREEMENT (W.R.E. 401) cite cases
Where a private lender sought to collect on loans made to a company owner, simply because one of the loan agreements was invalid and not binding did not require the trial court to ignore the facts and circumstances surrounding the drafting of the agreement as they pertained to other issues in the case. Schlesinger v. Woodcock, 35 P.3d 1232, 2001 Wyo. LEXIS 146 (Wyo. 2001).
IN PARENTAL-RIGHTS-TERMINATION PROCEEDING, OUT-OF-STATE RECORDS SHOWING NEGLECT HISTORY RELEVANT (W.R.E. 401) cite case
In a termination-of-parental-rights proceeding, records from an out-of-state court tending to show a long history of neglect similar to the allegations of neglect charged in Wyoming were relevant and properly received into evidence. MS v. Kuchera, 682 P.2d 982 (Wyo. 1984).
DOMESTIC VIOLENCE (W.R.E. 401) cite case
In a case involving sexual abuse of a minor, evidence of domestic violence between the victim’s mother and defendant was relevant and admissible because it helped the jury understand why the mother may have changed her story. Carroll v. State, – P.3d –, 2015 Wyo. LEXIS 98 (Wyo. 2015).
CUSTODY DETERMINATION (W.R.E. 401) cite case
Evidence that a parent plans to abscond with children who are the subject of a pending custody battle, and thereby deny the other parent visitation, is relevant to an initial custody determination. Mintle v. Mintle, 764 P.2d 255 (Wyo. 1988).
IN PERSONAL INJURY ACTION, EVIDENCE OF THE PLAINTIFF-MOTORIST’S ALCOHOL CONSUMPTION AND RELATED BEHAVIOR (W.R.E. 401) cite case
on the day of the accident was relevant, but his alleged history of “alcoholism” was not relevant. Banks v. Crowner, 694 P.2d 101 (Wyo. 1985).
EVIDENCE OF TORTFEASOR’S INTOXICATION WHERE ONLY ISSUE IS EXTENT OF DAMAGES (W.R.E. 401) cite case
Evidence of tortfeasor’s intoxication at the time of automobile collision was inadmissible where the questions before the jury concerned the extent of the damages suffered by the plaintiffs, and the cause of those damages, tortfeasor’s failure to stop at an intersection while impaired, was no longer at issue. Parker v. Artery, 889 P.2d 520 (Wyo. 1995).
DOCUMENTS ADMITTED AS CIRCUMSTANTIAL EVIDENCE OF DRUG DEALING (W.R.E. 401) cite case
Documents not admitted to establish any transaction between a defendant and a drug purchaser, nor admitted to prove the truth of any matter asserted therein, when admitted as circumstantial evidence from which the trier of fact may permissibly infer that a defendant deals in controlled substances, do not constitute hearsay. Guerra v. State, 897 P.2d 447 (Wyo. 1995).
AUDIOTAPES WERE ADMISSIBLE (W.R.E. 401) cite case
In a prosecution for delivery of a controlled substance, cassette tapes of the drug transactions at issue were relevant, notwithstanding that the tapes alone could not prove the defendant’s guilt, as they showed that a drug transaction took place at which an informant was present. Contreras v. State, 7 P.3d 917, 2000 Wyo. LEXIS 166 (Wyo. 2000).
EXPERT TESTIMONY OF PHARMACOLOGIST-TOXICOLOGIST WAS RELEVANT (W.R.E. 401) cite case
in a case involving toxic injuries to a human being from a drug overdose administered by a dentist, where the expert testimony consisted of an interpolation of the results of experiments on animals in the absence of empirical data with respect to people. Oukrop v. Wasserburger, 755 P.2d 233 (Wyo. 1988).
MOTIVE AND INTENT TO COMMIT ARSON (W.R.E. 401) cite case
In a case involving the crime of being accessory before the fact to an arson, an agent was properly allowed to testify as to the process of manufacturing methamphetamine to show motive and intent for the arson, which was allegedly done to destroy evidence found during the execution of a search warrant. The challenged testimony was probative to the issue of defendant’s guilt, as it provided a foundation connecting his drug charge to his motive for committing the arson; moreover, it refuted a defense theory that defendant was not involved in the crime. Callen v. State, 192 P.3d 137, 2008 Wyo. LEXIS 111 (Wyo. 2008).
TESTIMONY REGARDING “GOOD NEIGHBOR” STANDARD INADMISSIBLE (W.R.E. 401) cite case
The opinion of an insured’s expert as to whether the insurance company’s advertising established a standard requiring it to act “like a good neighbor” and on how a “good neighbor” would act, was properly excluded; the opinion required no specialized knowledge, could not have assisted the jury in understanding the evidence or determining any of the facts in issue, and was beyond the realm of the witness’ expertise. Hatch v. State Farm Fire & Cas. Co., 930 P.2d 382 (Wyo. 1996).
MURDER VICTIM’S STATEMENTS OF INTENTION TO LEAVE HUSBAND-DEFENDANT, UNKNOWN TO DEFENDANT, IRRELEVANT (W.R.E. 401) cite case
The proffered hearsay statements of a murder victim that she intended to leave her husband, the defendant, were not evidence of a material fact, and were not evidence of the defendant’s state of mind and, therefore, were not admissible. There was no evidence that the defendant knew of the victim’s intentions; therefore, how could the victim’s secret intentions affect the defendant’s action or be relevant upon the question of motive? Schmunk v. State, 714 P.2d 724 (Wyo. 1986).
