Utah State Bar



UTAH EVIDENCE CASESSeptember 1, 2017 to September 1, 2018Hon. Derek P. PullanFourth District Courtdpullan@ARTICLE 1. GENERAL PROVISIONSRule 101. Scope; Definitions.Rule 102. Purpose.Rule 103. Rulings on evidenceState v. Johnson, 2017 UT 70 (Atherton, J., 3rd District). Defendant convicted of murder. Court of appeals applied exceptional circumstances exception to preservation and waiver rules to reverse conviction because of an erroneous homicide by assault instruction that Defendant drafted. HELD: Reversed. Appellate system grew out of writs of error and appeal in equity. Waiver and preservation requirements are self-imposed doctrines of prudence rather than jurisdiction.Four Possibilities: Preservation and Waiver--ExceptionsIssues raised on appeal = Preserved or exception to preservation required.Preserved at trial and raised on appeal (Proper for review)Not preserved at trial, but raised on appeal (Review requires exception to preservation).Plain error (error, obvious, harmful).Ineffective assistance (criminal cases only);Exceptional circumstances (rare procedural anomaly AND manifest injustice, constitutional right, or liberty interest at stake).Issues waived on appeal = Exceptions allowing for sua sponte review.Preserved at trial, or valid exception to preservation, but not raised on appeal. Robinson.Issue is astonishingly erroneous but undetected;Losing party would be subject to great and manifest injustice.Neither party is unfairly prejudiced by raising the issue at this point in the litigation.Not preserved at trial, no valid exception to preservation, and not raised on appeal.Subject matter jurisdiction or necessary joinder issue;Purely legal issue exception.Purely legal issue,Almost certain to arise in and assist in the analysis in other cases;Necessary to correctly determine an issue that was properly raised; and Neither party is unfairly prejudiced by raising the issue at this point (or neither party argues that they are unfairly prejudiced). Statute or rule exception.State v. Roberts, 2018 UT App 9 (Trease, J., 3rd District). Defendant convicted of sexual abuse of a child. At trial, the state called the child’s therapist. The therapist testified for 30 minutes providing specific information about the child, but also comparing the child’s behavior to that of other children who were sexually abused. When the prosecutor asked the therapist to opine about child memory, defense counsel at last objected on the ground that no expert witness notice had been provided. Defense counsel moved to strike the therapist’s testimony. Trial court denied the motion. HELD: Affirmed on other grounds. Confirming that objections must be made timely or are waived. URE 103(a).Rule 104. Preliminary questions.Rule 105. Limiting evidence not admissible against other parties or for other purposes.State v. Padilla, 2018 UT App 108 (Blanch, J., 3rd District). Padilla was charged with two co-defendants for the drive-by gang-related shooting of victim. At trial, one of the people in Padilla’s car testified that Padilla said “We will drive back to where we saw victim, ask him which gang he belongs to, and depending on his answer shoot him.” The co-defendants moved for mistrial because Padilla’s out-of-court statement would be unconfronted. Trial court granted this motion. Padilla’s motion for mistrial was denied. Court gave two cautionary instructions about the absence of the co-defendants from trial when jury expressed confusion about whether it must disregard some testimony previously admitted. Court gave a limiting instruction regarding accomplice testimony pursuant to section 77-17-7(2). Padilla was convicted of felony discharge of a firearm and obstruction. On appeal, Padilla argued (1) counsel erred in not renewing a motion for mistrial when the jury expressed confusion about absence of co-defendants; and (2) Court erred in failing to give the accomplice instruction as he requested it. HELD: Affirmed.“Curative instructions are a settled and necessary feature of our judicial process and one of the most important tools by which a court may remedy errors at trial. . . . Curative instructions are ordinarily presumed on appeal to be effective.”Discretionary and mandatory accomplice testimony instructions. Under section 77-17-7, court may give an accomplice testimony instruction, if the testimony is uncorroborated. Court shall give the instruction if court finds the accomplice testimony is “self-contradictory, uncertain, or improbable.”Rule 106. Remainder of related writings or recorded statementsState v. Sanchez, 2018 UT 31, (Lindberg, J., 3rd District). Sanchez tortured and killed his girlfriend. He claimed he was acting under extreme emotional distress because the victim told him she was cheating on him with his brother and refused to promise she would stop. Sanchez did not testify. Trial court excluded as double hearsay statements Sanchez made to a detective: “She told me that she was having sex with my brother.” [NOTE: This is not double hearsay. Sanchez statement is hearsay—offered to prove that victim did say this; but victim’s statement is offered for effect on the hearer]. Court of Appeals ruled that trial court erred because Rule 106 (rule of completion) is an exception to the hearsay rule, but determined the error was harmless. Utah Supreme Court HELD: Rule 106 ruling is vacated. Parties did not address the threshold question of whether a transcribed oral statement not admitted into evidence is a writing or recorded statement under Rule 106. Note: Sanchez’s own reference to the transcript does not implicate Rule 106 because the rule allows an adverse party to introduce the “completing” portions of a writing first introduced by another party.Prosecution used the transcript to refresh the detective’s recollection but record is unclear whether the prosecutor or the detective ever quoted directly from the transcript. (See Rule 612).Error (if any) was harmless (but correcting extreme emotional disturbance standard).Note: Dangers of minimally proffered evidence.ARTICLE 2. JUDICIAL NOTICEARTICLE 3. PRESUMPTIONSARTICLE 4. RELEVANCE AND ITS LIMITSRules 401-402. Test for relevant evidenceArnold v. Grigsby, 2018 UT 14, (Chiara, J., 8th District). Medical malpractice case. Colonoscopy resulted in perforated colon. The issue presented at trial was whether the suit had been timely filed. This turned on when Plaintiff knew or should have known about her injury. Trial court excluded testimony of Defendant doctors about whether each had breached the standard of care. The court ruled this testimony was irrelevant. HELD: Affirmed.State v. Reyos, 2018 UT App 134 (Trease, J., 3rd District). Defendant was convicted of aggravated robbery. The robbery lasted 2-3 minutes. It occurred at night in an alley with ambient light. The two robbers used firearms and were 2-5 feet away from the witnesses. Two witnesses identified Defendant in a photo line-up as Robber One six, and ten days after the crime. On appeal, Defendant clamed ineffective assistance of counsel for failure to object to the eye-witness identification. HELD: Affirmed. Identifications met constitutional reliability standard set