UIdaho LawDigital Commons @ UIdaho Law

Articles Faculty Works

10-2017

Avoid These Eleven Common EvidentiaryMistakesJohn E. RumelUniversity of Idaho College of Law, jrumel@uidaho.edu

Follow this and additional works at: https://digitalcommons.law.uidaho.edu/faculty_scholarship

Part of the Evidence Commons

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 inArticles by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu.

Recommended Citation60(10) Advocate 37 (2017)

Avoid These Eleven Common Evidentiary MistakesJohn RumelTim Gresback

he law provides attorneyswith numerous tools not onlyto prove a case, but to preventthe other side from submit-ting improper evidence. Un-

fortunately, all too often, lawyersmake misplaced objections or failto make appropriate objections attrial-because they both misunder-stand the rules governing the admis-sibility of evidence and also have notfully evaluated the objection's strate-gic consequences. Mastering the fun-damentals of effective evidentiaryobjections opens the door to a moresophisticated and effective litigationstrategy. Here are some of the mostcommon misguided evidentiary ob-jections.

Objections relating tosubstantive admissibility

The General Objection: Irrelevant,immaterial and incompetent: In theearly years of Idaho trial practice,objecting to evidence as irrelevant,immaterial and incompetent was acommon and successful practice.1

Indeed, as of 1930 and as late as1965, objections on these groundswere sustained by Idaho judgesand affirmed by the Idaho SupremeCourt.2 However, by the mid-1930s,the Idaho Supreme Court began toquestion the sufficiency of a generalobjection.3 Likewise, an increasingnumber of treatises viewed an ob-jection that evidence was irrelevant,immaterial and incompetent as animpermissible general objection,only to be sustained if the evidencewas not admissible on any grounds.4

Thus, by the early 1970s, the Idahohigh court held that the mantra wasimproper when a more specific ob-

jection might have been made.s

"[O]ne of the most overworked formulas is an objection that theevidence is'incompetent, irrelevant and immaterial:Its rhythm andalliteration seduce some lawyers to employ it as a routine ritual."I

- Professor Charles McCormick

Professor Charles McCormick, anearly national authority on the Lawof Evidence, decried attorneys' use ofthe general objection, stating in hishornbook that "[o]ne of the mostoverworked formulas is an objectionthat the evidence is 'incompetent, ir-relevant and immaterial: Its rhythmand alliteration seduce some lawyersto employ it as a routine ritual",Similarly, more recent commenta-tors have referred to the general ob-jection as a "hackneyed alliterativephrase?7

Take away: The alliteration is out-dated and should be avoided.

Objection: Relevance: Relevanceobjections are often lodged withoutan understanding that relevance isvery easy to establish. Under I.R.E.401, relevant evidence need onlyhave "any tendency to make the ex-istence of any fact that is of conse-quence to the determination of theaction more probable or less prob-able than it would be without theevidence.'

Professor McCormick uses abrick wall metaphor to illustratehow almost all evidence is relevant.9

A party has broad discretion onhow to build its wall of truth, evenif the other side hotly disputes theexistence of every, some, or a singleevidentiary brick offered at trial. As

McCormick explains, "A brick is nota wall."1 That is, a single item of evi-dence need not prove every elementof a cause of action. Some evidenceis more compelling than other evi-dence. A relevance objection is animproper mechanism to inform acourt that a lawyer does not find theopponent's proof convincing.

Take away: Many relevance objec-tions are misplaced because the ad-missibility threshold is easily met."Repetitive and reflexive relevanceobjections bog trials down and un-dermine a lawyer's credibility. Rele-vance objections are best made spar-ingly.

Objection: Highly PrejudicialSometimes evidence drives a nailthrough the heart of a claim or de-fense; its admission is devastating.Our rules do not reject devastatingevidence-they invite it. In a des-perate attempt to keep the hammerfrom the nail, many lawyers conflatethe purpose of the IRE 403 balanc-ing test and wrongly think that high-ly prejudicial evidence is somehowobjectionable.

