Avoid These Eleven Common Evidentiary Mistakes

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10-2017 Avoid These leveE n Common Evidentiary Mistakes John E. Rumel University of Idaho College of Law, [email protected]

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Recommended Citation 60(10) Advocate 37 (2017)

This Article is brought to you for free and open access by the Faculty Works at Digital Commons @ UIdaho Law. It has been accepted for inclusion in Articles by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contact [email protected]. Avoid These Eleven Common Evidentiary Mistakes John Rumel Tim Gresback he law provides attorneys with numerous tools not only that the to prove a case, but to prevent "[O]ne of the most overworked formulas is an objection the other side from submit- evidence is'incompetent, irrelevant and immaterial:Its rhythm and ting improper evidence. Un- alliteration seduce some lawyers to employ it as a routine ritual."I fortunately, all too often, lawyers make misplaced objections or fail - Professor Charles McCormick to make appropriate objections at trial-because they both misunder- stand the rules governing the admissibility of evidence and also have not fully evaluated the objection's strate- gic consequences. Mastering the fun- damentals of effective evidentiary Professor Charles McCormick, an McCormick explains, "A brick is not 1 objections opens the door to a more early national authority on the Law a wall." That is, a single item of evi- sophisticated and effective litigation of Evidence, decried attorneys' use of dence need not prove every element strategy. Here are some of the most the general objection, stating in his of a cause of action. Some evidence common misguided evidentiary ob- hornbook that "[o]ne of the most is more compelling than other evi- jections. overworked formulas is an objection dence. A relevance objection is an that the evidence is 'incompetent, ir- improper mechanism to inform a relevant and immaterial: Its rhythm court that a lawyer does not find the Objections relating to and alliteration seduce some lawyers opponent's proof convincing. substantive admissibility to employ it as a routine ritual", Take away: Many relevance objec- The General Objection: Irrelevant, Similarly, more recent commenta- tions are misplaced because the ad- immaterial and incompetent: In the tors have referred to the general ob- missibility threshold is easily met." early years of Idaho trial practice, jection as a "hackneyed alliterative Repetitive and reflexive relevance 7 objecting to evidence as irrelevant, phrase? objections bog trials down and un- immaterial and incompetent was a Take away: The alliteration is out- dermine a lawyer's credibility. Rele- dated and should be avoided. vance objections are best made spar- common and successful practice.1 Objection: Relevance: Relevance ingly. Indeed, as of 1930 and as late as objections are often lodged without Objection: Highly Prejudicial 1965, objections on these grounds an understanding that relevance is Sometimes evidence drives a nail were sustained by Idaho judges very easy to establish. Under I.R.E. through the heart of a claim or de- and affirmed by the Idaho Supreme is devastating. 2 401, relevant evidence need only fense; its admission Court. However, by the mid-1930s, have "any tendency to make the ex- Our rules do not reject devastating the Idaho Supreme Court began to istence of any fact that is of conse- evidence-they invite it. In a des- question the sufficiency of a general quence to the determination of the perate attempt to keep the hammer 3 objection. Likewise, an increasing action more probable or less prob- from the nail, many lawyers conflate number of treatises viewed an ob- able than it would be without the the purpose of the IRE 403 balanc- jection that evidence was irrelevant, evidence.' ing test and wrongly think that high- immaterial and incompetent as an Professor McCormick uses a ly prejudicial evidence is somehow impermissible general objection, brick wall metaphor to illustrate objectionable. only to be sustained if the evidence how almost all evidence is relevant.9 Under Rule 403, the first inquiry was not admissible on any grounds.4 A party has broad discretion on is whether the proffered evidence is Thus, by the early 1970s, the Idaho how to build its wall of truth, even relevant. As already explained, the high court held that the mantra was if the other side hotly disputes the vast majority of evidence is relevant. improper when a more specific ob- existence of every, some, or a single Once this easy threshold is crossed, jection might have been made.s evidentiary brick offered at trial. As the court then weighs whether the