forth in Ramirez (which the court urged the Supreme Court to revisit—see, State v. Lujan pending before the Utah Supreme Court). State v. Ramos, 2018 UT App 161 (Blanch, J., 3rd District). Ramos was convicted of murder for stabbing victim eight times as he pled for his life saying “Please don’t kill me. I have kids.” On direct examination, a witness testified that she heard the victim make this statement. The prosecutor then asked if the witness knew what the home screen was on the victim’s phone. The witness responded, “A picture of his two little boys.” On appeal, Ramos claims ineffective assistance for failure to object to this testimony. HELD: Affirmed. Evidence about the photograph confirmed the plea for his life. Offered no new information to the jury. Rule 403. Excluding relevant evidenceState v. Miranda, 2017 UT App 203 (McVey, J., 4th District). Defendant was convicted of aggravated sexual abuse and three counts of rape for actions directed toward his step-daughter. At trial defendant testified that he separated from Mother due to her infidelity and that she had coached the child to gain advantage in the divorce action. The State sought to rebut this testimony by examining Defendant about and presenting Mother’s testimony that Defendant and Mother divorced because Defendant was abusive to Mother, cheated on her, viewed pornography, and was a drug addict. Trial court allowed cross on these subjects and admitted the rebuttal evidence with cautionary instructions. Defendant appealed. HELD: Affirmed. Some error but harmless.The challenged bad acts of Defendant were not offered under Rule 404(b) but rather to impeach the credibility of Defendant.The challenged bad acts were relevant to Defendant’s credibility.Trial court did not err in allowing cross on the reasons for separation—Defendant “opened the door” to this inquiry.Mother’s rebuttal testimony was inadmissible under Rule 403. “[T]he admission of evidence that is “highly ‘attenuated from the facts of the case’” at issue, offered by an “obviously biased” witness and exploring “long simmering, deep-seated feuds,” can end up “subject[ing] the jury to time-consuming trials within a trial” on peripheral issues that are only minimally relevant.” See State v. Martin, 2017 UT 63, ?? 51–52. [DPP: You mean “minimally probative” right?]With the exception of drug use, the challenged acts were in evidence before Mother testified. Harmless. [DPP: The court’s observation that admission of the acts was harmless because they were not highly probative makes no sense. The focus should be on their prejudicial character].State v. Roberts, 2018 UT App 9 (Trease, J., 3rd District). Defendant convicted of sexual abuse of a child. Defendant tried to admit evidence that child’s Grandfather was a convicted sex offender. Trial court sustained the State’s objection pursuant to Rule 403. HELD: There was no connection between the Grandfather, the child, and the underlying charge. Probative value of the evidence under these circumstances is slight, and risk of prejudice high.Lee v. Williams, 2018 UT App 54 (Anderson, J., 8th District). Lee sued Dr. Williams for negligence in failing to administer a drug (RhoGAM) to prevent her from becoming Rh-sensitized (when mom has Rh-Negative blood and fetus has Rh-positive). Trial was bifurcated. First phase dealt with when Lee discovered she had suffered an injury. Second phase would address negligence, causation, and damages. During first phase, trial court excluded Dr. Williams’s medical records including (1) a January 2009 record (post-delivery) stating that Lee had missed her appointment for the RhoGAM injection at 26 weeks; and (2) all prior records showing no such order being made. Trial court concluded that the records were not relevant, and even if they were they should be excluded because of the danger of unfair prejudice and confusion. HELD: Reversed. The records were relevant to the credibility of Williams who claimed she told Lee about Rh-sensitization in 2008. The records did not suggest decision on an improper basis. Just because the records were also relevant to negligence did not mean they created confusion. Records were not voluminous and did not tell the jury what result to reach—therefore, no waste of time.Northgate Village Development v. Orem City, 2018 UT App 89 (Davis, J., 4th District). Northgate and Orem City entered into a contract assigning responsibility for cleaning up garbage from a dump. They dispute the language of the contract. Court excluded evidence that garbage other than asphalt was cleaned up because the evidence was “more prejudicial than probative.” HELD: Reversed. Trial court applied the wrong legal standard. It did not determine whether the prejudice was unfair, or whether probative value was substantially outweighed by that prejudice.State v. Bryson, 2018 UT App 111 (Parker, J., 3rd District). Bryson sent his ex-girlfriend a letter, contact which violated a stalking injunction she had obtained against him. The envelope had Bryson’s last name on it. The letter was signed with his nickname “Harry.” In the letter, Bryson referenced LDS congregation members, leaders, and victim’s deceased grandfather and father—who purportedly had appeared to Bryson and directed him to tell girlfriend to read certain Book of Mormon passages, which were also quoted. Bryson moved to redact the scriptures and references to deceased relatives as irrelevant and unfairly prejudicial. Court denied the motion. HELD: Affirmed.The fact that prosecutor could prove the charged crime by contact of any kind—without reference to the letter’s content—did not make content irrelevant. Here, content was relevant to prove identity of the author.Content of the letter was not unfairly prejudicial. “All effective evidence is prejudicial in the sense of being damaging to the party against whom it is offered.”State v. Torres, 2018 UT App 113 (DD, J., 3rd District). Torres was convicted of aggravated assault for driving his vehicle into victim during an argument. At trial, the State offered text messages sent by Defendant to victim a week later. In the messages, Defendant states he “abuses” victim, is an “abusive person,” “All I do is beat u,” “I beat u everyday,” “sorry for all the hurt and abuse,” and “At least I can’t beat you no more.” Defense counsel did not object. Defendant alleges ineffective assistance. HELD: Affirmed.