Evidence Flashcards

Question

When may specific instances of prior misconduct by the accused be offered?

Answer 1

To prove some relevant issue separate and apart from bad character: motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Answer 2

They are not admissible until they have been authenticated. Writings are not self-authenticating.

Answer 3

Laying a foundation showing that the writing is what it purports to be, i.e., that it is genuine.

Answer 4

1. Direct evidence; 2. Circumstantial evidence.

Answer 5

1. Admission (yes that is the contract I entered into." 2. Eyewitness Testimony--I saw him sign that contract." 3. Handwriting Proof

Answer 6

1. 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.

Answer 7

1. Ancient Document Rule; 2. Solicited Reply Doctrine.

Answer 8

1. 20 or more years old; 2. regular on its face (no erasures or alterations); 3. found in a place of natural custody.

Answer 9

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.

Answer 10

Sufficient evidence to justify a jury finding of genuineness. (Judge determines how much is sufficient while the jury determines whether it is credible.)

Answer 11

1. 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.

Answer 12

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

Answer 13

(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.

Answer 14

1. Legally operative documents; 2. Witnesses sole knowledge comes from a document.

Answer 15

Documents that by their existence create or destroy a legal relationship that is in dispute Deed, divorce decree, will, written contract.

Answer 16

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

Answer 17

1. 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.

Answer 18

1. Competency; 2. Form of Examination of Witnesses; 3. Opinion Testimony; 4. Credibility and Impeachment

Answer 19

1. Lack of Religious Belief; 2. Infancy; 3. Mental Incompetency; 4. Prior Convictions; 5. Interest

Answer 20

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.

Answer 21

In federal court if the state whose substantive law applies has a statute.

Answer 22

1. 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

Answer 23

1. 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.

Answer 24

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.

Answer 25

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.

Answer 26

1. Use it in cross examination; 2. introduce it into evidence.

Answer 27

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.

Answer 28

1. 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)

Answer 29

1. 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).

Answer 30

The methodology must be reliable and the opinion must be relevant (fit the facts of the case).

Answer 31

The judge--by a preponderance of the evidence.

Answer 32

knowledge, experience, or education--need not be formal or academic

Answer 33

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.

Answer 34

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.

Answer 35

1. Expert must testify unless judge takes judicial notice; 2. treatise is admitted by being read to jury--not itself received as evidence.

Answer 36

By cross-examination or extrinsic evidence.

Answer 37

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.

Answer 38

Cannot exceed the scope of direct. One may cross-examine on any issues that were raised IMPLIEDLY or expressly on direct examination.

Answer 39

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.

Answer 40

one issue--the credibility of the witness.

Answer 41

1. 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.

Answer 42

1. Bias; 2. Sensory defect; 3. Prior Inconsistent Statement; 4. Character

Answer 43

May be shown by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness.

Answer 44

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).

Answer 45

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.

Answer 46

An admission.

Answer 47

Prior convictions; ; Specific acts of deceit or lying; Reputation/opinion testimony.

Answer 48

1. 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).

Answer 49

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.

Answer 50

Must use extrinsic evidence: the community mouth.

Answer 51

1. 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.

Answer 52

1. Attorney-client; 2. Physician/Psychiatrist-Patient; 3. Spousal Immunity; 4. Confidential Marital Communications.

Answer 53

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.

Answer 54

1. 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.

Answer 55

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. )

Answer 56

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.

Answer 57

1. Patient must be seeking treatment; 2. Information acquired must be confidential and necessary to facilitate professional treatment.

Answer 58

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.

Answer 59

Intra-family injury case (assault of spouse or child, incest, child abuse.)

Answer 60

One spouse can't be forced to give adverse testimony against the other in a criminal case.

Answer 61

1. 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.

Answer 62

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.

Answer 63

1. 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.

Answer 64

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)

Answer 65

the principles of the common law as they may be interpreted by the courts in the US in light of reason and experience.

Answer 66

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.

Answer 67

It denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue.

Answer 68

1. Verbal acts or Legally Operative Facts; 2. 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. 3. Out of court statement offered not for its truth but as circumstantial evidence of declarant's relevant state of mind.

Answer 69

1. 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.

Answer 70

1. Admission of a party; 2. Former testimony; 3. Statement Against Interest; 4. Dying Declaration; 5. Spontaneous Statements; 6. Business Records

Answer 71

1. 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.

Answer 72

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.)

Answer 73

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.

Answer 74

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.

Answer 75

1. Meaningful opportunity to cross (same issue and motive; same party); and 2. unavailability of the declarant.

Answer 76

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.

Answer 77

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.

Answer 78

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.

Answer 79

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.

Answer 80

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.

Answer 81

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.

Answer 82

1. 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.

Answer 83

Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or occurrence.

Answer 84

1. Startling event; 2. Made under stress of excitement; 3. concerns the facts of the startling event.

Answer 85

1. nature of event; time lapse and what is going on during time lapse; language of excitement.

Answer 86

A statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.

Answer 87

Unnecessary to have startling event or excitement; 2. Must have almost precise contemporaneousness--no appreciable time lapse.

Answer 88

A declaration of then existing physical (or mental) condition is admissible to show the condition. (It hurts!)

Answer 89

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.

Answer 90

1. made to medical personnel; 2. pertinent to either diagnosis or treatment (even if diagnosis is only for the purpose of giving testimony)

Answer 91

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.

Answer 92

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.

Answer 93

Best evidence rule.

Answer 94

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.

Answer 95

Employees are under a business duty to be accurate in observing, reporting and recording business facts. Entry must be germane to the business.

Answer 96

Allows the record to substitute for the in-court testimony of the employees.

Answer 97

Where the business record records what someone said.

Answer 98

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. 1. the out-of-court statement is offered against the accused in a criminal case. AND 2. the declarant is unavailable at the trial AND 3. the out-of-court statement was "testimonial" AND 4. 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.

Answer 99

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.

Answer 100

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.

Answer 101

1. 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?)

Answer 102

Records prepared by laboratory technicians indicating blood, alcohol, DNA, or drug test results.

Answer 103

The lab technician who prepared the report UNLESS the technician is unavailable AND the defendant had a prior opportunity to cross examine them.

Answer 104

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.

Answer 105

Judicial notice of adjudicative facts.

Answer 106

This rule governs only judicial notice of adjudicative facts.

Answer 107

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.

Answer 108

A court may take judicial notice, whether requested or not.

Answer 109

A court shall take judicial notice if requested by a party and supplied with the necessary information.

Answer 110

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.

Answer 111

Judicial notice may be taken at any stage of the proceeding.

Answer 112

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.

Answer 113

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.

Answer 114

These rules govern proceedings in the courts of this state to the extent and with the exceptions stated in Rule 1101.

Answer 115

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.

Answer 116

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).

Answer 117

W.R.E. 103

Answer 118

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.

Answer 119

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.

Answer 120

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.

Answer 121

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

Answer 122

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).

Answer 123

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).

Answer 124

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).

Answer 125

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).

Answer 126

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).

Answer 127

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).

Answer 128

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).

Answer 129

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).

Answer 130

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).

Answer 131

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).

Answer 132

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).

Answer 133

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).

Answer 134

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).

Answer 135

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).

Answer 136

Preliminary Questions

Answer 137

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.

Answer 138

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.

Answer 139

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.

Answer 140

The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.

Answer 141

This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Answer 142

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).

Answer 143

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).

Answer 144

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.

Answer 145

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.

Answer 146

Presumptions in general in civil actions and proceedings.

Answer 147

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.

Answer 148

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.

Answer 149

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.

Answer 150

Presumptions in criminal cases.

Answer 151

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.

Answer 152

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.

Answer 153

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.

Answer 154

"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).

Answer 155

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).

Answer 156

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).

Answer 157

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).

Answer 158

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).

Answer 159

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).

Answer 160

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).

Answer 161

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.

Answer 162

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).

Answer 163

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).

Answer 164

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).

Answer 165

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).

Answer 166

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).

Answer 167

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).

Answer 168

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).

Answer 169

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).

Answer 170

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).

Answer 171

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).

Answer 172

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).

Answer 173

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).

Answer 174

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).

Answer 175

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).

Answer 176

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).

Answer 177

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).

Answer 178

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).

Answer 179

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).

Answer 180

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).

Answer 181

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).

Answer 182

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).

Answer 183

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).

Answer 184

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).

Answer 185

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).

Answer 186

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).

Answer 187

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).

Answer 188

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).

Answer 189

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).

Answer 190

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).

Answer 191

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).

Answer 192

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).

Answer 193

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).

Answer 194

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).

Answer 195

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).

Answer 196

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).

Answer 197

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).

Answer 198

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).

Answer 199

and inadmissible under Rules 401 and 402. See Shields v. Carnahan, 744 P.2d 1115 (Wyo. 1987).

Answer 200

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).

Answer 201

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).

Answer 202

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).

Answer 203

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).

Answer 204

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).

Answer 205

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).

Answer 206

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.

Answer 207

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).

Answer 208

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).

Answer 209

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).

Answer 210

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).

Answer 211

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).

Answer 212

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).

Answer 213

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).

Answer 214

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).

Answer 215

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).

Answer 216

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).

Answer 217

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).

Answer 218

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).

Answer 219

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).

Answer 220

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).

Answer 221

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).

Answer 222

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).

Answer 223

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).

Answer 224

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).

Answer 225

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).

Answer 226

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).

Answer 227

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).

Answer 228

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).

Answer 229

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).

Answer 230

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).

Answer 231

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).

Answer 232

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).

Answer 233

under Rules 401 and 402. See Shields v. Carnahan, 744 P.2d 1115 (Wyo. 1987).

Answer 234

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).

Answer 235

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).

Answer 236

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).

Answer 237

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).

Answer 238

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.

Answer 239

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).

Answer 240

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).

Answer 241

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).

Answer 242

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).

Answer 243

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).

Answer 244

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).

Answer 245

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).

Answer 246

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).

Answer 247

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).

Answer 248

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).

Answer 249

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).

Answer 250

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).

Answer 251

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).

Answer 252

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).

Answer 253

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).

Answer 254

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).

Answer 255

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).

Answer 256

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).

Answer 257

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).

Answer 258

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).

Answer 259

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).

Answer 260

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).

Answer 261

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).

Answer 262

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).

Answer 263

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).

Answer 264

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).

Answer 265

In a prosecution for taking indecent liberties with a minor, the trial court correctly admitted nude photographs of the victims into evidence, as their prejudicial effect was outweighed by their probative value. Munden v. State, 698 P.2d 621 (Wyo. 1985).

Answer 266

The introduction of photographs to corroborate the testimony of a sexual assault victim concerning her identification of the defendant as the perpetrator of the assault was not prejudicial. Further, the probative value in properly identifying the individual referred to by the victim outweighed any prejudicial effect to be considered. Sanchez v. State, 751 P.2d 1300 (Wyo. 1988).

Answer 267

The defendant had the right to present testimony from his father and sister that would have tended to corroborate his testimony that his wife had brought certain items into the house and explained their presence, thus refuting a material element of the crime of concealing stolen goods. Towner v. State, 685 P.2d 45 (Wyo. 1984). Kwallek v. State, 596 P.2d 1372 (Wyo. 1979).

Answer 268

where record disclosed that the witness's testimony about the telephone call was clear and convincing; it was not so remote from the offense charged as to foreclose its admission into evidence; it was offered for a permissible purpose to show motive, the state of mind of defendant, intent, purpose, and a continuing course of conduct; and it was material because evidence of motive can lead to an inference of identity, which is an element of injury or destruction of the property of another. Coleman v. State, 741 P.2d 99 (Wyo. 1987).

Answer 269

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).

Answer 270

Where a previous episode is not shocking, sensational, emotional or evocative of hostility, sympathy or punitive impulses, where it is clear that defendant was not indicted for a crime following the past incident, and where the state accepts that the earlier incident was an accident and there is no suggestion made to the contrary, a prosecutor cannot be condemned for eliciting such a past act from the defendant upon cross-examination. Goodman v. State, 601 P.2d 178 (Wyo. 1979). Grabill v. State, 621 P.2d 802 (Wyo. 1980).

Answer 271

Where certain evidence of prior similar acts properly could have been brought as part of the state's case in chief, but the motive of the defendant assumed more than ordinary significance only when the defendant denied the occurrence of the charged offense and ascribed a motive to the victim for testifying untruthfully, permitting the above-described testimony to be presented at a time which in most trials would involve rebuttal evidence was proper. Elliott v. State, 600 P.2d 1044 (Wyo. 1979). Evidence which does not pass the test of Rule 404, where coupled with the test set forth in this rule, when offered in the case in chief or on direct examination, may pass both tests when offered on cross-examination or in rebuttal. Grabill v. State, 621 P.2d 802 (Wyo. 1980). In his trial testimony, the defendant charged with murder by use of a shotgun, projected himself as a patient, tolerant and peaceful man who went out of his way to avoid confrontation. To rebut this evidence, the prosecutor elicited answers from him on cross-examination to the effect that he knew that he was not entitled to have in his possession a firearm because he was a convicted felon. This evidence of a prior felony was both probative and relevant and, the defendant not showing that such evidence was extremely inflammatory or introduced for the purpose of inflaming the jury, the trial court did not abuse its discretion in allowing this evidence. Murry v. State, 713 P.2d 202 (Wyo. 1986). The testimony of the murder victim's children as to the defendant's prior bad acts (i.e., acts and threats of violence) was relevant for the purpose of establishing motive, malice and premeditation and was not unfairly prejudicial. Smizer v. State, 752 P.2d 406 (Wyo. 1988).

Answer 272

Admission of defendant's complete jail record, including medical notations, was reasonable, where defendant placed his physical condition in issue, and records then became relevant to dispute defendant's claim of injury as a result of his arrest. Ortega v. State, 966 P.2d 961 (Wyo. 1998).

Answer 273

Trial court did not abuse its discretion in admitting evidence in defendant's trial for murder and kidnapping of prior uncharged misconduct from his former wife and a friend of his. Their evidence showed the course of conduct between defendant and both victims was relevant to rebut defendant's defenses to the charge and to tell the jury the entire sequence of events that led to the kidnapping and murder. Kenyon v. State, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (2004).

Answer 274

If a party offering evidence of a prior acquittal can demonstrate its relevance, the trial court may receive evidence of the acquittal if the court determines that its probative value outweighs any other reasons stated in this rule, which would require the evidence to be excluded. Eatherton v. State, 810 P.2d 93 (Wyo. 1991).

Answer 275

In ruling against appellant on his motions for mistrial, for judgment of acquittal and for judgment notwithstanding the verdict, and in allowing certain testimony to stand, the court either modified or rescinded the order in limine which had prohibited such testimony or ruled that the testimony was not violative of the order. Hayes v. State, 599 P.2d 558 (Wyo.), supplemental opinion, 599 P.2d 569 (Wyo. 1979).

Answer 276

Testimony defendant challenged consisted of the victim's description of her injuries, which was relevant and necessary to prove the bodily injury element of the aggravated assault charge; therefore, her testimony was proper where the appellate court concluded the testimony elicited from the victim, that it hurt to be kicked and pushed to the ground, the chipped teeth continued to bother her, and her leg was still tender, was not extremely inflammatory. Gomez v. State, 68 P.3d 1177, 2003 Wyo. LEXIS 73 (Wyo. 2003).

Answer 277

In defendant's sexual assault case, the court did not abuse its discretion in admitting evidence of prior acts of sexual misconduct because the testimony was admitted for a proper purpose, and most importantly, it was largely a recitation that told the story of the interactions between defendant and his victims; additionally, the trial court balanced the probative value of the evidence against its potential for unfair prejudice. Wease v. State, 170 P.3d 94, 2007 Wyo. LEXIS 188 (Wyo. 2007).

Answer 278

In defendant's rape and murder case, a court did not err by admitting evidence of other allegations of rape against defendant, where the probative value did not outweigh the prejudicial effect of that evidence on him, and defendant's motive was especially relevant in the case because he admitted to being present at the victim's residence during the time frame wherein the crime occurred but denied perpetrating the crime. Belden v. State, 73 P.3d 1041, 2003 Wyo. LEXIS 110 (Wyo. 2003), cert. denied, 540 U.S. 1165, 124 S. Ct. 1179, 157 L. Ed. 2d 1212 (2004). III. EVIDENCE INADMISSIBLE.

Answer 279

Use of settlement agreements for impeachment purposes in cross-examination is not permissible under this rule, because the risk of prejudice in introducing the settlement agreements outweigh their probative value. Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).

Answer 280

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). In defendant's murder case, a 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).

Answer 281

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).

Answer 282

Trial court erred in admitting videotaped reenactment of crime into evidence where it was offered as a prior consistent statement, since it was not a statement under W.R.E. 801(a), the trial court did not identify statements it found consistent, and the trial court did not determine the relative probative value of such statements or their potential for unfair prejudice; however, the admission was harmless error where there was no reasonable possibility that the defendant would have been acquitted absent introduction. Lancaster v. State, 43 P.3d 80, 2002 Wyo. LEXIS 49 (Wyo. 2002).

Answer 283

A videotaped statement, like any other out-of-court statement, is not always admissible simply because there are no hearsay problems, as it may be inadmissible under this rule, if it is substantially more unfairly prejudicial than probative. Chambers v. State, 726 P.2d 1269 (Wyo. 1986).

Answer 284

In a case in which plaintiff sought to hold defendant mine owners liable for damages he suffered in an accident that occurred while he was working as a visitor at the mine site, the trial court did not err in excluding from evidence a release of liability document; jury's attention would have been diverted from the negligence claim it was asked to decide. White v. State ex rel. Wyo. DOT, 210 P.3d 1096, 2009 Wyo. LEXIS 95 (Wyo. 2009).

Answer 285

When two persons are indicted for separate offenses growing out of the same circumstance, the fact that one has pleaded guilty is inadmissible against the other; prejudice generally results where the accused made timely objection and has requested curative action by the trial court which refused or failed to eliminate the disclosure. Kwallek v. State, 596 P.2d 1372 (Wyo. 1979).

Answer 286

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).

Answer 287

where clearly relevant evidence of plaintiff motorist's alcohol consumption and related behavior on the day of the accident was admitted, trial court properly excluded as speculative and prejudicial further evidence of past drinking problems and diagnosis as "alcoholic." Banks v. Crowner, 694 P.2d 101 (Wyo. 1985).

Answer 288

In a medical malpractice case, a court did not err by precluding evidence of the doctor's prior malpractice claims, the suspension of her hospital privileges, and other matters affecting her credibility where the doctor's prior experience and qualifications were not relevant to the question of whether she met the standard of care in regard to plaintiff. The district court reasonably could have concluded that any probative value of the earlier alleged incident was outweighed by the spectre of a "trial within a trial" as plaintiff tried to prove the doctor's negligence in that incident. Armstrong v. Hrabal, 87 P.3d 1226, 2004 Wyo. LEXIS 47 (Wyo. 2004).

Answer 289

In a negligence case, a court properly excluded plaintiff's expert testimony regarding future medical expenses where there was no specific language in the pretrial memorandum that would have alerted the contractor to the fact that the doctor's expert medical opinion had changed since the deposition was taken or since the designation of fact witnesses was filed. Fetzer v. J.D. Dayley & Sons, Inc., 91 P.3d 152, 2004 Wyo. LEXIS 78 (Wyo. 2004).