Under Rule 403, the first inquiryis whether the proffered evidence isrelevant. As already explained, thevast majority of evidence is relevant.Once this easy threshold is crossed,the court then weighs whether the

The Advocate -October 2017 37

probative value of the evidence willbe "substantially outweighed" bythe danger of "unfair prejudice"Close calls favor admissibility: evi-dence is excluded only if the "unfairprejudice" "substantially" outweighsthe probative value. The Rule 403balancing test, like our rule on rel-evance, favors admissibility. An un-biased eyewitness who clearly sees astabbing provides extremely prejudi-cial testimony. Although highly prej-udicial, nothing whatsoever aboutthe evidence is unfair.

By contrast, evidence that the de-fendant previously stabbed someoneelse on a prior occasion requires amore nuanced analysis. As alreadymentioned, the threshold inquirydoes not set a high bar. Certainly, thefact that a person acted in a certainway yesterday does not conclusivelyprove how the person acted today.The "any tendency" standard, how-ever, does not require anything closeto conclusive proof. As such, yester-day's conduct is indeed relevant inevaluating today's.

For Rule 403 balancing of a priorincident, it may help not to considerwhether the prior incident is irrele-vant, but whether it is "too" relevant.In other words, jurors may reasonthat because the defendant stabbedbefore, the defendant is a bad per-son and should be convicted even ifthe proof of the charged incident isunderwhelming.12 Now, the dangerof unfair prejudice is high, and theneed for 403 balancing is more com-pelling.

Take away: The goal in using theRule 403 balancing test is not toconvince the court that the evidencedevastatingly prejudices your case.Its admission must unfairly preju-dice your client for a compellingpolicy reason that substantially out-weighs its probative value. The preju-dice must be unfair, and imbalancemust be substantial.13

Objection: Lack of Foundation:Admissible evidence cannot arisefrom a factual vacuum. For example,before a party can testify in an autocollision case that the traffic lightwas green at the time of a crash,numerous predicate foundationalfacts should be established-includ-ing that the witness remembers thecrash, was at the scene, and saw thetraffic light before impact. On directexam, foundational facts are usuallyelicited through non-leading jour-nalist questions that start with who,what, where, when, or how.

Our experience is that

foundation objections, likerelevance objections, are lodged

too frequently-and theyusually backfire.

Our experience is that founda-tion objections, like relevance ob-jections, are lodged too frequent-ly-and they usually backfire. Theoveruse of foundation objectionsoccurs mostly in criminal cases. De-fenders time and again help prosecu-tors prove guilt by demanding morefoundation. Prosecutors then shoreup their case and add the missingfacts. Veteran defenders, by contrast,wait for closing argument to explainthe absence of details.

Take away: Like relevance objec-tions, just because a foundation ob-jection can be made does not meanthat it should be made. Avoid thepremature pounce.

Objection: [Blab Blab Blab] - TheSpeaking Objection Jurors are notsupposed to hear lawyers argue legalissues meant for the court. Unfortu-nately, many lawyers ignore the con-striction and use an objection as ashowboating opportunity in front ofthe jury. Although a few judges maytolerate such a technique, most willrebuke it. Objections, when lodged,must be succinctly stated without acommentary.14

Take away: Legal objections to ev-idence neither present an opportu-nity to charm jurors nor help a law-yer establish credibility. Bombardedwith speaking objections-particu-larly those that are overruled, a jurymay begin to tire and wonder whythe wordy objector is slowing downthe process. Even worse, the jurymay consider the source rather thanthe content of the objection and nottake legitimate objections seriously.

Objections regarding the form of the

question or substance of the answer

Objection: Leading Question (onRe-direct Examination) Under theIdaho Rules of Evidence, the lawconcerning use of leading questionson direct and cross-examination iswell established and well under-stood: "[hleading questions shouldnot be used on the direct examina-tion of a witness except as may benecessary to develop the testimonyof the witness" including examining"a hostile witness, an adverse party,or a witness identified with an ad-verse party ... "1 In contrast,"[o]rdi-narily leading questions should bepermitted on cross-examination"'But what about on re-direct exami-nation?