IN MEDICAL MALPRACTICE ACTION, EVIDENCE REGARDING PLAINTIFF’S ACTIVITIES BEFORE HER ACCIDENT WERE IRRELEVANT (W.R.E. 401) cite case
and inadmissible under Rules 401 and 402. See Shields v. Carnahan, 744 P.2d 1115 (Wyo. 1987).
IRRELEVANT EVIDENCE CONCERNING VICTIM’S PRIOR SEXUAL CONDUCT BARRED (W.R.E. 401) cite case
In a prosecution for sexual assault, the court did not err in barring the defense from attempting to elicit irrelevant evidence concerning prior oral sexual conduct of the victim not involving the defendant, particularly testimony concerning a conversation had between the defendant and the victim several hours prior to the alleged sexual assault regarding the victim having previously performed oral sex upon another individual. The defendant’s theory of the case stressed mistaken identity; he did not defend on the basis of consent. Further, if the defendant’s aim in eliciting such testimony from the victim was to attack her credibility, it was not proper under Rule 608(b). Velos v. State, 752 P.2d 411 (Wyo. 1988).
IRRELEVANT TESTIMONY BY PHYSICIAN WAS HARMLESS ERROR (W.R.E. 401) cite case
Even though a physician’s testimony concerning his treatment of a witness after the fight should not have been admitted because it was not relevant under Wyo. R. Evid. 401, as defendant was not charged with assaulting the witness, and the evidence was not admissible to rehabilitate the witness’s credibility, the error was harmless because the witness made it clear that defendant did not attack him or cause his injuries, and therefore testimony about the extent of his injuries could not reflect badly on defendant or unfairly turn the jury against him. Evenson v. State, 177 P.3d 819, 2008 Wyo. LEXIS 25 (Wyo. 2008).
CIRCUMSTANTIAL EVIDENCE (W.R.E. 401) cite case
Fact that exhibits were circumstantial evidence and would not be sufficient, by themselves, to sustain defendant’s larceny conviction did not mean they lacked probative value. Wentworth v. State, 975 P.2d 22 (Wyo. 1999).
EVIDENCE OF ALLEGED THREAT ALLOWED (W.R.E. 401) cite case
Evidence of an alleged threat made by the defendant to a witness in the hallway at the courthouse was relevant to consciousness of guilt and was neither unduly inflammatory nor introduced solely to inflame the jury. Mazurek v. State, 10 P.3d 531, 2000 Wyo. LEXIS 182 (Wyo. 2000).
CROSS-EXAMINATION REGARDING EMPLOYMENT (W.R.E. 401) cite case
In defendant’s kidnapping case, evidence of the victim’s employment with an investigative division was relevant, and the court erred in prohibiting cross-examination about that employment, because if the victim worked for a law enforcement agency, that would have at least some tendency to make it more probable that she held a bias in favor of law enforcement. That potential bias, in turn, could have caused the jury to question the credibility of her testimony against defendant. Counts v. State, 277 P.3d 94, 2012 Wyo. LEXIS 75 (Wyo. 2012).
EXPERT TESTIMONY IRRELEVANT (W.R.E. 401) cite case
Excluding defendant’s expert testimony on the ability of a 15-year-old to form the specific intent to commit a crime did not violate defendant’s right to present a defense because the testimony was not relevant, as (1) the expert would not have testified that 15-year-olds had no ability to form such an intent, as the testimony merely suggested that 15-year-olds were more impulsive than adults and had a reduced ability to evaluate consequences, (2) to the extent the testimony could be viewed as evidence of diminished capacity, it was not appropriate to expand defense of mental incapacity beyond the scope of Wyo. Stat. Ann. § 7-11-302, and, (3) the defense of infancy was supplanted by the legislature’s allocation of jurisdiction between juvenile and criminal courts. Sen v. State, 301 P.3d 106, 2013 Wyo. LEXIS 51 (Wyo. 2013).
What does W.R.E. 402 refer to?
Relevant Evidence generally admissible; irrelevant evidence generally inadmissible. All relevant evidence is admissible, except as otherwise provided by statute, by these rules, or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.
PHOTOGRAPHS ARE ADMISSIBLE (W.R.E. 402) cite case
if they correctly portray the subject matter, do not convey a false impression and if their probative value is such as to outweigh the possibility of undue prejudice from such circumstances as their gruesome character. Phillips v. State, 835 P.2d 1062 (Wyo. 1992).
PHOTOGRAPHS ADMISSIBLE TO ASSIST EXPERT TESTIMONY (W.R.E. 402) cite case
In a murder case, a court properly admitted photographs because the forensic pathologist who performed the autopsy relied during his testimony upon the photographs taken during that autopsy, and they helped the witness explain his conclusions as to how the injury and death occurred and that the death was not a suicide, but a staged suicide. Bhutto v. State, 114 P.3d 1252, 2005 Wyo. LEXIS 92 (Wyo. 2005).