Answer 290

In a murder case, the trial court properly refused 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).

Answer 291

In defendant's criminal trial, although the testimony of a parole officer and jail official might have had a potentially prejudicial impact, it did not substantially outweigh its probative value, especially in light of the of the limiting instruction. The evidence was necessary to establish why the officer and official would have known certain information about defendant. Williams v. State. ex rel. Wyo. Workers' Safety & Comp. Div. (In re Worker's Compensation Claim), 205 P.3d 1024, 2009 Wyo. LEXIS 57 (Wyo. 2009).

Answer 292

In a prosecution for murder by use of a gun, the trial court was justified in refusing to admit into evidence the arrest record of the victim. There was nothing in the record suggesting the use of guns, knives or other weapons likely to result in death or bodily harm. Nor was any conduct described in the history suggesting life threatening behavior or behavior that might result in serious bodily harm. Braley v. State, 741 P.2d 1061 (Wyo. 1987).

Answer 293

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).

Answer 294

In defendant's second-degree murder trial, trial court did not err in precluding alternative suspect evidence, because the witness's suggestion that his father was involved in the murder was speculative and he failed to provide any specific facts linking his father to the murder. Smith v. State, 199 P.3d 1052, 2009 Wyo. LEXIS 2 (Wyo. 2009).

Answer 295

Character evidence not admissible to prove conduct; exceptions; other crimes

Answer 296

Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of Accused. -- Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same; (2) Character of Victim. -- Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; (3) Character of Witness. -- Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

Answer 297

Other crimes, wrongs, or acts. -- Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Answer 298

Methods of proving character.

Answer 299

(a) Reputation or opinion. -- In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. -- In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, or is in issue under Rule 404(a)(2), proof may also be made of specific instances of his conduct.

Answer 300

This rule operates only to ban the use of character evidence to prove that behavior was in conformity therewith on a particular occasion. 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). This rule operates to ban the use of evidence of character in order to establish that behavior on a particular occasion was in conformity therewith; however, such evidence may be admissible for other purposes. Ortega v. State, 669 P.2d 935 (Wyo. 1983), overruled on other grounds, Jones v. State, 902 P.2d 686 (Wyo. 1995).

Answer 301

under Rule 402. Bishop v. State, 687 P.2d 242 (Wyo. 1984), cert. denied, 469 U.S. 1219, 105 S. Ct. 1203, 84 L. Ed. 2d 345 (1985); overruled in part, Vigil v. State, 926 P.2d 351 (1996).

Answer 302

and absent a clear abuse of discretion will not be disturbed. Sanville v. State, 593 P.2d 1340 (Wyo. 1979). A trial court's ruling as to the admissibility of evidence is entitled to considerable deference; as long as there exists a legitimate basis for the trial court's ruling, it will not be reversed on appeal. 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).

Answer 303

During defendant's trial for attempted second-degree murder, defendant did not seek the admission of evidence of the victim's violent character for a purpose allowed by Wyo. R. Evid. 404(a)(2); it was clear that the evidence was introduced to impeach the victim's testimony. Bloomfield v. State, 234 P.3d 366, 2010 Wyo. LEXIS 104 (Wyo. July 12, 2010).

Answer 304

and subject to challenge and disturbance only for clear abuse. Goodman v. State, 601 P.2d 178 (Wyo. 1979).

Answer 305

to the accused. Stambaugh v. State, 613 P.2d 1237 (Wyo. 1980). Defendant was not entitled to a new trial where an investigator referred to the fact that defendant had come up in previous investigations in violation of Wyo. R. Evid. 404(b) because the trial court struck the investigator's statement and in two separate instructions the jury was instructed to disregard any testimony ordered stricken. Willoughby v. State, 253 P.3d 157, 2011 Wyo. LEXIS 92 (Wyo. 2011).

Answer 306

Improperly admitted evidence is not actually prejudicial unless there is a reasonable possibility that in the absence of the error the verdict might have been more favorable to the accused. Stambaugh v. State, 613 P.2d 1237 (Wyo. 1980).

Answer 307

Evidence which does not pass the test of this rule, where coupled with the test set forth in Rule 403, when offered in the case in chief or on direct examination, may pass both tests when offered on cross-examination or in rebuttal. Grabill v. State, 621 P.2d 802 (Wyo. 1980).

Answer 308

Evidence of a pertinent character trait which is not admissible pursuant to subdivision (a) to prove action in conformity therewith on a particular occasion may well be admissible for the other purposes set forth in subdivision (b). Grabill v. State, 621 P.2d 802 (Wyo. 1980).

Answer 309

The restriction in subdivision (a)(1) does not exist as to evidence introduced to prove motive, opportunity, etc., under subdivision (b). Grabill v. State, 621 P.2d 802 (Wyo. 1980).

Answer 310

Exceptions found in subdivision (a) allow evidence of character to prove conduct, while subdivision (b) allows evidence of specific instances of conduct to prove consequential facts, such as intent or knowledge. Moore v. State, 80 P.3d 191, 2003 Wyo. LEXIS 183 (Wyo. 2003).

Answer 311

When the state wishes to introduce evidence of a defendant's prior bad acts, the state carries the initial burden of demonstrating the admissibility of the evidence in the context of the five-part test outlined in Bishop v. State, 687 P.2d 242 (Wyo. 1984). The state must articulate which subdivision (b) or other relevant purpose the evidence is specifically being offered to serve, and how the evidence is relevant for that purpose. The defendant must then respond with its arguments why the evidence should not be admitted, addressing issues of relevancy and Rule 403 concerns. Dean v. State, 865 P.2d 601 (Wyo. 1993), overruled in part, Vigil v. State, 926 P.2d 351 (Wyo. 1996).

Answer 312

Trial court did not err under Wyo. R. Crim. P. 48(a) in denying the State's pretrial motion to dismiss an information without prejudice because defendant could not construct an injury to the defense strategy based upon the trial court's insistence that the case proceed to trial in accordance with the planned schedule for that trial and in a manner that protected defendant's rights vis-a-vis Wyo. R. Evid. 404(b) evidence. Graham v. State, 247 P.3d 872, 2011 Wyo. LEXIS 41 (Wyo. 2011).

Answer 313

Court did not commit reversible error by failing to make express findings on each of the factors set forth in the second footnote of Deane v. State, 865 P.2d 601 (Wyo. 1993). Rigler v. State, 941 P.2d 734 (Wyo. 1997).

Answer 314

Expert on battered women's testimony was admissible in trial for battery and kidnap where the expert's testimony was an explanation for the victim's irrational behavior in answer to defendant's specific defenses that her behavior proved he had not battered or kidnapped her. Kenyon v. State, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (2004).

Answer 315

Evidence that defendant admitted to being "coked up" prior to committing a rape and robbery did not constitute prior bad acts evidence under Wyo. R. Evid. 404(b), and the State was not required to afford pretrial notice of its intent to introduce such evidence because the testimony was elicited from defendant's cellmate when the State asked the witness to testify that defendant had confessed to committing the sexual assault and robbery for which he was currently on trial. Because the State did not ask the witness to testify about defendant's drug use and the State had not intended to introduce evidence of such drug use, it was not required to provide the defense with pretrial notice. Schreibvogel v. State, 228 P.3d 874, 2010 Wyo. LEXIS 48 (Wyo. 2010). In a trial for delivering cocaine, the prosecutor's assertion that he did not intend to introduce evidence that of defendant's prior marijuana use, through cross-examination of defendant, was not sufficient to overcome the Wyo. R. Evid. 404(b) notice requirement. Nelson v. State, 245 P.3d 282, 2010 Wyo. LEXIS 168 (Wyo. 2010). In a trial for delivering cocaine, the prosecutor's assertion that he did not intend to introduce testimony of defendant's other drug sales was not sufficient to overcome the Wyo. R. Evid. 404(b) notice requirement, given that the witness was an experienced deputy sheriff working with the prosecutor and that the testimony was directly responsive to the prosecutor's question. Nelson v. State, 245 P.3d 282, 2010 Wyo. LEXIS 168 (Wyo. 2010).

Answer 316

Defendant's statement concerning need to defend himself and others in his house, as well as his videotaped reenactment of shooting, provided requisite foundation for admission of evidence of victim's violent character. Edwards v. State, 973 P.2d 41 (Wyo. 1999). Because victim's violent character was pertinent to defendant's claim that victim was the first aggressor in their altercation, evidence of victim's reputation in community was admissible. Edwards v. State, 973 P.2d 41 (Wyo. 1999).

Answer 317

Where court reserved ruling on admission of evidence of defendant's prior bad acts, and failed to articulate the five-part test set out in Dean v. State, 865 P.2d 601 (Wyo. 1993), the defendant was not estopped from introducing defendant's good character evidence. DeWitt v. State, 917 P.2d 1144 (Wyo. 1996).

Answer 318

Where defense counsel opened the door by asking the witnesses whether they thought their son was the type of person who would commit armed robbery, prosecutorial inquiry on cross concerning specific past acts by defendant was proper. Taul v. State, 862 P.2d 649 (Wyo. 1993).

Answer 319

It was not prejudicial not to permit defendant to show he had no arrests or convictions of any kind because of prior bad act evidence which had been admitted against him, and to limit defendant to showing he had no arrests or convictions for offenses similar to those charged. Punches v. State, 944 P.2d 1131 (Wyo. 1997). Trial court did not abuse its discretion by excluding evidence related to the victim's arrests for conspiracy to commit vehicular burglary or breach of the peace during defendant's murder trial where defendant failed to prove that they involved life-threatening behavior or behavior that may have resulted in serious bodily harm. Knospler v. State, -- P.3d --, 2016 Wyo. LEXIS 1 (Wyo. 2016).

Answer 320

Habit; routine practice: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Answer 321

Testimony of ex-girlfriend as to defendant's habit of carrying a handgun in his truck was properly admitted, as it made the possibility that he had a gun in his truck on night in question more likely. Dike v. State, 990 P.2d 1012 (Wyo. 1999), cert. denied, 529 U.S. 1078, 120 S. Ct. 1697, 146 L. Ed. 2d 502 (2000).

Answer 322

In an action against a mother for the involuntary manslaughter of her child due to hyperthermia, a jury could choose to believe the testimony of a nurse, pursuant to W. R.E. 406, that it was routine practice of the hospital to caution mothers of all new infants of the hazards attendant with the use of electric blankets and that they were to avoid using them, rather than the mother, who claimed that she was not given such a warning. Michaelis v. State, 115 P.3d 1098, 2005 Wyo. LEXIS 94 (Wyo. 2005).

Answer 323

Subsequent remedial measures: When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Answer 324

is to encourage after-the-fact repairs and corrections. Caldwell v. Yamaha Motor Co., 648 P.2d 519 (Wyo. 1982).

Answer 325

Because this rule only applies in cases where the negligence or culpability of the defendant is at issue, it is not applicable to cases arising under strict liability principles. Caldwell v. Yamaha Motor Co., 648 P.2d 519 (Wyo. 1982).

Answer 326

Where there is no evidence that a product change was undertaken for remedial purposes, the judge is required as a matter of law to instruct the jury to disregard any evidence of subsequent changes. Caldwell v. Yamaha Motor Co., 648 P.2d 519 (Wyo. 1982).

Answer 327

Compromise and offers to compromise: Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Answer 328

is the promotion of dispute settlements. Hursh Agency, Inc. v. Wigwam Homes, Inc., 664 P.2d 27 (Wyo. 1983).

Answer 329

The admission of the testimony of insurance settlement negotiations is within the discretion of the court. Hursh Agency, Inc. v. Wigwam Homes, Inc., 664 P.2d 27 (Wyo. 1983).

Answer 330

Use of settlement agreements for impeachment purposes in cross-examination is not permissible under Rule 403, because the risk of prejudice in introducing the settlement agreements outweigh their probative value. Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).

Answer 331

Evidence concerning settlements should not be admitted for the jury to "correctly" apportion fault among settling and nonsettling defendants; settlement agreements are not evidence of negligence or fault, yet the jury could interpret the agreements as an admission of fault of a party not at fault at all. Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).

Answer 332

A cause of action for breach of a contract of insurance and a cause of action for breach of the implied covenant of good faith and fair dealing sounding in tort are sufficiently distinct and independent to permit bifurcation of the proceedings when the admission of evidence of settlement negotiations would be prejudicial. State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813 (Wyo. 1994).

Answer 333

Compromise evidence which countered defendants' alleged failure to refund an overcharge made on a loan within a reasonable time after demand was admissible. Anderson v. Foothill Indus. Bank, 674 P.2d 232 (Wyo. 1984).

Answer 334

Where the trial court expressly limited the content and use of defendant's compromise evidence in compliance with this rule but plaintiffs themselves introduced additional compromise evidence on cross-examination, plaintiffs could not complain on appeal. Anderson v. Foothill Indus. Bank, 674 P.2d 232 (Wyo. 1984).

Answer 335

Although evidence of plaintiff patient's claim against a doctor, which claim had been settled, was improperly admitted at trial and addressed the doctor's liability, not the doctor's bias or prejudice, the error was harmless, where substantial evidence supported the defense verdict, as the jury could reasonably have concluded that factors other than the acts or omissions of the remaining defendant doctors caused the patient's injuries. Smyth v. Kaufman, 67 P.3d 1161, 2003 Wyo. LEXIS 64 (Wyo. 2003).

Answer 336

Payment of medical and other similar expenses: Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Answer 337

Evidence of a plea of guilty, later withdrawn, or admission of the charge, later withdrawn, or of a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.

Answer 338

Liability Insurance: Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Answer 339

Trial court did not abuse its discretion in denying plaintiffs' motion to dismiss the entire jury panel, where plaintiffs did not clearly request a limiting instruction regarding a juror's statement that "as a person paying insurance, I feel it's coming directly out of my pocket." Carlson v. BMW Indus. Serv., Inc., 744 P.2d 1383 (Wyo. 1987).

Answer 340

This rule does not prohibit the introduction of evidence of insurance in a direct action on a disputed claim for uninsured motorist benefits brought by the insured against the insurer. State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813 (Wyo. 1994).

Answer 341

General Rule: Except as otherwise required by constitution or statute or by these or other rules promulgated by the Supreme Court of Wyoming, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the State of Wyoming in the light of reason and experience.

Answer 342

is not protected where the statements or communications made to the lawyer are made in the furtherance of criminal endeavor, as, for example, when the lawyer is a victim of threats against his family and property. Hopkinson v. State, 664 P.2d 43 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (1983). THERE IS NO PHYSICIAN-PATIENT PRIVILEGE AT COMMON LAW. -- CP v. Laramie County Dep't of Pub. Assistance, 648 P.2d 512 (Wyo. 1982), overruled on other grounds, Clark v. Alexander, 953 P.2d 145 (Wyo. 1998).

Answer 343

An insurance company's attorney who was not conducting the company's business affairs, but who was communicating to his client in regard to a claim against it, was protected by the attorney-client privilege. Consequently, the trial court's refusal to admit into evidence correspondence between the company and its attorney upon the issues of "good faith and fair dealing" and punitive damages was not an abuse of discretion. Arnold v. Mountain W. Farm Bureau Mut. Ins. Co., 707 P.2d 161 (Wyo. 1985).

Answer 344

General rule of competency: Every person is competent to be a witness except as otherwise provided in these rules.

Answer 345

Consolidated Constr., Inc. v. Smith, 634 P.2d 902 (Wyo. 1981).

Answer 346

subject to an attack on credibility to determine the value of the testimony. Chapman v. State, 638 P.2d 1280 (Wyo. 1982).

Answer 347

A party's presentation to the court of evidence that a child witness is incompetent to testify triggers the requirement of a competency hearing, which includes consideration of whether child's memory was tainted by suggestive interview techniques. English v. State, 982 P.2d 139 (Wyo. 1999). Where defendant was charged with three counts of sexual assault in the second degree in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) and two counts of sexual exploitation of children in violation of Wyo. Stat. Ann § 6-4-303(b)(ii), the victims were 5 and 6 years old; sufficient evidence was presented to trigger a competency hearing for the 5-year-old victim under Wyo. R. Evid. 601. The victim suffered from attention deficit problems, said that he could not recall what defendant did to him, and his mother had interrogated him under circumstances that suggested possible taint; the district court committed reversible error by holding a taint/competency hearing outside defendant's presence. Woyak v. State, 226 P.3d 841, 2010 Wyo. LEXIS 29 (Wyo. 2010). Although the trial court erred in failing to make some limited inquiry as to a child's competency, both counsel for the State and defense asked the crucial questions that served to assist an appellate court in deciding and/or reviewing whether a witness was competent; the record clearly reflected that the child was competent to testify and that his testimony was corroborated by several witnesses. Beaugureau v. State, 56 P.3d 626, 2002 Wyo. LEXIS 180 (Wyo. 2002). Defendant's conviction of second-degree sexual assault, third degree sexual assault, and indecent liberties with a minor was upheld where the trial court held a hearing to determine the competency of the five-year old child victim to testify as to the sexual assault; no separate "taint" hearing was required because defendant did not come forward with "some evidence" that taint was present, and competency inquiry, the five-part test to determine the competency of child witnesses, included the question of pretrial taint. Morganflash v. State, 76 P.3d 830, 2003 Wyo. LEXIS 146 (Wyo. 2003).

Answer 348

In a sexual assault on a child case, the victim was competent to testify where the victim was able to differentiate between the truth and a lie by way of specific examples and negative consequences associated with lying, even during questioning by defendant's trial counsel, and she was able to state her age, birth date, age at previous and next birthdays, name, family members, who she lived with, identify defendant, the state in which she lived, and counted accurately to 12. Seward v. State, 76 P.3d 805, 2003 Wyo. LEXIS 142 (Wyo. 2003).

Answer 349

In defendant's indecent act case, a court properly found that the victim was competent to testify where it held a competency hearing in which it found that the victim was 11 years old, she was in the fifth grade, she seemed intelligent, and she responded appropriately to many questions. Goulart v. State, 76 P.3d 1230, 2003 Wyo. LEXIS 132 (Wyo. 2003). In defendant's sexual abuse case, the court properly determined that the child was competent to testify because the child was asked questions about her knowledge, memory, and her awareness of the obligation to tell the truth. The child knew how old she was, where she went to school, the names of her teachers, the name of her brother, how old her brother was, the names of her pets, the names of her friends, the various ways in which she usually traveled to school in the morning, whether she had lived in another house, and the different objects that she and her brother had in their rooms. Gruwell v. State, 254 P.3d 223, 2011 Wyo. LEXIS 70 (Wyo. 2011). Defendant's conviction of second-degree sexual assault, third degree sexual assault, and indecent liberties with a minor was upheld where the trial court held a hearing to determine the competency of the five-year old child victim to testify as to the sexual assault; no separate "taint" hearing was required because defendant did not come forward with "some evidence" that taint was present, and competency inquiry, the five-part test to determine the competency of child witnesses, included the question of pretrial taint. Morganflash v. State, 76 P.3d 830, 2003 Wyo. LEXIS 146 (Wyo. 2003).