“Evidence of multiple acts of similar or identical abuse is unlikely to prejudice a party.” State v. Reed, 2000 UT 68 (other assaults were not prejudicial because they were “essentially interchangeable, were of the same nature . . . as the primary offense, and were carried out on the same victim.”). Exclusion would not have made a difference.State v. Tulley, 2018 UT 35 (Skanchy, J., 3rd District). Tulley was convicted of reckless aggravated abuse of a vulnerable adult—a 71 year old man whom he had met in sex offender treatment 10 years earlier and who had invited Tully to stay at his apartment for a few days. Tully bludgeoned the man nearly to death. Tulley claimed that he awoke on the couch to find the man sexually assaulting him at knife point, and reacted violently. The trial court excluded evidence of Tulley’s past sexual misconduct. These acts included rape and sexual assault convictions over a period of 25 years (1959-1985). Most of the convictions involved women, minor females, and minor males. The trial court ruled that evidence of Tulley’s confusion about sexual preference and his sexually acting out could be received in a sanitized fashion. Tulley never tried to introduce evidence in this manner. HELD: Affirmed. The court did not abuse its discretion in excluding the evidence under Rule 403. The convictions were old, dissimilar to the underlying offense, and would provoke an emotional response.State v. Logue, 2018 UT App 156 (Pullan, J., 4th District). Logue was convicted of aggravated murder for shooting victim. A drug dealer who believed (wrongly) that victim had cooperated with police paid Logue and a co-defendant to assault victim. In opening statement, defense counsel stated that there was no physical evidence placing Loge at the scene. At trial, Logue’s girlfriend testified that she purchased .38-caliber ammunition for Logue on the day of the shooting at 6:00-6:30 p.m. On the fourth day of trial, the prosecutor offered a cash receipt from Walmart showing the purchase of .32 caliber ammunition at 4:23 p.m. The State The court admitted the evidence. On appeal, Logue claims the receipt was unfairly prejudicial because it undermined defense counsel’s promise in opening statement. HELD: Affirmed. The receipt was not evidence placing Logue at the scene. Any credibility concerns created by the receipt were mitigated in closing argument.Rule 404. Character evidence; crimes or other acts.State v. Garcia, 2017 UT App 200 (West, J., 2nd District). Garcia was convicted of attempted murder in the stabbing of victim. State alleged Garcia had acted in concert with Friend and Neighbor to accomplish this. At trial, the State introduced evidence that all three men were members of a gang which would “violate” them if they “snitched” on each other. Penalties for violation included being beaten or threatened. The jury saw Garcia’s gang tattoo on his face. Friend told police that Garcia wielded the knife. But at trial, Friend testified that Friend stabbed the victim. Garcia told police that he had hit and kicked the victim, but claimed surprise that any stabbing had occurred. On appeal, Garcia claimed ineffective assistance for failure to object to the gang evidence. HELD: Affirmed.“Mere evidence of gang affiliation that does not relate to prior bad acts does not violate Rule 404’s bar against character evidence.”Gang evidence was admissible under Rule 403. It was probative of Garcia acting “in concert with” others; and explained why Friend and Garcia had “sung different tunes” at different times about each other’s role in the assault—to avoid (Garcia) or repent from (Friend) snitching.State v. Lopez, 2018 UT 5 (Parker, J., 3rd District). Defendant convicted of shooting his wife in her left ear while the two argued about separating in the cab of his truck. At trial, State admitted evidence that (1) Defendant, while discussing how to best kill a person, demonstrated by pointing a gun behind wife’s left ear; and (2) Defendant during an argument with a former spouse about separating pointed a gun at her head. The State had sought to admit four other incidents where Defendant pointed a gun at the ex-spouse or her son. HELD: Reversed.Prior bad acts to prove identity are admissible in two instances: (1) to prove modus operandi—a signature offense, or (2) to prove a connection between Defendant and the charged crime (i.e. proof that Defendant stole a driver’s license is admissible to prove identity where Defendant used that ID to purchase the weapon used in the charged murder).Prior acts do not satisfy these non-character purposes.Pointing a gun one time at a prior spouse does not establish a signature offense.Prior act against ex-spouse did not establish a connection between Defendant and the charged offense—except to create the propensity inference Rule 404(a) forbids.Doctrine of Chances is inapplicable.Doctrine of chances is a theory of logical relevance. It involves rare events happening with unusual frequency. See, Note 6 (may or may not require expert testimony).Recognized uses: (1) rebut a charge of recent fabrication; (2) establish mens rea or lack of consent in a rape case; (3) rebut defenses based on mistake, coincidence, or accident. We have not applied the doctrine to prove identity.Foundation: Materiality, Similarity, Independence, Frequency. See, Note 12 (similarity and frequency work together to prove objective improbability. This avoids the improper admission of character evidence).State v. Balfour, 2018 UT App 79 (Reese, J., 3rd District). Defendant was convicted of forcible sodomy of a minor. Defendant approached her and said that she was “perfect.” Lured by promises of a modeling career, the victim appeared at Defendant’s office for a photo shoot. Defendant sexually assaulted her. Defendant contended that victim had fabricated her account. To rebut the defense of fabrication, the State called three other women all of whom had been sexually assaulted when alone with Defendant at his office under false promises of employment. HELD: Rebutting a defense of fabrication (doctrine of chances) is a proper non-character purpose. Given the similarity of the accounts, the probative value outweighed danger of unfair prejudice, especially in light of a limiting instruction.State v. Whitbeck, 2018 UT App 88 (West, J., 2nd District). Defendant and witness agreed to burglarize vehicles and steal cars in a north Ogden neighborhood. They got separated in the process. The next morning Defendant was driving the stolen GMC Acadia. Police recovered Defendant’s phone in a burglarized car six blocks from where the Acadia was stolen. They recovered Defendant’s wallet several days later. In it was a check and identification stolen from a vehicle two doors down from where the Acadia was stolen. On the phone, were pictures of the Defendant posing with a gun. The trial court admitted evidence of the phone and wallet to show identity and that Defendant knew the Acadia was stolen—having been in the area as part of a larger crime spree, and to corroborate Witness’s trial testimony confirming this. Trial court admitted the photographs to show that the phone belonged to Defendant. Defendant was convicted and challenged these rulings on appeal. HELD: Affirmed. Admitting evidence to corroborate testimony of trial witness and to prove identity is a proper non-character purpose. Rules 402 and 403 satisfied. Note: Admitting the photographs unredacted is troubling but not prejudicial.State v. Ring, 2018 UT 19 (Brown, J., 4th District). Ring was convicted of raping a three-year old child. The State moved to admit three prior instances of child sexual abuse—two rapes of M.F. in 1994 and 1996, and sexual touching of S.J. five years later. In limine, Defendant and State argued the Shickles factors. Trial court admitted the prior acts under Rule 404(c). On appeal, Defendant argues that the Court erred in relying on the Shickles factors—(oh how times have changed—“It is always error . . . for a