PHOTOGRAPHS OF HOMICIDE VICTIMS TAKEN DURING LIFE GENERALLY INADMISSIBLE (W.R.E. 402) cite case
Photographs of homicide victims taken during life should be admitted to the jury only under very limited circumstances and are inadmissible unless they are relevant to some material issue and their relevancy outweighs the danger of prejudice to the defendant; where there is no purpose in introducing such pictures into evidence, such admission invokes the sympathy of the jury and constitutes error. Wilks v. State, 49 P.3d 985, 2002 Wyo. LEXIS 106 (Wyo. 2002).
WEAPON ADMITTED INTO EVIDENCE (W.R.E. 402) cite case
In a trial for attempted second-degree murder, the trial court did not err in admitting into evidence a knife that was located at the crime because the evidence was relevant under Wyo. R. Evid. 401, 402; there was no violation of Wyo. R. Evid. 403 because the facts that the knife had no blood on it and was not tested for fingerprints were issues for cross-examination. Those facts were not, however, grounds for excluding the knife on the basis of relevance. Hernandez v. State, 162 P.3d 472, 2007 Wyo. LEXIS 115 (Wyo. 2007).
PHOTOGRAPHS OF OTHER LOCATIONS IRRELEVANT (W.R.E. 402) cite case
In an action for negligent infliction of emotional distress, the trial court properly excluded as irrelevant plaintiff’s photographs of how other school playgrounds had been laid out because they were offered without any evidence of similarity of the underlying safety designs pertinent to the events contested in the cause of action. Contreras ex rel. Contreras v. Carbon County Sch. Dist., 843 P.2d 589 (Wyo. 1992).
EVIDENCE OF SEAT BELT NONUSE ALLOWED (W.R.E. 402) cite case
In a case where the introduction of seat belt evidence is not prohibited, the introduction of evidence of seat belt nonuse is allowed where an offer of proof is made to show a causal relationship between nonuse and injuries to the occupant. Dellapenta v. Dellapenta, 838 P.2d 1153 (Wyo. 1992).
EVIDENCE OF THE DECEASED’S PREGNANCY WAS IRRELEVANT (W.R.E. 402) cite case
as not making any fact of consequence to the determination of defendant’s guilt more or less probable, and should have been excluded from defendant’s trial for aggravated homicide by vehicle and two counts of reckless endangerment. Orona-Rangal v. State, 53 P.3d 1080, 2002 Wyo. LEXIS 146 (Wyo. 2002).
EVIDENCE OF OTHER INCIDENTS IS NOT NECESSARILY ADMISSIBLE. (W.R.E. 402) cite case
When this rule states specifically that, “Evidence which is not relevant is not admissible,” that language has meaning and should be applied in a proper case. McCabe v. R.A. Manning Constr. Co., 674 P.2d 699 (Wyo. 1983).
EVIDENCE OF OUT OF STATE MEDICAL MARIJUANA CARD IRRELEVANT. (W.R.E. 402) cite case
Because a California physician’s recommendation to use marijuana for medical purposes was not a valid prescription or medical practitioner’s order within the meaning of Wyo. Stat. Ann. § 35-7-1031(c) and was not a valid defense to the charge of felony possession of marijuana under Wyo. Stat. Ann. § 35-7-1031(c)(iii), evidence of a medical marijuana card from a California physician was properly excluded as irrelevant under Wyo. R. Evid. 401, 402; thus, the district court did not deny him his constitutional right under Wyo. Const. art. 1, § 10 to present a defense. Bruyette v. State, 253 P.3d 512, 2011 Wyo. LEXIS 101 (Wyo. 2011).
EVIDENCE OF INCIDENTS UNRELATED IN TIME, INTENT, AND LEGAL EFFECT (W.R.E. 402) cite case
Evidence of a sale that was going to occur after unlawful conveyances had been made was irrelevant to the charges of unlawful subdivision filed against defendant; the later sale was a separate and distinct transaction, completely unrelated in time, intent, and legal effect to the transactions for which defendant was convicted. McClellan v. State, 933 P.2d 461 (Wyo. 1997).
QUESTIONS CONCERNING ADMISSIBILITY OF EVIDENCE REST WITHIN TRIAL COURT’S DISCRETION (W.R.E. 402) cite case
Questions concerning the admissibility of evidence rest within the sound discretion of the trial court, and so, a trial court’s ruling as to the admissibility of evidence is entitled to considerable deference on appeal. City of Evanston v. Whirl Inn, Inc., 647 P.2d 1378 (Wyo. 1982).
VICTIM IMPACT EVIDENCE RELEVANT (W.R.E. 402) cite case
In defendant’s aggravated assault case, a court properly allowed victim impact evidence where the testimony that the victim was scared and terrified for her life and that of her son while defendant was making stabbing motions with the knife went towards proving that they were threatened by his actions. The testimony regarding the victim’s emotional state during and in the immediate aftermath of the assault tended to disprove the assertion that the accusations were calculated. Jensen v. State, 116 P.3d 1088, 2005 Wyo. LEXIS 101 (Wyo. 2005).
Relevancy determinations, not unlike the determinations as to the qualifications of the expert, are within the discretion of the trial court and, as with the determination of expertise, will not be disturbed absent an abuse of that discretion. Stauffer Chem. Co. v. Curry, 778 P.2d 1083 (Wyo. 1989).