Answer 350

In a prosecution for taking indecent liberties with a minor, there was no abuse of discretion in allowing the five-year-old child victim to testify, nor was there a plain and unequivocal violation of a rule of law, where the victim was examined by the trial judge and was asked questions about his knowledge, his memory, and his awareness of telling the truth, where he was also questioned by the attorneys for the defense and the state prior to testifying, where the record demonstrated that the victim was bright, aware and intelligent, and where defense counsel did not object to his competency as a witness. Larsen v. State, 686 P.2d 583 (Wyo. 1984).

Answer 351

The trial court did not abuse its discretion in allowing five-year-old victim to testify in trial for second-degree sexual assault. Baum v. State, 745 P.2d 877 (Wyo. 1987). The trial court did not abuse its discretion by allowing a three-year-old child to testify over objection that the witness was not competent. CB v. State, 749 P.2d 267 (Wyo. 1988). The court did not err in allowing the victim's children to testify during a murder trial. Although the children were young (ages eight, nine and 11), they were bright, aware and intelligent. Smizer v. State, 752 P.2d 406 (Wyo. 1988). District court did not abuse its discretion when it found child victim of sexual abuse competent to testify where defendant did not show that victim who sat in his mother's lap while he testified was helped by mother with child's testimony, or would have been unable to testify in the absence of the comfort and familiarity of his mother's lap. Simmers v. State, 943 P.2d 1189 (Wyo. 1997). Child victim's testimony showed he was competent to testify where he defined truth and oaths, described incidents of sexual abuse with specific detail, and remembered details about his life at the time of the abuse; that investigating officer had taught him anatomy terms and he contradicted himself on occasion went to the weight of the evidence and not his competency to testify. Punches v. State, 944 P.2d 1131 (Wyo. 1997). Where the trial court spent considerable time making findings on the record on each of the Larsen competency factors and the English taint factors, and for each one explained the reasoning for finding the children competent to testify, and where the trial court also found that the children were not stimulated or materially influenced by their aunt's questioning and that it did not infect the children's ability to independently recall events to such an extent that the children's testimony would be too unreliable to admit at trial, the trial court properly found that each girl understood the gravity of the accusations against their father and provided the details necessary to reassure, even on a cold record, that the court accurately determined reliability and admissibility. Billingsley v. State, 69 P.3d 390, 2003 Wyo. LEXIS 74 (Wyo. 2003).

Answer 352

In a sexual assault case, the developmentally delayed victim was competent to testify where at the outset of the hearing, the victim acknowledged that an oath was a promise to tell the truth and that she was willing to take one, the victim's answers were generally responsive to the questions asked, and she was able to give correct replies to general information questions asking for her name, age, and the address of the group home where she lived. In response to questions about the incident, the victim was able to give responses that exhibited an ability to recall the incident and express it in a coherent manner. Watters v. State, 101 P.3d 908, 2004 Wyo. LEXIS 202 (Wyo. 2004).

Answer 353

Lack of personal knowledge: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

Answer 354

There was sufficient evidence of the witness's personal knowledge of the relationship between the defendant and her grandmother, and the witness's opinion that the grandmother trusted the defendant was both rationally based and helpful to the jury, and therefore there was no error in admitting the testimony. Clark v. Gale, 966 P.2d 431 (Wyo. 1998).

Answer 355

because the witness did not have "personal knowledge" that his stepfather had killed his mother. Schmunk v. State, 714 P.2d 724 (Wyo. 1986).

Answer 356

Trial court did not plainly err in allowing a jewelry store manager and a detective to give opinion testimony about shadows appearing in a surveillance videotape; defendant was not materially prejudiced as the actual videotape was ultimately played for the jury, defendant had the opportunity to cross-examine both witnesses, and the other evidence that defendant stole the necklace was rather compelling. Brown v. State, 90 P.3d 98, 2004 Wyo. LEXIS 69 (Wyo. 2004).

Answer 357

Jewelry store employee properly testified that it was his and other employees' customary practice to inspect store merchandise; even if the employee lacked the requisite personal knowledge to testify that a necklace was in the case when another employee went to lunch, defendant's own testimony established that the necklace was present in a display case while he was in the jewelry store. Brown v. State, 90 P.3d 98, 2004 Wyo. LEXIS 69 (Wyo. 2004).

Answer 358

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).

Answer 359

Oath or affirmation: Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

Answer 360

that he understood what it meant to tell the truth and that lying might be cause for punishment may have satisfied the requirements of this rule, since the formal swearing of a witness before testifying is unnecessary. Larsen v. State, 686 P.2d 583 (Wyo. 1984).

Answer 361

where defendant testified as an unsworn witness after being called by his attorney; since defendant failed to object to the omission of the oath and he was in the best position to realize that no oath was given, the oath was effectively waived. Heier v. State, 727 P.2d 707 (Wyo. 1986).

Answer 362

Interpreters: An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.

Answer 363

Competency of Judge as witness: The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Answer 364

Competency of Juror as witness: (a) At the trial. -- A member of the jury may not testify as a witness before that jury in the trial of the case in which he is sitting as a juror. If he is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry into validity of verdict or indictment. -- Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

Answer 365

In considering an action for a new trial, it was not error for the court to limit investigation of alleged jury tampering. The questions posed to the jurors were limited to whether or not any of them had been approached by any outside source during the course of the trial, and whether they had been influenced by any outside source. Defense counsel was not permitted to inquire further and question the jurors with respect to their deliberations, emotions and feelings. Braley v. State, 741 P.2d 1061 (Wyo. 1987).

Answer 366

Application of subdivision (b), which prohibits interrogation of jurors over their mental processes, did not prevent defendant from having a full and fair hearing, where the trial judge afforded a hearing and an opportunity for defendant to investigate, through extrinsic evidence, the possible existence of juror bias. Braley v. Shillinger, 902 F.2d 20 (10th Cir. 1990).

Answer 367

Affidavits of four jurors, filed in support of a motion for new trial, expressing juror misunderstanding that the jury verdict rendered would result in a hung jury, were not appropriate, as Wyo. R. Evid. 606 could not be any clearer. Smyth v. Kaufman, 67 P.3d 1161, 2003 Wyo. LEXIS 64 (Wyo. 2003). District court correctly found that it could not consider a juror's affidavit as it violated Wyo. R. Evid. 606(b); juror testimony regarding the possibility of the entry of a quotient verdict was inadmissible. Lake v. D & L Langley Trucking, Inc., 233 P.3d 589, 2010 Wyo. LEXIS 79 (Wyo. 2010).

Answer 368

Who may impeach: The credibility of a witness may be attacked by any party, including the party calling him.

Answer 369

Trial court incorrectly denied negligence plaintiff's counsel attempted impeachment of store manager who uttered clearly inconsistent statements where his deposition concluded that it would take several hours for soda to penetrate floor wax while his testimony at trial was that he could not make the same conclusion. Rhoades v. K-Mart Corp., 863 P.2d 626 (Wyo. 1993).

Answer 370

Court upheld defendant's conviction for assault and battery because (1) an officer's testimony concerning defendant's refusal to talk to him did not reflect an intent to cast guilt upon defendant in violation of her constitutional right to remain silent; (2) the district court did not err in admitting evidence of uncharged misconduct under Wyo. R. Evid. 404(b) because the challenged evidence served as impeachment under this section; (3) an officer's rebuttal testimony was permissible under Wyo. R. Evid. 613(b) to introduce a prior inconsistent statement; (4) in rebuttal, the State was entitled to counter defendant's characterizations by offering opinion evidence, under Wyo. R. Evid. 405(a), of character contradicting the traits that defendant had described in the victim and denied in herself; and (5) and the evidence was sufficient to support the conviction. Cazier v. State, 148 P.3d 23, 2006 Wyo. LEXIS 168 (Wyo. 2006).

Answer 371

Evidence of character and conduct of witness. (a) Opinion and reputation evidence of character. -- The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. -- Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

Answer 372

which did not address whether or not he was telling the truth in the matter before the court was not admissible under subdivision (b). Punches v. State, 944 P.2d 1131 (Wyo. 1997).

Answer 373

Although the Wyoming Rules of Evidence are not applicable to the preliminary examination in criminal cases (Rule 1101(b)(3)), cross-examination is properly to be limited at the preliminary hearing to the scope of direct examination. Weddle v. State, 621 P.2d 231 (Wyo. 1980).

Answer 374

In an arson case, counsel was not ineffective for failing to object to the State's experts where a proper foundation for each was established, the experts were not used to vouch for the credibility of the others, and each rounded-out the testimony of the others. Strickland v. State, 94 P.3d 1034, 2004 Wyo. LEXIS 118 (Wyo. 2004). Where the defendant's pretrial motion is directed at a claimed improper restriction of cross-examination at the preliminary hearing, and the restriction is the refusal of the justice conducting the hearing to allow a question to the victim concerning sexual intercourse had by her previous to the sexual assault alleged in the complaint, the motion is properly rejected where the question is beyond the scope of direct examination. Weddle v. State, 621 P.2d 231 (Wyo. 1980).

Answer 375

and its discretion will not be disturbed unless clearly prejudicial. Nimmo v. State, 603 P.2d 386 (Wyo. 1979).

Answer 376

There is a point which constitutes a prosecution of the witness for the offense inquired about rather than a testing of his credibility and when that point is reached the court acts properly in closing down the questioning, for there is no valid interest to be served in shifting the emphasis from the accused persons on trial to the witness. Nimmo v. State, 603 P.2d 386 (Wyo. 1979).

Answer 377

Section 6-4-312 (now § 6-2-312), setting forth the procedure to be followed in offering a sexual assault victim's character into evidence, concerns trial procedure, but it indicates the questionable probative value of such evidence. Weddle v. State, 621 P.2d 231 (Wyo. 1980).

Answer 378

A trial court's discretionary ruling on evidence will not be upset except for clear abuse which is appellant's burden to demonstrate. Nimmo v. State, 603 P.2d 386 (Wyo. 1979); Buhrle v. State, 627 P.2d 1374 (Wyo. 1981).

Answer 379

Subdivision (b) of this rule was not violated where prosecutor's question regarding whether defendant had money in his pocket when he was arrested and whether he misled judge about his ability to afford an attorney was probative of defendant's character for truthfulness, and where prosecutor did not use extrinsic evidence. Solis v. State, 981 P.2d 34 (Wyo. 1999).

Answer 380

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).

Answer 381

Testimony concerning the defendant's illegal alien status and use of a false social security number was admissible because such evidence was probative of the defendant's character for truthfulness. Marquez v. State, 941 P.2d 22 (Wyo. 1997).

Answer 382

In a medical malpractice case, a court did not err by precluding evidence of the doctor's prior malpractice claims, the suspension of her hospital privileges, and other matters affecting her credibility where the doctor's prior experience and qualifications were not relevant to the question of whether she met the standard of care in regard to plaintiff. The district court reasonably could have concluded that any probative value of the earlier alleged incident was outweighed by the spectre of a "trial within a trial" as plaintiff tried to prove the doctor's negligence in that incident. Armstrong v. Hrabal, 87 P.3d 1226, 2004 Wyo. LEXIS 47 (Wyo. 2004).

Answer 383

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 subdivision (b). Velos v. State, 752 P.2d 411 (Wyo. 1988).

Answer 384

Admission of battered woman syndrome evidence in defendant's assault trial was harmless error where there was other ample evidence that defendant had committed the crime. Skinner v. State, 33 P.3d 758, 2001 Wyo. LEXIS 124 (Wyo. 2001), cert. denied, 535 U.S. 994, 122 S. Ct. 1554, 152 L. Ed. 2d 477 (2002).

Answer 385

In a case in which the defendant was convicted of delivery of a controlled substance, where the trial court's ruling prevented the defendant from presenting witnesses to testify to the agent's prior drug use, the trial court incorrectly relied on this rule to exclude the testimony, since the evidence was offered to contradict the agent's assertion in his direct testimony that he merely simulated the use of drugs with suspects but did not use them; and since the evidence was offered to show that because the agent used drugs on prior occasions, his perception was impaired at the time of the transaction. Gist v. State, 766 P.2d 1149 (Wyo. 1988).

Answer 386

Testimony about a confidential informant's previous drug use amounted to extrinsic evidence concerning a specific instance of the confidential informant's conduct and was not, therefore, admissible to attack her credibility. Blumhagen v. State, 11 P.3d 889, 2000 Wyo. LEXIS 199 (Wyo. 2000).

Answer 387

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).

Answer 388

Although a court erred in excluding impeachment evidence under W.R.E. 608, the error was harmless because the accomplice's motive to testify falsely was adequately presented to the jury, as was her reputation for untruthfulness; witnesses commented on their low opinion of the accomplice, as did the proprietors of two businesses for whom the accomplice had worked. Hall v. State, 109 P.3d 499, 2005 Wyo. LEXIS 40 (Wyo. 2005).

Answer 389

Impeachment by evidence of conviction of crime.

Answer 390

(a) General rule. -- For the purpose of attacking the credibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one (1) year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

Answer 391

Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten (10) years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Answer 392

Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one (1) year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

Answer 393

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness (other than the accused) if conviction of the offense would be admissible to attach the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Answer 394

The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Answer 395

In defendant's sexual assault case, a court violated defendant's confrontation rights by prohibiting defendant from cross-examining the victim where the victim was the only witness to the alleged crime, there was no physical evidence tying defendant to the alleged assault nor were there any eyewitnesses, and the victim did not report the allegations until three months after the fact when he was brought in for questioning about his own sexual improprieties with another boy. Had defense counsel been allowed to explore the issue with the victim during cross-examination, the jury reasonably might have inferred that the victim was fearful about what would happen to him as a result of his own acts and concocted the allegations against defendant to shift the focus of the police inquiry away from him. Hannon v. State, 84 P.3d 320, 2004 Wyo. LEXIS 12 (Wyo. 2004). Court properly excluded evidence of the victim's criminal record where defendant offered no details about the prior incidents, the only "proof" proposed was to offer certified copies of judgments, and defendant did not propose to have any witness testify to the victim's reputation for violence. Holloman v. State, 106 P.3d 879, 2005 Wyo. LEXIS 26 (Wyo. 2005).

Answer 396

This rule may provide some guidance, but it does not have to be weighed in conjunction with Rule 404(b), when the court is deciding the admissibility of evidence. Goodman v. State, 601 P.2d 178 (Wyo. 1979).

Answer 397

In a prosecution for sexual assault, when there was no issue with respect to the fact that sexual intercourse occurred, the identity of the perpetrator was not disputed, and the only material dispute was whether the sexual intercourse occurred as a product of the victim's consent or was forced (and where the other evidence of force such as bruising, etc., was less than overwhelming), the trial court had a legitimate basis for the admission of evidence of "prior bad acts" under Rule 404(b). When the accused denied the use of force and claimed consent, evidence which contradicted his denials of previous use of force in sexual encounters was of assistance to the trier of fact in evaluating his testimony with respect to motive, knowledge and intent in resolving the issue of fact and in evaluating his credibility. Such evidence was not subject to the same limitations as those found in this rule. Carey v. State, 715 P.2d 244 (Wyo.), cert. denied, 479 U.S. 882, 107 S. Ct. 270, 93 L. Ed. 2d 247 (1986).

Answer 398

Once the defendant became a witness, the admissibility of his prior convictions was governed by subdivision (a) of this rule, rather than Rule 404(b). The defendant could have taken the stand and risked the jury's discovery of his prior convictions, or he could have refrained from testifying. Robinson v. State, 716 P.2d 364 (Wyo. 1986).

Answer 399

Since the defendant did not testify, he did not preserve on appeal the issue of the propriety of the pretrial ruling that his 17-year-old criminal convictions would be admissible for impeachment purposes. To balance the probative value with the prejudicial effect of a prior conviction, the court had to know the precise nature of the defendant's testimony. Additionally, such a ruling did not violate the defendant's constitutional right to remain silent. Vaupel v. State, 708 P.2d 1248 (Wyo. 1985).

Answer 400

The defendant's evidence concerning the prejudicial nature of his prior drug conviction demonstrated only the widespread public concern with, and media attention given to, illicit drug use. Such a showing was insufficient to establish the prejudicial effect of his prior conviction. Miller v. State, 784 P.2d 209 (Wyo. 1989).

Answer 401

In mother's appeal of trial court's modification of child custody terms, while the effect of Wyo. Stat. Ann. § 7-13-301 was to erase from the mother's personal criminal history the occurrence of the criminal child abuse, it did not erase those events from the personal history of child and the district court did not err in admitting evidence concerning that abuse. GGV v. JLR, 39 P.3d 1066, 2002 Wyo. LEXIS 18 (Wyo. 2002). Defendant was not prejudiced by the introduction of defendant's two prior convictions for child abuse; in this instance, defendant's version of the events leading to a child's death differed significantly from the physical evidence and the evidence presented at trial. The evidence of the prior convictions was used to impeach defendant, and an appropriate limiting instruction was given to the jury. Sanchez v. State, 142 P.3d 1134, 2006 Wyo. LEXIS 121 (Wyo. 2006).

Answer 402

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).

Answer 403

In a murder case, evidence that the defendant used an alias was admissible to impeach defendant's credibility once defendant took the stand and testified in his own defense; however, evidence of defendant's combative behavior on the day before the alleged crime was inadmissible where it was introduced for the sole purpose of demonstrating bad character and a criminal mindset. Holloman v. State, 106 P.3d 879, 2005 Wyo. LEXIS 26 (Wyo. 2005).

Answer 404

The trial court's erroneous ruling that defense counsel could not elicit the fact of the defendant's prior convictions upon direct examination was an error of constitutional magnitude, but was nonetheless harmless error under the totality of all the evidence. Gentry v. State, 806 P.2d 1269 (Wyo. 1991).

Answer 405

It is clear that when a defendant in a criminal action takes the witness stand in his own defense, his credibility becomes an issue and he may be cross-examined regarding prior felonies. In such circumstances, there is no violation of his fifth amendment rights. Montez v. State, 670 P.2d 694 (Wyo. 1983). In his trial testimony, the defendant charged with murder by use of a shotgun, projected himself as a patient, tolerant and peaceful man who went out of his way to avoid confrontation. To rebut this evidence, the prosecutor elicited answers from him on cross-examination to the effect that he knew that he was not entitled to have in his possession a firearm because he was a convicted felon. This evidence of a prior felony was both probative and relevant and, the defendant not showing that such evidence was extremely inflammatory or introduced for the purpose of inflaming the jury, the trial court did not abuse its discretion in allowing this evidence. Murry v. State, 713 P.2d 202 (Wyo. 1986).

Answer 406

Where the defense places a witness' credibility in issue and invites cross-examination testimony, the prosecutor may question the witness for the proper purpose of impeachment, by asking "Are you a convicted felon?" The prosecutor may not however, improperly attempt to use the witness' conviction as substantive evidence of the defendant's guilt by emphasizing the matter or urging the jury to consider it. Porth v. State, 868 P.2d 236 (Wyo. 1994). RULE DOES NOT ALLOW WITNESS' CREDIBILITY TO BE ATTACKED BY PRIOR ARREST EVIDENCE. -- Ramos v. State, 806 P.2d 822 (Wyo. 1991). SECTION 6-10-203 DOES NOT BAR USE OF PRIOR FELONY CONVICTIONS -- Section 6-10-203, which sets out the procedure involving an habitual criminal charge, does not bar the use of prior felony convictions, in a trial of the substantive offense of delivery of a controlled substance, when used for impeachment purposes where the following procedures are employed by the trial court: the court allows the defendant to be impeached at the trial on the underlying felony, delivery of a controlled substance, by permitting his cross-examination on prior convictions; the court then immediately gives the jury a limiting instruction to the effect that testimony regarding prior convictions is to be considered only for the purpose of impeachment and not as any evidence of guilt; and, at the trial on the defendant's status as an habitual criminal, the state proves the prior convictions independently of the defendant's admissions under cross-examination, and his prior admissions are not used against him in this phase of the trial. Montez v. State, 670 P.2d 694 (Wyo. 1983).

