Objections

Question 1

Rule 803 (3)

Answer 1

Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

Question 2

Kopel v. State

Answer 2

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

Question 3

Elements of Entrapment (Affirmative Defense)

Answer 3

Inducing a defendant to commit a crime means employing methods of persuasion or encouragement that create a substantial risk that a crime will be committed by a person who was otherwise unlikely to commit it. It does not include merely providing a defendant with the opportunity, means, and facilities to commit the offense.

Question 4

Rule 703

Answer 4

Admissibility of expert testimony

Question 5

State v. Veli and Pickerill

Answer 5

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

Question 6

Rule 803 (8)

Answer 6

Public Record A record or statement of a public office if: (A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; and (B) neither the source of information nor other circumstances indicate lack of trustworthiness.

Question 7

Ginger v. Heisman

Answer 7

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

Question 8

Statements that are not hearsay

Answer 8

801 d (1) 801 d (2)

Question 9

State v. Dousa

Answer 9

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

Question 10

State v. Jewell

Answer 10

When defendants raise the defense of entrapment, they necessarily put their character at issue. Therefore, character evidence showing a defendant’s predisposition is admissible to rebut the entrapment defense and may be proven through reputation or opinion testimony pursuant to Rule 405(a) and specific instances of conduct pursuant to Rule 405(b).

Question 11

Zomerfeld v. Noto

Answer 11

Pursuant to Midlands Rules of Evidence 104(a), when evaluating the admissibility of evidence, a trial court is permitted to rely on both admissible and inadmissible evidence. The use of underlying inadmissible evidence does not make that inadmissible evidence admissible. Instead, the court is merely permitted to consider the underlying inadmissible evidence in order to assess the admissibility of the offered evidence. In a jury trial, the jury may not always be privy to the underlying facts used to determine what evidence is admissible, but the Court may hear it. Previous upheld examples of this in Midlands include using character evidence to make a ruling on hearsay exceptions, using hearsay to make a ruling on character evidence, and using hearsay to decide whether an expert has adequate foundation to testify.

Question 12

America’s Best Cookie v. International House of Waffles

Answer 12

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

Question 13

State v. Parsons

Answer 13

In the guilt phase of a criminal trial, admission of evidence offered solely for the purpose of discussing the available penalties for the crime charged is strictly prohibited. This has no impact on evidence of prior crimes of witnesses that is admissible subject to the Midlands Rules of Evidence.

Question 14

Davis v. Adams

Answer 14

Under the Midlands Rules of Evidence, trial judges must ensure that any scientific testimony or evidence admitted is not only relevant but reliable. In determining whether expert testimony is sufficiently reliable, judges should consider only the methods employed and the data relied upon, not the conclusions themselves. The proponent of the evidence has the burden of proving each section of Rule 702 by a preponderance of the evidence

Question 15

State v. Owens

Answer 15

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

Question 16

State v. Dressel

Answer 16

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

Question 17

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

Answer 17

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

Question 18

Rule 403

Answer 18

Cumulative

Question 19

Filteau v. Wanek

Answer 19

A statement’s admissibility will sometimes turn on the identity of the person making a statement. Because Midlands law contains a strong preference for jury determinations of important questions, courts must be careful not to usurp the jury’s role in this context. As long as the proponent of the statement produces evidence that would permit a reasonable jury to find, by a preponderance of the evidence, that a given person made a particular statement, the court must assume for the purposes of assessing the statement’s admissibility that the statement was made by that person.

Question 20

Rule 801

Answer 20

Hearsay

Question 21

Rule 803 (1)

Answer 21

Present Sense Impression A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 22

Pahlke v. Piper

Answer 22

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

Question 23

Lee v. State

Answer 23

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

Question 24

Richards v. Mississippi BBQ

Answer 24

Midlands Rule of Evidence 703 does not afford an expert unlimited license to testify or present a chart in a manner that simply summarizes inadmissible hearsay without first relating that hearsay to some specialized knowledge on the expert’s part, as required under Midlands Rule of Evidence 702. The court must distinguish experts relying on otherwise inadmissible hearsay to form scientific conclusions from conduits who merely repeat what they are told. The testimony of the former is admissible; that of the latter is not. Of course, statements admissible if offered through any other witness are not rendered inadmissible simply because they are offered by an expert witness. Thus, this case does not apply to and does not render inadmissible (a) statements that are not hearsay; (b) statements that qualify as party opponent statements under Rule 801(d)(2); and (c) statements that qualify as exceptions to the hearsay rule.

Question 25

Rule 803 (6)

Answer 25

Business Record A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by – or from information transmitted by – someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Question 26

Relevance

Answer 26

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Question 27

State v. Capaldi

Answer 27

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

Question 28

State v. Walton

Answer 28

A defendant’s decision to offer an affirmative defense, including entrapment, must be disclosed to the State at least 15 days before trial. The proper remedy for a defendant’s failure to disclose the defense 15 or more days before trial is typically a continuance of the trial date; however, when a continuance is not practicable, the secondary remedy is rejection of the affirmative defense by the trial court.