The Advocate -October 2017 37 probative value of the evidence will Objection: Lack of Foundation: Objection: [Blab Blab Blab] - The be "substantially outweighed" by Admissible evidence cannot arise Speaking Objection Jurors are not the danger of "unfair prejudice" from a factual vacuum. For example, supposed to hear lawyers argue legal Close calls favor admissibility: evi- before a party can testify in an auto issues meant for the court. Unfortu- dence is excluded only if the "unfair collision case that the traffic light nately, many lawyers ignore the con- prejudice" "substantially" outweighs was green at the time of a crash, striction and use an objection as a the probative value. The Rule 403 numerous predicate foundational showboating opportunity in front of balancing test, like our rule on rel- facts should be established-includ- the jury. Although a few judges may evance, favors admissibility. An un- ing that the witness remembers the tolerate such a technique, most will biased eyewitness who clearly sees a crash, was at the scene, and saw the rebuke it. Objections, when lodged, stabbing provides extremely prejudi- traffic light before impact. On direct must be succinctly stated without a cial testimony. Although highly prej- exam, foundational facts are usually commentary.14 elicited through non-leading jour- udicial, nothing whatsoever about Take away: Legal objections to ev- nalist questions that start with who, the evidence is unfair. idence neither present an opportu- what, where, when, or how. By contrast, evidence that the de- nity to charm jurors nor help a law- fendant previously stabbed someone yer establish credibility. Bombarded else on a prior occasion requires a with speaking objections-particu- more nuanced analysis. As already larly those that are overruled, a jury mentioned, the threshold inquiry may begin to tire and wonder why does not set a high bar. Certainly, the Our experience is that the wordy objector is slowing down fact that a person acted in a certain foundation objections, like the process. Even worse, the jury may consider the source rather than way yesterday does not conclusively relevance objections, are lodged prove the content of the objection and not how the person acted today. too frequently-and they The "any tendency" standard, how- take legitimate objections seriously. ever, does not require anything close usually backfire. to conclusive proof. As such, yester- Objections regarding the form of the day's conduct is indeed relevant in question or substance of the answer evaluating today's. Objection: Leading Question (on For Rule 403 balancing of a prior Re-direct Examination) Under the incident, it may help not to consider Idaho Rules of Evidence, the law whether the prior incident is irrele- concerning use of leading questions vant, but whether it is "too" relevant. on direct and cross-examination is In other words, jurors may reason Our experience is that founda- well established and well under- that because the defendant stabbed stood: "[hleading questions should tion objections, like relevance ob- before, the defendant is a bad per- not be used on the direct examina- jections, are lodged too frequent- son and should be convicted even if tion of a witness except as may be ly-and they usually backfire. The the proof of the charged incident is necessary to develop the testimony 12 overuse of foundation objections underwhelming. Now, the danger of the witness" including examining occurs mostly in criminal cases. De- of unfair prejudice is high, and the "a hostile witness, an adverse party, need for 403 balancing is more com- fenders time and again help prosecu- or a witness identified with an ad- tors prove guilt by demanding more pelling. verse party ... "1 In contrast,"[o]rdi- Take away: The goal in using the foundation. Prosecutors then shore narily leading questions should be Rule 403 balancing test is not to up their case and add the missing permitted on cross-examination"' convince the court that the evidence facts. Veteran defenders, by contrast, But what about on re-direct exami- devastatingly prejudices your case. wait for closing argument to explain nation? Its admission must unfairly preju- the absence of details. Although undecided in Idaho, dice your client for a compelling Take away: Like relevance objec- courts in other jurisdictions have policy reason that substantially out- tions, just because a foundation ob- held and commentators have made weighs its probative value. The preju- jection can be made does not mean clear that leading questions are dice must be unfair, and imbalance that it should be made. Avoid the generally inappropriate on redirect must be substantial.13 premature pounce. examination and are, therefore, ob-