Rulings on the admission of evidence are within the sound discretion of the trial court and, in the absence of a clear abuse of discretion, its rulings will not be disturbed. This exercise of the sound discretion of the trial court includes its determinations with respect to adequacy of foundation, the relevance of the proffered evidence, the competency of the proffered evidence, the materiality of the proffered evidence, and its remoteness, and the court’s ruling with respect to any factor will be upheld on appeal absent the clear abuse of that discretion. L.U. Sheep Co. v. Board of County Comm’rs, 790 P.2d 663 (Wyo. 1990).
SALES RECEIPT AS EVIDENCE OF UNLAWFUL CONVERSION (W.R.E. 402) cite case
In a prosecution for unlawful conversion by a bailee, a sales receipt is relevant evidence. After evidence was presented authenticating the document the sales receipt should have been admitted into evidence. This admission would not have established that the sales receipt was genuine, for that question is one for the trier of fact. Epperson v. State, 600 P.2d 1051 (Wyo. 1979).
MOTION IN LIMINE IMPROPER (W.R.E. 402) cite case
The trial court abused its discretion by granting the employer’s motion in limine because the order would have effectively prevented the employee from presenting his pretextual discharge theory of the case. Capshaw v. WERCS, 28 P.3d 855, 2001 Wyo. LEXIS 83 (Wyo. 2001).
LIMITING INSTRUCTION ON PAST CONDUCT REQUIRED IF REQUESTED (W.R.E. 402) cite case
Evidence in a criminal proceeding of other crimes, wrongs or acts by the accused has such a potential to result in a verdict based on a determination of guilt for such other crimes, wrongs or acts, rather than for the charged crime, that an instruction should be given, if timely requested, limiting the evidence to the purpose for which it was admitted or explaining its pertinency to the element of the charge to which it is probative. Grabill v. State, 621 P.2d 802 (Wyo. 1980).
TESTIMONY INADMISSIBLE ON APPEAL FROM DENIAL OF LIQUOR LICENSE (W.R.E. 402) cite case
Testimony concerning the value of bars as socialization centers in boom town is irrelevant and inadmissible in a trial de novo conducted on appeal in the district court from the denial of a liquor license. City of Evanston v. Whirl Inn, Inc., 647 P.2d 1378 (Wyo. 1982).
EVIDENCE IMPLICATING CHARACTER OF ACCUSED (W.R.E. 402) cite case
Evidence admissible under Rule 404(b) often tends to implicate the character of the accused, but if the evidence properly is offered for a purpose which is permissible in the light of Rules 402 and 404(b), then it is not excludable simply because it does implicate the character of the accused. Coleman v. State, 741 P.2d 99 (Wyo. 1987).
ADMITTING EVIDENCE OF DEFENDANT’S PRIOR ARREST FOR DISTURBING THE PEACE (W.R.E. 402) cite case
at her trial for attempted robbery was harmless error where the reference to the arrest was momentary and not the subject of extensive inquiry by the prosecutor, and the evidence establishing the circumstances surrounding the attempted robbery and the identity of the defendant as the perpetrator was relatively strong. Jones v. State, 735 P.2d 699 (Wyo. 1987).
TESTIMONY REGARDING RACIAL SLURS BY DEFENDANT ADMISSIBLE (W.R.E. 402) cite case
Admission of a rebuttal witness’s testimony that defendant had struck him and stated “Listen, nigger, get out of here” was proper, where defendant had introduced evidence of his nonviolent character, and, under the circumstances, the testimony of the rebuttal witness and questions concerning use of the word “nigger” were relevant and not beyond the scope of direct examination. Summers v. State, 725 P.2d 1033 (Wyo. 1986), aff’d, 731 P.2d 558 (Wyo. 1987).
TESTIMONY TO SHOW BIAS ADMISSIBLE (W.R.E. 402) cite case
In a drug prosecution, the trial court properly allowed two witnesses to testify concerning their prior drug use; Wyo. R. Evid. 608(b) did not apply because the witnesses’ testimony about their own drug use was not extrinsic evidence under the rule; further, the evidence was relevant under Wyo. R. Evid. 402 to show bias for impeachment purposes. Lawrence v. State, 171 P.3d 517, 2007 Wyo. LEXIS 195 (Wyo. 2007).
IMPEACHMENT TESTIMONY ADMISSIBLE (W.R.E. 402) cite case
Evidence of murder defendant’s sexual activity with her boyfriend after killing of husband was not “other bad acts evidence,” but was offered to demonstrate that she lied about her distaste for such sexual activities; the evidence was thus relevant to her credibility and veracity. Trusky v. State, 7 P.3d 5, 2000 Wyo. LEXIS 130 (Wyo. 2000).
TESTIMONY REGARDING “GOOD NEIGHBOR” STANDARD INADMISSIBLE (W.R.E. 402) cite case
The opinion of an insured’s expert as to whether the insurance company’s advertising established a standard requiring it to act “like a good neighbor” and on how a “good neighbor” would act, was properly excluded; the opinion required no specialized knowledge, could not have assisted the jury in understanding the evidence or determining any of the facts in issue, and was beyond the realm of the witness’ expertise. Hatch v. State Farm Fire & Cas. Co., 930 P.2d 382 (Wyo. 1996).