Question 29

State v. Heflin

Answer 29

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

Question 30

Testimony by an expert witness (foundation)

Answer 30

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Question 31

Rule 404

Answer 31

Character Evidence

Question 32

Tarot Readers Association of Midlands v. Merrell Dow

Answer 32

In assessing reliability under Rule 702(c) of the Midlands Rules of Evidence, judges should consider, among other factors, whether the theory or technique has been or can be tested, whether it has been subjected to peer review and publication, whether it has a known error rate, and whether it has gained widespread acceptance within the field. These factors, while relevant, are not necessarily dispositive. For example, lack of publication does not automatically foreclose admission; sometimes well-grounded but innovative theories will not have been published. Some expert fields, meanwhile, have no known error rate because a strict mathematical rate of success cannot be applied to the expert’s methodology. Indeed, there is no definitive checklist in making a preliminary assessment of whether reasoning or methodology underlying expert testimony is scientifically reliable. Judges must make such assessments based on the totality of the circumstances, and the proponent of such expert testimony must meet the threshold proof requirement of a preponderance of the evidence.

Question 33

Rule 803

Answer 33

Hearsay Exceptions

Question 34

State v. Jeffcott

Answer 34

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

Question 35

Rule 803 (2)

Answer 35

Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

Question 36

Hearsay

Answer 36

An out of court statement used to prove the truth of the matter asserted

Question 37

Elements of Bribery

Answer 37

A. The defendant was a public official; B. The defendant received something of value or benefit in return for being influenced in the performance of an official act; and C. The defendant acted with the intent to be influenced in the performance of an official act.

Question 38

Exceptions to Character Evidence

Answer 38

(A) A defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it. In lieu of rebuttal witness availability, a defendant must first notify the court and opposing counsel in writing at the Captains’ Meeting of the intention to offer such evidence. If such notice is given, the form included with these Rules of Evidence should be completed and presented to the judges with the ballots, and the prosecution may also offer such character evidence during its case-in-chief. (B) A defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait. In lieu of rebuttal witness availability, a defendant must first notify opposing counsel in writing at the Captains’ Meeting of the intention to offer such evidence. If such notice is given, the form included with these Rules of Evidence should be completed and presented to the judges with the ballots, and the prosecution may also offer such character evidence during its case-in-chief.

Question 39

Illiadis v. State

Answer 39

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

Question 40

State v. Lowe

Answer 40

A criminal defendant’s decision to exercise the constitutionally protected right not to testify in his or her own defense may not be commented upon by the State either explicitly or implicitly. However, if the defendant does choose to testify, his or her credibility is to be judged like that of any other witness.

Question 41

Rule 401

Answer 41

Relevance

Question 42

Graham v. State

Answer 42

While the prosecution in a criminal case must prove each of the elements of its burden beyond a reasonable doubt, this burden does not typically apply to evidentiary matters. In Midlands, the proponent of the evidence need only prove these evidentiary matters by a preponderance of the evidence (i.e., it must establish that all elements are more likely than not true).

Question 43

State v. Sheikh

Answer 43

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

Question 44

Character Evidence

Answer 44

Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Question 45

Rule 702

Answer 45

Testimony by an expert witness (foundation)

Question 46

Elements of Entrapment (State/Predisposition)

Answer 46

In determining whether the defendant, Avery Bancroft, was predisposed to commit the crime before being approached by government agents, you may consider the following factors: A. Whether government agents initially suggested the criminal activity; B. Whether the defendant demonstrated reluctance to commit the offense; C. Whether government agents repeatedly pressured or persuaded the defendant to perform the criminal activity; D. The defendant’s level of participation in the offense; E. The defendant’s character and reputation, including criminal history or lack thereof.

Question 47

Rule 801 d (2)

Answer 47

An Opposing Party’s Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Question 48

State v. Campbell

Answer 48

In Midlands, all criminal trials are bifurcated with a guilt phase followed by a penalty phase. It is improper for an attorney to comment on sentencing or discuss potential penalties during the guilt phase of the trial. Such conduct is grounds for a mistrial and may constitute conduct for which sanctions are appropriate.

Question 49

Smith v. State

Answer 49

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

Question 50

State v. Chambliss

Answer 50

Criminal conspiracy to commit a given crime occurs when a person agrees with another or others to commit an offense, attempt to commit an offense, solicit the commission of an offense, or aid another in the planning or commission of an offense. However, an informant working with law enforcement is an agent of the government and, as such, cannot be said to be in conspiracy with a defendant for the purposes of Midlands Rule of Evidence 801(d)(2).

Question 51

Admissibility of expert testimony

Answer 51

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Question 52

State v. Goodman

Answer 52

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