38 The Advocate *October 2017 jectionable.17 Indeed, one court held that the failure to object to leading questions on re-direct examination in a criminal case amounted to "unprofessional errors" constitut- ing ineffective assistance of coun- In an almost Pavlovian response, lawyers hear the words"she said"or sel, although the court ultimately "he said"and quickly blurt out a hearsay objection. The rules of evidence, concluded that the error was not however, define a great deal of out-of-court statements as non-hearsay. prejudicial." However, a number of courts have held that a trial court has discretion to permit leading questions on re-direct examination." Courts typically allow leading questions on re-direct to rebut an impli- cation raised on cross-examination,2" or under circumstances where lead- answer to a question is to have the irresponsive mat- ing questions would be permitted a witness's nonresponsive, i.e. where the answer ter expunged, regardless of its on direct examination-e.g., where is not pertinent or competent, an the witness is a child,2' is hostile,22 or competency. 2 objection on the grounds that the can has difficulty communicating 1 Take away: "Nonresponsive" answer was nonresponsive may be be a valid objection, but only for the Many defending lawyers fail to 2 . 5But does object to leading questions on re- properly made to whom party examining the witness. direct, most likely because they just the objection belong? Court has finished a series of leading questions The Idaho Supreme Hearsay-related objections made clear that a "nonresponsive" on cross-examination and their op- Objection: Hearsay: In an almost objection belongs to the party ask- ponent's continued use of them lawyers hear ing the questions, and not to the Pavlovian response, "sounds" right. the words "she said" or "he said" and non-questioning party.26 Thus, as Take away: Just because a witness quickly blurt out a hearsay objec- the Idaho high court recently reiter- is being questioned on re-direct ex- tion. The rules of evidence, however, ated: amination does not mean that op- define a great deal of out-of-court posing counsel is permitted to lead The right to have an irrespon- statements as non-hearsay. the witness with impunity Objec- sive answer of a witness strick- For example, in civil cases, almost tions can and should be made to en out is a right of the party everything a party opponent says is leading questions on re-direct ex- examining the witness, and defined as non-hearsay under 801(d) amrination-unless an exception ap- not a right of the party adverse (2). In criminal cases, under the same plies. to the examiner; if the answer rule, statements of the accused are Objection: Nonresponsive: On oc- of a witness is competent and non-hearsay admissions. Moreover, a casion, a witness's answer will not pertinent in itself, the adverse prior statement, through earlier tes- fairly meet and address the ques- party has no right to have it ex- timony, of a non-party witness like- tion posed. For example, when asked punged from the record merely wise is defined as non-hearsay.28 what color the traffic light was, the because it was irresponsive; in Take away: Many out-of-court witness might answer: "The defen- such a case it is optional with statements offered to prove the truth dant was going way too fast" the court to strike it out, and a of the matter asserted are defined as Under the Idaho Rules of Evi- denial of a motion to do so is non-hearsay. dence, a trial judge may "exercise rea- no ground of error. The party Objection: 'State of Mind'/'Effect sonable control over the mode and examining the witness is not, on the Listener': When faced with order of interrogating witnesses and however, bound or precluded a hearsay objection, the examining presenting evidence so as to (1) make by an irresponsive answer, and party will often attempt to salvage the interrogation and presentation may himself object to its com- the question by responding "non- effective for the ascertainment of the petency, although the person hearsay-goes to state of mind" or truth, [and] (2) avoid needless con- is his own witness. He would "effect on the listener," or words to sumption of time ... "4Thus, where seem to have an absolute right that effect.

The Advocate * October 2017 39 Certainly, evidence concerning dant or the effect of the statement on the court finding that your tardiness an out-of-court declarant's state of the defendant will not be relevant to serves as a waiver of the objection. mind may be relevant and not of- a material issue in the case. Failing to Object and Preserve Ap- fered to prove the truth of the mat- pellate Rights: The Idaho Rules of Ev- ter asserted by the statement. 