court to center its analysis on the Shickles factors, to consider itself obligated to use a particular factor or factors, or to rely inflexibly upon each Shickles factor.”). Defendant further argues that the convictions are inadmissible under Rule 404(c) and 403. HELD: Affirmed. Invited error as to the Shickles analysis. The purpose of Rule 404(c) is to admit propensity evidence. Thus, the risk that jury will treat the evidence in this way is not unfairly prejudicial under Rule 403. Risk that jury would punish Defendant for his past crimes did not outweigh probative value.State v. Argueta, 2018 UT App 142 (Kouris, J., 3rd District). Argueta was convicted of burglary and forcible sexual abuse after he entered a home at night and sexually assaulted the female occupant while her boyfriend slept. Boyfriend awoke and apprehended Defendant. Defendant testified at trial that he only entered the apartment to return the keys that had been left in the door. Trial court allowed prosecutor to impeach Defendant’s testimony about his intent with two prior bad acts—(1) a trespassing conviction when Defendant was found outside a woman’s home early in the morning (doctrine of chances); and (2) an event in 2014 when the victim in this case observed Defendant peeping through her window. Defendant challenges these decisions on appeal. HELD: Error but affirmed.First incident did not meet the second and fourth foundational requirements under the doctrine of chances—(1) materiality; (2) significant similarity to dispel realistic possibility of independent invention; (3) independence; and (4) frequency. Similarity and frequency work together to prevent end run around the character bar. The fewer the incidents, the more similarity is required.Peeping tom error was not preserved.State v. Von Neiderhausern, 2018 UT App 149, (Brown, J., 4th District). Defendant was convicted of two counts of sexual battery against his adult daughter. He had actually done this four times. He was charged with the second and third incidents—involving unwanted touching and kissing. At trial, the State offered evidence of the first and fourth incidents to prove that Defendant acted with the intent to cause affront or alarm, and to show absence of mistake or accident. The first incident involved Defendant sexual kissing while victim was asleep. The fourth involved unwanted touching and kissing. Defendant was convicted. HELD: Affirmed. Evidence was offered for a proper non-character purpose, was relevant, and admissible under Rule 403. (Note: Rule 404(b) is not limited to bad acts occurring prior to the charged offense).State v. Corona, 2018 UT App 154 (Trease, J., 3rd District). Corona was convicted of aggravated murder and aggravated robbery. He and others conspired to lure victim (a drug dealer) to a parking lot where they robbed him and Corona shot him four times. The State sought to introduce evidence that Corona had fired the same gun during a different altercation at an Auto Zone parking lot (ballistics proved this). Trial court admitted the evidence after a defense witness claimed to be the shooter and stated on cross that she had secured the gun from a friend, not Corona. HELD: Affirmed.A witness’s testimony can be contradicted with Defendant’s prior bad acts. (Note that Defendant opened the door by calling witness).The evidence was offered for a proper non-character purpose (to contradict defense witness’s claims).NOTE: Don’t use the “overmastering hostility” Shickles factor when applying Rule 403.NOTE: The prior shooting is conditionally relevant—it is only relevant if Defendant shot the gun at Auto Zone. This is a 104(b) issue. Defendant’s involvement must be proved by a preponderance of the evidence.State v. Barney, 2018 UT App 159 (Harmond, J., 7th District). Barney was convicted of aggravated kidnapping, aggravated assault, and violation of a protective order. He drove the victim down a lonely country road, beat her on the way, held a knife to her throat and threatened to kill her. Victim remained in the vehicle (which had run out of gas) throughout the night and did not report the incident for two weeks. State moved to admit four other assaults against victim by Barney—an incident where Barney drove a truck at victim; an incident where he pushed his way into a home and strangled her; and an incident where he sent letters to her in violation of a protective order; and an incident (occurring after the charged crime) where he sped with victim in the truck, grabbed her by the head, and pulled her back in when she tried to jump out. Trial court reserved ruling on admissibility until after victim testified. On cross, victim was pressed about why she waited so long to report. Trial court then admitted all four incidents. HELD: Affirmed. Incidents were offered for a proper non-character purpose. NOTE: Absent bad acts being offered for a non-character “ruse,” the Court does NOT under Rule 404(b) balance proper and improper inferences against each other. This is a Rule 403 issue.State v. Gasper, 2018 UT App 164 (Bernards-Goodman, J., 3rd District). Gasper was charged with two counts of rape. He had hosted a party, met victim for the first time, and urged her to take shots of alcohol. Victim took one and immediately felt nauseated and tired. She woke the next morning to Gasper having sex with her. Gasper pled guilty to forcible sexual abuse, preserving his right to appeal the trial court’s decision admitting a prior incident of sexual assault. In the prior incident, Gasper met his friend’s sister for the first time, offered to give her a massage, gave her a drink, which resulted in her becoming nauseated and tired. She woke naked the next afternoon, with vaginal pain. She learned that Gasper had been seen exiting her room that morning. HELD: Affirmed.The Court holds that the prior act is admissible "for the non-character purpose of proving the element of lack of consent" and "to show the Defendant's intent to engage in sexual activity without Victim's consent."? The Court emphasizes the similarities between the two incidents, holding that prior acts of rape are admissible when the Defendant "obviates the victim's consent in a strikingly similar manner" or employs a "similar pattern of painful sexual positions."