Article Title: Recent Changes and Developments in the Utah Rules of Evidence: Definitive Evidence Rulings, Character Evidence, Expert Testimony, and Business Records1

• Publication year: 2002
• Pages: 06-4

Utah Bar Journal Volume 6.

06-4 (2002). Article Title: Recent Changes and Developments in the Utah Rules of Evidence: Definitive Evidence Rulings, Character Evidence, Expert Testimony, and Business Records1

June, 2002

Article Title: Recent Changes and Developments in the Utah Rules of Evidence: Definitive Evidence Rulings, Character Evidence, Expert Testimony, and Business Records1

Author: Keith A. Kelly

Article Type

Utah Law Developments

Article

I.Introduction: Recent Amendments to Federal and State Evidence Rules.

On December 1, 2000, the Federal Rules of Evidence were significantly amended. See Fed. R. Evid. 103, 404, 701, 702 703, 803(6), and 902(11) & (12) (2001). The amendments dealt with definitive evidence rulings (Rule 103), character evidence (Rule 404), expert testimony (Rules 701, 702 &amp 703), and authentication of business records (Rules 803(6) and 902(11) & (12)).

Before those federal amendments became effective, the Utah Supreme Court's Advisory Committee on the Rules of Evidence ("Advisory Committee") considered whether to recommend adoption of corresponding amendments to the Utah Rules of Evidence. After detailed analysis and discussion, the Advisory Committee recommended adoption of corresponding changes to Utah R. Evid. 103, 404, 701, 702, 703, 803(6), and 902(11) & (12), submitting its proposal for comment.

The proposed amendments to Utah R. Evid. 103, 404, 803(6) and 902(11) & (12) were not controversial. On August 15, 2001, the Utah Supreme Court adopted those changes, effective November 1, 2001. (See Order of Aug. 15, 2001, In re: Proposed Amendments to Rules 103, 404, 701, 702, 703, 803 and 902 of the Utah Rules of Evidence, No. 20010570-SC (hereinafter "8/15/01 S. Ct. Order").

The proposed amendments to expert witness rules, Utah R. Evid. 701, 702 & 703, would have resulted in important changes in the handling of expert testimony in Utah state courts. The Committee received a substantial number of negative comments from various trial lawyers, raising concerns that the proposed amendments were not necessary and would be unduly restrictive and costly. The Utah Supreme Court ultimately declined to adopt the December 1, 2000 amendments to Fed. R. Evid. 701, 702 & 703. (See 8/15/01 S. Ct. Order.) About the time the Supreme Court was considering these proposed amendments, it was in the process of issuing several important opinions on the admissibility of expert testimony under Utah law.

This article discusses each of the November 1, 2001 amendments to the Utah Rules of Evidence, as well as the amendments rejected by the Utah Supreme Court, along with recent case law pertinent to those accepted and rejected amendments. First, it discusses the amendment to Utah R. Evid. 103(a)(2), which deals with definitive evidence rulings. Second, it discusses the amendment to Utah R. Evid. 404 and recent decisions dealing with character evidence. Third, this article discusses the Utah Supreme Court's rejection of proposed amendments to Utah R. Evid. 701, 702 and 703, along with recent Utah case law indicating a growing divergence between federal and state approaches to handling expert testimony. Finally, this article discusses the amendments to Utah R. Evid. 803(6) and 902(11) & (12), which make admission of business records more simple.

II. Definitive Evidence Rulings: Utah R. Evid. 103

The Utah Supreme Court adopted a one-sentence addition to Utah R. Evid. 103(a)(2), making it consistent with the December 1, 2000 amendment to Fed. R. Evid. 103(a)(2). The federal advisory committee 2000 amendment note explains: "The amendment clarifies that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a)." Fed. R. Evid. 103 advisory committee's note (2000). The federal note adds: "The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point." Id. However, the federal note explains: "Even where the court's ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered." Id.

Effective November 1, 2001, amended Utah R. Evid. 103(a) reads:

(a) Effect of erroneous ruling. 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. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(Underlined material reflects November 1, 2001 amendment.)

III.Character Evidence: Utah R. Evid. 404

The Utah Supreme Court also adopted an amendment conforming Utah R. Evid. 404 with its federal counterpart. In part, this amendment was designed to "provide that when the accused attacks the character of an alleged victim under subdivision (a)(2) of [Rule 404], the door is opened to an attack on the same character trait of the accused." See Fed. R. Evid. 404 advisory committee's note (2000). In addition, the federal amendment was "designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim." Id. The Utah Amendment also deleted the last sentence of Utah R. Evid. 404(b), in order to make the Utah rule consistent with its federal counterpart. The Utah Advisory Committee Note explains that "the deletion of that language is not intended to reinstate the holding of State v. Doporto, 935 P.2d 484 (Utah 1997)," a case which had restricted the admission of Rule 404(b) evidence. The amendment also adds a notice requirement for Rule 404(b) evidence in criminal cases.

Effective November 1, 2001, amended Utah R. Evid. 404 reads:

Utah R. Evid. 404. Character evidence not admissible to prove conduct; exceptions; other crimes. [Underlined and stricken material reflects November 1, 2001 amendment.]

(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;, or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) 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 action 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 nature of any such evidence it intends to introduce at trial.

Advisory Committee Note - Rule 404 is now Federal Rule of Evidence 404 verbatim. The 2001 amendments add the notice provisions already in the federal rule, add the amendments made to the federal rule effective December 1 2000, and delete language added to the Utah Rule 404(b) in 1998. However, the deletion of that language is not intended...