If you only remember one point about evidence law in Montana, remember this: Montana evidence practice is organized under the Montana Rules of Evidence. Relevance starts at Mont. R. Evid. 401, 403; hearsay starts at Mont. R. Evid. 801, 802. Procedure, examples, and the opinions below hang off Montana Rules of Evidence. Authenticity is a separate fight under Mont. R. Evid. 901, 902. Depositions at trial: Mont. R. Civ. P. 30 and 32 govern civil depositions and trial use. Mont. R. Crim. P. 16 controls criminal discovery; prior testimony may be admitted under Mont. R. Evid. 804(b)(1) when the declarant is unavailable.
Hearsay: start with the definition
Most hearsay objections in Montana are won or lost on the definition, not on an exception. Under Mont. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Montana hearsay opinions
STATE OF MONTANA, Plaintiff and Appellee, v. JEFFREY L. HARDMAN, Defendant and Appellant
…ion. The court excluded the contents of the conversation on hearsay and relevancy grounds. The court later clarified its ruling, citing City of Red Lodge v. Nelson, 1999 MT 246, 296 Mont. 190, 989 P.2d 300, for the proposition that ‘if it’s an accident, evidence of the victim’s prior conduct is irrelevant.” The court stated that Hardman was attempting to introduce the telephone…
On hearsay, STATE OF MONTANA, Plaintiff and Appellee, v. JEFFREY L. HARDMAN, Defendant and Appellant speaks to the Montana dispute in this passage: "The court excluded the contents of the conversation on hearsay and relevancy grounds. The court later clarified its ruling, citing City of Red Lodge v. Nelson, 1999 MT 246, 296 Mont. 190, 989 P." The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Appellee, v. TYRONE PAYNE, Defendant and Appellant
…s the sufficiency of the State’s evidence, the admission of hearsay evidence, and the appropriateness of certain prosecutor remarks during closing argument. We affirm. ISSUES ¶2 A restatement of the issues on appeal is: ¶3 Did the District Court err in denying Payne’s motion to dismiss for insufficient evidence? ¶4 Did the District Court abuse its discretion when it allowed hea…
STATE OF MONTANA, Plaintiff and Appellee, v. TYRONE PAYNE, Defendant and Appellant is worth reading on Montana hearsay because the court put the point in its own words: "State’s evidence, the admission of hearsay evidence, and the appropriateness of certain prosecutor remarks during closing argument. We affirm." Use that passage as the starting point, then read the facts that precede it.
In the Matter of Declaring DAWN ALISA, SANDRA LEA and LILLIAN MARIE SWAN, Youths in Need of Care
…Henrietta Swan and her children. Much of this testimony was hearsay evidence which was admitted into evidence over defense counsel’s objection. Henrietta Swan was not called to testify at this hearing. The record indicates certain written reports prepared by SRS and other state agencies were considered by the court in its decision. These reports concerned Henrietta Swan’s abili…
Practitioners open In the Matter of Declaring DAWN ALISA, SANDRA LEA and LILLIAN MARIE SWAN, Youths in Need of Care when Montana hearsay turns on the distinction in this sentence: "Henrietta Swan and her children. Much of this testimony was hearsay evidence which was admitted into evidence over defense counsel’s objection. Henrietta Swan was not called to testify at this hearing." Do not lift it out of the facts the court was deciding.
CRAIG J. PUCCINELLI, Petitioner and Appellee, v. JOLANDA R. PUCCINELLI, Respondent and Appellant
…er the District Court abused its discretion in relying upon hearsay evidence in order to determine the matter of child custody. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Craig and Jolanda married in Nevada in September 1999. Craig holds a Bachelor of Science degree in Business Administration earned before the couple married. During the marriage, Jolanda earned Bachelor of Science de…
Practitioners open CRAIG J. PUCCINELLI, Petitioner and Appellee, v. JOLANDA R. PUCCINELLI, Respondent and Appellant when Montana hearsay turns on the distinction in this sentence: "District Court abused its discretion in relying upon hearsay evidence in order to determine the matter of child custody. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Craig and Jolanda married in Nevada in September 1999." Do not lift it out of the facts the court was deciding.
CITY OF HELENA, Plaintiff and Respondent, v. DWIGHT BRISTOL HOY, Defendant and Appellant,
…District Court erred in admitting, over objection, alleged hearsay evidence. On February 25, 1990, at approximately 2:10 a.m., Helena City Police Officer Debra Badger observed a pickup truck twice swerve to the side of the road and then come back towards the center, as it traveled eastbound on Eleventh Avenue. Officer Badger activated her police car lights and stopped the pick…
Practitioners open CITY OF HELENA, Plaintiff and Respondent, v. DWIGHT BRISTOL HOY, Defendant and Appellant, when Montana hearsay turns on the distinction in this sentence: "District Court erred in admitting, over objection, alleged hearsay evidence. On February 25, 1990, at approximately 2:10 a.m." Do not lift it out of the facts the court was deciding.
In THE MATTER OF MARTIN BOWER, Appellant
In THE MATTER OF MARTIN BOWER, Appellant, 355 Mont. 108 (2010)
…ce had not met their burdens of proof because “inadmissible hearsay is not permitted to determine whether substantial evidence exists.” Bower claimed that the January 2005 hearing transcript was “riddled” with hearsay testimony. Bower discussed the testimony of a variety of witnesses and explained why he believed that the testimony was inadmissible hearsay. Bower did not point…
In THE MATTER OF MARTIN BOWER, Appellant is worth reading on Montana hearsay because the court put the point in its own words: "Bower claimed that the January 2005 hearing transcript was “riddled” with hearsay testimony. Bower discussed the testimony of a variety of witnesses and explained why he believed that the testimony was inadmissible hearsay." Use that passage as the starting point, then read the facts that precede it.