? All of this applies?Nelson-Waggoner?and?Marchett.??QUESTION: The Court calls admission of this prior act for the purpose of proving intent "a non-character purpose," but then engaged in textbook propensity reasoning. Defendant intended to and did engage in non-consensual sex on a prior occasion in a particular manner and is therefore more likely to have intended to engage in similar non-consensual sex on the date of the charged offense.? In short, he is the kind of person who commits rape in a particular way. That is precisely the reasoning that Rule 404(a) forbids.QUESTION: When the Court allows the prior act to be admitted because it is "strikingly similar" to the charged offense, it has essentially created a new non-character purpose--a watered down version of modus operandi based on case type that requires almost no analysis.Rule 405. Methods of proving character.Rule 406. Habit; Routine practice.Rule 407. Subsequent remedial measures.Rule 408. Compromise offers and negotiations.Beckman v. Cybertary Franchising, 2018 UT App 47 (McDade, J., 4th District). Beckman formed Cybertary and partnered with a Mr. Faulconer who became CEO. The relationship between Cybertary and Beckman soured. She threatened suit. She and Faulconer held a 90-minute phone conversation “for settlement purposes only.” Beckman recorded it. No settlement was reached. Beckman sued. The trial court excluded the recorded conference under Rule 408. HELD: Affirmed. Even though a lawsuit had not been filed, the parties sought to compromise a disputed claim. NOTE: Rule 408 is a French Rule (everything is permitted, except that which is expressly forbidden). Exclusion is required only when the evidence is offered to “prove or disprove liability for, or the validity or amount of a disputed claim.” Rule 408(a)(2) excludes evidence of “furnishing, promising, or offering—or accepting, promising, or promising to accept” consideration to compromise a disputed claim. Rule 408(a)(1) excludes conduct or statements made in compromise negotiations. Rule 409. Payment of medical and similar expenses; Expressions of apology.Rule 410. Pleas, plea discussions, and related statements.Rule 411. Liability insurance.Rule 412. Admissibility of victim’s sexual behavior or predisposition.State v. Guzman, 2018 UT App 93 (Hruby-Mills, J., 3rd District). Defendant picked 15 year old victim up near the freeway after victim had fled from a medical treatment facility. He took her to his apartment and raped her. The next day, he drove her back to the facility. Victim reported and was taken to Primary Children’s Hospital. A nurse from Safe and Healthy Families took a medical history and did a physical examination during which Victim reported having been raped 4 times. DNA swabs were taken from her and later from Defendant which matched. At preliminary hearing, Victim recanted. Defendant moved to admit prior truthful allegations of rape Victim made against others to show that she was telling the truth this time when she recanted. Victim did not appear at trial. Defendant did not offer her recantation into evidence. Trial court excluded the prior rape allegations under Rule 412. HELD: Affirmed. Exclusion of the prior truthful allegations of rape did not violate Defendant’s constitutional rights to present a complete defense. Because Defendant never introduced the recantation made at preliminary hearing, there was no need to introduce the prior rape allegations to bolster the truth of that statement.State v. Jordan, 2018 UT App. 166 (Boyden, J, 3rd District). Jordan was convicted of 33 felony counts, including aggravated sexual abuse of a child, sodomy on a child, forcible sodomy, sexual exploitation of a minor, and dealing in harmful material to a minor. Offenses arose out of Jordan sexually abusing his step-sons, Mark and Luke. On appeal, Jordan sought a Rule 23B remand to develop facts not in the record relating to Luke’s prior false allegations of sexual abuse. HELD: Rule 23B remand granted.Rule 412 “prohibits the admission of any truthful evidence” of other sexual behavior; but it “it does not reach evidence offered to prove allegedly false prior claims by the victim.” ?26. Evidence of false statements of unrelated sexual assaults are not evidence of sexual conduct per se. Proponent of this impeachment evidence must establish by a preponderance of the evidence that the allegations are false. (DPP NOTE: Rule 104(a) determination).DPP NOTE: Paragraph 30 is simply wrong. This prior lie could be used to impeach Luke on cross examination at trial. But extrinsic evidence of the lie is otherwise inadmissible. URE 608(b).Rules 413-415. Reserved.Rule 416. Violation of traffic code not admissible.ARTICLE 5. PRIVILEGESRule 504. Lawyer-ClientKrahenbuhl v. The Cottle Firm, 2018 UT App 138 (Faust, J., 3rd District). Trial court denied the Krahenbuhls’ motion to quash subpoena issued to their successor counsel in legal malpractice claim against prior counsel. Trial court concluded that communications between the Krahenbuhls and their successor counsel were in issue. HELD: Reversed. Krahenbuhls had never placed the communications in issue—prior counsel had. Prior counsel is not the holder of the privilege.ARTICLE 6. WITNESSESRule 601. General rules for competency.State v. Crespo, 2017 UT App 219 (Bernards-Goodman, J., 3rd District). Crespo was convicted of murdering victim who had accused him of rape. Crespo sent co-defendant to victim’s apartment with cocaine and the directive to talk to her about the rape allegation. Crespo waited outside the door listening. When victim refused to recant, Crespo entered the apartment and shot victim three times. In exchange for dismissal of the murder charge, co-defendant testified against Crespo at trial. On appeal, Crespo challenged the sufficiency of the evidence. He claimed that co-defendant’s testimony was “inherently improbable” and suffered from multiple inconsistences, such that it could not be the sole basis for conviction. Crespo relied on Robbins, 2009 UT 23. HELD: Affirmed.Court will reassess credibility of witness testimony under the “inherent improbability standard” only when it is “the sole evidence that a crime was committed” and there is a “complete lack of circumstantial evidence.”Court must instruct that accomplice’s uncorroborated testimony should be viewed with caution when court finds the testimony is self-contradictory, uncertain or improbable. Utah Code 77-17-7(2). Instruction is discretionary if no such findings are made. Rule 602. Need for personal knowledge.Rule 603. Oath or affirmation to testify truthfully.Rule 604. Interpreter.Rule 605. Judge’s competency as a witness.Rule 606. Juror’s competency as a witness.State v. Soto, 2018 UT 147, (Kouris, J., 3rd District). Defendant was convicted of aggravated sexual assault. On the second day of trial, the bailiff took the jurors down a non-public elevator. A highway patrolman and a court IT employee got on. The UHP commented, “Looks like a jury. Do you want me to tell you how this ends?” The IT employee said “Can you say ‘guilty?’” The trial court interviewed each juror to determine what was heard and whether the juror could be impartial. The court also gave a curative instruction. Soto appealed claiming these statements undermined his right to an impartial jury. HELD: Reversed. (DPP NOTE: What would happen if these conversations had been discovered after the verdict? Jurors may testify about “extraneous prejudicial information” and “outside influence . . . improperly brought to bear.”).Rule 607. Who may impeach a witness.Rule 608. A witness’s character for truthfulness or untruthfulness.State v. Burnett, 2018 UT App 80 (Trease, J., 3rd District). Burnett was convicted of rape and aggravated sexual abuse of his daughter over a period of seven years (age 4-11). Victim experienced conversion disorder, a condition where a person takes psychological distress and manifests it in physical symptoms. She also began cutting at 13 and had suicidal ideation. At trial, the State called an expert psychiatrist who worked with patients sexually abused as children. He