IRRELEVANT TESTIMONY BY PHYSICIAN WAS HARMLESS ERROR (W.R.E. 402) cite case
Even though a physician’s testimony concerning his treatment of a witness after the fight should not have been admitted because it was not relevant under Wyo. R. Evid. 401, as defendant was not charged with assaulting the witness, and the evidence was not admissible to rehabilitate the witness’s credibility, the error was harmless because the witness made it clear that defendant did not attack him or cause his injuries, and therefore testimony about the extent of his injuries could not reflect badly on defendant or unfairly turn the jury against him. Evenson v. State, 177 P.3d 819, 2008 Wyo. LEXIS 25 (Wyo. 2008).
TESTIMONY REGARDING REPRESENTATION (W.R.E. 402) cite case
Court in dispute over assets of estate did not abuse its discretion by refusing to allow defendants to question personal representative about why he abandoned claims against estate of a former defendant; defendants did not show how evidence was relevant, or how questioning representative about his procedural choices would have assisted jury in determining issues before it. Clark v. Gale, 966 P.2d 431 (Wyo. 1998).
WITNESS’ “SUSPICIONS” THAT FATHER KILLED MOTHER NOT ADMISSIBLE (W.R.E. 402) cite case
When a witness testified of his “suspicions of my father killing my mother,” that suspicion was not based upon personal knowledge or perception and was not admissible merely because the defendant had been indicted for first degree murder. Also, the witness’ opinion was not helpful to a clear understanding of his testimony, was not relevant to any issue in the case, and was not admissible under the “state-of-mind” exception in Rule 803(3), because that rule concerns the admissibility of hearsay evidence, and this was not hearsay. Schmunk v. State, 714 P.2d 724 (Wyo. 1986).
EVIDENCE OF VICTIM’S RELATIONSHIP WITH FATHER (W.R.E. 402) cite case
In an indecent liberties case, defendant’s constitutional right to confrontation was not denied by the court’s refusal to admit the testimony of a witness regarding an assessment of the relationship between the victim’s father and the victim so that the factfinder might infer that the victim had a motive to lie. The purported testimony was not relevant, or was at most conditionally relevant, and the necessary preconditions were not met. Person v. State, 100 P.3d 1270, 2004 Wyo. LEXIS 190 (Wyo. 2004).
IN MEDICAL MALPRACTICE ACTION, EVIDENCE REGARDING PLAINTIFF’S ACTIVITIES BEFORE HER ACCIDENT WERE INADMISSIBLE (W.R.E. 402) cite case
under Rules 401 and 402. See Shields v. Carnahan, 744 P.2d 1115 (Wyo. 1987).
EVIDENCE OF TORTFEASOR’S INTOXICATION WHERE ONLY ISSUE IS EXTENT OF DAMAGES (W.R.E. 402) cite case
Evidence of tortfeasor’s intoxication at the time of automobile collision was inadmissible where the questions before the jury concerned the extent of the damages suffered by the plaintiffs, and the cause of those damages, tortfeasor’s failure to stop at an intersection while impaired, was no longer at issue. Parker v. Artery, 889 P.2d 520 (Wyo. 1995).
IRRELEVANT EXPERT TESTIMONY (W.R.E. 402) cite case
In a murder case, the trial court properly refused to permit defendant’s expert witness on trace evidence to testify because the crux of defendant’s trial defense was that he was not involved in the murder and that the primary witnesses against him were liars with ulterior motives. Because the defense did not question the manner in which trace evidence was collected or processed and did not allege any improprieties in the recording of witness statements, the testimony of the expert witness would not have proved or disproved any fact of consequence to the determination of the case and was therefore irrelevant. Proffit v. State, 193 P.3d 228, 2008 Wyo. LEXIS 108 (Wyo. 2008).
HARMLESS ERROR (W.R.E. 402) cite case
Even if a district court erred by admitting testimony concerning the events surrounding an arrest in violation of Wyo. R. Evid. 402 and Wyo. R. Evid. 403, there was no reversible error since defendant did not show that the error was prejudicial or that a substantial right was adversely affected. Gabbert v. State, 141 P.3d 690, 2006 Wyo. LEXIS 108 (Wyo. 2006).
MOTIVE AND INTENT FOR ARSON (W.R.E. 402) cite case
In a case involving the crime of being accessory before the fact to an arson, an agent was properly allowed to testify as to the process of manufacturing methamphetamine to show motive and intent for the arson, which was allegedly done to destroy evidence found during the execution of a search warrant. The challenged testimony was probative to the issue of defendant’s guilt, as it provided a foundation connecting his drug charge to his motive for committing the arson; moreover, it refuted a defense theory that defendant was not involved in the crime. Callen v. State, 192 P.3d 137, 2008 Wyo. LEXIS 111 (Wyo. 2008).
W.R.E. 403 is about what?
Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
CROSS-EXAMINATION OF DEFENDANT REGARDING PRIOR FIGHTS PERMISSIBLE (W.R.E. 403) cite case
In a prosecution for aggravated assault and battery, the court reasonably balanced the state’s right to impeach the defendant’s claim that he never started a fight, with the defendant’s right to have unfairly prejudicial evidence excluded, when it ruled that the state could ask the defendant about prior fights in which he had been involved, but that it could not introduce extrinsic evidence of them. Lucero v. State, 14 P.3d 920, 2000 Wyo. LEXIS 233 (Wyo. 2000).