Although undecided in Idaho,courts in other jurisdictions haveheld and commentators have madeclear that leading questions aregenerally inappropriate on redirectexamination and are, therefore, ob-

38 The Advocate *October 2017

jectionable.17 Indeed, one court heldthat the failure to object to leadingquestions on re-direct examina-tion in a criminal case amountedto "unprofessional errors" constitut-ing ineffective assistance of coun-sel, although the court ultimatelyconcluded that the error was notprejudicial." However, a number ofcourts have held that a trial court hasdiscretion to permit leading ques-tions on re-direct examination."Courts typically allow leading ques-tions on re-direct to rebut an impli-cation raised on cross-examination,2"or under circumstances where lead-ing questions would be permittedon direct examination-e.g., wherethe witness is a child,2' is hostile,22 orhas difficulty communicating2 1

Many defending lawyers fail toobject to leading questions on re-direct, most likely because they justfinished a series of leading questionson cross-examination and their op-ponent's continued use of them"sounds" right.

Take away: Just because a witnessis being questioned on re-direct ex-amination does not mean that op-posing counsel is permitted to leadthe witness with impunity Objec-tions can and should be made toleading questions on re-direct ex-amrination-unless an exception ap-plies.

Objection: Nonresponsive: On oc-casion, a witness's answer will notfairly meet and address the ques-tion posed. For example, when askedwhat color the traffic light was, thewitness might answer: "The defen-dant was going way too fast"

Under the Idaho Rules of Evi-dence, a trial judge may "exercise rea-sonable control over the mode andorder of interrogating witnesses andpresenting evidence so as to (1) makethe interrogation and presentationeffective for the ascertainment of thetruth, [and] (2) avoid needless con-sumption of time ... "4 Thus, where

In an almost Pavlovian response, lawyers hear the words"she said"or"he said"and quickly blurt out a hearsay objection. The rules of evidence,however, define a great deal of out-of-court statements as non-hearsay.

a witness's answer to a question isnonresponsive, i.e. where the answeris not pertinent or competent, anobjection on the grounds that theanswer was nonresponsive may beproperly made .2

5But to whom doesthe objection belong?

The Idaho Supreme Court hasmade clear that a "nonresponsive"objection belongs to the party ask-ing the questions, and not to thenon-questioning party.26 Thus, asthe Idaho high court recently reiter-ated:

The right to have an irrespon-sive answer of a witness strick-en out is a right of the partyexamining the witness, andnot a right of the party adverseto the examiner; if the answerof a witness is competent andpertinent in itself, the adverseparty has no right to have it ex-punged from the record merelybecause it was irresponsive; insuch a case it is optional withthe court to strike it out, and adenial of a motion to do so isno ground of error. The partyexamining the witness is not,however, bound or precludedby an irresponsive answer, andmay himself object to its com-petency, although the personis his own witness. He wouldseem to have an absolute right

to have the irresponsive mat-ter expunged, regardless of its

competency.Take away: "Nonresponsive" can

be a valid objection, but only for theparty examining the witness.

Hearsay-related objections

Objection: Hearsay: In an almostPavlovian response, lawyers hearthe words "she said" or "he said" andquickly blurt out a hearsay objec-tion. The rules of evidence, however,define a great deal of out-of-courtstatements as non-hearsay.

For example, in civil cases, almosteverything a party opponent says isdefined as non-hearsay under 801(d)(2). In criminal cases, under the samerule, statements of the accused arenon-hearsay admissions. Moreover, aprior statement, through earlier tes-timony, of a non-party witness like-wise is defined as non-hearsay.28

Take away: Many out-of-courtstatements offered to prove the truthof the matter asserted are defined asnon-hearsay.