Answer 407

It is not unreasonable for the trial court to exercise its discretion in refusing to allow cross-examination concerning the answers made by a party on an employment application when such answers would result in the introduction of evidence which subdivision (c) is designed to exclude. Meyer v. Kendig, 641 P.2d 1235 (Wyo. 1982).

Answer 408

The trial court did not abuse its discretion in limiting the scope of cross-examination by excluding evidence of juvenile court proceedings where the witness was not on probation at the time the crime occurred or at the time of trial, he was not an accomplice or a possible suspect of the crime for which the defendant was on trial, he was not the state's only witness (although he was the victim), and where other relevant evidence relating to the witness's credibility and possible bias or prejudice was explored on cross-examination and emphasized in closing argument. Amin v. State, 686 P.2d 593 (Wyo. 1984).

Answer 409

If a witness is impeached under this rule by a conviction arising out of the same circumstances underlying the prosecution of the defendant, the defense has a right, and it is reversible error to deny that right, to explain the conviction. Grable v. State, 601 P.2d 1001 (Wyo. 1979).

Answer 410

When two persons are indicted for separate offenses growing out of the same circumstance, the fact that one has pleaded guilty is inadmissible against the other when offered by the state in its case in chief. Grable v. State, 601 P.2d 1001 (Wyo. 1979).

Answer 411

of the procedural requirements for admissibility of a prior conviction set out in subdivision (a). Bradley v. State, 635 P.2d 1161 (Wyo. 1981). Subdivision (a) places no burden upon the court to make preliminary findings to support the admission of prior convictions until the defendant enters a proper objection. The failure to object constitutes a waiver of that obligation. Miller v. State, 784 P.2d 209 (Wyo. 1989).

Answer 412

to the prosecutor's introduction of evidence which may have been inadmissible under Rule 404 and this rule. However, no prejudice was proven, as the prosecution presented substantial evidence to support a conviction. Arner v. State, 872 P.2d 100 (Wyo. 1994).

Answer 413

over defense counsel's objection, which instruction operated to limit the jury's consideration of a witness' prior conviction to the question of that witness' credibility. Jozen v. State, 746 P.2d 1279 (Wyo. 1987).

Answer 414

Where the court allowed defendant to explain at length the details behind his involuntary manslaughter conviction, but sustained the state's objection to explaining the details leading up to his other convictions for armed robbery, the court's ruling was within its discretion to limit defendant's testimony, and there was no abuse of discretion. Ramirez v. State, 994 P.2d 970, 2000 Wyo. LEXIS 12 (Wyo. 2000). Under this rule, a testifying defendant is required to answer only whether he has been previously convicted of a felony, what the felony was, and when he was convicted and a prosecutor may not pursue excessive detail. Taylor v. State, 17 P.3d 715, 2001 Wyo. LEXIS 14 (Wyo. 2001).

Answer 415

Where defendant's convictions were more than ten years old but his release from incarceration for those convictions was not, his convictions were admissible under this rule. Beadles v. State, 984 P.2d 1083 (Wyo. 1999).

Answer 416

Although State failed to give defendant required notice of its intent to introduce prior conviction that was more than ten-years old, any error was harmless since there was no reasonable possibility that verdict would have been different had evidence of prior conviction been excluded. Lee v. State, 2 P.3d 517, 2000 Wyo. LEXIS 68 (Wyo. 2000). Although defendant was correct in stating that Wyo. R. Evid. 609(b) did not permit the trial court's automatic exclusion of a remote conviction without examining whether that evidence was more probative than prejudicial, defendant was not prejudiced because she did not ask questions about the victim's allegedly violent character, supporting her defense theory, during cross-examination. Miller v. State, 67 P.3d 1191, 2003 Wyo. LEXIS 66 (Wyo. 2003).

Answer 417

for purposes of calculating ten-year time limit under subdivision (b) of this rule. Lee v. State, 2 P.3d 517, 2000 Wyo. LEXIS 68 (Wyo. 2000).

Answer 418

Religious beliefs or opinions: Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced.

Answer 419

Mode and order of interrogation and presentation

Answer 420

(a) Control by court. -- The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Answer 421

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Answer 422

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Answer 423

This rule and Rule 403, vest in the court a large discretion which is necessary to an efficient and orderly trial process. McCabe v. R.A. Manning Constr. Co., 674 P.2d 699 (Wyo. 1983). SUBDIVISION (B) GIVES MUCH DISCRETION TO TRIAL JUDGE IN ALLOWING CROSS-EXAMINATION. -- Grabill v. State, 621 P.2d 802 (Wyo. 1980); Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276 (Wyo. 1983).

Answer 424

While the denial of the right of cross-examination clearly would be error, the extent and manner of cross-examination are matters which are vested within the discretion of the trial court, and its ruling on such evidence will not be overturned in the absence of a clear abuse of discretion. Grable v. State, 649 P.2d 663 (Wyo. 1982).

Answer 425

Where the defendant called a witness in his case-in-chief and the witness selectively answered questions which supported the defense's theory that the defendant was not involved in the crime, while taking the fifth amendment on all other questions, the trial court did not abuse its discretion in the cross-examination latitude it allowed the prosecution. The prosecution was entitled to cross-examination on the subject matter of the direct examination and matters affecting the credibility of the witness, and the court limited the cross-examination to its proper bounds. Porth v. State, 868 P.2d 236 (Wyo. 1994). The district court did not abuse its discretion by refusing to grant plaintiffs' motions to strike witness from defendant's list and add him to their list, where defendant could properly present him in its case in chief since it had originally designated him as its witness and since plaintiffs did not give any concrete explanation as to how their case would be harmed if the district court did not grant their motions nor take advantage of their opportunity to question him on cross-examination. Thunder Hawk v. Union Pac. R.R., 891 P.2d 773 (Wyo. 1995).

Answer 426

It was not improper for the plaintiff, through cross-examination, to make the defendant's witnesses her own experts and elicit their testimony in support of the plaintiff's case. Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276 (Wyo. 1983).

Answer 427

Unusual circumstances where re-redirect examination could be justified or required within trial court's discretion not presented. See Seaton v. State Hwy. Comm'n, Dist. No. 1, 784 P.2d 197 (Wyo. 1989).

Answer 428

Because no drug was retrieved and entered into evidence, the State's case was based solely on the credibility of its witnesses; in testing a witness' credibility, defense counsel was entitled to explore the foundation for the witness' opinion and exclusion of that evidence was an abuse of the trial court's discretion. Dysthe v. State, 63 P.3d 875, 2003 Wyo. LEXIS 22 (Wyo. 2003).

Answer 429

This rule contains words of suggestion, not command, and is not a bar to either side's occasional use of leading questions during direct; the trial court's decision in this case to allow the leading question complained of was not an abuse of discretion. Pena v. State, 792 P.2d 1352 (Wyo. 1990). Defendant's due process rights were not violated by trial court's denial of his request to hold witness subject to subpoena where the court was attempting to expedite trial by requiring defendant to finish questioning witness during cross-examination and defendant had not specifically named witness on his witness list nor subpoenaed witness. Sutherland v. State, 944 P.2d 1157 (Wyo. 1997). There was no abuse of discretion in permitting the state's expert witness to comment in his direct testimony on the opinion that the defendant's expert witness expressed orally prior to trial as it is not improper for an expert witness to comment upon the methods and opinions of other experts. Mintun v. State, 966 P.2d 954 (Wyo. 1998). Trial court did not abuse its discretion in allowing defendant limited use of leading questions during cross-examination of defendant's employees, who had been called as witnesses by plaintiffs in their case-in-chief. Sunderman v. State Farm Fire & Cas. Co., 978 P.2d 1167 (Wyo. 1999). Worker could not show plain error in a district court's decision to preclude a rebuttal witness's testimony because the worker could not show that the decision transgressed any clear and unequivocal rule of law because: (1) the worker did not object to the ruling precluding him from calling the rebuttal witness to testify as a rebuttal witness; (2) the worker did not ask to make a formal offer of proof showing why the rebuttal witness's testimony was important, why he was not called to testify in the worker's case-in-chief, or why the use of his deposition testimony in cross-examining the expert witness was not sufficient; and (3) the district court had broad discretion in deciding whether to allow evidence. Case v. Outback Pipe Haulers, 171 P.3d 514, 2007 Wyo. LEXIS 193 (Wyo. 2007).

Answer 430

Writing or object used to refresh memory.

Answer 431

If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.

Answer 432

If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.

Answer 433

A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony, the court shall examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, but in criminal cases if the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Answer 434

he is not testifying to facts of which he had prior first-hand knowledge. Phillips v. State, 597 P.2d 456 (Wyo. 1979). WHEN WITNESS REFRESHES HIS MEMORY FROM WRITING OR DOCUMENT, BEST EVIDENCE RULE DOES NOT APPLY. -- Phillips v. State, 597 P.2d 456 (Wyo. 1979).

Answer 435

The trial court did not abuse its discretion in refusing to require a doctor to turn over his charts to the defense where the doctor testified that he prepared his notes from his charts and that he used the notes, not the charts, to refresh his recollection, and the defense received copies of the notes. Hayes v. State, 935 P.2d 700 (Wyo. 1997).

Answer 436

Prior statements of witnesses.

Answer 437

In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

Answer 438

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

Answer 439

In a prosecution for felony larceny by a bailee for selling three horses entrusted to defendant's care, the trial court properly admitted evidence of a prior inconsistent statement under W.R.E. 613(b) when it allowed the State to impeach its own witness, the defendant's daughter-in-law, over the defendant's objection where the daughter-in-law, in the State's case-in-chief, denied having any knowledge pertaining to the final disposition of the three mares at issue, and denied having told the owner of the horses and a third person that defendant had taken the mares to a livestock auction but the third person testified that she, the owner, and the daughter-in-law had a discussion wherein the daughter-in-law stated that the defendant was taking the three mares to the sale. Willis v. State, 46 P.3d 890, 2002 Wyo. LEXIS 81 (Wyo. 2002).

Answer 440

In a prosecution of defendant on one count of assault and battery on a household member, the trial court did not err in allowing a police officer to testify concerning statements the victim made to the officer; the State was entitled to introduce prior statements by the victim that were inconsistent with her trial testimony. Boykin v. State, 105 P.3d 481, 2005 Wyo. LEXIS 18 (Wyo. 2005).

Answer 441

District court erred in allowing prosecutor to call a rebuttal expert witness who had been present in the courtroom during the testimony of the defense expert. However, the error was harmless because there was ample additional evidence indicating the defendant was criminally negligent pursuant to § 6-2-106(a). Candelaria v. State, 895 P.2d 434 (Wyo. 1995), overruled on other grounds, Allen v. State, 43 P.3d 551 (Wyo. 2002).

Answer 442

Calling and interrogation of witnesses by court.

Answer 443

The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

Answer 444

The court may interrogate witnesses, whether called by itself or by a party.

Answer 445

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

Answer 446

Exclusion of witnesses: At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may enter the order on its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Answer 447

The purpose of sequestering witnesses is to prevent the tailoring of evidence to conform to prior testimony and to assist the parties in detecting falsehoods and testimony which is less than candid. Gabriel v. State, 925 P.2d 234 (Wyo. 1996).

Answer 448

In a juvenile proceeding, the trial court erred in excluding two of defendant's proposed witnesses from testifying for violating its oral exclusionary order where there was no evidence presented nor was it claimed that one witness spoke to the other witness with the knowledge or consent of defendant or his counsel and reasonable confusion remained on the part of defendant and his counsel regarding the extent of the oral order entered by the court. KC v. State, 92 P.3d 805, 2004 Wyo. LEXIS 94 (Wyo. 2004).

Answer 449

Where there was no evidence presented, nor was it claimed, that defense witnesses entered the courtroom with the knowledge or consent of the defendant or his counsel, but it was unclear whether their presence was in fact induced by an agent for the county attorney's office, the exclusion of their testimony as a sanction for violating a sequestration order was an abuse of discretion. Towner v. State, 685 P.2d 45 (Wyo. 1984).

Answer 450

The trial court did not abuse its discretion in excluding one of the defendant's expert witnesses, who was to testify as to the defendant's sanity, from the courtroom. Stone v. State, 745 P.2d 1344 (Wyo. 1987).

Answer 451

Permitting witnesses to testify who have been in the courtroom during voir dire in violation of a sequestration order is a matter addressed to the sound discretion of the court. Lauthern v. State, 769 P.2d 350 (Wyo. 1989).

Answer 452

The trial court did not err in denying defendant's request to sequester a victim of attempted murder while another attempted victim testified because (1) the latter was to be the state's first witness, and (2) the former had made a lengthy pretrial statement, supplied to the defense, so that it was unlikely she would change her testimony. Gabriel v. State, 925 P.2d 234 (Wyo. 1996).

Answer 453

The court did not abuse its discretion by refusing to impose sanctions, even assuming that a sequestration order was violated in a criminal prosecution, when a friend of a witness told the witness that the victim "did a very good job on the stand and that she said what she needed to say here," as the scope of the alleged transgression was very limited, and the court could have reasonably concluded that it did not present a threat that the witness would conform her testimony to that of the victim. Cook v. State, 7 P.3d 53, 2000 Wyo. LEXIS 139 (Wyo. 2000).

Answer 454

Opinion testimony by lay witnesses: If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

Answer 455

It was the intent of the framers of the Rules of Evidence to considerably relax the prohibition against receipt of opinion testimony both by expert and lay witnesses. Generally, the rules should be liberally construed to allow the admission of such evidence. Yet, on occasion, certain opinion evidence may not be helpful or may have a potential for such mischief that it ought to be rejected. McCabe v. R.A. Manning Constr. Co., 674 P.2d 699 (Wyo. 1983). It was the intent of the framers of the Rules of Evidence to considerably relax the prohibition against receipt of opinion testimony both by expert and lay witnesses, and thus the rules should be liberally construed to allow the admission of such evidence. Brockett v. Prater, 675 P.2d 638 (Wyo. 1984).

Answer 456

It was not plain error to admit at defendant's murder trial a witness's testimony that, based on her experience and her observations in taking defendant's order for a pizza delivery over the phone, defendant was not intoxicated when he made the call; although the witness's lay opinion was based solely on aural perception, the witness was entitled to rely on her lay experience and form an opinion which was rationally based on her aural perception of defendant and was helpful to the jury's determination of whether he was intoxicated at the time of the murder. Wilks v. State, 49 P.3d 985, 2002 Wyo. LEXIS 106 (Wyo. 2002).

Answer 457

without having a particular expertise; the weight given to such testimony is left to the jury. Weathers v. State, 652 P.2d 970 (Wyo. 1982).

Answer 458

Sufficient foundation existed for plaintiff's counsel to ask department store manager in charge of maintaining waxed floors, whether he had personal knowledge of waxing floors and the effect of soda spills on floor wax. Rhoades v. K-Mart Corp., 863 P.2d 626 (Wyo. 1993).

Answer 459

Trial court did not plainly err in allowing a jewelry store manager and a detective to give opinion testimony about shadows appearing in a surveillance videotape; defendant was not materially prejudiced as the actual videotape was ultimately played for the jury, defendant had the opportunity to cross-examine both witnesses, and the other evidence that defendant stole the necklace was rather compelling. Brown v. State, 90 P.3d 98, 2004 Wyo. LEXIS 69 (Wyo. 2004).

Answer 460

Even though the trial court erred by admitting an officer's testimony about the positioning of the occupants of the vehicle, as the testimony exceeded the scope of permissible lay opinion under Wyo. R. Evid. 701 and the officer was not designated an expert under Wyo. R. Evid. 702, the error was harmless because the overwhelming weight of the remaining evidence established that defendant was the driver of the vehicle and the trial court instructed the jury several times that the officer was not an expert and as to the weight, if any, to be given to his testimony. Tucker v. State, 245 P.3d 301, 2010 Wyo. LEXIS 171 (Wyo. 2010).

Answer 461

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).

Answer 462

The fact that an eyewitness could not know when a driver had perceived the danger of an approaching vehicle, whether the driver had maintained a proper lookout, or ultimately whether the driver could have avoided the accident, went to the weight to be accorded the eyewitness' opinion testimony as to avoidability and not to its admissibility. Brockett v. Prater, 675 P.2d 638 (Wyo. 1984).

Answer 463

The prosecutor in a homicide case did not seek an improper legal conclusion from the defendant when questioning him as to whether he felt malice towards the victim. The questions about anger, ill will and malice were clearly directed at ascertaining the defendant's intent. Armstrong v. State, 826 P.2d 1106 (Wyo. 1992).

Answer 464

The trial court did not abuse its discretion in refusing to permit a mechanical engineer to testify as a lay witness on a system design of a degree of complexity and difficulty he had never encountered. Kemper Architects v. McFall, Konkel & Kimball Consulting Eng'rs, Inc., 843 P.2d 1178 (Wyo. 1992).

Answer 465

Where buyer's lay witness was not designated as an expert but testified he was a building contractor and gave opinion on the condition of buyer's home and repairs that were necessary, he essentially provided expert testimony, which unfairly prejudiced inspector. Carroll v. Bergen, 57 P.3d 1209, 2002 Wyo. LEXIS 194 (Wyo. 2002).

Answer 466

There was sufficient evidence of the witness's personal knowledge of the relationship between the defendant and her grandmother, and the witness's opinion that the grandmother trusted the defendant was both rationally based and helpful to the jury, and therefore there was no error in admitting the testimony. Clark v. Gale, 966 P.2d 431 (Wyo. 1998).

Answer 467

Witness could offer his opinions concerning the children's abuse as a lay witness under Wyo. R. Evid. 701 because he did not testify that visits with the mother were abuse under Wyo. Stat. Ann. § 14-3-202(a)(ii), but merely intended to convey his opinion that the intermittent nature of their visits with the mother was causing problems for the children in adjusting to their lives without their mother. M.L. v. Laramie County Dep't of Family Servs. (In the Interest of L.L.), 159 P.3d 499, 2007 Wyo. LEXIS 100 (Wyo. 2007).

Answer 468

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).

Answer 469

In a prosecution for murder, the statements of lay witnesses, insofar as they were opinions concerning the defendant's mental illness or deficiency, were, at best, off-the-top-of-the-head statements giving a possible explanation of the defendant's bizarre actions and state of intoxication. By no stretch of the imagination could they be considered by lay opinions regarding mental illness or deficiency. Stone v. State, 745 P.2d 1344 (Wyo. 1987).

Answer 470

During defendant's trial for aggravated assault and battery, the court did not err in allowing a detective to testify based on the detective's observations of the physical evidence found at the scene; the detective's conclusion that the assault occurred on the first floor near an apartment building entrance was helpful to the jury in making its determination whether defendant was the aggressor or was acting in self defense. Inman v. State, 281 P.3d 745, 2012 Wyo. LEXIS 112 (Wyo. 2012).