9 Thus, Waiver of objections/error idence provide that "[e]rror may not when a victim-declarant expresses be predicated upon a ruling which Objection - The Expert is Not fear about a defendant and the rea- admits or excludes evidence unless Qualifed Lawyers are often required sons for it, that testimony will be ad- a substantial right of the party is af- to establish a foundation that a wit- missible to prove the victim's state of fected, and ... [i]n case the ruling is ness is qualified to provide an expert mind, but not to establish the truth one admitting evidence, a timely ob- opinion under Rule 702. Similarly, a of the reasons given."' Similarly, un- jection or motion to strike appears of 702 foundation must be laid before der an exception to Idaho's hearsay ground of the results of scientific tests or opin- record, stating the specific rule, a declarant's out-of-court state- ions are admitted. objection, if the specific ground was ment concerning his or her "then not apparent from the context .. "3 existing state of mind ... (such as When a party fails to make a intent, plan, motive, design, mental timely objection to the admission of feeling, pain, and bodily health), evidence at trial, the party waives the but not including a statement of When your opponent's expert right to raise the issue on appeal. memory or belief to prove the fact or scientific evidence lacks Stated another way, "[oibjections to remembered or believed" will be foundation, flush out the evidence cannot be raised for the admissible for the truth of the mat- first time on appeal' 3 7 foundational shortcoming in a ter asserted.31 And, when a declar- In addition, the Idaho Supreme ant makes an out-of-court statement motion in limine before trial or Court has stated that "[a]n objection relevant to an issue in the case-say, you will risk the court finding that to the admission of evidence on one motive-the statement may be ad- your tardiness serves as a waiver basis does not preserve a separate and missible for "non-truth" purposes to of the objection. different basis for excluding the evi- demonstrate the state of mind of the dence"38 Thus, the Court has made defendant-or in other words, the clear that "[iif a person objecting effect on the listener.3 2 to the admission of evidence states The Idaho Supreme Court has one ground for objection in the trial noted, however, that a "state of court, which is overruled, we will mind" or "effect on the listener" re- not consider on appeal whether a joinder to a hearsay objection is different objection would have been frequently without merit.3 3 For ex- sustained"39 However, a party need ample, the Court recently stated that not object to preserve the issue on "[i]n limited circumstances inadmis- One of the greatest shortcomings appeal where the admission of evi- sible hearsay might be admissible to we have seen in establishing founda- dence affects a fundamental right.0 show the effect on the listener, but tions involving experts is that law- Appellate reversals on eviden- generally the evidence submitted is yers wait until the middle of trial to tiary grounds are infrequent. The not relevant. The effect on the listen- object. When the lawyer waits, sud- vast majority of evidentiary rulings er exception is often used as a ruse to denly-and without warning-a are reviewed under the deferential put inadmissible evidence before the court is forced to make a decision on abuse of discretion standard.4' Even jury improperly 34 the admission of critical evidence. if the trial court erred in admitting Take away: An out-of-court state- Judges need notice and a properly evidence, the error will only result ment may survive a hearsay objec- developed factual context to make in reversal if it constitutes prejudi- tion when offered to prove the state sound rulings that involve experts cial, i.e. not harmless, error.42 To help of mind of the victim or the state- and science. scale this mountain, it is imperative ment's effect on the listener, or for Take away: When your oppo- for parties to object to the admission the hearsay purpose of proving the nent's expert or scientific evidence of evidence to preserve possible er- declarant's state of mind or future lacks foundation, flush out the foun- ror on appeal. plans. However, most of the time, the dational shortcoming in a motion in Take away: Although lawyers state of mind of the victim or defen- limine before trial or you will risk overuse objections in many instanc-

40 The Advocate - October 2017 es, preserving error for appeal is not one of them.

Endnotes Objecting on the grounds that evidence is "highly prejudicial,' when overruled, can sway the jury by highlighting the fact that 1. See, e.g., Wilson v. Bartlett, 7 Idaho 271, 62 P. 416, 417 (1900); State v. Corcoran, 7 damaging evidence has been admitted into the record over the fervent, Idaho 220, 61 P. 1034,1040 (1900). albeit unsuccessful, objection of the party opposing its admission. 2. Flowerdew v. Warner, 90 Idaho 164, 173, 409 P.2d 110, 1 15-116 (1965); State v. Bush, 50 Idaho 166, 295 P. 432, 435 (1930). 