In the Matter of D.W.L., a youth
In the Matter of D.W.L., a youth, 189 Mont. 267 (1980)
…oncerning a stolen property report constitutes inadmissible hearsay evidence. (2) Whether DWL’s conviction was improperly based upon the testimony of other individuals who were legally accountable for the alleged offense. DWL’s first specification of error is that the testimony given by Officer Dull and Officer Sinnott concerning a stolen property report constituted inadmissibl…
On hearsay, In the Matter of D.W.L., a youth speaks to the Montana dispute in this passage: "Whether DWL’s conviction was improperly based upon the testimony of other individuals who were legally accountable for the alleged offense." The surrounding opinion shows how the court applied that language to the record.
PHILLIP R. BOUDE, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Appellee
…serts that the written decision of the PLB was inadmissible hearsay, unduly prejudicial to him, untrustworthy, and confusing for the jury. Union Pacific disagrees with these assertions of error. ¶ 12 Montana Rule of Evidence 801 (Rule 801) defines "hearsay" as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to pro…
Practitioners open PHILLIP R. BOUDE, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Appellee when Montana hearsay turns on the distinction in this sentence: "PLB was inadmissible hearsay, unduly prejudicial to him, untrustworthy, and confusing for the jury. Union Pacific disagrees with these assertions of error." Do not lift it out of the facts the court was deciding.
Walking through Montana facts
Use this walkthrough to see which Montana authority does the work at each step.
A lawyer in Montana wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Mont. R. Evid. 401, 403.
- If the email is the opposing party's, test Mont. R. Evid. 801(d)(2) before the hearsay definition in Mont. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in Mont. R. Evid. 803(6) and the treatment purpose in Mont. R. Evid. 803(4).
- For the deathbed statement, meet Mont. R. Evid. 804(b)(2), then authenticate every exhibit under Mont. R. Evid. 901, 902.
Montana keeps hearsay, character, and authenticity on different rules inside the Montana Rules of Evidence. Winning one does not win the others.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Montana treats them under Mont. R. Evid. 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Montana party-admission opinions
The STANLEY L. AND CAROLYN M. WATKINS TRUST; STEVEN B. WILLIAMSON, Individually and as Personal Representative of
…ons that Respondents were misled. Furthermore, [a] judicial admission is not binding unless it is an unequivocal statement of fact. Hence, “[f]or a judicial admission to be binding upon a party, the admission must be one of fact rather than a conclusion of law or the expression of an opinion.” George Trust, ¶ 37 (quoting DeMars v. Carlstrom (1997), 285 Mont. 334, 337-38, 948 P.…
On party admissions, The STANLEY L. AND CAROLYN M. WATKINS TRUST; STEVEN B. WILLIAMSON, Individually and as Personal Representative of speaks to the Montana dispute in this passage: "Respondents were misled. Furthermore, [a] judicial admission is not binding unless it is an unequivocal statement of fact." The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Appellee, v. DONALD RUDOLPH STOCK, Defendant and Appellant
…ered, Stock affirmatively stated he had no objection to the admission of five of the six exhibits. He objected only to the admission of State’s Exhibit 74 because the summaries did not include the dates and times the files were created, modified, and *14 accessed. ¶44 On appeal, Stock argues that the District Court erred by admitting the electronic evidence under the transactio…
Montana opinions such as STATE OF MONTANA, Plaintiff and Appellee, v. DONALD RUDOLPH STOCK, Defendant and Appellant are cited where party admissions is disputed. The court stated: "Stock affirmatively stated he had no objection to the admission of five of the six exhibits. He objected only to the admission of State’s Exhibit 74 because the summaries did not include the dates and times the files were created, modified, and *14 accessed." That is the language to brief; the rest of the decision supplies the procedural posture.
ROBERT DARON RIGGS, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee
…y conduct voir dire and challenge jurors; (2) object to the admission of the victims’/witnesses’ prior consistent statements; and (3) object to the admission of Riggs’ statements. Riggs argues these errors alone, or cumulatively, warrant the reversal of his conviction and a new trial. ¶7 We note that Riggs’ appeal focuses exclusively on the issues stated *143 above in ¶ 6, and…
Montana opinions such as ROBERT DARON RIGGS, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee are cited where party admissions is disputed. The court stated: "Riggs’ statements. Riggs argues these errors alone, or cumulatively, warrant the reversal of his conviction and a new trial." That is the language to brief; the rest of the decision supplies the procedural posture.
UNITED STATES NATIONAL BANK OF RED LODGE v. CHAPPELL
UNITED STATES NATIONAL BANK OF RED LODGE v. CHAPPELL, 71 Mont. 553 (1924)
…n answered and later filed an amended answer. After certain admissions and denials, which are not necessary to be noted here, the defendant set up three separate defenses, the first being that the'-promissory note “was executed by the defendant without any consideration whatsoever and there was a total absence and failure of consideration”; the second, setting forth that the de…
On party admissions, UNITED STATES NATIONAL BANK OF RED LODGE v. CHAPPELL speaks to the Montana dispute in this passage: "n answered and later filed an amended answer. After certain admissions and denials, which are not necessary to be noted here, the defendant set up three separate defenses, the first being that the'-promissory note “was executed by the defendant without any consideration whatsoeve" The surrounding opinion shows how the court applied that language to the record.