Objection: 'State of Mind'/'Effecton the Listener': When faced witha hearsay objection, the examiningparty will often attempt to salvagethe question by responding "non-hearsay-goes to state of mind" or"effect on the listener," or words tothat effect.

The Advocate * October 2017 39

Certainly, evidence concerningan out-of-court declarant's state ofmind may be relevant and not of-fered to prove the truth of the mat-ter asserted by the statement.9 Thus,when a victim-declarant expressesfear about a defendant and the rea-sons for it, that testimony will be ad-missible to prove the victim's state ofmind, but not to establish the truthof the reasons given."' Similarly, un-der an exception to Idaho's hearsayrule, a declarant's out-of-court state-ment concerning his or her "thenexisting state of mind ... (such asintent, plan, motive, design, mentalfeeling, pain, and bodily health),but not including a statement ofmemory or belief to prove the factremembered or believed" will beadmissible for the truth of the mat-ter asserted.31 And, when a declar-ant makes an out-of-court statementrelevant to an issue in the case-say,motive-the statement may be ad-missible for "non-truth" purposes todemonstrate the state of mind of thedefendant-or in other words, theeffect on the listener.3 2

The Idaho Supreme Court hasnoted, however, that a "state ofmind" or "effect on the listener" re-joinder to a hearsay objection isfrequently without merit.3 3 For ex-ample, the Court recently stated that"[i]n limited circumstances inadmis-sible hearsay might be admissible toshow the effect on the listener, butgenerally the evidence submitted isnot relevant. The effect on the listen-er exception is often used as a ruse toput inadmissible evidence before thejury improperly34

Take away: An out-of-court state-ment may survive a hearsay objec-tion when offered to prove the stateof mind of the victim or the state-ment's effect on the listener, or forthe hearsay purpose of proving thedeclarant's state of mind or futureplans. However, most of the time, thestate of mind of the victim or defen-

dant or the effect of the statement onthe defendant will not be relevant toa material issue in the case.

Waiver of objections/error

Objection - The Expert is NotQualifed Lawyers are often requiredto establish a foundation that a wit-ness is qualified to provide an expertopinion under Rule 702. Similarly, a702 foundation must be laid beforethe results of scientific tests or opin-ions are admitted.

When your opponent's expertor scientific evidence lacksfoundation, flush out the

foundational shortcoming in amotion in limine before trial or

you will risk the court finding thatyour tardiness serves as a waiver

of the objection.

One of the greatest shortcomingswe have seen in establishing founda-tions involving experts is that law-yers wait until the middle of trial toobject. When the lawyer waits, sud-denly-and without warning-acourt is forced to make a decision onthe admission of critical evidence.Judges need notice and a properlydeveloped factual context to makesound rulings that involve expertsand science.

Take away: When your oppo-nent's expert or scientific evidencelacks foundation, flush out the foun-dational shortcoming in a motion inlimine before trial or you will risk

the court finding that your tardinessserves as a waiver of the objection.

Failing to Object and Preserve Ap-pellate Rights: The Idaho Rules of Ev-idence provide that "[e]rror may notbe predicated upon a ruling whichadmits or excludes evidence unlessa substantial right of the party is af-fected, and ... [i]n case the ruling isone admitting evidence, a timely ob-jection or motion to strike appears ofrecord, stating the specific ground ofobjection, if the specific ground wasnot apparent from the context .. "3

When a party fails to make atimely objection to the admission ofevidence at trial, the party waives theright to raise the issue on appeal.Stated another way, "[oibjections toevidence cannot be raised for thefirst time on appeal'3 7

In addition, the Idaho SupremeCourt has stated that "[a]n objectionto the admission of evidence on onebasis does not preserve a separate anddifferent basis for excluding the evi-dence"38 Thus, the Court has madeclear that "[iif a person objectingto the admission of evidence statesone ground for objection in the trialcourt, which is overruled, we willnot consider on appeal whether adifferent objection would have beensustained"39 However, a party neednot object to preserve the issue onappeal where the admission of evi-dence affects a fundamental right.0

Appellate reversals on eviden-tiary grounds are infrequent. Thevast majority of evidentiary rulingsare reviewed under the deferentialabuse of discretion standard.4' Evenif the trial court erred in admittingevidence, the error will only resultin reversal if it constitutes prejudi-cial, i.e. not harmless, error.42 To helpscale this mountain, it is imperativefor parties to object to the admissionof evidence to preserve possible er-ror on appeal.