3. Giraney v. Oregon Short Line R. Co., 54 Idaho 535, 539, 33 P.2d 359, 361 (1934) ([R]espondent ... argues that these objections,'incompetent, irrelevant and im- not intended to make any substantive 14. Idaho trial judges often expressly material'"hearsay,"no proper foundation changes to evidence principles. Idaho prohibit the use of speaking objections, laid and not binding on the defendant has not yet made these stylistic chang- with one judge informing counsel on and not rebuttal; were, when interposed es, although the Idaho Supreme Court's the first day of trial that "I don't want by appellant at another stage of the trial, Evidence Rules Advisory Committee has speaking objections. I want objections." too general and not sufficiently explicit empaneled a subcommittee, chaired by State v. Severson, 147 Idaho 694, 718 n. to be reviewed... .If such contention be retired Idaho Court of Appeals Judge 31, 215 P.3d 414,438 n. 31 (2009). sound, then certainly respondent's ob- Karen Lansing, to make recommenda- jections were too general to have been 15. IRE 611 (c). A leading questions is a tions concerning re-styling the IRE. sustained."). question "which suggests to the witness 9. 1 th the answer which the examining party 4. What constitutes general objections? 88 McCormick, Evidence (4 ed.) (1992), p. 776. desires' State v. Sandoval, 92 Idaho 853, Corpus Juris Secundum, Sec. 219, Trial § 185, 10. Id. 860 n.2, 452 P.2d 350, 357 n. 2 (1969); (updated in 2016); General Objections - see also McCormick supra note 6 at 14 Objection to incompetent, irrelevant and 11. Just because evidence is relevant, of (same). immaterial evidence, 75 Am. Jur. 2d, Sec. course, does not mean it is admissible. 333, Trial (2015). For example, relevant evidence is often 16. Id. 5. Smith v. Smith, 95 Idaho 477, 481, 511 properly excluded because it is confus- 17. State v. Salamon, 287 Conn. 509, 559, P.2d 294,298 (1973) ("Although the parol ing, a waste of time or cumulative under 949 A.2d 1092, 1127 (S.Ct. Conn. 2008); testimony of appellant, recalling the IRE 403. People v. Culbreath, 343 1Ili. App.998, 798 contents of the deed, was also second- 12. IRE 404 (b) also addresses the unfair N.E.2d 1268, 1273 (2003); Oakes v. Peter ary evidence, the court admitted the prejudice issue by prohibiting so-called Pan Baker, Inc., 258 Iowa 447, 453, 138 testimony over respondent's objection "propensity evidence;' i.e. evidence de- N.W.2d 93, 97 (S.Ct. Iowa 1965); 98 CJ.S., that it was 'irrelevant, immaterial and signed to prove that "on a particular oc- Sec. 572, Witnesses (updated in 2016); 81 incompetent' Even if the evidence were casion the person acted in accordance Am. Jr.2d Sec. 682, Witnesses (updated inadmissible under the best evidence with [his or her] character or trait!' in 2016). rule, the district court's ruling was prop- 18. The court ultimately concluded that er since the specific objection was not 13. In the memorable courtroom dra- ma, A Few Good Men, an inexperienced the error was not prejudicial. Roe v. made!'). Belleque, 232 Fed. Appx. 653, **1 (9th Cir. trial attorney, played by Demi Moore, 6. McCormick on Evidence, Sec. 52, 99 2007); but cf State v. Watters, 2014 WL doubled down on an objection based 1067925, **1-2 (Ct.App. Ohio 2004). (6th Ed. 2006). on prejudice grounds that had been 7. Christopher B. Mueller & Laird C. overruled by the judge by further ob- 19. Salamon, 287 Conn. at 559-560, 949 Kirkpatrick, Evidence, Sec. 1.3, 9 (5th Ed. jecting on the grounds that evidence A.2d at 1127; State v. Games, 764 A.2d 125, 137 (R.I. 2001). 2012). was "highly prejudicial" After the judge 20. Tanner v. State, 764 So.2d 385, 405 8. (Emphasis added). The Federal and overruled Moore's second objection, (Miss. 2000). Idaho Rules of Evidence are referred to Moore was taken to task by one of her interchangeably, as they are essentially co-counsel, played by Kevin Pollack. Pol- 21.InreSasak, 2012WL516074,*1 (Mich. identical regarding witness statements. lack was right to do so: objecting on the Ct. App. 2012); Chappell v. United States, The Federal Rules of Evidence (FRE) were grounds that evidence is"highly prejudi- 519 A.2d 1257, 1258 (D.C. 1987). first enacted by Congress in 1975. The cial," when overruled, can sway the jury 22. State v. Preston, 673 S.W.2d 1, 5 (Mo. Idaho Rules of Evidence (IRE), based sub- by highlighting the fact that damaging S. Ct. 1984) (en banc); Xenakis v. Garrett stantially on the FRE, were enacted by evidence has been admitted into the re- Freight Lines, Inc., 1 Utah 2d 299,305, 265 the Idaho Supreme Court in 1985. The cord over the fervent, albeit unsuccess- P.2d 1007,1011 (1954). look of the FRE changed in 2011, when ful, objection of the party opposing its 23. Salamon, 287 Conn. at 559-560, 949 the rules were "re-styled'" The numer- admission. This turn of events can also A.2d at 1127; see also People v. Gillis, 883 ous changes were intended to apply be put to good use during closing argu- P.2d 554, 560 (Colo. App. 1994) (confus- uniform conventions of style and usage ment by the party benefitting from the ing and unclear testimony on cross-ex- throughout the FRE; the revisions were admission of the evidence. amination).