testified that he had not treated victim and was not offering any opinion about whether victim had been abused. Instead, the State explored two issues: (1) How does he, as a psychiatrist, tell the difference between truthful and fabricated claims of sexual abuse?; and (2) What signs or symptoms might alert him that a particular child may have been sexually abused? As to the first subject, the Expert testified that studies show only in a small percentage of cases—especially where allegations of abuse emerge in a divorce—are the allegations fabricated; most false allegation cases involve an older child with “an ax to grind;” and that specific and unusual allegations of sexual abuse are more reliable than non-specific allegations. As to the second issue, the expert testified that there are symptoms and disorders more common among sexually abused and traumatized children, including disassociation, anxiety, sleep problems, nightmares, depression, self-mutilation, hallucinations, panic disorders, and suicidal behavior. He testified that pseudo-seizures are a symptom of conversion disorder and highly correlated with sexual abuse, but not exclusive to sexual abuse. The expert’s testimony concluded with a hypothetical question listing victim’s symptoms and the expert stating under those conditions he would be concerned about sexual abuse because these symptoms occur with “increased frequency” in sexually abused children. Defendant was convicted. On appeal, he alleged ineffective assistance of counsel for failure to object to both aspects of expert’s testimony which bolstered victim’s credibility. HELD: Conviction reversed.Rule 608 prohibits any testimony as to a witness’s truthfulness or untruthfulness on a particular occasion. So—an expert cannot testify that a particular witness is or is not telling the truth.Expert testimony about statistics and methods for discerning whether a child is telling the truth about sexual abuse is improper bolstering under Rule 608. You cannot ask a jury to determine credibility of a witness based on an expert’s past experience with other cases and studies. “Our supreme court has ‘continued to condemn anecdotal statistical evidence concerning matters not susceptible of quantitative analysis like witness veracity.’” (NOTE: Inadmissible under Rule 403).Expert testimony that certain symptoms are consistent with sexual abuse was admissible. NOTE: The expert went further than this, testifying that pseudo-seizures are “highly correlated with” sexual abuse. Doesn’t this testimony suffer from the same defects identified in footnote 9—how can consistency or correlation be established when the fact of abuse cannot be determined in any scientific way?NOTE: Do not cross the line into inadmissible “profile” of a typical sex abuse victim—which confuses the issue, focusing the jury on whether the child meets the profile, not whether the child was abused.State v. Robinson, 2018 UT App 103 (Dutson, J., 3rd District). Defendant was convicted of murder for shooting his girlfriend on the stairs in his parent’s home. Witness observed Defendant in possession of the murder weapon and overheard Defendant confessing to shooting the victim. Witness had entered a plea in abeyance to theft by deception. Trial court denied Defendant’s effort to impeach the Witness with this guilty plea. Defendant appeals. HELD: Rule 608(b) gives Court discretion to allow inquiry into specific instances of conduct probative of character for truthfulness or untruthfulness. Court of appeals assumes without deciding that trial court erred in not allowing Defendant to use the plea in abeyance to impeach Witness. But error was harmless.State v. Corona, 2018 UT App 154 (Trease, J., 3rd District). Corona was convicted of aggravated murder and aggravated robbery. He and others conspired to lure victim (a drug dealer) to a parking lot where they robbed him an Corona shot him four times. The State sought to introduce evidence that Corona had fired the same gun during a different altercation at an Auto Zone parking lot (ballistics proved this). Trial court admitted the evidence after a defense witness claimed to be the shooter and stated on cross that she had secured the gun from a friend, not Corona. On appeal, Corona argued that under Rule 608 the defense witness’s credibility could not be attacked with Corona’s bad acts. HELD: Affirmed. Rule 608 has no application. Evidence of the prior shooting did not go to the defense witness’s character for truthfulness. Rather, it “contradicted, explained, or cast doubt” on her claim that she was the shooter and got the gun from someone other than Corona.Rule 609. Impeachment by evidence of a criminal conviction.State v. York, 2018 UT App 90 (Decaria, J., 2nd District). York was camping with her boyfriend. When the group failed to leave timely, police were called. Police determined that boyfriend had a warrant. York lied about boyfriend being in the trailer and was charged with obstruction. At trial, boyfriend testified that York had not seen him sneak back into the trailer. The State impeached boyfriend under Rule 609(a)(2) (conviction involving dishonest act or false statement) with (1) a class A misdemeanor conviction for tampering with evidence; and (2) an alleged conviction for false information to a peace officer—using an unsigned document from the justice court showing “GP” and a fine, but not titled judgment of conviction and with no judge’s signature. York challenges this impeachment on appeal. HELD: Affirmed.Rule 609(a)(2) applies to a narrow set of crimes—crimen falsi, meaning those that “have some element of untruthfulness, deceit, or falsification.” Elements determine admissibility NOT manner of commission.Tampering with evidence is a crime involving false statement. Acts of falsification are affirmative acts intended to mislead others from the truth.Document was not “written, clear, and definite” evidence of conviction, but error was harmless.Rule 610. Religious beliefs or opinions.Rule 611. Mode and order of examining witnesses and presenting evidence.State v. Reid, 2018 UT App 146, (Blanch, J., 3rd District). Defendant was convicted of raping and sexually abusing his niece, K.R. On appeal, he claimed plain error and ineffective assistance of counsel arising out of the prosecutor’s leading questions to K.R. on direct. HELD: Affirmed. Leading questions on direct merited an objection but did not rise to the level of plain error or ineffective assistance of counsel. Rule 612. Writing used to refresh a witness’s memory.Rule 613. Witness’s prior statement.Rule 615. Excluding witnesses.Rule 616. Statements made during custodial interrogations.ARTICLE 7. OPINIONS AND EXPERT TESTIMONYRule 701. Opinion testimony by lay witnesses.In re BA, 2017 UT App 201, (Jimenez, J., 3rd District). Father appealed termination of parental rights arguing that child’s therapist had not been disclosed as an expert witness and had testified beyond the scope of lay witness testimony. HELD: Affirmed. Issue was not sufficiently briefed. Court assumed without deciding that therapist gave expert testimony when diagnosing child based on observed behaviors.Anderton v. Boren, 2017 UT App 