CYNTHIA DeMARS, Plaintiff and Appellant, v. CONNIE CARLSTROM, Defendant and Respondent
…arlstrom’s testimony at trial did not constitute a judicial admission which would have precluded the jury from considering comparative negligence and apportioning liability between the parties. FACTUAL BACKGROUND On March 13, 1995, DeMars was injured in a single-vehicle automobile accident which occurred on a county road, commonly known as “Thrill Hills Road,” just south of Win…
Montana opinions such as CYNTHIA DeMARS, Plaintiff and Appellant, v. CONNIE CARLSTROM, Defendant and Respondent are cited where party admissions is disputed. The court stated: "arlstrom’s testimony at trial did not constitute a judicial admission which would have precluded the jury from considering comparative negligence and apportioning liability between the parties. FACTUAL BACKGROUND On March 13, 1995, DeMars was injured in a single-vehicle automobil" That is the language to brief; the rest of the decision supplies the procedural posture.
In the Matter of RAYMOND W. GEORGE TRUST, Sarah Arnott Ozement, Successor Trustee
…District Court err in ruling that the doctrines of judicial admissions, collateral estoppel, res judicata, and judicial estoppel did not bar Kenneth, Shirley, and Leo from contesting Sievers’ claim? Factual and Procedural Background ¶5 This is the third appeal to this Court of litigation involving the Raymond W. George Trust. See Matter of Raymond W. George Trust (1992), 253 Mo…
On party admissions, In the Matter of RAYMOND W. GEORGE TRUST, Sarah Arnott Ozement, Successor Trustee speaks to the Montana dispute in this passage: "District Court err in ruling that the doctrines of judicial admissions, collateral estoppel, res judicata, and judicial estoppel did not bar Kenneth, Shirley, and Leo from contesting Sievers’ claim?" The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM LEE SEAMAN, Defendant and Appellant
…,] 741 P.2d 1333, 44 St.Rep. 1495. Where the party opposing admission of evidence objects to offered evidence, and the trial court sustains the objection, strikes the evidence from the record, and instructs the jury to disregard the evidence, “error committed by its introduction is presumed cured.” Brush, 741 P.2d at 1335. The presumption here favors finding no prejudice becaus…
STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM LEE SEAMAN, Defendant and Appellant is worth reading on Montana party admissions because the court put the point in its own words: "St.Rep. 1495. Where the party opposing admission of evidence objects to offered evidence, and the trial court sustains the objection, strikes the evidence from the record, and instructs the jury to disregard the evidence, “error committed by its introduction is presumed cured." Use that passage as the starting point, then read the facts that precede it.
Business records
The business-records exception under Mont. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Montana business-records opinions
STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT DELANEY, Defendant and Appellant
…rtification form under Rule 803(6), M.R.Evid., which is the business records exception to the hearsay rule. He argues that the certification form is not admissible under this exception, however, because Rule 803(6) requires that the custodian of the records to be admitted must testify at trial and the State did not call Philip Lively (Lively), the person who performs the annual…
Practitioners open STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT DELANEY, Defendant and Appellant when Montana business records turns on the distinction in this sentence: "Rule 803(6), M.R.Evid., which is the business records exception to the hearsay rule." Do not lift it out of the facts the court was deciding.
RUSSELL PANNONI, Petitioner and Appellant, v. BOARD OF TRUSTEES, BROWNING SCHOOL DISTRICT NO. 9, STEVE SMYTH, and
…pt records. ¶40 Pannoni claimed the reports came within the business records exception to the hearsay rule. Rule 803(6), M.R.Evid. The School objected to the introduction of the documents as hearsay. The hearing examiner sustained the objection on the basis that the reports were unsworn medical records containing expert opinion about Pannoni’s medical condition. The hearing exa…
Montana opinions such as RUSSELL PANNONI, Petitioner and Appellant, v. BOARD OF TRUSTEES, BROWNING SCHOOL DISTRICT NO. 9, STEVE SMYTH, and are cited where business records is disputed. The court stated: "Pannoni claimed the reports came within the business records exception to the hearsay rule. Rule 803(6), M.R.Evid. The School objected to the introduction of the documents as hearsay." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE OF MONTANA, Plaintiff and Appellee, v. JEFFREY L. HARDMAN, Defendant and Appellant
…less an exception applies. M. R. Evid. 803(6) provides the ‘business records exception” to the hearsay rule, which permits admissibility of records of regularly conducted activity, including blood tests. However, the party offering the evidence must establish two primary foundational facts before the evidence is admissible: “(1) the records must have been made or transmitted by…
Practitioners open STATE OF MONTANA, Plaintiff and Appellee, v. JEFFREY L. HARDMAN, Defendant and Appellant when Montana business records turns on the distinction in this sentence: "M. R. Evid. 803(6) provides the ‘business records exception” to the hearsay rule, which permits admissibility of records of regularly conducted activity, including blood tests." Do not lift it out of the facts the court was deciding.
In the MATTER OF: I.M., O.G. and A.D. Youths in Need of Care.
In the MATTER OF: I.M., O.G. and A.D. Youths in Need of Care., 391 Mont. 42 (2018)
…esting results were admissible through CPS Krause under the business record exception to the hearsay rule. Counsel for both parents objected based on hearsay and for lack of foundation. The District Court provisionally admitted each parent's drug testing results pending briefing by the parties on whether proper foundation had been laid. CPS Krause proceeded to testify regarding…
On business records, In the MATTER OF: I.M., O.G. and A.D. Youths in Need of Care. speaks to the Montana dispute in this passage: "CPS Krause under the business record exception to the hearsay rule. Counsel for both parents objected based on hearsay and for lack of foundation." The surrounding opinion shows how the court applied that language to the record.