The Advocate *October 2017 41 24. IRE 611 (a). preserve the right to challenge on ap- 25. See State v. Koch, 157 Idaho 89, 103, peal the admission or consideration of 334 P.3d 280, 294 (2014) (where "the evidence"). answers were competent and pertinent 37. Phillips v. Erhart, 151 Idaho 100,105, For an excellent discussion of the to the questions asked,' objection on 254 P.3d 1, 6 (2011), quoting Slack v. the grounds of nonresponsiveness was Kelleher, 140 Idaho 916, 922, 104 P.3d difference between using state overruled). 958, 964 (2004). of mind evidence for nontruth/ 26. Id. at 102, 334 P.3d at 293. 38. Slack, 140 Idaho at 922, 104 P.3d at nonhearsay and truth/hearsay 27. Id., quoting State ex rel. Rich v. Bair, 83 964, quoting State v. Sheahan, 139 Idaho Idaho 475, 481-482, 365 P.2d 216, 219 267, 77 P.3d 956 (2003). purposes, see State v. Abdullah. (1961). 39. U.S. Bank Nat. Ass'n N.D. v. CitiMort- 28. Provided the statement is inconsis- gage, Inc., 157 Idaho 446, 453, 337 P.3d tent with the trial testimony of the wit- 605, 612 (2014), quoting Thomson v. Ol- ness. See Rule 401 (d)(1). sen, 147 Idaho 99, 105, 205 P.3d 1235, 1241 (2009). As the court explained in 29. State v. Goodrich, 97 Idaho 472, 546 Thomson: P.2d 1180 (1976) and State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970), both On appeal, we review whether the cited in State v. Rosencrantz, 110 Idaho trial court erred. If the objection 40. State v. Walters, 120 Idaho 46, 48, 813 124, 127-128, 714 P.2d 93, 96-97 (Ct. App. is made on a specific ground, the P.2d 857, 859 (1990); State v. LePage, 102 1986). trial court is simply asked to decide Idaho 387, 390,630 P.2d 674,677 (1981). whether that particular objection 30. Rosencrantz, 110 Idaho at 127-128, is a valid reason for excluding the 41. Parker, 157 Idaho at 138, 334 P.3d at 714 P.2d at 96-97. evidence. If the trial court correctly 812; Mulford v. Union Pac. R.R., 156 Idaho 31. IRE 803(3), cited in Vulk v. Haley, 112 overrules that objection, it has not 134,138, 321 P.3d 684, 688 (2014). Idaho 855, 857, 736 P.2d 1309, 1311 erred. If the objecting party made 42. Parker, 157 Idaho at 139, 334 P.3d at (1987). For an excellent discussion of the wrong objection, that is not 814; State v. Moore, 131 Idaho 814, 821, the difference between using state of error by the trial court. When an 965 P.2d 174, 181 (1998). Error will be mind evidence for nontruth/nonhearsay objection is made, the trial court is harmless in a criminal case where the ap- and truth/hearsay purposes, see State v. only asked to determine the valid- pellate court finds beyond a reasonable Abdullah, 158 Idaho 386, 436-437, 348 ity of that objection; it is not asked doubt that the jury would have reached P.2d 1, 51-52 (2015), citing 23 C.J.S. Crim- to determine whether there is an- the same result without the admission of inal Law, Sec. 1179 (2014); 2 Kenneth S. other objection that would have the challenged evidence. State v. Field, Broun, McCormick on Evidence, Secs been sustained had it been made. 144 Idaho 559, 572, 165 P.3d 273, 286 274-275 (7th ed. 2014); and 29 Am. Jur. 2d Id. at 105, 205 P.3d at 1241. (2007). Evidence Sec. 677 (2014). 32. Radabaugh, 93 Idaho at 731-732,471 P.2d at 586-587; Goodrich, 97 Idaho at 478, 546 P.2d at 1186 ("Radabaugh also recognized that evidence of a statement made by a declarant-victim to the defendant may be admissible into evidence for the purpose of demonstrating circum- stantially the effect the utterance had upon the defendant as it may bear upon his motive for a crime"); see also State v. Siegel, 137 Idaho 538, 541, 50 P.3d 1033, 1035 (Ct. App. 2002), citing McCormick on Evidence § 249 (John W. Strong ed., 5th. Ed.1999) ("A statement that D made to X is not subject to attack as hearsay when its purpose is to establish the state of mind thereby induced in X....'). 33. State v. Parker, 157 Idaho 132, 145, 334 P.3d 806, 819 (2014), citing State v. Field, 144 Idaho 559, 567, 165 P.3d 273, 281 (2007). 34. Parker, Id. 35. IRE 103 (a) (1). 36. Gunter v. Murphy's Lounge, LLC, 141 Idaho 16, 25, 105 P.3d 676, 685 (2005); see also Sales v. Peabody, 157 Idaho 195, 202, 335 P.3d 40, 47 (2014) ("some form of objection is ordinarily necessary to

42 The Advocate - October 2017