RELEVANT EVIDENCE IN HOMICIDE CASE NOT EXCLUDED, ALTHOUGH HARMFUL (W.R.E. 403) cite case
Most relevant evidence offered by the state in a homicide case is harmful, even prejudicial, but that is not enough to justify exclusion under this rule. Kelly v. State, 694 P.2d 126 (Wyo. 1985).
Trial court did not err in ruling that defendant’s use of derogatory terms directed at a child, who defendant allegedly murdered as a result of child abuse, could be admitted into evidence because the probative value of the evidence was not substantially outweighed by the prejudice; the State showed that the evidence provided motive and intent. Sanchez v. State, 142 P.3d 1134, 2006 Wyo. LEXIS 121 (Wyo. 2006).
PHOTOGRAPHS ARE ADMISSIBLE (W.R.E. 403) cite case
if they correctly portray the subject matter, do not convey a false impression and if their probative value is such as to outweigh the possibility of undue prejudice from such circumstances as their gruesome character. Phillips v. State, 835 P.2d 1062 (Wyo. 1992).
WEAPON ADMITTED INTO EVIDENCE (W.R.E. 403) cite case
In a trial for attempted second-degree murder, the trial court properly admitted into evidence a knife that was located at the crime because the evidence was relevant under Wyo. R. Evid. 401, 402; there was no violation of Wyo. R. Evid. 403 because the facts that the knife had no blood on it and was not tested for fingerprints were issues for cross-examination. Those facts were not, however, grounds for excluding the knife on the basis of relevance. Hernandez v. State, 162 P.3d 472, 2007 Wyo. LEXIS 115 (Wyo. 2007).
VIDEO TAPE OF FLIGHT FROM POLICE ADMISSIBLE (W.R.E. 403) cite case
Defendant’s claim that another person in stolen car with him purportedly stole the car and escaped gave video tape of defendant’s flight in car from police substantial probative value where it showed no one exited the vehicle, and trial court did not abuse its discretion in determining tape was more probative than prejudicial. Prindle v. State, 945 P.2d 1180 (Wyo. 1997), overruled on other grounds, Vaughn v. State, 962 P.2d 149 (Wyo. 1998).
TESTIMONY REGARDING VIDEOTAPE (W.R.E. 403) cite case
Defendant failed to show plain error when he contested for the first time on appeal that witnesses detective and jewelry store manager erroneously testified to their impressions, opinions, and beliefs formed from watching security camera’s videotape which testimony was not based on their personal knowledge where evidence was compelling, even in absence of the testimony at issue, that the defendant stole a necklace from the jewelry store. Brown v. State, 90 P.3d 98, 2004 Wyo. LEXIS 69 (Wyo. 2004). Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).
TESTIMONY OF SOCIAL WORKER (W.R.E. 403) cite case
Testimony of social worker based on first-hand observations while in the defendant’s home and introduced for the purpose of meeting the State’s burden of proving that the defendant recklessly neglected the nourishment of defendant’s infant daughter was neither unfairly prejudicial nor inflammatory. DeWitt v. State, 917 P.2d 1144 (Wyo. 1996).
DOCTOR’S TESTIMONY IN MEDICAL MALPRACTICE CASE. (W.R.E. 403) cite case
Court at medical malpractice trial erred in excluding opinion of plaintiff’s expert on grounds of unfair surprise, where: (1) there was no indication plaintiff willfully failed to comply with evidentiary rules, (2) admission of testimony would not have incurably surprised or prejudiced the defense, and, (3) exclusion of opinion stating there was a breach of standard of care prejudiced plaintiff’s ability to present merits of her claim. Winterholler v. Zolessi, 989 P.2d 621 (Wyo. 1999).
DOCTOR’S TESTIMONY CONCERNING VICTIM’S INJURIES (W.R.E. 403) cite case
In a trial for attempted murder, a doctor’s testimony concerning potential injuries from bullet wounds such as those inflicted upon the victim was probative of the defendant’s intent and premeditation. Any prejudice arousing the jury’s sympathy was inconsequential. Geiger v. State, 859 P.2d 665 (Wyo. 1993).
VICTIM’S TESTIMONY CONCERNING INJURIES (W.R.E. 403) cite case
Testimony of victim and his wife, taken in their totality, was not victim impact testimony, but was relevant and admissible because the context in which the testimony was given showed that it related to victim’s injury which was caused by a deadly weapon, and in order to convict defendant for aggravated assault and battery, the state had to prove he used a deadly weapon. Baier v. State, 891 P.2d 754 (Wyo. 1995).
Testimony of stabbing victim as to pain and problems he had suffered was properly allowed, because one element of crime of aggravated assault was infliction of bodily injury with a deadly weapon. Hernandez v. State, 976 P.2d 672 (Wyo. 1999).
There was a clear justification of relevance where the credibility of the victim in a sexual solicitation case was attacked by the defense, prompting the prosecutor to elicit victim impact testimony to bolster that witness’ credibility. White v. State, 80 P.3d 642, 2003 Wyo. LEXIS 200 (Wyo. 2003).