Answer 471

Testimony by experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Answer 472

It was the intent of the framers of the Rules of Evidence to considerably relax the prohibition against receipt of opinion testimony both by expert and lay witnesses. Generally, the rules should be liberally construed to allow the admission of such evidence. Yet, on occasion, certain opinion evidence may not be helpful or may have a potential for such mischief that it ought to be rejected. McCabe v. R.A. Manning Constr. Co., 674 P.2d 699 (Wyo. 1983). It was the intent of the framers of the Rules of Evidence to considerably relax the prohibition against receipt of opinion testimony both by expert and lay witnesses, and thus the rules should be liberally construed to allow the admission of such evidence. Brockett v. Prater, 675 P.2d 638 (Wyo. 1984).

Answer 473

It is not the purpose of this rule to provide blanket admissibility of expert testimony, but instead, to vest the trial court with the discretion to determine whether to exclude testimony deemed unnecessary or not helpful to the trier of fact. Hatch v. State Farm Fire & Cas. Co., 930 P.2d 382 (Wyo. 1996). EXPERT MUST BE QUALIFIED AS TO EACH AREA IN WHICH HE OFFERS TESTIMONY. -- Herman v. Speed King Mfg. Co., 675 P.2d 1271 (Wyo. 1984).

Answer 474

superior to men in general through actual experience or careful study. McDaniel v. State, 632 P.2d 534 (Wyo. 1981). FORMAL EDUCATION IS NOT REQUIRED TO BE EXPERT. -- McDaniel v. State, 632 P.2d 534 (Wyo. 1981).

Answer 475

but that lack of degree goes to the weight of his testimony before the trier of fact and not to admissibility. McDaniel v. State, 632 P.2d 534 (Wyo. 1981).

Answer 476

In a sexual assault on a child case, a court erred by admitting an expert's testimony regarding an interview with the victim that included "truthfulness criteria" because the expert's "truthfulness criteria" testimony and her assessment of the victim's credibility based on the content of the victim's interview responses directly vouched for the victim's credibility. Seward v. State, 76 P.3d 805, 2003 Wyo. LEXIS 142 (Wyo. 2003).

Answer 477

It is for the trial court first to determine if a proffered expert is qualified and the proffered opinion would be of aid to the jury. If held admissible the jury is at liberty to reject it and it still leaves with the jury the responsibility of determining the ultimate fact. Krahn v. Pierce, 485 P.2d 1021 (Wyo. 1971) (decided under Rule 43, W.R.C.P.).

Answer 478

Whether qualification of a witness with respect to knowledge or special experience is sufficiently established is a matter resting largely in the discretion of the trial court, whose determination is usually final and will not be disturbed except in extreme cases. Elite Cleaners & Tailors, Inc. v. Gentry, 510 P.2d 784 (Wyo. 1973); Ferris v. Myers, 625 P.2d 199 (Wyo. 1981). Whether a witness testifying on the subject of telephone solicitation of homeowner's insurance policies is qualified as an expert is a matter vested within the discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless it is clearly and prejudicially erroneous, and then only in extreme cases. Reed v. Hunter, 663 P.2d 513 (Wyo. 1983).

Answer 479

Decision whether to admit expert testimony is to be guided by two-part analysis provided by United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); trial court must determine whether methodology or technique used by expert to reach his conclusions is reliable and, if so, court must determine whether proposed testimony fits facts of the particular case. Bunting v. Jamieson, 984 P.2d 467 (Wyo. 1999). Application of approach provided by United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), requires trial court to consider all factors relevant to reliability of a proposed expert's testimony, with a focus on methodology of expert and not his or her conclusions; in so doing, court must clearly state its reasoning on the record. Bunting v. Jamieson, 984 P.2d 467 (Wyo. 1999).

Answer 480

for expert testimony. Price v. State, 807 P.2d 909 (Wyo. 1991).

Answer 481

Whatever the rule may be on cross-examining an expert witness as to the substance of his opinion testimony, the proper rule with respect to cross-examination designed to test his expertise is that it is in no way limited by his testimony on direct examination. Having offered his expert opinion, the expert witness exposes himself to interrogation which ordinarily would have no place in the cross-examination of a factual witness, but the expert exposes himself to the most searching kind of investigation into his qualifications, the extent of his knowledge and the reasons for his opinion, including the facts and other matters upon which it is based. Chrysler Corp. v. Todorovich, 580 P.2d 1123 (Wyo. 1978).

Answer 482

In an arson case, counsel was not ineffective for failing to object to the State's experts where a proper foundation for each was established, the experts were not used to vouch for the credibility of the others, and each rounded-out the testimony of the others. Strickland v. State, 94 P.3d 1034, 2004 Wyo. LEXIS 118 (Wyo. 2004).

Answer 483

The trial court remains vested with discretion in deciding whether to exclude expert opinion testimony because it is deemed unnecessary or not helpful to the trier of the factual issues in reaching an independent conclusion as to the facts. Reed v. Hunter, 663 P.2d 513 (Wyo. 1983). A trial court did not abuse its discretion by prohibiting expert testimony regarding "false confession syndrome" after concluding that such testimony was unreliable based on the proffered evidence. Kolb v. State, 930 P.2d 1238 (Wyo. 1996).

Answer 484

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).

Answer 485

Testimony of plaintiff's expert was properly discounted by court in product liability action; testimony lacked sufficient foundation to assist jury, in light of expert's insufficient experience with subject matter in issue and speculative nature of his testimony. Campbell v. Studer, Inc., 970 P.2d 389 (Wyo. 1998).

Answer 486

In a negligence case, expert testimony regarding the cause of a leach field failure was properly excluded under W.R.E. 702; the inability to rule out other causes for the failure, along with questions concerning reliability, kept the opinions from being helpful to the jury. Hoy v. DRM, Inc., 114 P.3d 1268, 2005 Wyo. LEXIS 90 (Wyo. 2005).

Answer 487

Unless an expert witness is clearly unqualified, deficiencies in qualifications normally go to the weight accorded the witness's testimony, rather than its admissibility. Seivewright v. State, 7 P.3d 24, 2000 Wyo. LEXIS 134 (Wyo. 2000).

Answer 488

The district court's determination of whether an expert's qualifications are established will not be disturbed except in extreme cases or when a clear abuse of discretion is shown. Chavez v. State, 604 P.2d 1341 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841 (1980); McDaniel v. State, 632 P.2d 534 (Wyo. 1981). The trial court's decision to exclude or admit expert testimony is not disturbed by the reviewing court unless it identifies an abuse of discretion. Anderson v. Louisiana-Pacific, 859 P.2d 85 (Wyo. 1993).

Answer 489

In an action based on the alleged negligent manufacture of front-end loader, the argument that the witness, for all his education and experience in aerospace and structural engineering, lacked practical association with the heavy equipment industry properly went to the weight of the expert's testimony and did not establish an abuse of discretion by the trial court in qualifying the witness as an expert. Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276 (Wyo. 1983). In a proceeding that terminated a mother's parental rights, the district did not err in admitting testimony from several mental health professionals who had been counseling the children; the mother offered no specific objections to the qualifications of the mental health professionals, but rather only to the field of mental health generally, and the mother did not present any evidence, or even cogent argument, to support her objections. AMG v. State (In re CG), 81 P.3d 208, 2003 Wyo. LEXIS 199 (Wyo. 2003).

Answer 490

The trial judge did not abuse his discretion in rejecting the proffered expert testimony of a psychologist in a murder trial where the state of the art was not adequately demonstrated to the court and where, because of an inadequate foundation, the expert's proposed opinions would not aid the jury. Buhrle v. State, 627 P.2d 1374 (Wyo. 1981).

Answer 491

Where, in a condemnation action, on direct examination, the qualifications of a witness as an expert have been demonstrated and it is shown that he has followed correct appraisal procedures, his testimony cannot suddenly and arbitrarily be stricken. Coronado Oil Co. v. Grieves, 642 P.2d 423 (Wyo. 1982).

Answer 492

Opinion testimony as to a defendant's guilt is impermissible whether from a lay or expert witness. Bennett v. State, 794 P.2d 879 (Wyo. 1990).

Answer 493

in homicide cases -- and such testimony is particularly essential where the patent evidence of cause of death may not be entirely conclusive. Jones v. State, 580 P.2d 1150 (Wyo. 1978).

Answer 494

An arson investigator testified as to an opinion as to the cause of the fire which he felt qualified to give because of the information which was available to him. He did not concede that he was unable to state an opinion because of a defect or deficiency in information about which he had not been aware. The opinion of this expert was competent testimony to be introduced at an arson trial. Aden v. State, 717 P.2d 326 (Wyo. 1986), rev'd on other grounds, 761 P.2d 88 (Wyo. 1988).

Answer 495

Where the experiment was offered to substantiate the expert's conclusions based on the application of scientific principles regarding acceleration and time--distance analysis, the court properly allowed him to testify to the jury about his experiment. Hermreck v. State, 956 P.2d 335 (Wyo. 1998).

Answer 496

where such testimony was intended to assist the jury to understand one aspect of the evidence and did not constitute testimony with respect to the veracity of the victim. Lessard v. State, 719 P.2d 227 (Wyo. 1986).

Answer 497

Where the expert witness discussed the typical behavior tendencies of a child sexual abuse victim and then related them to the victim, without directly vouching for the victim's credibility or using any synonymous terms like "fabricate" and where the expert did not state that he concluded that the victim had been abused, but instead stated that she fit the mold of behavior for sexual abuse, the expert's testimony did not violate the rule against vouching for credibility. Frenzel v. State, 849 P.2d 741 (Wyo. 1993).

Answer 498

Expert medical testimony was not required for juvenile court's adjudication of child neglect, where the record was clear that three days after the infant's discharge from hospital for pneumonia, the mother still had not provided the infant with prescribed medication. MP v. State ex rel. CP, 965 P.2d 1155 (Wyo. 1998). In a prosecution for child sexual abuse offenses, expert's testimony was admissible where he based his diagnosis on factors that related the victim's behavior to typical responses given by childhood sexual abuse victims. Rigler v. State, 941 P.2d 734 (Wyo. 1997).

Answer 499

District court properly held a Daubert-type hearing and determined that the State's forensic document expert was qualified to render an opinion as to the handwriting analysis of checks defendant allegedly forged. Williams v. State, 60 P.3d 151, 2002 Wyo. LEXIS 222 (Wyo. 2002).

Answer 500

Testimony of expert on domestic violence was not unfairly prejudicial in that it (1) showed a pattern of violence and abuse over a period of years, (2) helped the jury's understanding, and was based on the recognized syndromes of "hostage" and "battered woman." Trujillo v. State, 953 P.2d 1182 (Wyo. 1998).

Answer 501

Testimony of a professional counselor and a pediatrician was properly admitted pursuant to this rule where both the counselor and the pediatrician were qualified as experts, their opinions were of assistance to the trier of fact, and neither the professional counselor nor the pediatrician, in trial testimony, directly expressed an opinion as to the truthfulness of the victim. Betzle v. State, 847 P.2d 1010 (Wyo. 1993). Testifying that a victim's injuries are consistent with sexual abuse is not directly expressing an opinion that there was sexual abuse, that the victim is telling the truth, or that the defendant is guilty of sexual abuse. Punches v. State, 944 P.2d 1131 (Wyo. 1997).

Answer 502

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).

Answer 503

Admission of battered woman syndrome expert's testimony on separation violence commonly occurring after battered women leave their abusers was inadmissible character evidence, but admission of the testimony was harmless error harmless since there was substantial evidence of the murder defendant's guilt. Ryan v. State, 988 P.2d 46 (Wyo. 1999).

Answer 504

The trial court did not err in admitting expert testimony on the theory of post traumatic stress disorder in a sexual assault case; however, it is with great care that such testimony should be admitted. The pivotal question in determining the admissibility of post traumatic stress disorder testimony in sexual assault cases is the testimony's relevance to the issues in the case, and the pertinent cases vary greatly in the permissible purposes of such testimony. Chapman v. State, 18 P.3d 1164, 2001 Wyo. LEXIS 32 (Wyo. 2001).

Answer 505

Trial court abused its discretion in refusing to allow the injured driver's experts to testify that her fibromyalgia (FM) could have been caused by the traffic accident that gave rise to the suit. Differential diagnosis was an accepted method of diagnosing FM; furthermore, some medical experts believe that physical trauma could cause FM. Reichert v. Phipps, 84 P.3d 353, 2004 Wyo. LEXIS 11 (Wyo. 2004).

Answer 506

The theory of traumagenic dynamics is not sufficiently developed to be of assistance to the trier of fact; unless and until such time as evidence can be brought forth which demonstrates to the contrary, traumagenic dynamics is inadmissible in the courts of Wyoming. Sorensen v. State, 895 P.2d 454 (Wyo. 1995).

Answer 507

The testimony of a psychologist or other expert on the issue of the credibility of a sexual assault victim does not assist the jury and therefore does not satisfy the requirements of this rule. Zabel v. State, 765 P.2d 357 (Wyo. 1988). An expert witness may not vouch for the credibility or truthfulness of a crime victim. Montoya v. State, 822 P.2d 363 (Wyo. 1991).

Answer 508

is subject to the discretion of the trial court in any given instance. Engberg v. Meyer, 820 P.2d 70 (Wyo. 1991).

Answer 509

An interpretation of the evidence by a witness, even though that interpretation may be important in establishing an element of the crime and thus leading to the inference of guilt, is not in the same category as an actual conclusional statement on the guilt or innocence of the accused party, particularly if the record demonstrates the proffered opinion was helpful to the jury in determining the facts of the case and was elicited for that reason. Saldana v. State, 846 P.2d 604 (Wyo. 1993).

Answer 510

In defendant's sexual assault case, a court erred by excluding defendant's expert testimony regarding defendant's mental state and the effect thereof on his statements where defendant was entitled to have the expert testify about the tests she performed, the interviews she conducted, and her assessment of defendant from a psychological perspective based on the tests and interviews. She also should have been permitted to testify as to her opinions about how defendant's psychological traits and cognitive functioning could have affected his behavior during the police interview, including any opinion she might have formed as to his capacity to understand the situation sufficiently to make a free and determined choice to admit the allegations presented to him by the questioning officer. Hannon v. State, 84 P.3d 320, 2004 Wyo. LEXIS 12 (Wyo. 2004).

Answer 511

where not only would the testimony have failed to assist the jury with its decision, but that testimony would have challenged the veracity of the defendant's testimony. Price v. State, 807 P.2d 909 (Wyo. 1991).

Answer 512

See Weaver v. Mitchell, 715 P.2d 1361 (Wyo. 1986).

Answer 513

In a negligence action arising out of the backup of sewage into the basement of a home, the property owner, although not an expert witness in the technical sense, could give his opinion as to damages, the basis for which was his knowledge of the purchase price, sales of other property in the subdivision or the lack thereof, and the condition in which the personal property was left after the backup. Ely v. Kirk, 707 P.2d 706 (Wyo. 1985).

Answer 514

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).

Answer 515

There was abundant evidence to support conclusion that defendant's use of marijuana affected his driving ability, and therefore trial court did not err in admitting expert testimony establishing presence of marijuana metabolites in defendant's blood, and the effects of marijuana as it pertained to driving ability. Rogers v. State, 971 P.2d 599 (Wyo. 1999).

Answer 516

For the purpose of establishing probable cause, a law enforcement officer may testify to the results of field sobriety tests (including the horizontal gaze nystagmus test) if it is shown that the officer has been adequately trained in the administration and assessment of those field sobriety tests and conducted them in substantial accordance with that training. Smith v. State ex rel. DOT, 11 P.3d 931, 2000 Wyo. LEXIS 202 (Wyo. 2000).

Answer 517

Challenge to conclusion that defendant bit cheese in victim's home went to weight of orthodontist's testimony, not to reliability of bite mark identification methodology. Seivewright v. State, 7 P.3d 24, 2000 Wyo. LEXIS 134 (Wyo. 2000).

Answer 518

Under the Daubert model, the trial court properly found that the methodology of the police officer who testified as a handwriting expert was reliable and that her testimony fit the facts of the case; thus, the decision to admit the testimony was not an abuse of discretion. Cooper v. State, 174 P.3d 726, 2008 Wyo. LEXIS 6 (Wyo. 2008).

Answer 519

Because the question of whether a child has been molested is generally beyond common experience, allowing an expert to testify on the issue assists the trier of fact. Montoya v. State, 822 P.2d 363 (Wyo. 1991).

Answer 520

In a prosecution for second degree murder, the testimony of a medical doctor and a psychiatrist as to whether the defendant intended to fire the revolver which killed the victim, and as to the effect of stress and excitement resulting in a reaction causing the shooting, would not have assisted the jury and was properly refused. Krucheck v. State, 702 P.2d 1267 (Wyo. 1985).

Answer 521

In a prosecution for murder, it was not error to exclude the testimony of a psychiatrist as a witness, the purpose of which was to describe the defendant's reaction to the events of the night in question, and whether such reaction was reasonable from the perspective of what causes fear, and how fear develops. Fear and stress are emotions experienced by all mankind and are not distinctively related to some science, technical or specialized knowledge. Braley v. State, 741 P.2d 1061 (Wyo. 1987).

Answer 522

where not only would the testimony have failed to assist the jury with its decision, but that testimony would have challenged the veracity of the defendant's testimony. Price v. State, 807 P.2d 909 (Wyo. 1991).

Answer 523

Permitting expert witnesses to offer opinions that the defendant was guilty of sexually abusing his son, and allowing one of the witnesses to vouch for the credibility of the victim, was plain error, requiring reversal of the defendant's conviction of taking immoral or indecent liberties with a child. Stephens v. State, 774 P.2d 60 (Wyo. 1989).

Answer 524

The safety of stairs, including handrails and headroom, is not so beyond an average person's experience and understanding that expert testimony is required to explain it. Lyden ex rel. Lyden v. Winer, 913 P.2d 451 (Wyo. 1996).

Answer 525

During defendant's trial for aggravated assault and battery, the court did not err in allowing a detective to testify based on the detective's observations of the physical evidence found at the scene; the testimony was not expert testimony in that it did not draw on scientific or specialized knowledge or experience, such as the size, shape, or angle of individual blood drops, or technical characteristics of the blood trail. Carter v. State, 282 P.3d 167, 2012 Wyo. LEXIS 115 (Wyo. 2012).

Answer 526

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).

Answer 527

In a medical malpractice case, it was an abuse of discretion for the district court to preclude plaintiff's expert's standard of care testimony; the substance of the precluded testimony was apparent from the circumstances, and plaintiff was unfairly prejudiced by the ruling because the doctor's infectious disease expert was allowed to give standard of care testimony while plaintiff's was not. Armstrong v. Hrabal, 87 P.3d 1226, 2004 Wyo. LEXIS 47 (Wyo. 2004).

Answer 528

The trial court did not abuse its discretion in allowing the state's expert to testify about misconceptions regarding the behavior of sexual abuse victims, because the information was relevant and because defense counsel's opening statement, either explicitly or implicitly, placed behavior in issue. Billingsley v. State, 69 P.3d 390, 2003 Wyo. LEXIS 74 (Wyo. 2003).