Take away: Although lawyersoveruse objections in many instanc-

40 The Advocate - October 2017

es, preserving error for appeal is notone of them.

Endnotes

1. See, e.g., Wilson v. Bartlett, 7 Idaho 271,62 P. 416, 417 (1900); State v. Corcoran, 7Idaho 220, 61 P. 1034,1040 (1900).2. Flowerdew v. Warner, 90 Idaho 164,173, 409 P.2d 110, 1 15-116 (1965); Statev. Bush, 50 Idaho 166, 295 P. 432, 435(1930).3. Giraney v. Oregon Short Line R. Co., 54Idaho 535, 539, 33 P.2d 359, 361 (1934)([R]espondent ... argues that these ob-jections,'incompetent, irrelevant and im-material'"hearsay,"no proper foundationlaid and not binding on the defendantand not rebuttal; were, when interposedby appellant at another stage of the trial,too general and not sufficiently explicitto be reviewed... .If such contention besound, then certainly respondent's ob-jections were too general to have beensustained.").4. What constitutes general objections? 88Corpus Juris Secundum, Sec. 219, Trial(updated in 2016); General Objections -Objection to incompetent, irrelevant andimmaterial evidence, 75 Am. Jur. 2d, Sec.333, Trial (2015).5. Smith v. Smith, 95 Idaho 477, 481, 511P.2d 294,298 (1973) ("Although the paroltestimony of appellant, recalling thecontents of the deed, was also second-ary evidence, the court admitted thetestimony over respondent's objectionthat it was 'irrelevant, immaterial andincompetent' Even if the evidence wereinadmissible under the best evidencerule, the district court's ruling was prop-er since the specific objection was notmade!').6. McCormick on Evidence, Sec. 52, 99(6th Ed. 2006).7. Christopher B. Mueller & Laird C.Kirkpatrick, Evidence, Sec. 1.3, 9 (5th Ed.2012).8. (Emphasis added). The Federal andIdaho Rules of Evidence are referred tointerchangeably, as they are essentiallyidentical regarding witness statements.The Federal Rules of Evidence (FRE) werefirst enacted by Congress in 1975. TheIdaho Rules of Evidence (IRE), based sub-stantially on the FRE, were enacted bythe Idaho Supreme Court in 1985. Thelook of the FRE changed in 2011, whenthe rules were "re-styled'" The numer-ous changes were intended to applyuniform conventions of style and usagethroughout the FRE; the revisions were

Objecting on the grounds that evidence is "highly prejudicial,'when overruled, can sway the jury by highlighting the fact that

damaging evidence has been admitted into the record over the fervent,albeit unsuccessful, objection of the party opposing its admission.