Victim impact statements presented in defendant’s assault case concerned the victim’s injuries and, therefore, were properly allowed because, in order to obtain a conviction for aggravated assault and battery, one of the elements the State was required to prove beyond a reasonable doubt was that defendant inflicted “serious bodily injury,” and most of the testimony was relevant and admissible to prove that element of the crime charged. Given the weight of the evidence against defendant, no plain error resulted from the admission of the victim impact statements. Thomas v. State, 131 P.3d 348, 2006 Wyo. LEXIS 37 (Wyo. 2006).
TESTIMONY REGARDING AUTOMOBILE ACCIDENT (W.R.E. 403) cite case
Testimony of accident reconstructionist was corroborative and not needlessly cumulative of investigating officer’s testimony, and there was no abuse of discretion in permitting both individuals to testify regarding their separate reconstructions of automobile accident. Mintun v. State, 966 P.2d 954 (Wyo. 1998).
TESTIMONY ABOUT “911” CALL (W.R.E. 403) cite case
In a trial for attempted murder, testimony about a “911” call and the transcript of the actual telephone call had probative value without being extremely inflammatory or unduly prejudicial. The tape was descriptive of the commission of the crime and the crime scene, which was probative of how, when and where the shooting occurred. Geiger v. State, 859 P.2d 665 (Wyo. 1993).
TESTIMONY ON IMPACT OF THREATS NOT PREJUDICIAL (W.R.E. 403) cite case
In a prosecution for terrorist threats to a nursing home, the court neither abused its discretion nor violated a clear rule of law when it admitted testimony concerning the impact of the threatening phone calls on the individuals at the home. This testimony was relevant because it was probative of the risk of serious public inconvenience, and was not unduly prejudicial. McCone v. State, 866 P.2d 740 (Wyo. 1994).
EVIDENCE OF ALLEGED THREAT ALLOWED. (W.R.E. 403) cite case
Evidence of an alleged threat made by the defendant to a witness in the hallway at the courthouse was relevant to consciousness of guilt and was neither unduly inflammatory nor introduced solely to inflame the jury. Mazurek v. State, 10 P.3d 531, 2000 Wyo. LEXIS 182 (Wyo. 2000).
In a premeditated murder prosecution, defendant claimed that he killed his wife’s lover in the sudden heat of passion. The record supported the trial court’s conclusion that the probative value of evidence of defendant’s prior assault on his wife’s ex-husband and his threat against her other boyfriend, which was relevant to prove motive and intent as those concepts related to malice, outweighed any prejudice to defendant. Taylor v. State, 203 P.3d 408, 2009 Wyo. LEXIS 30 (Wyo. 2009).
STATE WITNESS’S TESTIMONY CONCERNING PRIOR DRUG TRANSACTIONS CARRIED SIGNIFICANT PROBATIVE VALUE (W.R.E. 403) cite case
with respect to the existence of the charged conspiracy and also with respect to the crime of delivery of a controlled substance. Wehr v. State, 841 P.2d 104 (Wyo. 1992).
TESTIMONY REGARDING DRUG BUY PROCEDURES ADMISSIBLE. (W.R.E. 403) cite case
In a prosecution for delivery of a controlled substance, it was not error to allow a deputy to explain procedures used to ensure the reliability of drug buys and to testify that those procedures were followed in the case at issue, notwithstanding the assertion that the deputy improperly bolstered his own testimony and that of an informant, where the deputy never offered an opinion about the truthfulness of the informant’s testimony but said he merely explained departmental procedures, thereby laying a proper foundation for the admission of additional evidence. Contreras v. State, 7 P.3d 917, 2000 Wyo. LEXIS 166 (Wyo. 2000).
TESTIMONY OF VICTIM’S FELLOW EMPLOYEES (W.R.E. 403) cite case
Testimony in trial for murder of a pizza delivery person by two of the victim’s fellow employees that they never saw the victim alive again was relevant and admissible; the witnesses were examined as to the specific events of the evening up until the time they discovered the victim’s death in order to establish a timeline, and no material prejudice accrued to the defendant as the prosecutor did not explore whether the witnesses were traumatized by never seeing the victim again, and the witnesses did not elaborate. Wilks v. State, 49 P.3d 985, 2002 Wyo. LEXIS 106 (Wyo. 2002).
TESTIMONY OF PRIOR SEXUAL ASSAULT VICTIMS ADMISSIBLE (W.R.E. 403) cite case
At a trial in which the defendant was charged with sexual assault, the testimony of two prior victims of the defendant was admissible where the prior assaults occurred within 15 months of the charged assaults and the material issues that this evidence was offered to demonstrate, and helped to establish, were the defendant’s intent, motive, plan and identity. Rivera v. State, 840 P.2d 933 (Wyo. 1992).
In a prosecution for first-degree sexual assault upon his ex-wife, the defendant’s first wife testified that she, too, had been sexually assaulted by the defendant after she told him of plans to divorce him. This evidence of uncharged misconduct was relevant to assist the fact finder on the issue of consent and admitted for a proper purpose. Sandy v. State, 870 P.2d 352 (Wyo. 1994).
Victim’s testimony which included incidents of prior sexual intercourse with stepfather as well as his infliction of physical abuse on the family, and the victim’s mother’s and sister’s testimony concerning prior sexual misconduct and physical abuse by defendant was admissible under Rules 403 and 404(b), W.R.E. Jackson v. State, 891 P.2d 70 (Wyo. 1995).