FRED PESSL, Plaintiff and Respondent, v. BRIDGER BOWL, a Montana Corporation and RIBLET TRAMWAY COMPANY, a
…was all. Plaintiff sought to introduce it under the Uniform Business Records as Evidence Act, section 93-801-2, R.C.M.1947. To give a word picture of the situation, we quote excerpts of testimony regarding the report: “MR. WELCOME: We will offer in evidence, Tour Honor, Plaintiff’s Exhibit 15, under the Uniform Business Records, as evidence, Act. “MR. McKENZIE: May I voir dire?…
On business records, FRED PESSL, Plaintiff and Respondent, v. BRIDGER BOWL, a Montana Corporation and RIBLET TRAMWAY COMPANY, a speaks to the Montana dispute in this passage: "Plaintiff sought to introduce it under the Uniform Business Records as Evidence Act, section 93-801-2, R.C.M.1947. To give a word picture of the situation, we quote excerpts of testimony regarding the report: “MR." The surrounding opinion shows how the court applied that language to the record.
CITY OF KALISPELL, Plaintiffs and Appellees, v. TYLER OMYER, CALVIN ATHY and GLORIA FERRARI, Defendants and Appellants
…e MVD letters were properly admitted as self-authenticating business records under § 61-11-102, MCA, and Rule 902(4) of the Montana Rules of Evidence. The City further argued that the challenged letters did not constitute testimonial evidence triggering the Confrontation Clause and were admissible under Rule 803(8), M. R. Evid. Lastly, the City countered that under § 26-1-602(2…
On business records, CITY OF KALISPELL, Plaintiffs and Appellees, v. TYLER OMYER, CALVIN ATHY and GLORIA FERRARI, Defendants and Appellants speaks to the Montana dispute in this passage: "MVD letters were properly admitted as self-authenticating business records under § 61-11-102, MCA, and Rule 902(4) of the Montana Rules of Evidence." The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL BRYAN BAZE, Defendant and Appellant
…ing Baze’s blood test results under M. R. Evid. 803(6), the business records hearsay exception. Since resolution of this issue is dispositive, we decline to address Baze’s remaining three issues. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Around 7:00 p.m. on March 15, 2004, Baze was involved in a single-car rollover accident on Interstate 94 near Forsyth, Montana. While there is some…
On business records, STATE OF MONTANA, Plaintiff and Appellee, v. MICHAEL BRYAN BAZE, Defendant and Appellant speaks to the Montana dispute in this passage: "Baze’s blood test results under M. R. Evid. 803(6), the business records hearsay exception. Since resolution of this issue is dispositive, we decline to address Baze’s remaining three issues. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Around 7:00 p.m." The surrounding opinion shows how the court applied that language to the record.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Montana trial practice.
Excited utterance — Mont. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Mont. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Mont. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Mont. R. Evid. 804(a), Montana opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Mont. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Mont. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Montana dying-declaration opinions
STATE v. FULLER
STATE v. FULLER, 34 Mont. 12 (1906)
…y taken before his dying victim for identification, and the dying declarations of his victim may then be proved upon his trial for his identification. A thief may be forcibly examined and the stolen property may be taken from his person and brought into court for his condemnation. A prisoner’s person may be examined for marks and bruises, and then they may be proved upon his tr…
Montana opinions such as STATE v. FULLER are cited where dying declaration is disputed. The court stated: "A thief may be forcibly examined and the stolen property may be taken from his person and brought into court for his condemnation." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE v. KEELER
STATE v. KEELER, 52 Mont. 205 (1916)
…not absolute, but is subject to certain exceptions, such as dying declarations, documentary evidence and testimony given on a previous hearing of the same cause by a witness who has since died or left the jurisdiction (129 Am. St. Rep. 23 et seq.) ; the right to process to compel the attendance of witnesses may be limited as to the number of such witnesses, *220and is limited i…
STATE v. KEELER is worth reading on Montana dying declaration because the court put the point in its own words: "not absolute, but is subject to certain exceptions, such as dying declarations, documentary evidence and testimony given on a previous hearing of the same cause by a witness who has since died or left the jurisdiction (129 Am. St. Rep. 23 et seq.) ; the right to process to compel" Use that passage as the starting point, then read the facts that precede it.
The STATE OF MONTANA, and v. DENNIS SCHMELZER WHITE, and
The STATE OF MONTANA, and v. DENNIS SCHMELZER WHITE, and, 146 Mont. 226 (1965)
…al law the confessions and the admission of the accused and dying declaration.” This court now holds that, for the purpose of an instruction on circumstantial evidence, testimony of a confession is direct evidence, and it is not error to refuse to charge the jury on circumstantial evidence in such a case. This position has been adhered to in many jurisdictions. (For example, se…
Practitioners open The STATE OF MONTANA, and v. DENNIS SCHMELZER WHITE, and when Montana dying declaration turns on the distinction in this sentence: "This court now holds that, for the purpose of an instruction on circumstantial evidence, testimony of a confession is direct evidence, and it is not error to refuse to charge the jury on circumstantial evidence in such a case." Do not lift it out of the facts the court was deciding.
STATE v. BYRD
STATE v. BYRD, 41 Mont. 585 (1910)
…gan the affray, according to all the evidence excepting his dying declaration, and the jury should not have been left to themselves to draw the distinction for themselves, and concluded from the general definitions when the burden of proof was cast upon defendant. And, furthermore, the defendant was entitled to an instruction, and it was the duty of the court to particularly ca…
On dying declaration, STATE v. BYRD speaks to the Montana dispute in this passage: "gan the affray, according to all the evidence excepting his dying declaration, and the jury should not have been left to themselves to draw the distinction for themselves, and concluded from the general definitions when the burden of proof was cast upon defendant. And, furthermor" The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Appellee, v. RAUL C. SANCHEZ, Defendant and Appellant
…d thus, the District Court erred in admitting the note as a dying declaration. ¶27 We agree with Sanchez that the District Court incorrectly relied on the “statement under belief of impending death” hearsay exception to admit Aleasha’s note. This exception applies to statements “made by a declarant while believing that the declarant’s death was imminent, concerning the cause or…
STATE OF MONTANA, Plaintiff and Appellee, v. RAUL C. SANCHEZ, Defendant and Appellant is worth reading on Montana dying declaration because the court put the point in its own words: "District Court erred in admitting the note as a dying declaration. ¶27 We agree with Sanchez that the District Court incorrectly relied on the “statement under belief of impending death” hearsay exception to admit Aleasha’s note." Use that passage as the starting point, then read the facts that precede it.