232 (Chiara, J., 8th District). Plaintiffs sued trustee and trustor of a Trust. The Trust included a farm and certain farm equipment. Plaintiffs alleged the trustee had embezzled money and property from the trust and otherwise engaged in self-dealing. Defendants moved for summary judgment because Plaintiffs, in their depositions, admitted that they had no facts supporting their claims. One Plaintiff opposed the motion with an affidavit in which he stated: “From 2008-2014, the farm operated at a substantial loss caused by the Trustee using trust money to pay farm expenses and pocketing profits.” The district court ruled that the affidavit did not create a material issue of fact. HELD: Affirmed. Affiant gave testimony beyond the knowledge of the average bystander and thus “exceeded the scope of permissible lay opinion testimony.” Gables v. Castlewood-Sterling, 2018 UT 4 (Hruby-Mills, J., 3rd District). HOA sued developer for breach of Davencourt limited fiduciary duties in connection with construction defects. Developer moved for directed verdict arguing that the standard of care for developer required expert testimony. Trial court agreed. HELD: Affirmed. As in negligence cases, fiduciary duties may sometimes, but will not always, implicate scientific or technical matters that require expert testimony. Does the average person have little understanding of the duties owed by the particular trades or professions? Here, HOA alleged failure to establish sound fiscal reserves which required expert testimony.State v. Jordan, 2018 UT App. 166 (Boyden, J, 3rd District). Jordan was convicted of 33 felony counts, including five counts of possessing child pornography. At trial, a computer forensic examiner testified that four photographs depicting “young nude males” were recovered from Jordan’s laptop. The Defendant argued that the State was required to produce an expert witness to establish the age of the people photographed. Relying on State v. Alinas, the trial court ruled that no expert testimony was required and that the jury was responsible to determine the age of the people depicted. HELD: Reversed (as to two of the five images).Where individual depicted is clearly a minor, no expert testimony is required; but where it is difficult to tell if the person depicted is under 18, expert testimony is necessary.The trial court “must examine each image . . . to make discrete assessments, in the discharge of its gate-keeping function, which of the images can be evaluated by the jury on a common-knowledge basis, and which required expert testimony to assist the jury in determining whether the person depicted is a minor.” ? 62.Rule 702. Testimony by experts.State v. Lopez, 2018 UT 5 (Parker, J., 3rd District). Defendant was convicted of shooting his wife in the head while the two argued in the cab of his truck. Defendant claimed she committed suicide. At trial, the State called an expert witness who testified about the Fluid Vulnerability Theory of Suicide to assess the likelihood that wife took her own life. FTSV assesses baseline risk of suicide based on genetics, demographics, and history of suicidal behavior. Baseline risk can be offset by protective factors. Acute risk, on the other hand is fluid, based on psychological, behavioral, and cognitive factors. FTSV posits that triggering events will only result in suicide when a person’s baseline risk is sufficiently high. (As opposed to a “psychological autopsy” which considers suicide risk factors to determine cause of death). Defendant claims error on appeal. HELD: State did not establish threshold showing of reliability of FTSV when applied to a decedent. The State failed to prove that FTSV is either (1) “generally accepted;” or (2) founded on principles and methods that are reliable, based on sufficient facts or data, and reliably applied. FTSV is generally accepted to determine suicide risk in a live patient, but not to determine whether a deceased person committed suicide.Arnold v. Grigsby, 2018 UT 14, (Chiara, J., 8th District). Medical malpractice case. Colonoscopy resulted in perforated colon. The issue presented at trial was whether the suit had been timely filed. This turned on when Plaintiff knew or should have known about her injury. Trial court excluded testimony from Plaintiff’s first attorney about what an attorney’s standard of care would be in a case of this type or what steps a reasonable attorney would take. HELD: Affirmed. Attorney was never qualified as an expert. He could testify about his own conduct, but not render expert opinions. [DPP NOTE: The “expert” attorney was the same attorney who took the Plaintiff’s case, requested medical records, but then departed for Panama to do other work leaving the case unfiled].State v. Peraza, 2018 UT App 68 (McDade, J., 4th District). Defendant was convicted of two counts of sodomy on a child. Child first reported to her mother and grandfather, and then to the Children’s Justice Center. After going to live with dad in California, the child repeatedly recanted asserting the Paraza had done nothing to her. Thirty-two days before trial State disclosed an expert witness to rebut Defendant’s defense (fabrication). The disclosure stated that the expert would testify about the “methodology and science related to forensic interviewing of suspected child sex abuse victims” and about “child disclosures of sex abuse including identified factors related to delayed, partial and gradual disclosures and recantations.” The disclosure include the expert’s name, CV, and citation to 130 articles that defense counsel could not access. There was no expert report. Defendant moved to continue. Court denied the motion and ruled that the expert could testify. At trial, the expert testified that she had conducted over 1,900 forensic interviews of children, that recanting happens in 4-10 percent of cases, that recantation does not mean the abuse did not occur because children recant for a variety of reasons. Defendant was convicted. HELD: Reversed. Notice did not give any basis on which to determine whether Rule 702(b) was satisfied. Expert testimony was prejudicial because it improperly bolstered the child’s credibility. State v. Aziz, 2018 UT App. 14 (Kouris, J., 3rd District). Aziz was convicted of aggravated assault. He got into a bar fight. When bouncers tried to remove him, he bit a quarter-sized piece of flesh from one bouncer’s face. Aziz claimed that the bouncer had put him in a choke hold. He called a medical expert to testify that the choke hold could have induced a seizure causing Aziz to bite involuntarily, and that the wound on the bouncer’s face appeared to be defensive. Trial court allowed the expert to testify as to seizure-induced biting, but not as to defensive wounds because expert was not qualified. HELD: Affirmed. Trial court has broad discretion in determining admissibility of expert testimony. Expert admitted that he was not a forensic dentist and that he was not an expert in this field.Kirkham v. McConkie, 2018 UT App 100 (Harris, J., 3rd District). Kirkham retained Law Firm to defend against her ex-husband’s petition to modify their decree of divorce. Law Firm did not bring a