Evidence of prior violence between defendant and the victim was properly admitted in assault case, where the evidence demonstrated an ongoing pattern of defendant’s behavior, which culminated with the charged acts of violence, and helped to refute defendant’s claim that the victim caused her own injuries. In addition, any prejudicial effect of the testimony was mitigated by the court’s actions in reining in the State and the victim and instructing the jury. Thomas v. State, 131 P.3d 348, 2006 Wyo. LEXIS 37 (Wyo. 2006).
STATEMENT THAT DEFENDANT PREVIOUSLY ASSAULTED CHILD ADMISSIBLE (W.R.E. 403) cite case
The court did not commit prejudicial error in a child sexual assault case by admitting into evidence the defendant’s statement to Utah social worker that he had fondled a 10-year-old girl in Utah in July of 1984. The evidence proved intent, identity, and motive. Johnson v. State, 872 P.2d 93 (Wyo. 1994).
CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (W.R.E. 403) cite case
Qualified experts on child sexual abuse may use evidence of Child Sexual Abuse Accommodation Syndrome characteristics of sexually abused children for the sole purpose of explaining a victim’s specific behavior which might be incorrectly construed as inconsistent with an abuse victim or to rebut an attack on the victim’s credibility; expert testimony of Child Sexual Abuse Accommodation Syndrome cannot be used for the purpose of proving whether the victim’s claim of abuse is true. Frenzel v. State, 849 P.2d 741 (Wyo. 1993).
SEXUAL ABUSE EVIDENCE (W.R.E. 403) cite case
Where a defendant facing a charge of conspiracy to murder a victim conceded that evidence could be admitted that the defendant faced criminal charges in which the victim was intended to testify against the defendant, but the defendant asserted that evidence that the charges involved sexual abuse was unduly prejudicial, the evidence of the sexual abuse charges was properly admitted; without evidence of the nature of the alleged crimes against the victim the jury could not effectively judge whether reporting the crimes created a motive to kill the victim, and thus the extremely high probative value of the evidence was not outweighed by a danger of unfair prejudice. Proffit v. State, 193 P.3d 228, 2008 Wyo. LEXIS 106 (Wyo. 2008).
Where defendant was charged with third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(i) after defendant offered to give his 15-year-old neighbor a massage and, during the course of the massage, rubbed the victim’s breasts and vaginal area and where defendant contended that the contact was unintentional but resulted from the slippery nature of massage oil and the proximity to genital areas during the massage process, the trial court did not abuse its discretion under Wyo. R. Evid. 404(b) in permitting the State to introduce evidence that defendant had previously been convicted for sexual contact with a 13-year-old girl and evidence that defendant married a 16-year-old girl after engaging in premarital relations with her because the evidence was relevant to prove that the contact was intentional for the purpose of sexual gratification. Further, the evidence was not more prejudicial than probative because an adult’s desire for sexual contact with a child was not something that would necessarily dissipate with the passage of time, and the passage of time did not make defendant’s acts any less probative than they might otherwise be. Willis v. Bender, 596 F.3d 1244, 2010 U.S. App. LEXIS 4531 (10th Cir. 2010).
NATIONAL CRIME INFORMATION CENTER REPORT ADMISSIBLE (W.R.E. 403) cite case
National Crime Information Center report was admissible in a prosecution for aggravated robbery as an impeachment device not offered into evidence but employed to refute parent’s allegations of their defendant son’s reputation. Taul v. State, 862 P.2d 649 (Wyo. 1993).
TOXICOLOGY REPORT NOT UNFAIRLY PREJUDICIAL (W.R.E. 403) cite case
In a wrongful death suit against an electric company arising out of the decedent being electrocuted when an aluminum surveying rod he was using contacted a high voltage power line, the court did not abuse its discretion when it admitted a toxicology report which showed the presence of amphetamines and cannabinoids (marijuana) in the decedent’s urine at the time of his death. The evidence was relevant to support the theory that the decedent’s conduct was consistent with impairment of his faculties and was not unfairly prejudicial. Furman v. Rural Elec. Co., 869 P.2d 136 (Wyo. 1994).
EVIDENCE SHOWING DEFENDANT’S INTENT, REFUTING DEFENDANT’S THEORY, ADMISSIBLE (W.R.E. 403) cite case
Where the evidence in question tended to show that the defendant intended to sell marijuana, in light of the defendant’s theory that he never intended to engage in a drug transaction, that evidence is particularly relevant and is therefore admissible under this rule. Noetzelmann v. State, 721 P.2d 579 (Wyo. 1986).
PICTURES ADMISSIBLE TO ESTABLISH MOTIVE (W.R.E. 403) cite case
Where pictures of a dead victim have a substantial probative value as to the motive of the accused, they are admissible. Hopkinson v. State, 632 P.2d 79 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463 (1982), 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (1983).
PHOTOGRAPHS ADMISSIBLE TO ASSIST EXPERT TESTIMONY (W.R.E. 403) cite case
In a murder case, a court properly admitted photographs because the forensic pathologist who performed the autopsy relied during his testimony upon the photographs taken during that autopsy, and they helped the witness explain his conclusions as to how the injury and death occurred and that the death was not a suicide, but a staged suicide. Bhutto v. State, 114 P.3d 1252, 2005 Wyo. LEXIS 92 (Wyo. 2005).