STATE v. CREAN
STATE v. CREAN, 43 Mont. 47 (1911)
…Martin, 29 Mont. 273, 74 Pac. 725.) 6. Upon the trial, the dying declaration of deceased was offered in evidence. Counsel for the defendant requested the court to excuse the jury pending a determination as to the admissibility of the declaration. This the court refused to do. Whether the [9] jury should or should not be excused during the preliminary inquiry was a matter entir…
On dying declaration, STATE v. CREAN speaks to the Montana dispute in this passage: "Martin, 29 Mont. 273, 74 Pac. 725.) 6. Upon the trial, the dying declaration of deceased was offered in evidence. Counsel for the defendant requested the court to excuse the jury pending a determination as to the admissibility of the declaration. This the court refused to do." The surrounding opinion shows how the court applied that language to the record.
STATE v. GAY
STATE v. GAY, 18 Mont. 51 (1896)
…offered by the defendant: “The jury are instructed that the dying declarations of Macke are to be received with great caution, for the reason that the accused has not the power of cross-examination, —the power quite as essential to the eliciting of all truth as the obligation of an oath can be, — and that where the witness has not a deep and strong sense of accountability to hi…
Practitioners open STATE v. GAY when Montana dying declaration turns on the distinction in this sentence: "offered by the defendant: “The jury are instructed that the dying declarations of Macke are to be received with great caution, for the reason that the accused has not the power of cross-examination, —the power quite as essential to the eliciting of all truth as the obligation of" Do not lift it out of the facts the court was deciding.
STATE OF MONTANA, Plaintiff and Respondent, v. G. M. NEWMAN, a K/A Jack Newman, Defendant and Appellant
…he rule itself, but rather the exceptions to the rule. The “dying declarations” exception as stated in section 93-401-27, R.C.M. 1947, is not applicable in the instant case because a “sense of impending death” was never demonstrated. The catchall hearsay exception termed “res gestae” is the principle apparently relied upon by the trial court in ruling on the admissibility of th…
Montana opinions such as STATE OF MONTANA, Plaintiff and Respondent, v. G. M. NEWMAN, a K/A Jack Newman, Defendant and Appellant are cited where dying declaration is disputed. The court stated: "The “dying declarations” exception as stated in section 93-401-27, R.C.M. 1947, is not applicable in the instant case because a “sense of impending death” was never demonstrated." That is the language to brief; the rest of the decision supplies the procedural posture.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Mont. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Montana medical-statement opinions
STATE OF MONTANA, Plaintiff and Respondent, v. OLLIE W. ARLINGTON, Defendant and Appellant
…n testify as to hearsay statements made for the purposes of medical diagnosis or treatment. See Rule 803(4), M.R.Evid. Arlington further insists that even if Montana was to allow EMTs to testify to hearsay statements for the purposes of medical diagnosis, the State failed to lay any foundation that such testimony was necessary for diagnosis. The State declares that Rule 803(4),…
On medical diagnosis hearsay, STATE OF MONTANA, Plaintiff and Respondent, v. OLLIE W. ARLINGTON, Defendant and Appellant speaks to the Montana dispute in this passage: "See Rule 803(4), M.R.Evid. Arlington further insists that even if Montana was to allow EMTs to testify to hearsay statements for the purposes of medical diagnosis, the State failed to lay any foundation that such testimony was necessary for diagnosis." The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Respondent, v. KATHRYN HARRIS, Defendant and Appellant
…i Burns may be admitted through Rule 803(4), M.R.Evid., the medical diagnosis and treatment exception to the hearsay rule. This exception provides as follows: “The following are not excluded by the hearsay rule, even though the declarant is available as a witness: “(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis o…
Practitioners open STATE OF MONTANA, Plaintiff and Respondent, v. KATHRYN HARRIS, Defendant and Appellant when Montana medical diagnosis hearsay turns on the distinction in this sentence: "Burns may be admitted through Rule 803(4), M.R.Evid., the medical diagnosis and treatment exception to the hearsay rule." Do not lift it out of the facts the court was deciding.
STATE OF MONTANA, Plaintiff and Respondent, v. JOSE ANTONIO HUERTA, Defendant and Appellant — Leaphart, J., concurring
…since the identity of the perpetrator was not essential to medical diagnosis or treatment, that aspect of the testimony should have been excluded. However, although the doctor’s hearsay testimony identifying Huerta was beyond the scope of Rule 803(4), M.R.Evid., and was thus error, I would hold that it was harmless error given that Thymer testified at trial and specifically id…
STATE OF MONTANA, Plaintiff and Respondent, v. JOSE ANTONIO HUERTA, Defendant and Appellant — Leaphart, J., concurring is worth reading on Montana medical diagnosis hearsay because the court put the point in its own words: "However, although the doctor’s hearsay testimony identifying Huerta was beyond the scope of Rule 803(4), M.R.Evid." Use that passage as the starting point, then read the facts that precede it.
