Randy J. Cox

 F.R.E. 301 is short and vague, with no definition of “presumption.”  Note F.R.E. 302 provides that state law governs the effect of presumptions regarding a claim or defense for which state law supplies the rule of decision.  M.R.E. 301 is longer, defines presumptions and differentiates between conclusive and disputable presumptions, details the effect of presumptions, the burden of evidence necessary to overcome presumptions and how a judge should cope with inconsistent presumptions. PRESUMPTIONS – Article III

 Rule 404(a) Character Evidence – Federal rule more difficult for criminal defendant  Rule 406 Habit Evidence – Montana more specific, and provides method of proving habit  Rule 408 Settlement Offers and Conduct – Federal rule more specific  Rule 409 – Medical expenses RELEVANCY – Article IV

 Federal Rule 412: “Rape Shield” – no Montana Rule 412  M.C.A. § : statutory rape shield statute  Federal Rules : Similar crimes admissible in civil and criminal sexual assault and child molestation cases – no Montana counterpart. Prior acts governed by Montana Rules 403 and 404 in state court. SEX OFFENSE CASES: FRE contain specifics not in MRE

 In Montana, privileges are statutory. M.R.E. 501 states there is no privilege of a witness about any matter unless the constitution, statute or court rules provides such privilege.  F.R.E. 501 applies a common law approach. But, F.R.E. 501 provides that in federal diversity cases, state privilege law governs for those claims on which state law provides the rule of decision.  Montana and federal rules do not recognize the same set of privileges. For example, note the lack of doctor-patient privilege under the federal rule. PRIVILEGES – Article V

Rule 609 – impeachment by conviction of crime  There is significant difference between the federal and state rules. Montana provides quite simply that evidence a witness has been convicted of a crime is not admissible for the purpose of attacking credibility. The federal rule is specific, complex and requires study if you intend to try to use prior conviction for credibility purposes. WITNESSES – Article VI

Rule 702 – Testimony by experts Oversimplified – the federal courts have, use and apply Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993). Montana applies Daubert only to “novel scientific evidence.” Further, “novelty in Montana is assessed from a very narrow perspective.” Harris v. Hanson, 2009 MT 13, 201 P.3d 151, 158. OPINIONS AND EXPERT TESTIMONY Article VII

Rule 703 – Basis of Expert Opinion The state and federal rules look different but because of the Supreme Court’s decision in Perdue v. Gagnon Farms, Inc., 65 P.3d 570 (Mont. 2003), they operate generally the same. Both rules attempt to prohibit the expert from repeating inadmissible out- of-court statements to bolster his or her expert opinions before the jury. OPINIONS AND EXPERT TESTIMONY Article VII

 M.R.E. 801(d)(1)(A): prior inconsistent statement non-hearsay by definition.  Federal rule far more narrow.  M.R.E. 803(3): exception for then-existing condition is not extended to statements of memory or belief offered to prove the fact remembered or believed.  Federal rule does extend the exception though only to terms or validity of the declarant’s will. HEARSAY - Article VIII

Rule 803(6): business records exception Rule 803(8): public records exception The “residual exception”: MRE 803(24) plus 804(b)(5) generally equals FRE 807, but because of various procedural and substantive requirements, the residual exception is more difficult to meet under FRE than under MRE. Rule 804(a): Montana more liberal about when a witness is “unavailable.” FRE 804(5) requires the proponent to have tried to obtain testimony or attendance by the declarant if the statement is offered as a statement under belief of imminent death, a statement against interest, or a statement of personal/family history. HEARSAY - Article VIII

Rule 804(b)(3) – Statements against interest Montana rule slightly broader because the FRE version recognizes statements only against proprietary, pecuniary or civil or criminal consequences. HEARSAY - Article VIII

Federal rule dispenses with the need for live testimony of a custodian for certified domestic business records (FRE 902(11)) and certified foreign business records (FRE 902(12). AUTHENTICATION - Article IX