Answer 529

Even though the trial court erred by admitting an officer's testimony about the positioning of the occupants of the vehicle, as the testimony exceeded the scope of permissible lay opinion under Wyo. R. Evid. 701 and the officer was not designated an expert under Wyo. R. Evid. 702, the error was harmless because the overwhelming weight of the remaining evidence established that defendant was the driver of the vehicle and the trial court instructed the jury several times that the officer was not an expert and as to the weight, if any, to be given to his testimony. Tucker v. State, 245 P.3d 301, 2010 Wyo. LEXIS 171 (Wyo. 2010).

Answer 530

Bases of opinion testimony by experts: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Answer 531

This rule is a drastic alteration of the common-law evidentiary rules and is designed to liberalize the admissibility of expert testimony. Madison v. Marlatt, 619 P.2d 708 (Wyo. 1980).

Answer 532

essential to support an opinion in his own field; yet this rule does not abdicate judicial responsibility to the expert, for it leaves room for the rejection of testimony if reliance on the facts or data is unreasonable. Madison v. Marlatt, 619 P.2d 708 (Wyo. 1980); Ferris v. Myers, 625 P.2d 199 (Wyo. 1981).

Answer 533

and to determine the reasonableness of the reliance on it in light of the standard practice of experts in the particular field. Madison v. Marlatt, 619 P.2d 708 (Wyo. 1980).

Answer 534

for expert testimony. Price v. State, 807 P.2d 909 (Wyo. 1991).

Answer 535

In order to establish a proper foundation pursuant to this rule, the proponent of the evidence must show that the evidence is information of a type customarily relied upon by experts in the field and that the evidence is sufficiently trustworthy to make the expert's reliance upon it reasonable. Thunder Hawk v. Union Pac. R.R., 891 P.2d 773 (Wyo. 1995). The state properly provided a foundation for a physician's testimony regarding statements made to her by the mother of a sexual abuse victim that the physician was treating; the state asked the physician to explain: (1) where she obtained her information; (2) that in child sexual abuse cases it is normal to obtain information from family members; (3) that she relied upon this information as a basis for her diagnosis; and (4) how she relied upon that information to come to her conclusions. Hayes v. State, 935 P.2d 700 (Wyo. 1997).

Answer 536

Although out-of-court statements made by a third party ordinarily may not be used to prove the truth of the matter asserted, such statements may be allowed for the limited purpose of showing the basis of an expert's opinion, so long as other experts in the field would reasonably rely on similar evidence. Hayes v. State, 935 P.2d 700 (Wyo. 1997). In a proceeding that terminated a mother's parental rights, the district did not err in admitting testimony from several mental health professionals who had been counseling the children; to the extent that the testimony related to or relied upon statements made by the children, such statements were not hearsay because the out-of-court statements of the children were not offered for the truth of the matter asserted. AMG v. State (In re CG), 81 P.3d 208, 2003 Wyo. LEXIS 199 (Wyo. 2003).

Answer 537

so long as other experts in the field would reasonably rely on similar evidence. LP v. Natrona County Dep't of Pub. Assistance, 679 P.2d 976 (Wyo. 1984). There was no abuse of discretion in permitting the state's expert witness to comment in his direct testimony on an opinion that the defendant's expert witness expressed orally prior to trial as it is not improper for an expert witness to comment upon the methods and opinions of other experts. Mintun v. State, 966 P.2d 954 (Wyo. 1998).

Answer 538

The extent of the expert witness' knowledge and the basis of his opinion are subjected to scrutiny during the cross-examination of the witness. Reed v. Hunter, 663 P.2d 513 (Wyo. 1983).

Answer 539

The trier of fact must decide what weight is to be given to expert testimony, and it still remains the duty of the trier of the factual issues, whether jury or judge, to determine the credibility of all witnesses, including expert witnesses, and to evaluate the testimony of each in reaching its verdict. Reed v. Hunter, 663 P.2d 513 (Wyo. 1983).

Answer 540

In an action seeking to enforce an option to purchase real estate, the trial court does not abuse its discretion in permitting expert testimony relating to the appraisal value of a piece of property. Madison v. Marlatt, 619 P.2d 708 (Wyo. 1980).

Answer 541

Where, in a condemnation action, on direct examination, the qualifications of a witness as an expert have been demonstrated and it is shown that he has followed correct appraisal procedures, his testimony cannot suddenly and arbitrarily be stricken. Coronado Oil Co. v. Grieves, 642 P.2d 423 (Wyo. 1982).

Answer 542

To accept appellant's contention that § 7-11-305 arbitrarily limited the number of witnesses permitted to give expert testimony on the main and controlling fact of the mental responsibility of the defendant would bring into contention its propriety in the interest of a fair trial and due process and also question the inherent power of the court with reference to limitation of the number of witnesses, thus invalidating the section. Hayes v. State, 599 P.2d 558 (Wyo.), supplemental opinion, 599 P.2d 569 (Wyo. 1979).

Answer 543

and determinations of weight and credibility are for the trier of fact. Reese v. Dow Chem. Co., 728 P.2d 1118 (Wyo. 1986).

Answer 544

This rule only requires the expert to base his opinion on information reasonably relied upon by experts in the field when the information would be inadmissible as evidence; it does not apply to admissible evidence and, therefore, psychological tests and interactional assessments, conducted by an appointed expert, were admissible in evidence. MMOE v. MJE, 841 P.2d 820 (Wyo. 1992). In forming an opinion to which she testified, the state's psychiatrist was permitted to rely on (1) personal observation of the defendant's behavior; (2) a number of personal interviews; (3) interviews by a psychologist and social worker; (4) police records; (5) records from a VA hospital; (6) the results from a series of tests, including intelligence tests, neuropsychological screening, and a multiphasic personality inventory; and (

Answer 545

In a medical malpractice action claiming damage as a result of improper back surgery, two expert witnesses testified on behalf of the defendant-doctor, basing their opinions in part upon the deposition of the defendant. The plaintiff failed to show how such prejudiced her or how such affected the jury's verdict. Both of the witnesses were qualified as experts and possessed a great deal of expertise in the area of neurosurgery. Thomas v. Metz, 714 P.2d 1205 (Wyo. 1986).

Answer 546

See Weaver v. Mitchell, 715 P.2d 1361 (Wyo. 1986).

Answer 547

In a negligence action arising out of the backup of sewage into the basement of a home, the property owner, although not an expert witness in the technical sense, could give his opinion as to damages, the basis for which was his knowledge of the purchase price, sales of other property in the subdivision or the lack thereof, and the condition in which the personal property was left after the backup. Ely v. Kirk, 707 P.2d 706 (Wyo. 1985).

Answer 548

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).

Answer 549

An expert on battered woman syndrome would not be helpful to the jury as the expert has no basis for evaluating the accused's state of mind when she committed the crime and such testimony would usurp the function of the jury. Thus, such testimony was properly excluded. Witt v. State, 892 P.2d 132 (Wyo. 1995).

Answer 550

The theory of traumagenic dynamics is not sufficiently developed to be of assistance to the trier of fact; unless and until such time as evidence can be brought forth which demonstrates to the contrary, traumagenic dynamics is inadmissible in the courts of Wyoming. Sorensen v. State, 895 P.2d 454 (Wyo. 1995).

Answer 551

Testimony by the state's psychiatrist regarding statements by a sexual assault defendant's sister that the defendant had sexually abused her many years before the assault for which he was being charged was admissible where offered to demonstrate the basis upon which the psychiatrist relied in concluding the defendant's criminal conduct was not attributable to a post-traumatic stress disorder, and where a limiting instruction was given to the jury that it could not rely on the testimony as proof of the truth of the matter asserted or of the defendant's character. McGinn v. State, 928 P.2d 1157 (Wyo. 1996).

Answer 552

The trial court did not abuse its discretion in allowing the state's expert to testify about misconceptions regarding the behavior of sexual abuse victims, because the information was relevant and because defense counsel's opening statement, either explicitly or implicitly, placed behavior in issue. Billingsley v. State, 69 P.3d 390, 2003 Wyo. LEXIS 74 (Wyo. 2003).

Answer 553

Opinion on ultimate issue: Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Answer 554

in the case if reliable and helpful to the jury; that question, initially, is for the trial court to decide. McCabe v. R.A. Manning Constr. Co., 674 P.2d 699 (Wyo. 1983).

Answer 555

Under Wyo. R. Evid. 704, evidence is not objectionable simply because it embraces an ultimate issue to be decided by the trier of fact; therefore, in a case involving larceny by a bailee, an objection to a personal notation on an admitted business record was meritless where it was based on an argument that the notation invaded the province of the jury. Mabe v. State, 169 P.3d 870, 2007 Wyo. LEXIS 183 (Wyo. 2007).

Answer 556

In an action claiming that a water and sewer district was negligent in its supervision and maintenance of an open water meter vault, summary judgment was not precluded on the basis of an engineer's affidavit stating that the meter vault cover was not "appropriate" and was not "standard." This affidavit did not establish a standard of care in the industry or set out what legal duty was imposed on the district, but was a bare conclusion with no reasonable basis therefor. Thomas ex rel. Thomas v. South Cheyenne Water & Sewer Dist., 702 P.2d 1303 (Wyo. 1985).

Answer 557

Opinion testimony as to a defendant's guilt is impermissible whether from a lay or expert witness. Bennett v. State, 794 P.2d 879 (Wyo. 1990). Trial court did not err in allowing an expert to testify as to child abuse because that term and a medical meaning, as well as a legal meaning. The jury's role was to determine whether the elements of child abuse were met. Sanchez v. State, 142 P.3d 1134, 2006 Wyo. LEXIS 121 (Wyo. 2006). While psychologist's identification of defendant as one of the perpetrators of a victim's abuse constituted an improper opinion of defendant's guilt, there was no plain error because defendant had not established that the psychologist's opinion of guilt testimony was prejudicial because, given all of the evidence introduced against defendant at trial, there was no reasonable possibility that the verdict might have been more favorable to her in the absence of the challenged testimony. Large v. State, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Wyo. 2008).

Answer 558

Based upon an expert witness improperly testifying as to his opinion on defendant's guilt and the prosecutor arguing facts not in evidence during closing argument, the Supreme Court could not say with confidence that defendant received a fair trial. Carter v. State, 282 P.3d 167, 2012 Wyo. LEXIS 115 (Wyo. 2012).

Answer 559

Permitting expert witnesses to offer opinions that the defendant was guilty of sexually abusing his son, and allowing one of the witnesses to vouch for the credibility of the victim, was plain error, requiring reversal of the defendant's conviction of taking immoral or indecent liberties with a child. Stephens v. State, 774 P.2d 60 (Wyo. 1989).

Answer 560

Opinion testimony that invades the province of the court is not to be counted as helpful. Cockburn v. Terra Resources, Inc., 794 P.2d 1334 (Wyo. 1990). In a mother's appeal of a child custody award in a divorce proceeding, the court was not persuaded that she was prejudiced by the exclusion of testimony from the father's sister; although the trial court phrased its ruling in terms of the ultimate issue, it seemed just as likely it concluded that the sister's opinion would not be helpful. Holiday v. Holiday, 247 P.3d 29, 2011 Wyo. LEXIS 13 (Wyo. 2011).

Answer 561

The prosecutor in a homicide case did not seek an improper legal conclusion from the defendant when questioning him as to whether he felt malice towards the victim. The questions about anger, ill will and malice were clearly directed at ascertaining the defendant's intent. Armstrong v. State, 826 P.2d 1106 (Wyo. 1992).

Answer 562

Under this rule, a physician's opinion that a child victim was sexually abused does not constitute inappropriate expert opinion testimony on the ultimate issue in the case. Hayes v. State, 935 P.2d 700 (Wyo. 1997). In a sexual assault on a child case, a court erred by admitting an expert's testimony regarding an interview with the victim that included "truthfulness criteria" because the expert's "truthfulness criteria" testimony and her assessment of the victim's credibility based on the content of the victim's interview responses directly vouched for the victim's credibility. Seward v. State, 76 P.3d 805, 2003 Wyo. LEXIS 142 (Wyo. 2003). Licensed counselor, in her testimony, did not improperly vouch for a victim's credibility concerning a sexual assault because: (1) the counselor related her diagnosis and the foundations for that diagnosis; (2) the counselor's reference to the victim's lying behavior was initially quite brief; and (3) it was defense counsel who attempted to capitalize on what might have been considered useful impeachment material and by doing so the door was opened, and there was nothing improper in the prosecutor's treatment of the issue on redirect examination. Large v. State, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Wyo. 2008).

Answer 563

In defendant's sexual assault case, a court erred by excluding defendant's expert testimony regarding defendant's mental state and the effect thereof on his statements where defendant was entitled to have the expert testify about the tests she performed, the interviews she conducted, and her assessment of defendant from a psychological perspective based on the tests and interviews. She also should have been permitted to testify as to her opinions about how defendant's psychological traits and cognitive functioning could have affected his behavior during the police interview, including any opinion she might have formed as to his capacity to understand the situation sufficiently to make a free and determined choice to admit the allegations presented to him by the questioning officer. Hannon v. State, 84 P.3d 320, 2004 Wyo. LEXIS 12 (Wyo. 2004).

Answer 564

Disclosure of facts or underlying expert opinion: The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Answer 565

The extent of the expert witness' knowledge and the basis of his opinion are subjected to scrutiny during the cross-examination of the witness. Reed v. Hunter, 663 P.2d 513 (Wyo. 1983).

Answer 566

The trier of fact must decide what weight is to be given to expert testimony, and it still remains the duty of the trier of the factual issues, whether jury or judge, to determine the credibility of all witnesses, including expert witnesses, and to evaluate the testimony of each in reaching its verdict. Reed v. Hunter, 663 P.2d 513 (Wyo. 1983).

Answer 567

Court-appointed experts.

Answer 568

Appointment. -- The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party. He shall be subject to cross-examination by each party, including a party calling him as a witness.

Answer 569

Compensation. -- Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions. In civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs.

Answer 570

Disclosure of appointment. -- In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness.

Answer 571

Parties' experts of own selection. -- Nothing in this rule limits the parties in calling expert witnesses of their own selection.

Answer 572

The court's failure to enter a show-cause order was harmless error, where the court provided the parties with the same opportunity to object to the appointment of the expert that a show-cause order would have provided. MMOE v. MJE, 841 P.2d 820 (Wyo. 1992).

Answer 573

A judge's orders, filed with the clerk, which explained the appointed expert's role, satisfied the requirement of subdivision (a) that the expert be informed by the court of his duties in writing. MMOE v. MJE, 841 P.2d 820 (Wyo. 1992).

Answer 574

To accept appellant's contention that § 7-11-305 arbitrarily limited the number of witnesses permitted to give expert testimony on the main and controlling fact of the mental responsibility of the defendant would bring into contention its propriety in the interest of a fair trial and due process and also question the inherent power of the court with reference to limitation of the number of witnesses, thus invalidating the section. Hayes v. State, 599 P.2d 558 (Wyo.), supplemental opinion, 599 P.2d 569 (Wyo. 1979).

Answer 575

Definitions for Hearsay rules.

Answer 576

A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.

Answer 577

A "declarant" is a person who makes a statement

Answer 578

"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Answer 579

A statement is not hearsay if: (1) Prior Statement by Witness. -- The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and, if offered in a criminal proceeding, was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him; or (2) Admission by Party-Opponent. -- The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

Answer 580

In a negligence action, a defendant should not be allowed to introduce a plaintiff's original complaint and pleadings which contain settling defendants as parties. Such pleadings do not constitute "judicial admissions" under this rule. Because under Rule 18, W.R.C.P., a party may state as many separate claims or defenses as he has regardless of consistency, it is proper for a plaintiff to include certain parties in the original complaint and later amend the complaint to eliminate claimed negligence on their part. Haderlie v. Sondgeroth, 866 P.2d 703 (Wyo. 1993).

Answer 581

whether or not it was made before an improper motive to fabricate arose. Makinen v. State, 737 P.2d 345 (Wyo. 1987).

Answer 582

Although under federal law prior consistent statements must precede motive to fabricate in order to rebut a charge of recent fabrication, Wyoming does not have such a rigid requirement and will sometimes allow statements failing the temporal test to be admitted for rehabilitative purposes. Beartusk v. State, 6 P.3d 138, 2000 Wyo. LEXIS 125 (Wyo. 2000). The admission of prior consistent statements by the child victim in a prosecution for three counts of taking immodest, immoral, and indecent liberties with a child did not violate subdivision (d)(1)(B), notwithstanding the assertion that the prior statements were made after the victim had reason to fabricate them, as the application of the subdivision is not limited to statements made before the advent of an allegedly improper motive. Cook v. State, 7 P.3d 53, 2000 Wyo. LEXIS 139 (Wyo. 2000).

Answer 583

Because the improper influence occurred right before trial, the assault victim's prior statements to her mother and a police officer the morning after the incident, and to officers during a videotaping session, qualify as prior consistent statements to rebut the charge of fabrication and improper influence and were properly admitted over defendant's hearsay objection. Chambers v. State, 726 P.2d 1269 (Wyo. 1986).

Answer 584

Allowing others to testify with regard to what the five-year-old victim in second-degree sexual assault case related to them was not error since the prior statements were consistent with the victim's testimony and the victim's testimony was often attributed to express and/or implied charges of fabrication, improper influence or motive. Baum v. State, 745 P.2d 877 (Wyo. 1987).

Answer 585

There is no charge of recent fabrication or improper motive or influence to rebut and no credibility to be restored by offering a prior consistent statement prior to the time that the declarant testifies, although preadmission may be justified as harmless error if the declarant does testify later in a manner that is consistent with a prior statement. Stephens v. State, 774 P.2d 60 (Wyo. 1989).

Answer 586

Court properly rejected defendant's claim that he was denied a fair trial when the trial court allowed the prosecutor to elicit testimony from his nephew that the nephew had obtained drugs from defendant, and that the prosecutor's reference to the testimony was an improper admission of a prior consistent statement before there was an attack on the nephew's credibility, in violation of W.R.E. 801(d)(1)(B). Defendant failed to object at trial to the evidence and he failed to establish he was prejudiced by the admission of the evidence, as required under the plain error standard of review, where the police officer corroborated the nephew's statements, and drugs and paraphernalia were found at defendant's home. Miller v. State, 127 P.3d 793, 2006 Wyo. LEXIS 19 (Wyo. 2006). In defendant's attempted murder case, a court properly allowed an officer to recount the victim's statements of domestic violence because the victim testified that during her marriage to defendant, he had choked her, the victim was impeached during cross-examination, and the officer then testified that when he was called to the residence, the victim stated that she had been choked and hit in the face by defendant, which was consistent with her prior testimony. Martin v. State, 157 P.3d 923, 2007 Wyo. LEXIS 85 (Wyo. 2007). Testimony of a victim's foster mother and the prosecutor's investigator, which repeated statements made by the victim and her brother, did not constitute hearsay under Wyo. R. Evid. 801(d)(1)(B) because: (1) the victim and her brother testified at trial; (2) defendant had an opportunity to cross-examine the victim and her brother; (3) the prior statements of the victim and her brother concerning the abuse were consistent with their trial testimony; and (4) the prior statements were offered to rebut explicit charges of improper influence. Large v. State, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Wyo. 2008).