The STATE OF MONTANA, Plaintiff and Respondent, v. JAMES W. BRUBAKER, Defendant and Appellant — Haswell, J., dissenting
…is available as a witness: “(4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment... 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." (Emphasis added.) The majority hold…
The STATE OF MONTANA, Plaintiff and Respondent, v. JAMES W. BRUBAKER, Defendant and Appellant — Haswell, J., dissenting is worth reading on Montana medical diagnosis hearsay because the court put the point in its own words: "Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment..." Use that passage as the starting point, then read the facts that precede it.
Use of depositions at trial
Mont. R. Civ. P. 30 and 32 govern civil depositions and trial use. Mont. R. Crim. P. 16 controls criminal discovery; prior testimony may be admitted under Mont. R. Evid. 804(b)(1) when the declarant is unavailable.
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Montana deposition / former-testimony opinions
PAT M. GOODOVER, Plaintiff and Respondent, v. LINDEY’S INC., and the ESTATE OF WILLIAM C. FORREST, Deceased, and the
…ring Lindey’s to pay for the transcription of a video-taped deposition? 4. ) Did the District Court err in admitting hearsay evidence of a reduction in the taxable value of Goodover’s property? 5. ) Can Lindey’s raise issues that were raised or should have been raised in an earlier appeal? 6. ) Did the District Court err in awarding costs to Goodover? 7. ) Did the District Cour…
On deposition / former testimony, PAT M. GOODOVER, Plaintiff and Respondent, v. LINDEY’S INC., and the ESTATE OF WILLIAM C. FORREST, Deceased, and the speaks to the Montana dispute in this passage: "Lindey’s to pay for the transcription of a video-taped deposition?" The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Appellee, v. KIM A. NORQUAY, JR., Defendant and Appellant
…sion of the State’s expert DNA witness through a videotaped deposition violated Norquay’s right to confront the witness. ¶4 2. Whether the District Court’s Alien-instruction given to a deadlocked jury constituted an improperly coercive instruction. ¶5 3. Whether the prosecutor’s comments at trial constituted prosecutorial misconduct. FACTUAL AND PROCEDURAL HISTORY ¶6 Nathan Oat…
STATE OF MONTANA, Plaintiff and Appellee, v. KIM A. NORQUAY, JR., Defendant and Appellant is worth reading on Montana deposition / former testimony because the court put the point in its own words: "State’s expert DNA witness through a videotaped deposition violated Norquay’s right to confront the witness. ¶4 2. Whether the District Court’s Alien-instruction given to a deadlocked jury constituted an improperly coercive instruction. ¶5 3." Use that passage as the starting point, then read the facts that precede it.
STYREN FARMS, INC., and RILEY STYREN, Plaintiffs and Appellants, v. SHERRY ANN ROOS, Defendant and Appellee
…about the basis for his statements in the affidavit at his deposition. He admitted that he learned some of the information ‘through my attorney[,]” that he had no knowledge of *47 Roos’ driver’s training or driving experience, and that he had never spoken to Julia. ¶21 We agree with the District Court that Styren did not meet its burden of proof to avoid summary judgment. Noth…
Practitioners open STYREN FARMS, INC., and RILEY STYREN, Plaintiffs and Appellants, v. SHERRY ANN ROOS, Defendant and Appellee when Montana deposition / former testimony turns on the distinction in this sentence: "He admitted that he learned some of the information ‘through my attorney[,]” that he had no knowledge of *47 Roos’ driver’s training or driving experience, and that he had never spoken to Julia." Do not lift it out of the facts the court was deciding.
STATE OF MONTANA, Plaintiff and Appellee, v. WILLIAM GUY HART, Defendant and Appellant
…ts discretion by denying Hart’s motion to exclude the video deposition of one of the State’s material witnesses? ¶5 (3) Did the District Court abuse its discretion by denying Hart’s motion for a mistrial after the bailiff delivered video equipment to the jury room without receiving approval from the court? BACKGROUND ¶6 Around 10 p.m. on August 19, 2006, after spending the even…
STATE OF MONTANA, Plaintiff and Appellee, v. WILLIAM GUY HART, Defendant and Appellant is worth reading on Montana deposition / former testimony because the court put the point in its own words: "Hart’s motion to exclude the video deposition of one of the State’s material witnesses?" Use that passage as the starting point, then read the facts that precede it.
DAN RING, BOB WOLTER, TIM WILLIAMS, LOUIS MERTZIG, DALE OLSEN, BOB MARTIN, ROBERT GOODY, JERRY THOMPSON, FRED BAUM
…s have been considered on their merits? (3) Was the Bennett deposition admissible without a showing of unavailability for trial? (4) Did the Aetna bond encompass the penalties awarded to the plaintiffs? As stated in the first issue, judgment was entered by the District Court on November 6, but the attorney’s fees portion of the judgment was not completed until the entry of orde…
On deposition / former testimony, DAN RING, BOB WOLTER, TIM WILLIAMS, LOUIS MERTZIG, DALE OLSEN, BOB MARTIN, ROBERT GOODY, JERRY THOMPSON, FRED BAUM speaks to the Montana dispute in this passage: "Was the Bennett deposition admissible without a showing of unavailability for trial?" The surrounding opinion shows how the court applied that language to the record.
MORRISON-MAIERLE, INC., a Corporation, Plaintiff and Respondent, v. SELSCO, a Utah Corporation, Qualified to Do
…sue concerns the cost bill. The owner contends that certain deposition expenses and a partial transcript of trial are not properly chargeable as costs or expenses of litigation. The engineers included two depositions as part of their costs. Both witnesses later appeared and testified at trial. The engineers admit, however, that one of the depositions should not have been charge…
Practitioners open MORRISON-MAIERLE, INC., a Corporation, Plaintiff and Respondent, v. SELSCO, a Utah Corporation, Qualified to Do when Montana deposition / former testimony turns on the distinction in this sentence: "The owner contends that certain deposition expenses and a partial transcript of trial are not properly chargeable as costs or expenses of litigation. The engineers included two depositions as part of their costs. Both witnesses later appeared and testified at trial." Do not lift it out of the facts the court was deciding.