not intended to make any substantivechanges to evidence principles. Idahohas not yet made these stylistic chang-es, although the Idaho Supreme Court'sEvidence Rules Advisory Committee hasempaneled a subcommittee, chaired byretired Idaho Court of Appeals JudgeKaren Lansing, to make recommenda-tions concerning re-styling the IRE.9. 1 McCormick, Evidence (4 th ed.) (1992),§ 185, p. 776.10. Id.11. Just because evidence is relevant, ofcourse, does not mean it is admissible.For example, relevant evidence is oftenproperly excluded because it is confus-ing, a waste of time or cumulative underIRE 403.12. IRE 404 (b) also addresses the unfairprejudice issue by prohibiting so-called"propensity evidence;' i.e. evidence de-signed to prove that "on a particular oc-casion the person acted in accordancewith [his or her] character or trait!'13. In the memorable courtroom dra-ma, A Few Good Men, an inexperiencedtrial attorney, played by Demi Moore,doubled down on an objection basedon prejudice grounds that had beenoverruled by the judge by further ob-jecting on the grounds that evidencewas "highly prejudicial" After the judgeoverruled Moore's second objection,Moore was taken to task by one of herco-counsel, played by Kevin Pollack. Pol-lack was right to do so: objecting on thegrounds that evidence is"highly prejudi-cial," when overruled, can sway the juryby highlighting the fact that damagingevidence has been admitted into the re-cord over the fervent, albeit unsuccess-ful, objection of the party opposing itsadmission. This turn of events can alsobe put to good use during closing argu-ment by the party benefitting from theadmission of the evidence.

14. Idaho trial judges often expresslyprohibit the use of speaking objections,with one judge informing counsel onthe first day of trial that "I don't wantspeaking objections. I want objections."State v. Severson, 147 Idaho 694, 718 n.31, 215 P.3d 414,438 n. 31 (2009).15. IRE 611 (c). A leading questions is aquestion "which suggests to the witnessthe answer which the examining partydesires' State v. Sandoval, 92 Idaho 853,860 n.2, 452 P.2d 350, 357 n. 2 (1969);see also McCormick supra note 6 at 14(same).16. Id.17. State v. Salamon, 287 Conn. 509, 559,949 A.2d 1092, 1127 (S.Ct. Conn. 2008);People v. Culbreath, 343 1Ili. App.998, 798N.E.2d 1268, 1273 (2003); Oakes v. PeterPan Baker, Inc., 258 Iowa 447, 453, 138N.W.2d 93, 97 (S.Ct. Iowa 1965); 98 CJ.S.,Sec. 572, Witnesses (updated in 2016); 81Am. Jr.2d Sec. 682, Witnesses (updatedin 2016).18. The court ultimately concluded thatthe error was not prejudicial. Roe v.Belleque, 232 Fed. Appx. 653, **1 (9th Cir.2007); but cf State v. Watters, 2014 WL1067925, **1-2 (Ct.App. Ohio 2004).19. Salamon, 287 Conn. at 559-560, 949A.2d at 1127; State v. Games, 764 A.2d125, 137 (R.I. 2001).20. Tanner v. State, 764 So.2d 385, 405(Miss. 2000).21.InreSasak, 2012WL516074,*1 (Mich.Ct. App. 2012); Chappell v. United States,519 A.2d 1257, 1258 (D.C. 1987).22. State v. Preston, 673 S.W.2d 1, 5 (Mo.S. Ct. 1984) (en banc); Xenakis v. GarrettFreight Lines, Inc., 1 Utah 2d 299,305, 265P.2d 1007,1011 (1954).23. Salamon, 287 Conn. at 559-560, 949A.2d at 1127; see also People v. Gillis, 883P.2d 554, 560 (Colo. App. 1994) (confus-ing and unclear testimony on cross-ex-amination).

The Advocate * October 2017 41

24. IRE 611 (a).

25. See State v. Koch, 157 Idaho 89, 103,334 P.3d 280, 294 (2014) (where "theanswers were competent and pertinentto the questions asked,' objection onthe grounds of nonresponsiveness wasoverruled).26. Id. at 102, 334 P.3d at 293.

27. Id., quoting State ex rel. Rich v. Bair, 83Idaho 475, 481-482, 365 P.2d 216, 219(1961).

28. Provided the statement is inconsis-tent with the trial testimony of the wit-ness. See Rule 401 (d)(1).29. State v. Goodrich, 97 Idaho 472, 546P.2d 1180 (1976) and State v. Radabaugh,93 Idaho 727, 471 P.2d 582 (1970), bothcited in State v. Rosencrantz, 110 Idaho124, 127-128, 714 P.2d 93, 96-97 (Ct. App.1986).