Answer 587

Subdivision (d)(2) requires that the party's statement be offered against him. It does not serve as a premise for a party to offer the statement for his own benefit. Tennant v. State, 786 P.2d 339 (Wyo. 1990).

Answer 588

Once a statement is admissible under subdivision (d)(1)(B) to rehabilitate direct testimony, the prior statement may also be considered as substantive evidence. LP v. Natrona County Dep't of Pub. Assistance, 679 P.2d 976 (Wyo. 1984).

Answer 589

Hearsay recording of a conversation between a confidential informant and defendant's mother was not admissible under Wyo. R. Evid. 801(c) because the prosecution fully intended that the evidence be viewed by the jury as substantive evidence of defendant's delivery of illegal drugs. Majors v. State, 252 P.3d 435, 2011 Wyo. LEXIS 65 (Wyo. 2011).

Answer 590

which qualifies as an admission under subdivision (d)(2)(A) when offered against him, and which may be received without invoking the co-conspirator exception. Bigelow v. State, 768 P.2d 558 (Wyo. 1989).

Answer 591

In an action to recover damages for personal injuries suffered by the plaintiff in putting out a fire which allegedly started on adjacent land and spread to the plaintiff's land, the statements of the corporate defendant's employees, ranchhands employed to clear irrigation ditches by burning weeds and irrigated crops through those ditches, that they did not start the fire were not inadmissible hearsay under subdivision (d)(2)(D). Kobielusz v. Wilson, 701 P.2d 559 (Wyo. 1985).

Answer 592

There can be no challenge under the constitutional confrontation clause to the admission of a co-conspirator's out-of-court statement. Such statements clearly fall outside the compass of the general hearsay exclusion. Jandro v. State, 781 P.2d 512 (Wyo. 1989).

Answer 593

Appellants failed to demonstrate how subdivision (d)(2) applied to the offered evidence where the person who signed the interrogatories in question was never called as a witness and other serious foundational gaps are evident. Western Fire Ins. Co. v. Tim Force Tin Shop, Inc., 599 P.2d 540 (Wyo. 1979).

Answer 594

Three elements must be demonstrated before a statement can be admitted as non hearsay under paragraph (d)(2)(E): there must be evidence of a conspiracy; evidence that the declarant and the defendant both were involved in the conspiracy; and a showing that the proffered statements were made during the course of, and in furtherance of, the conspiracy. Smith v. State, 902 P.2d 1271 (Wyo. 1995).

Answer 595

An out-of-court statement by one defendant may not be hearsay as to that defendant but in a joint trial, care must be taken in admitting such evidence because the statement may be hearsay as to the other defendant. Rodiack v. State, 55 P.3d 1, 2002 Wyo. LEXIS 150 (Wyo. 2002).