STATE OF MONTANA, Plaintiff and Respondent, v. EMIL TILLY, Defendant and Appellant
…and 46-15-204(l)(c), MCA, stand for the proposition that a deposition of an indisposed material witness is mandatory in order to prevent violation of defendant’s right to a speedy trial. Section 46-15-201(1), MCA, provides in pertinent part: “When depositions taken. (1) If it appears that a prospective witness may be unable to attend or prevented from attending a trial . . . a…
Montana opinions such as STATE OF MONTANA, Plaintiff and Respondent, v. EMIL TILLY, Defendant and Appellant are cited where deposition / former testimony is disputed. The court stated: "MCA, stand for the proposition that a deposition of an indisposed material witness is mandatory in order to prevent violation of defendant’s right to a speedy trial. Section 46-15-201(1), MCA, provides in pertinent part: “When depositions taken." That is the language to brief; the rest of the decision supplies the procedural posture.
WALTER F. POOL, Plaintiff and Appellant, v. BUTTE PRE-RELEASE CENTER, INC., a Montana Nonprofit Corporation
…ain continued on motion by Butte Pre-Release because Pool’s deposition still had not been scheduled. In July 1995, counsel for Butte Pre-Release requested from Pool’s counsel a date on which Pool would be available to be deposed. The depositions of Pool and his wife were scheduled for November 1995. The Pools, who had by that time relocated to Arizona, canceled their November 1…
Practitioners open WALTER F. POOL, Plaintiff and Appellant, v. BUTTE PRE-RELEASE CENTER, INC., a Montana Nonprofit Corporation when Montana deposition / former testimony turns on the distinction in this sentence: "Butte Pre-Release because Pool’s deposition still had not been scheduled. In July 1995, counsel for Butte Pre-Release requested from Pool’s counsel a date on which Pool would be available to be deposed. The depositions of Pool and his wife were scheduled for November 1995." Do not lift it out of the facts the court was deciding.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Mont. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Montana ranch, mining, and outdoor-recreation litigation requires authenticated land surveys, wildlife records, and GPS data under Mont. R. Evid. 901–902.
Why authenticity gets its own section in every Montana trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Montana trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Montana authenticity opinions
W. STEVE SELTZER, Plaintiff, Appellant, and Cross-Respondent, v. STEVE MORTON, GIBSON, DUNN & CRUTCHER, LLP, and
…eltzer is, among other things, a professional appraiser and authenticator of Western American artwork (‘Western art”). In late 2000 or early 2001, at the request of an art auction house, he rendered his opinion as to the authenticity of a watercolor painting that Morton owned. Morton subsequently demanded that Seltzer recant his opinion. When he refused to do so, GDC filed a mu…
Practitioners open W. STEVE SELTZER, Plaintiff, Appellant, and Cross-Respondent, v. STEVE MORTON, GIBSON, DUNN & CRUTCHER, LLP, and when Montana authentication turns on the distinction in this sentence: "Western American artwork (‘Western art”). In late 2000 or early 2001, at the request of an art auction house, he rendered his opinion as to the authenticity of a watercolor painting that Morton owned. Morton subsequently demanded that Seltzer recant his opinion." Do not lift it out of the facts the court was deciding.
HENDERSON, Admrs. v. DANIELS
HENDERSON, Admrs. v. DANIELS, 62 Mont. 363 (1922)
…of Illinois, a court of competent jurisdiction, and that an authenticated copy of such proceedings is exhibited and presented with said petition. The petition contains other recitals describing the property of the estate in Fergus county, the names of the heirs, that David W. Henderson and Lizzie L. Hickman are named as executor and executrix of said will, but" that they do not…
On authentication, HENDERSON, Admrs. v. DANIELS speaks to the Montana dispute in this passage: "Illinois, a court of competent jurisdiction, and that an authenticated copy of such proceedings is exhibited and presented with said petition. The petition contains other recitals describing the property of the estate in Fergus county, the names of the heirs, that David W." The surrounding opinion shows how the court applied that language to the record.
N. J. NISSEN, Plaintiff and Respondent, v. WESTERN CONSTRUCTION EQUIPMENT CO., a Corporation, Dependant and Appellant
…anting new trial. The transcript of testimony has no proper authentication whether it be called a bill of exceptions or transcript of the minutes since it is not certified to by the judge or settled and allowed in the manner provided for by statute. R.C.M. 1947, sections 93-5505, 93-5608. With the record on appeal in its present state, can this court determine whether the trial…
Practitioners open N. J. NISSEN, Plaintiff and Respondent, v. WESTERN CONSTRUCTION EQUIPMENT CO., a Corporation, Dependant and Appellant when Montana authentication turns on the distinction in this sentence: "The transcript of testimony has no proper authentication whether it be called a bill of exceptions or transcript of the minutes since it is not certified to by the judge or settled and allowed in the manner provided for by statute. R.C.M. 1947, sections 93-5505, 93-5608." Do not lift it out of the facts the court was deciding.
JOHNATHAN ALFSON, Plaintiff and Appellee, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Appellant
…on the basis that they constituted “inadmissible hearsay’). Authentication, or setting forth “evidence sufficient to support a finding that the matter in question is what its proponent claims,” is a “condition precedent to admissibility.” M. R. Evid. 901(a). ¶12 In Disler v. Ford Motor Credit Co., 2000 MT 304, ¶¶ 11, 13, 302 Mont. 391, 15 P.3d 864, we determined that, where thr…
JOHNATHAN ALFSON, Plaintiff and Appellee, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant and Appellant is worth reading on Montana authentication because the court put the point in its own words: "Authentication, or setting forth “evidence sufficient to support a finding that the matter in question is what its proponent claims,” is a “condition precedent to admissibility.” M. R. Evid. 901(a). ¶12 In Disler v. Ford Motor Credit Co., 2000 MT 304, ¶¶ 11, 13, 302 Mont." Use that passage as the starting point, then read the facts that precede it.