counterclaim to adjust child support. Law Firm withdrew after conflicts arose with Kirkham. Kirkham proceeded on her own and lost. Kirkham sued Law Firm for breach of fiduciary duty and malpractice. She did not timely designate an expert witness on standard of care. Law Firm successfully moved for summary judgment. Kirkham appealed arguing that no expert was necessary because a counter-petition to adjust child support was a compulsory counterclaim under Rule 13 of the Utah Rules of Civil Procedure. HELD: Affirmed. Expert testimony is required when “the average person has little understanding of the duties owed by particular trades and professions. . . especially in cases involving complex and involved allegations of malpractice.” The test is whether the testimony requires scientific, technical or other specialized knowledge—or, in other words, whether the average bystander would be able to provide the same testimony.KTM Health Care v. SG Nursing Home, 2018 UT App 152 (Wilcox, J., 5th District). KTM entered into a contract to be the exclusive provider of pharmacy services to Nursing Home. Nursing Home later backed out, having mistakenly concluded that its existing contract could with a different provider could be terminated early. KTM retained a lost profits expert who would have testified that “closed door pharmaceutical” agreements like this one are almost always one-year contracts with automatic renewal provisions honored by the parties. Thus, KTM and Nursing Home would have renewed the agreement for six years. The trial court excluded the expert testimony because it would not be helpful to the trier of fact was based on insufficient facts. HELD: Affirmed. Parties never had an opportunity to exercise the renewal provisions of the contract because Nursing Home breached before the contract term started.Rule 703. Bases of expert’s opinion testimony.Rule 704. Opinion on ultimate issue.Rule 705. Disclosing the facts or data underlying an expert’s opinion.Rule 706. Court-appointed experts.ARTICLE 8. HEARSAYRule 801. Definitions; Exclusions from hearsay.Arnold v. Grigsby, 2018 UT 14, (Chiara, J., 8th District). Med malpractice case. Colonoscopy results in perforated colon. At trial, court admits statement from Plaintiff’s husband: “The nurse told me ‘You need to get your wife out of this hospital or she will die.’” Plaintiff alleges this is inadmissible hearsay. HELD: Affirmed. Hearsay statements are out of court statements offered for their truth, not for some other purpose. Here, the statement is offered to show its effect on the husband—specifically, his decision to transfer the Plaintiff to a hospital in SLC.Rule 802. The rule against hearsay.Rule 803. Exceptions to the rule against hearsay—regardless of unavailability.803(4). Statements for Purposes of Medical Diagnosis or Treatment.State v. Guzman, 2018 UT App 93 (Hruby-Mills, J., 3rd District). Defendant picked 15 year old victim up near the freeway after victim had fled from a medical treatment facility. He took her to his apartment and raped her. The next day, he drove her back to the facility. Victim reported and was taken to Primary Children’s Hospital. A nurse from Safe and Healthy Families took a medical history and did a physical examination. Nurse asked why victim was there. She responded that she had been raped 4 times, touched on various parts of her body, and choked. Nurse examined victim and gave an emergency contraceptive and antibiotics. DNA swabs were taken from her and later from Defendant which matched. Victim failed to appear at trial. Trial court admitted the statements to the nurse under Rule 803(4). HELD: Affirmed. Primary purpose of statements to the nurse were for treatment. Therefore, statements are not testimonial. Note: Discussion about disclosing identity of perpetrator as a statement for purposes of medical diagnosis or treatment. Unsettled question.803(6). Business Records ExceptionArnold v. Grigsby, 2018 UT 14, (Chiara, J., 8th District). Med malpractice case. Colonoscopy results in perforated colon. Dispute over when Plaintiff should have known about her cause of action. Trial court admits a sticky note attached to an intake form completed by Plaintiff. On the sticky note, a home health nurse wrote that Plaintiff had crossed out portions of the form because she had been told by her lawyer not to sign papers agreeing to pay. HELD: Affirmed. Analysis:Is the sticky not admissible as a business record? Yes. It was made at or near the time by a person with knowledge; kept in the regular course of the pharmacy’s business; making the record was a regular business activity; all these conditions shown by the custodian; and prepared under circumstances indicating trustworthiness.Look at statements within the note:Lawyer told Plaintiff not to sign any papers promising to pay. URE 803(6) (Then existing state of mind).Plaintiff crossed out lines and did not sign for this reason. URE 803(6) (record of an event).Plaintiff is preparing a suit. URE 801(d)(2) (admission).After billing any uninsured expense, you need to go through her lawyer for payment. (Opinion. Was stricken).Rule 804. Exceptions to the rule against hearsay—unavailability required.State v. Ellis, 2018 UT 2 (Bernards-Goodman, J., 3rd District). Ellis was convicted of aggravated robbery and unlawful possession of a firearm. Armed with a handgun, Ellis robbed the clerk at Mini’s Cupcakes of $400. A motorist followed Ellis as he fled and obtained a license plate. The motorist testified at preliminary hearing. However, a week before trial she gave birth to a premature infant who had only been in her home for four days on an oxygen monitor. The motorist refused to leave the baby’s side. Trial court found that the motorist was unavailable under Rule 804(a)(4) (“then existing infirmity, physical illness) and admitted her preliminary hearing testimony under Rule 804(b)(1) (former testimony exception). HELD: Reversed. Unavailability due to illness or infirmity is broad enough to encompass caregivers.Unavailability due to illness or infirmity requires proof that the witness “cannot be present or testify at the trial”—meaning, illness of sufficient severity and duration as to make the witness unable to be present within a reasonable time during which trial could be held.Defendant did not have the “opportunity” and “similar motive to develop” the preliminary hearing testimony. Rule 805. Hearsay within hearsay.Rule 806. Attacking and supporting the declarant’s credibility.Rule 807. Residual exception.ARTICLE 9. AUTHENTICATION AND IDENTIFICATIONRule 901. Authentication and identifying evidence.Rule 902. Evidence that is self-authenticating.Rule 903. Subscribing witness’s testimony.ARTICLE 10. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHSRule 1001. Definitions.Rule 1002. Requirement of original.Rule 1003. Admissibility of duplicates.Rule 1004. Admissibility of other evidence of content.Rule 1005. Copies of public records to prove content.Rule 1006. Summaries to prove content.Rule 1007. Testimony or statement of a party to prove content.Rule 1008. Functions of the court and jury. ................
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