30. Rosencrantz, 110 Idaho at 127-128,714 P.2d at 96-97.

31. IRE 803(3), cited in Vulk v. Haley, 112Idaho 855, 857, 736 P.2d 1309, 1311(1987). For an excellent discussion ofthe difference between using state ofmind evidence for nontruth/nonhearsayand truth/hearsay purposes, see State v.Abdullah, 158 Idaho 386, 436-437, 348P.2d 1, 51-52 (2015), citing 23 C.J.S. Crim-inal Law, Sec. 1179 (2014); 2 Kenneth S.Broun, McCormick on Evidence, Secs274-275 (7th ed. 2014); and 29 Am. Jur. 2dEvidence Sec. 677 (2014).

32. Radabaugh, 93 Idaho at 731-732,471P.2d at 586-587; Goodrich, 97 Idaho at478, 546 P.2d at 1186 ("Radabaugh alsorecognized that evidence of a statementmade by a declarant-victim to the defen-dant may be admissible into evidence forthe purpose of demonstrating circum-stantially the effect the utterance hadupon the defendant as it may bear uponhis motive for a crime"); see also State v.Siegel, 137 Idaho 538, 541, 50 P.3d 1033,1035 (Ct. App. 2002), citing McCormickon Evidence § 249 (John W. Strong ed.,5th. Ed.1999) ("A statement that D madeto X is not subject to attack as hearsaywhen its purpose is to establish the stateof 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, 141Idaho 16, 25, 105 P.3d 676, 685 (2005);see also Sales v. Peabody, 157 Idaho 195,202, 335 P.3d 40, 47 (2014) ("some formof objection is ordinarily necessary to

preserve the right to challenge on ap-peal the admission or consideration ofevidence").37. Phillips v. Erhart, 151 Idaho 100,105,254 P.3d 1, 6 (2011), quoting Slack v.Kelleher, 140 Idaho 916, 922, 104 P.3d958, 964 (2004).38. Slack, 140 Idaho at 922, 104 P.3d at964, quoting State v. Sheahan, 139 Idaho267, 77 P.3d 956 (2003).39. U.S. Bank Nat. Ass'n N.D. v. CitiMort-gage, Inc., 157 Idaho 446, 453, 337 P.3d605, 612 (2014), quoting Thomson v. Ol-sen, 147 Idaho 99, 105, 205 P.3d 1235,1241 (2009). As the court explained inThomson:

On appeal, we review whether thetrial court erred. If the objectionis made on a specific ground, thetrial court is simply asked to decidewhether that particular objectionis a valid reason for excluding theevidence. If the trial court correctlyoverrules that objection, it has noterred. If the objecting party madethe wrong objection, that is noterror by the trial court. When anobjection is made, the trial court isonly asked to determine the valid-ity of that objection; it is not askedto determine whether there is an-other objection that would havebeen sustained had it been made.

Id. at 105, 205 P.3d at 1241.

For an excellent discussion of thedifference between using stateof mind evidence for nontruth/nonhearsay and truth/hearsaypurposes, see State v. Abdullah.

40. State v. Walters, 120 Idaho 46, 48, 813P.2d 857, 859 (1990); State v. LePage, 102Idaho 387, 390,630 P.2d 674,677 (1981).

41. Parker, 157 Idaho at 138, 334 P.3d at812; Mulford v. Union Pac. R.R., 156 Idaho134,138, 321 P.3d 684, 688 (2014).42. Parker, 157 Idaho at 139, 334 P.3d at814; State v. Moore, 131 Idaho 814, 821,965 P.2d 174, 181 (1998). Error will beharmless in a criminal case where the ap-pellate court finds beyond a reasonabledoubt that the jury would have reachedthe same result without the admission ofthe challenged evidence. State v. Field,144 Idaho 559, 572, 165 P.3d 273, 286(2007).

42 The Advocate - October 2017