Answer 596

``` under subdivision (d)(2)(E), there must be prima facie evidence of a conspiracy, independent of the co-conspirator's declaration. The statements of the co-conspirator may be admitted into evidence, however, before the independent evidence of a conspiracy is admitted. Dorador v. State, 711 P.2d 417 (Wyo. 1985). Three elements must be demonstrated before a statement can be admitted as non-hearsay under subdivision (d)(2)(E). There must be evidence of a conspiracy; evidence that the declarant and the defendant both were involved in the conspiracy; and a showing that the proffered statements were made during the course of, and in furtherance of, the conspiracy. Jandro v. State, 781 P.2d 512 (Wyo. 1989). The United States Constitution does not require state courts to adopt the preponderance of the evidence standard of proof for the elements which must be demonstrated before a statement can be admitted as non hearsay under subdivision (d)(2)(E). Gilliam v. State, 890 P.2d 1104 (Wyo. 1995). In a case where defendant was charged with being an accessory before the fact to an arson, several statements relating to defendant's involvement were properly introduced into evidence under Wyo. R. Evid. 801(d)(2)(E) since they were made during and in the furtherance a conspiracy; it did not matter that the persons testifying were not members of the conspiracy. Even though some hearsay testimony was admitted regarding defendant's motive, there was no harm since the evidence was cumulative of other testimony offered. Callen v. State, 192 P.3d 137, 2008 Wyo. LEXIS 111 (Wyo. 2008). There is no requirement under the Wyo. R. Evid. 801(d)(2)(E) or Wyoming case law that a witness be a member of the conspiracy before he can testify about statements made by participants in the conspiracy. Callen v. State, 192 P.3d 137, 2008 Wyo. LEXIS 111 (Wyo. 2008). Wyoming Supreme Court does not require a trial court to make express findings that statements satisfy Wyo. R. Evid. 801(d)(2)(E), absent a specific request from one of the parties. Callen v. State, 192 P.3d 137, 2008 Wyo. LEXIS 111 (Wyo. 2008). ```

Answer 597

District court erred when it admitted into evidence a 911 recording as a prior consistent statement because, although defendant did attack the victim's credibility generally, and also submitted evidence of his prior criminal convictions involving lying, defendant did not, either explicitly or implicitly, allege that the victim's testimony was the result of a recent fabrication or improper motive or influence. Marquess v. State, 256 P.3d 506, 2011 Wyo. LEXIS 96 (Wyo. 2011). Even though the district court erred by admitting into evidence the child victims' foster mother's testimony concerning statements the victims made about the abuse they suffered from defendant, as the prosecution admitted the testimony to establish the truth of the children's statements, the error was harmless because it was cumulative of other evidence admitted during the trial, including the victims' testimony and that of their brother who was an eyewitness. Griggs v. State, -- P.3d --, 2016 Wyo. LEXIS 16 (Wyo. 2016).

Answer 598

While mere bragging does not satisfy the "in furtherance" requirement for establishing a conspiracy, the boasts can be admissible under the co-conspirator exception to the hearsay rule when the declarant used the information to obtain the confidence of the co-conspirator. Bigelow v. State, 768 P.2d 558 (Wyo. 1989).

Answer 599

Section 6-5-305 does apply in an instance in which the proceedings have not become final after appeal, and therefore the trial court did not abuse its discretion when it overruled the defendant's hearsay objection and properly admitted the testimony concerning statements by a co-conspirator under paragraph (d)(2)(E). Smith v. State, 902 P.2d 1271 (Wyo. 1995).

Answer 600

such as to admit statements of co-conspirator. -- See Burke v. State, 746 P.2d 852 (Wyo. 1987).

Answer 601

See Croft v. Taylor, 713 P.2d 782 (Wyo. 1986); Pena v. State, 792 P.2d 1352 (Wyo. 1990). In a sexual assault on a child case, a court erred by admitting, as a prior statement by a witness, an expert's testimony regarding an interview with the victim that included "truthfulness criteria" because the expert's "truthfulness criteria" testimony and her assessment of the victim's credibility based on the content of the victim's interview responses directly vouched for the victim's credibility. Seward v. State, 76 P.3d 805, 2003 Wyo. LEXIS 142 (Wyo. 2003). Where a witness testified that a non-witness stated that a drug deal had gone bad and that the witness and the non-witness were threatened with death, and the witness also testified that a defendant stated that the threat would be taken care of and that they owed the defendant a favor by murdering a victim who intended to testify against the defendant, the statements of the non-witness were properly admitted in defendant's trial for conspiracy to murder the victim; the statements were not hearsay since they were not offered to prove the truth of the drug deal failed or resulted in death threats. Proffit v. State, 193 P.3d 228, 2008 Wyo. LEXIS 106 (Wyo. 2008).

Answer 602

In a prosecution for felony larceny by a bailee for selling three horses entrusted to defendant's care, the trial court did not incorrectly permit inadmissible hearsay when it allowed the State to impeach its own witness, the defendant's daughter-in-law, over the defendant's hearsay objection under W.R.E. 801(d)(1) where, after the daughter-in-law, in the State's case-in-chief, denied having any knowledge pertaining to the final disposition of the three mares at issue, and denied having told the owner of the horses and a third person that defendant had taken the mares to a livestock auction, but the third person testified that she, the owner, and the daughter-in-law, had a discussion wherein the daughter-in-law stated that the defendant was taking the three mares to the sale. Willis v. State, 46 P.3d 890, 2002 Wyo. LEXIS 81 (Wyo. 2002). At trial for taking indecent liberties with a child, counsel was not ineffective for failing to object to the introduction of statement that defendant was a rapist, because the statement was not hearsay where it was not offered to show the truth of the matter asserted, but was asserted to provide context and explain why victims' mother and boyfriend had returned to the home so soon after their departure. Further, defendant suffered no prejudice because, during his testimony, he admitted that he had been convicted of rape. Montez v. State, 201 P.3d 434, 2009 Wyo. LEXIS 17 (Wyo. 2009).

Answer 603

A tape recording of a telephone call received by the sheriff on the "911" emergency line, made by the hysterical victim as the defendant was leaving her home after his attack, was offered to show the victim's state of mind at the time and to disprove consent, and was not hearsay. Van Duser v. State, 796 P.2d 1322 (Wyo. 1990). Grand larceny defendant was entitled to testify about his girlfriend's out-of-court statement that truck owner had given them permission to use the truck; the statement was admissible to show its effect on the defendant's intent and subsequent conduct, rather than for the truth of the matter asserted. Kenyon v. State, 986 P.2d 849 (Wyo. 1999). At murder trial, testimony of victim's sister concerning a conversation between the sister and victim, in which the victim told his sister about missing money from a checking account, was properly admitted to show the victim's state of mind before his death. Humphrey v. State, 185 P.3d 1236, 2008 Wyo. LEXIS 69 (Wyo. 2008).

Answer 604

Where in a prosecution for distribution of a controlled substance, police agent opined neither as to defendant's guilt nor as to state's witness' veracity, but merely stated a factual basis for believing state's witness' testimony after the latter's credibility had been attacked by opposing counsel, the testimony was admissible. Wells v. State, 846 P.2d 589 (Wyo. 1992).

Answer 605

Testimony regarding information that the police had on the past drug activities of a criminal defendant charged with delivery of a controlled substance was not inadmissible hearsay because it did not speak to any out-of-court statement or an assertion regarding the activities for which defendant was charged. Chavez-Becerra v. State, 924 P.2d 63 (Wyo. 1996). The details of a police officer's conversation with an assault victim were relevant and admissible because they were the foundation of the officer's opinion, and were not introduced for the truth of the matters asserted. Johnson v. State, 936 P.2d 458 (Wyo. 1997).

Answer 606

Where the defense theory in a prosecution for second-degree sexual assault was that the victim was testifying falsely because she was angry at him, the trial court did not abuse its discretion under Wyoming decisional law when it admitted the testimony of county sheriff and family services employee relating victim's prior statements to them. Mitchell v. State, 865 P.2d 591 (Wyo. 1993). In a prosecution for committing sex crimes on children, the admission of statements made by the victims to friends was proper where, although defense counsel studiously avoided cross-examining most witnesses and deferred his opening statement until after the state had presented its case, the principal defense to be offered by the defendant was an express charge of recent fabrication or improper influence or motive for the testimony given. Alicea v. State, 13 P.3d 693, 2000 Wyo. LEXIS 223 (Wyo. 2000).

Answer 607

Wyoming does not have a statute that makes a deceased declarant's statements admissible per se; a deceased declarant's testimony must fall within an exception to the hearsay rule in order to be admissible. Clark v. Gale, 966 P.2d 431 (Wyo. 1998). Deceased declarant's statement that she didn't know daughter's whereabouts was not hearsay, because it was not offered for the truth of the matter asserted; statement was not related to jury to show that daughter was missing, but to show declarant's state of mind. Clark v. Gale, 966 P.2d 431 (Wyo. 1998).

Answer 608

Car salesman's statements made to a prospective customer concerning the history of a vehicle were unquestionably matters within the scope of his agency or employment, and were not hearsay when offered against the salesman's employer in an action for fraud. Britton v. Bill Anselmi Pontiac-Buick-GMC, Inc., 786 P.2d 855 (Wyo. 1990).

Answer 609

a limiting instruction must be given, if requested, charging the statement may be used only for evaluating credibility and not as affirmative evidence. Montoya v. State, 822 P.2d 363 (Wyo. 1991).

Answer 610

Trial court erred in admitting videotaped reenactment of crime into evidence where it was offered as a prior consistent statement, since it was not a statement under W.R.E. 801(a), the trial court did not identify statements it found consistent, and the trial court did not determine the relative probative value of such statements or their potential for unfair prejudice; however, the admission was harmless error where there was no reasonable possibility that the defendant would have been acquitted absent introduction. Lancaster v. State, 43 P.3d 80, 2002 Wyo. LEXIS 49 (Wyo. 2002).

Answer 611

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 under Wyo. R. Evid. 801(d)(2)(A); the recordings were also relevant because they showed indicia of guilt. Garza v. State, 231 P.3d 884, 2010 Wyo. LEXIS 67 (Wyo. 2010).

Answer 612

where the testimony was merely cumulative and alleged inconsistencies therein were minor and not critical to proving the charge of indecent liberties. Montoya v. State, 822 P.2d 363 (Wyo. 1991). Consistency itself is what removes statements admitted under subsection (d)(1)(B) from the realm of inadmissible hearsay; error, if any, may be considered harmless when the content of challenged consistent statements is clearly cumulative of prior testimony. Logically, however, material information presented for the first time to support a prior "consistent statement" has no antecedent with which to be consistent or inconsistent and is, therefore, inadmissible. Curl v. State, 898 P.2d 369 (Wyo. 1995).

Answer 613

In defendant's murder trial, where defendant vigorously attacked the credibility of witnesses and attempted to discredit every aspect of their account of the events surrounding the victim's death, his persistent attack on the witnesses opened the door for the State's use of their prior consistent statements to police for rehabilitative purposes under Wyo. R. Evid. 801(d)(1)(B). Proffit v. State, 193 P.3d 228, 2008 Wyo. LEXIS 108 (Wyo. 2008).

Answer 614

A witness' refusal to respond to any cross-examination questions undermines the judicial process to a degree which precludes meaningful cross-examination. He is not subject to cross-examination as required by subdivision (d)(1) and this rule cannot apply. Porth v. State, 868 P.2d 236 (Wyo. 1994).

Answer 615

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).

Answer 616

During defendant's trial for attempted murder, the court did not err in allowing the testimony of a police officer regarding the victim's behavior and appearance under the excited utterance exception to the hearsay rule, Wyo. R. Evid. 801(c), because the victim was the recipient of a savage beating that took place over a period of hours; little question existed that the beating was a shocking and startling event. Sanchez v. State, 253 P.3d 136, 2011 Wyo. LEXIS 79 (Wyo. 2011).

Answer 617

Trial court did not abuse its discretion in refusing to grant defendant a new murder trial based on the alleged discovery of potentially exculpatory evidence by a witness who claimed that he knew of another person who was responsible for the victim's death, as this evidence was not newly discovered and was hearsay-on-hearsay. Robinson v. State, 64 P.3d 743, 2003 Wyo. LEXIS 38 (Wyo. 2003).

Answer 618

Where the trial court, in a case in which the defendant was convicted of sexual assault, had ordered that witnesses not be asked to vouch for the credibility of the child who was allegedly the victim, and where the prosecutor continued to do so despite admonitions and sustained objections, the witnesses' statements were hearsay, were not admissible, and resulted in reversible error. Wilde v. State, 74 P.3d 699, 2003 Wyo. LEXIS 114 (Wyo. 2003).

Answer 619

Defendant's due process rights were not under violated in a probation revocation proceeding under Wyo. R. Crim. P. 39 because a district court was allowed to consider a termination report and an investigation report as hearsay evidence in the dispositional stage since the Wyoming Rules of Evidence were suspended during that stage; moreover, the district court obviously did not find defendant's denial of involvement in a robbery scheme to be credible. Sinning v. State, 172 P.3d 388, 2007 Wyo. LEXIS 209 (Wyo. 2007).

Answer 620

Hearsay Rule: Hearsay is not admissible except as provided by these rules or by other rules adopted by the Supreme Court of Wyoming or by statute.

Answer 621

because it is thought to be unreliable and untrustworthy and because there is no opportunity to confront the witness or cross-examine. Kelly v. State, 694 P.2d 126 (Wyo. 1985).

Answer 622

Because an employer was permitted to introduce exhibits documenting complaints from others concerning an employee who was fired, and the employer called five witnesses to testify concerning their experiences in working with the employee, any error that occurred in the trial court's refusal to allow certain similar proposed testimony on hearsay grounds was harmless. Life Care Ctrs. of Am., Inc. v. Dexter, 65 P.3d 385, 2003 Wyo. LEXIS 45 (Wyo. 2003).

Answer 623

In a prosecution of defendant for second-degree sexual assault of his daughter, even though testimony of the mother of the victim as to the victim's disclosures about her father's abuse was not given for purposes of rebuttal as originally represented by the state, the error in admitting it was de minimis and not prejudicial. Humphrey v. State, 962 P.2d 866 (Wyo. 1998).

Answer 624

At murder trial, testimony of victim's sister concerning a conversation between the sister and victim, in which the victim told his sister about missing money from a checking account, was properly admitted to show the victim's state of mind before his death. Humphrey v. State, 185 P.3d 1236, 2008 Wyo. LEXIS 69 (Wyo. 2008). Hearsay recording of a conversation between a confidential informant and defendant's mother was not admissible because the prosecution did not seek its admission to show the mother's state of mind. the prosecution fully intended that the evidence be viewed by the jury as substantive evidence of defendant's delivery of illegal drugs. Majors v. State, 252 P.3d 435, 2011 Wyo. LEXIS 65 (Wyo. 2011).

Answer 625

When evidence is received for a purpose other than the truth of the matter asserted, a court cannot infer and accept the truth of the assertion without running afoul of the hearsay rule and disavowing the limited purpose for which that evidence was received. Longstreth v. State, 832 P.2d 560 (Wyo. 1992).

Answer 626

This rule has reference to "evidence" presented at trial or hearing, and not to "information" useful to the court in sentencing. Johnson v. State, 790 P.2d 231 (Wyo. 1990).

Answer 627

Testimony by the state's psychiatrist regarding statements by a sexual assault defendant's sister that the defendant had sexually abused her many years before the assault for which he was being charged was admissible where offered to demonstrate the basis upon which the psychiatrist relied in concluding the defendant's criminal conduct was not attributable to a post-traumatic stress disorder, and where a limiting instruction was given to the jury that it could not rely on the testimony as proof of the truth of the matter asserted or of the defendant's character. McGinn v. State, 928 P.2d 1157 (Wyo. 1996).

Answer 628

Where the trial court, in a case in which the defendant was convicted of sexual assault, had ordered that witnesses not be asked to vouch for the credibility of the child who was the alleged victim, and where the prosecutor continued to do so despite admonitions and sustained objections, the witnesses' statements were hearsay, were not admissible, and resulted in reversible error. Wilde v. State, 74 P.3d 699, 2003 Wyo. LEXIS 114 (Wyo. 2003).

Answer 629

During defendant's trial for attempted murder, the court did not err in allowing the testimony of a police officer regarding the victim's behavior and appearance under the excited utterance exception to the hearsay rule because the victim was the recipient of a savage beating that took place over a period of hours; little question existed that the beating was a shocking and startling event. Sanchez v. State, 253 P.3d 136, 2011 Wyo. LEXIS 79 (Wyo. 2011).

Answer 630

Hearsay exceptions; availability of declarant immaterial

Answer 631

1. Present sense impression; 2. Excited Utterance; 3. Then existing mental, emotional, or physical condition.; 4. Statements for purposes of medical diagnosis or treatment; 5. Recorded recollection; 6. Records of regularly conducted business; 7. Absence of entry in records kept in accordance with the provisions of paragraph 6; 8. Public Records and Reports; 9. Records of vital statistics; 10. Absence of Public Record or Entry; 11. Records of religious organizations; 12. Marriage, Baptismal and similar certificates; 13. Family Records; 14. Records of documents affecting an interest in property; 15. Statements in documents affecting an interest in property; 16. statements in Ancient Documents; 17. Market reports, commercial publications; 18. Learned treatises; 19. Reputation concerning personal or family history; 20. Reputation concerning boundaries or general history; 21. Reputation as to character; 22. Judgment of previous conviction; 23. Judgment as to personal, family, or general history or boundaries; 24. Other exceptions

Answer 632

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter;

Answer 633

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition;

Answer 634

A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will;

Answer 635

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment;

Answer 636

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party;

Answer 637

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances or preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;

Answer 638

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness;

Answer 639

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness;

Answer 640

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law;

Answer 641

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry;

Answer 642

Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization;

Answer 643

Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter;

Answer 644

Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like;

Answer 645

The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of public office and an applicable statute authorizes the recording of documents of that kind in that office;

Answer 646

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document;

Answer 647

Statements in a document in existence twenty (20) years or more the authenticity of which is established;

Answer 648

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations;

Answer 649

To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony on admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits;

Answer 650

Reputation among members of his family by blood, adoption, or marriage, or among his associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of his personal or family history;

Answer 651

Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located;

Answer 652

Reputation of a person's character among his associates or in the community;

Answer 653

Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one (1) year, to prove any fact essential to sustain the judgment, but not including, when offered by the government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility;

Answer 654

Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation;

Answer 655

A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence on which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

Answer 656

Subdivision (4) of this section represents a firmly-rooted exception to the hearsay rule, and therefore, admission of evidence pursuant to this rule does not violate the confrontation clause of Wyo. Const. art. 1, § 10. Blake v. State, 933 P.2d 474 (Wyo. 1997). District court did not abuse its discretion or violate defendant's Sixth Amendment confrontation right by allowing a counselor and a psychiatrist to testify about statements defendant's daughter made to them concerning her mother's disappearance. The statements were properly admitted under this section as statements made for purposes of medical diagnosis and treatment, as the witnesses testified that they relied on the daughter's statements to diagnose her with post-traumatic stress disorder; because the daughter appeared at trial, took the oath, testified, and was subject to cross-examination, even though she could not remember her statements or the events surrounding her mother's disappearance 15 years before, the confrontation clause was satisfied. Bush v. State, 193 P.3d 203, 2008 Wyo. LEXIS 112 (Wyo. 2008).

Answer 657

but only when it is both in fact worthy of trust and necessary to effectuate justice. 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); Tennant v. State, 786 P.2d 339 (Wyo. 1990).

Answer 658

The trustworthiness of a statement should be analyzed by evaluating, not only the facts corroborating the veracity of the statement, but also the circumstances in which the declarant made the statement and the incentive he had to speak truthfully or falsely. 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); Tennant v. State, 786 P.2d 339 (Wyo. 1990).

Answer 659

Party objecting to the admission of a business record has the burden of establishing that a lack of trustworthiness should keep the document out of evidence. Mabe v. State, 169 P.3d 870, 2007 Wyo. LEXIS 183 (Wyo. 2007).

Answer 660

Under the plain language of subsection (5), a recorded recollection may be read into evidence but the record itself cannot be admitted; therefore, the trial court's decision to admit the diary plaintiff kept of her physical symptoms into evidence was erroneous. Rudy v. Bossard, 997 P.2d 480, 2000 Wyo. LEXIS 36 (Wyo. 2000).

Answer 661

The age of a child and her personal characteristics go toward the weight of the hearsay statements rather than their admissibility. Blake v. State, 933 P.2d 474 (Wyo. 1997).

Answer 662

The implied consent form required by § 31-6-103 is a public document and falls within subdivision (8) as a hearsay exception. State, Dep't of Revenue & Taxation v. Hull, 751 P.2d 351 (Wyo. 1988).

Answer 663

is that the out-of-court declaration constituted a spontaneous reaction to an exciting event which overpowered the declarant's capacity to reflect and deliberate. Such statements are considered trustworthy because the declarant was rendered, for the moment, incapable of fabrication and because the statement was made while his memory of the event was still fresh. LP v. Natrona County Dep't of Pub. Assistance, 679 P.2d 976 (Wyo. 1984).

Answer 664

of subdivision (2) where beating of 58-year-old man into helplessness resulting in multiple rib fractures of such magnitude as to necessitate surgery constituted a startling event and eyewitness made hearsay statements to testifying neighbor when she was frightened and ran screaming across the street "bursting" into said neighbor's residence to call the police. Kelly v. State, 694 P.2d 126 (Wyo. 1985).

Answer 665

Once a statement is held admissible as an excited utterance, the weight to which it is entitled and the credibility of the person making the statement may be affected by that person's age, ability, experience, intelligence, mental state or sobriety. Kelly v. State, 694 P.2d 126 (Wyo. 1985).

Answer 666

During defendant's trial for attempted murder, the court did not err in allowing the testimony of a police officer regarding the victim's behavior and appearance under the excited utterance exception to the hearsay rule, Wyo. R. Evid. 803(2), because the victim was the recipient of a savage beating that took place over a period of hours; little question existed that the beating was a shocking and startling event. Sanchez v. State, 253 P.3d 136, 2011 Wyo. LEXIS 79 (Wyo. 2011).

Answer 667

Where a physician asks a child a question concerning how the child was injured in order to assist him with respect to a diagnosis of a child abuse syndrome, given his duty and his professional responsibility as a physician to determine whether the child abuse syndrome or a condition that requires treatment is present, statements elicited attributing fault are pertinent to his diagnosis and treatment. Admitting these statements into evidence pursuant to the exception contained in subdivision (4) is consistent with the policy of the court in child abuse cases. Goldade v. State, 674 P.2d 721 (Wyo. 1983), cert. denied, 467 U.S. 1253, 104 S. Ct. 3539, 82 L. Ed. 2d 844 (1984).

Answer 668

Statements of the victim concerning the identity of the perpetrator are admissible because of the special character of diagnosis and treatment in child sexual abuse cases. Betzle v. State, 847 P.2d 1010 (Wyo. 1993); Blake v. State, 933 P.2d 474 (Wyo. 1997). Psychologist's testimony regarding a victim's statements that she was abused by defendant was admissible because: (1) the psychologist was called in to treat the victim, rather than to perform a forensic evaluation; (2) there was no indication that the victim's motive was anything other than to receive treatment; and (3) the victim's identification of the perpetrators of her abuse was a necessary part of the psychologist's diagnosis and treatment. Large v. State, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Wyo. 2008).

Answer 669

An expert witness may give testimony about what was said to the witness by an abused child under the exception articulated in subdivision (4) of this rule provided: (1) the expert's testimony shows the victim's statements were consistent with the purposes for which the witness became involved with the victim, and (2) the witness relied on the statements in connection with diagnosis and treatment of the victim. Betzle v. State, 847 P.2d 1010 (Wyo. 1993). Foundation was properly laid for hearsay testimony of social worker who was child victim's counselor where statements described the inception and general character of child's symptoms, were reasonably pertinent to her diagnosis and treatment, and were consistent with the purpose for which the witness became involved with the victim. Simmers v. State, 943 P.2d 1189 (Wyo. 1997).

Answer 670

Statements made by a child victim of sexual abuse to a physician testifying as a witness on behalf of the state were admissible under subdivision (4) of this rule; the statements were consistent with the purpose for which the physician became involved with the victim, and the physician relied on those statements in connection with her diagnosis of sexual abuse. Hayes v. State, 935 P.2d 700 (Wyo. 1997).

Answer 671

Where the doctor who received the letter from another doctor concerning medical test results testified quite extensively, without objection, about the contents of the letter prior to it being offered for admission into evidence, the actual admission of the letter did nothing more than corroborate the doctor's testimony, and the record clearly showed defendant was not prejudiced by the admission of the letter. Rudy v. Bossard, 997 P.2d 480, 2000 Wyo. LEXIS 36 (Wyo. 2000). Although the general rule is that hearsay statements attributing fault or identity usually are inadmissible, in situations involving physical or sexual abuse of children, statements made by a child victim to a medical professional may be admitted. Blake v. State, 933 P.2d 474 (Wyo. 1997).

Answer 672

For discussion of propriety of trial court's refusal to invoke hearsay exception with respect to testimony sought to be elicited from forensic psychiatrist, see Jahnke v. State, 682 P.2d 991 (Wyo. 1984), overruled on other grounds, Vaughn v. State, 962 P.2d 149 (Wyo. 1998).

Answer 673

An emergency room physician's testimony concerning a gunshot victim's statement relating to who had shot him was properly admitted under the "excited utterance" exception to the hearsay rule. Horton v. State, 764 P.2d 674 (Wyo. 1988).

Answer 674

Victim's statements on a 911 call were admissible under the excited utterance exception because after the victim had been severely beaten and had jumped out a hotel room window, he rushed into the hotel lobby yelling "help," locked himself in the office, and told the clerk people were trying to kill him. Although the 911 operator asked the victim questions, it was the victim who initiated the statements. Marquess v. State, 256 P.3d 506, 2011 Wyo. LEXIS 96 (Wyo. 2011).

Answer 675

A statement need not be made to a physician, and statements made to hospital attendants, or even family members, may be admitted under subdivision (4) if the foundation conditions are satisfied. Such statements are not required to refer to the declarant's physical condition. Statements made to close relatives, which then are reported to the doctor, may be admitted under the rule, although double or multiple hearsay may be presented. Stephens v. State, 774 P.2d 60 (Wyo. 1989).

Answer 676

In a prosecution of defendant on one count of assault and battery on a household member, the trial court did not err in allowing a convenience store clerk's testimony concerning statements the victim made to the clerk under the excited utterance exception to the hearsay rule, as the clerk described the victim as distraught, crying, and nervous; the victim's statement was spontaneous and not the result of reflection, deliberation, or fabrication. Boykin v. State, 105 P.3d 481, 2005 Wyo. LEXIS 18 (Wyo. 2005).

Answer 677

The ultimate inquiry is whether it appears the declarant's condition at the time of the statement was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. Because ample evidence was presented to support a finding that the witness was not in a reflective state of mind, but rather was hysterical, the trial court's finding that the statements constituted excited utterances despite the 15 to 30 minutes which lapsed between the witness's observation and her statements was clearly erroneous. James v. State, 888 P.2d 200 (Wyo. 1994). Assault victim and her daughter were still under stress of excitement when they spoke with officer 45 minutes after incident, and therefore trial court did not err in admitting officer's recitation of statements under excited utterance exception. Streitmatter v. State, 981 P.2d 921 (Wyo. 1999). Assault victim's telephone call to sheriff's office qualified as an excited utterance, where tape recording revealed that incident was ongoing in victim's mind, despite lapse of time between incident and telephone call and despite victim's knowledge that defendant's gun was not loaded. Dike v. State, 990 P.2d 1012 (Wyo. 1999), cert. denied, 529 U.S. 1078, 120 S. Ct. 1697, 146 L. Ed. 2d 502 (2000).

Answer 678

Grand larceny defendant was entitled to testify concerning his girlfriend's out-of-court statement that truck owner had given them permission to use the truck; the statement was admissible to show its effect on the defendant's intent and subsequent conduct, rather than for the truth of the matter asserted. Kenyon v. State, 986 P.2d 849 (Wyo. 1999).

Answer 679

A hearsay statement of a witness to a murder notifying the victim that the defendant went to get his gun was admissible because it was offered for the valid non-hearsay purpose of showing the effect on the listener, i.e., it was offered pursuant to paragraph (3) to demonstrate the effect on the victim's existing state of mind as he witnessed developments occurring prior to the shooting. Armstrong v. State, 826 P.2d 1106 (Wyo. 1992). In a prosecution for the murder of a 15-year-old girl, statements by the victim to a friend, teachers, and her mother allowing the state to identify the defendant as the older man who had engaged in sexual activity with the victim, had impregnated her, had been upset about her pregnancy, and had insisted upon an abortion were properly admitted into evidence under subsection (3). Robinson v. State, 11 P.3d 361, 2000 Wyo. LEXIS 196 (Wyo. 2000), cert. denied, 532 U.S. 980, 121 S. Ct. 1620, 149 L. Ed. 2d 483 (2001). At defendant's trial for murder, the victim's sister's testimony about a conversation she had with the victim, in which the victim told his sister about missing money from a checking account; was properly admissible to show the victim's state of mind before his death. Humphrey v. State, 185 P.3d 1236, 2008 Wyo. LEXIS 69 (Wyo. 2008).

Answer 680

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 subdivision (3), because that subdivision concerns the admissibility of hearsay evidence, and this was not hearsay. Schmunk v. State, 714 P.2d 724 (Wyo. 1986).

Answer 681

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).

Answer 682

In a prosecution for the murder of a 15-year-old girl, evidence that the victim told a friend that the defendant wanted her to terminate her pregnancy by an abortion was properly admitted into evidence; the defendant's statement was properly admitted as an admission and the victim's statement was admissible to show her then-existing physical condition of pregnancy and her intent not to terminate her pregnancy. Robinson v. State, 11 P.3d 361, 2000 Wyo. LEXIS 196 (Wyo. 2000), cert. denied, 532 U.S. 980, 121 S. Ct. 1620, 149 L. Ed. 2d 483 (2001).

Answer 683

Hearsay recording of a conversation between a confidential informant and defendant's mother was not admissible under Wyo. R. Evid. 803(3) because the prosecution did not seek its admission to show the mother's state of mind. the prosecution fully intended that the evidence be viewed by the jury as substantive evidence of defendant's delivery of illegal drugs. Majors v. State, 252 P.3d 435, 2011 Wyo. LEXIS 65 (Wyo. 2011).

Answer 684

The special need for the exception to the hearsay rule expressed in subdivision (8) is found in the inconvenience of requiring public officials to appear and testify concerning reports -- with special trustworthiness being assigned to their reports by virtue of the declarant's official duty and the probability that the duty has been accurately performed; but the reliability of such evidence is lessened when the report does not fall within the official's statutory duty or a duty required by the nature of his office. Combined Ins. Co. of Am. v. Sinclair, 584 P.2d 1034 (Wyo. 1978) (decided under prior law).

Answer 685

Notes taken at an accident scene by a sheriff's deputy, in his capacity as an investigative law enforcement officer, and turned over to the highway patrol, did not conform to the "official record" exception to the hearsay rule despite their incorporation in the records of the highway patrol. Within the context of the highway patrol's official report, the notes could not be said to have set forth either the first-hand knowledge or factual findings of the highway patrolman who made his own investigation and who filed the official report. Seaton v. State Hwy. Comm'n, Dist. No. 1, 784 P.2d 197 (Wyo. 1989).

Answer 686

Where a business record contains opinions, it is, for purposes of admissibility into evidence, subject to the limits imposed by Rules 701 and 702. McCabe v. R.A. Manning Constr. Co., 674 P.2d 699 (Wyo. 1983).

Answer 687

It is not necessary to identify who authored each piece of information contained in a business record. Mabe v. State, 169 P.3d 870, 2007 Wyo. LEXIS 183 (Wyo. 2007).

Answer 688

Records of the Wyoming state children's home, consisting of medical reports, progress notes made by the caseworkers, general observations by the houseparents, and behavior books containing the houseparents' notations of their daily observations of each child, may be received as evidence, not to prove the truth of the children's statements contained therein (unless the statements are deemed trustworthy by reason of their falling within some other exception to the hearsay rule), but to prove that the children actually made the statements. LP v. Natrona County Dep't of Pub. Assistance, 679 P.2d 976 (Wyo. 1984).

Answer 689

The district court did not err when it excluded, as hearsay, a police report prepared by an officer who was unavailable to testify at trial. There was no testimony as to whether the report was made by someone with knowledge or made from information transmitted by a person with knowledge. McCone v. State, 866 P.2d 740 (Wyo. 1994).

Answer 690

Unavailability due to vacation plans does not satisfy the unavailability requirement under Rule 804(a)(5), W.R.E. Bloomquist v. State, 914 P.2d 812 (Wyo. 1996).

Answer 691

In a proceeding to terminate parental rights, the court properly admitted a department of public assistance and social services file as evidence. In the absence of an objection to the file, and absent a determination that the source of information or the method or circumstances of preparation of the file indicated a lack of trustworthiness, the file was admissible under subdivision (6). AG v. Big Horn County Dep't of Pub. Assistance, 762 P.2d 42 (Wyo. 1988).

Answer 692

and only in exceptional cases, in the interest of justice. Williams v. Collins Communications, Inc., 720 P.2d 880 (Wyo. 1986).

Answer 693

District court erred in failing to make appropriate record to support its discretionary decision to admit statements of victim's mother and police officer under "catch-all exception" to this rule. English v. State, 982 P.2d 139 (Wyo. 1999).

Answer 694

In an architect's indemnification action against an engineer, the trial court properly excluded an army agency letter and items that contained hearsay within hearsay, statements of legal conclusions, findings whose official character could not be confirmed, and items that may have been drafted strategically for possible future litigation, in view of their use in an administrative action proceeding the legal claim. Kemper Architects v. McFall, Konkel & Kimball Consulting Eng'rs, Inc., 843 P.2d 1178 (Wyo. 1992).

Answer 695

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).

Answer 696

In a prosecution for, inter alia, altering vehicle identification numbers, testimony of an automobile dealership service director concerning computer generated data compilations comparing particular vehicle identification numbers, though hearsay not prepared as an ordinary business record, was admissible under subdivision (24), pursuant to the state's provision of proper notice thereof. Dean v. State, 865 P.2d 601 (Wyo. 1993), overruled in part, Vigil v. State, 926 P.2d 351 (Wyo. 1996).

Answer 697

Where an adult passenger in a defendant's car during his attempted escape from police was interviewed two and one-half hours after the incident, the trial court properly sustained the state's objection to defense counsel's question to an officer about the witness' statement, for it was not clear that the statement was a spontaneous utterance in response to the event itself. Urbigkit v. State, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003).

Answer 698

In a case involving larceny by a bailee, a challenge to the admissibility of business records was reviewed under the plain error standard because defense counsel did not maintain a hearsay objection at trial; after making an initial hearsay objection, other objections were made to foundation and signature, none of which related to personal notations made on the business records. Mabe v. State, 169 P.3d 870, 2007 Wyo. LEXIS 183 (Wyo. 2007).

Answer 699

Bank documents were properly admitted at murder trial; claim that documents were incomplete was rejected, where defendant never objected at trial to the admission of the bank records on these grounds. Humphrey v. State, 185 P.3d 1236, 2008 Wyo. LEXIS 69 (Wyo. 2008).

Evidence Flashcards

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