CITY OF BILLINGS, Plaintiff and Respondent, v. LESLIE LINDELL, Defendant and Appellant
…tatutory mandate, the letter falls within the class of self-authenticating documents. Rule 902(4), *522 M.R.Evid. In addition, contents of an official document authorized to be filed may be proven by a copy “ [certified as correct in accordance with Rule 902 . . .” and meet the requirements of the best evidence rule. Rule 1005, M.R.Evid. Finally, the exhibit falls within Rule 8…
Practitioners open CITY OF BILLINGS, Plaintiff and Respondent, v. LESLIE LINDELL, Defendant and Appellant when Montana authentication turns on the distinction in this sentence: "Rule 902(4), *522 M.R.Evid. In addition, contents of an official document authorized to be filed may be proven by a copy “ [certified as correct in accordance with Rule 902 . . .” and meet the requirements of the best evidence rule. Rule 1005, M.R.Evid." Do not lift it out of the facts the court was deciding.
STATE OF MONTANA, Plaintiff and Appellee, v. JOSEPH D. FORSYTHE, Defendant and Appellant
…n testimony as a lay witness. Forsythe objected to Tucker’s authentication testimony arguing that because the State had not noticed Tucker as an expert Tucker’s lay witness testimony did not satisfy M. R. Evid. 901(b)(2) (Rule 901). Following Tucker’s testimony, the court permitted the State to introduce the letters into evidence in the tampering case. At the time of the admiss…
STATE OF MONTANA, Plaintiff and Appellee, v. JOSEPH D. FORSYTHE, Defendant and Appellant is worth reading on Montana authentication because the court put the point in its own words: "Forsythe objected to Tucker’s authentication testimony arguing that because the State had not noticed Tucker as an expert Tucker’s lay witness testimony did not satisfy M. R. Evid. 901(b)(2) (Rule 901)." Use that passage as the starting point, then read the facts that precede it.
IN RE the MARRIAGE OF: Pamela Gail FOSSEN, and and Allan R. Fossen, and
IN RE the MARRIAGE OF: Pamela Gail FOSSEN, and and Allan R. Fossen, and, 395 Mont. 495 (2019)
…e amount was accounted for.2 Al responds that Exhibit A was authenticated 424by a "witness with **502knowledge" and admissible pursuant to M. R. Evid. 901(b)(1), and that Exhibit B was admissible as a summary pursuant to M. R. Evid. 1006. ¶16 Like any other award, an award of attorney fees must be based on competent evidence. Plath v. Schonrock , 2003 MT 21, ¶ 39, 314 Mont. 1…
On authentication, IN RE the MARRIAGE OF: Pamela Gail FOSSEN, and and Allan R. Fossen, and speaks to the Montana dispute in this passage: "Al responds that Exhibit A was authenticated 424by a 'witness with **502knowledge' and admissible pursuant to M. R. Evid. 901(b)(1), and that Exhibit B was admissible as a summary pursuant to M. R. Evid. 1006." The surrounding opinion shows how the court applied that language to the record.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Mont. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Montana appellate evidence opinions before mediation or motions in limine.
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
General standards of admissibility
Montana starts every evidence dispute with relevance and unfair prejudice. Under Mont. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Montana integrates selected evidence topics in MCA Title 26 alongside court rules. Rural jury trials may apply simplified foundation practices but still require rule compliance.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in Montana is governed by Mont. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Montana character-evidence opinions
STATE OF MONTANA, Plaintiff and Respondent, v. DAVID FOREST BOWER, Defendant and Appellant
…t under Rule 404(a)(1), M.R.Evid., the prosection can offer character evidence only in rebuttal to an accused’s offer of character evidence, citing State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455. He claims that he did not present such character evidence. The State concedes that the District Court’s admission of the evidence was error. It argues, however, that the res…
STATE OF MONTANA, Plaintiff and Respondent, v. DAVID FOREST BOWER, Defendant and Appellant is worth reading on Montana character evidence because the court put the point in its own words: "Rule 404(a)(1), M.R.Evid., the prosection can offer character evidence only in rebuttal to an accused’s offer of character evidence, citing State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455. He claims that he did not present such character evidence." Use that passage as the starting point, then read the facts that precede it.
STATE OF MONTANA, Petitioner, v. DISTRICT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT OF MONTANA, GALLATIN COUNTY, THE
…id not satisfy the criteria of either rule but instead was “character evidence” being offered for a “propensity argument”: to show that she ‘has a character for violence, as demonstrated by previous acts against her children, and therefore she must have acted in conformity with the character on the night of Vanyel’s death”-an impermissible inference under Rule 404 of the Montan…
STATE OF MONTANA, Petitioner, v. DISTRICT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT OF MONTANA, GALLATIN COUNTY, THE is worth reading on Montana character evidence because the court put the point in its own words: "id not satisfy the criteria of either rule but instead was “character evidence” being offered for a “propensity argument”: to show that she ‘has a character for violence, as demonstrated by previous acts against her children, and therefore she must have acted in conformity with t" Use that passage as the starting point, then read the facts that precede it.
STATE OF MONTANA, Plaintiff and Appellee, v. LARRY B. DANIELS, Defendant and Appellant
…ourt err in its rulings regarding the *428 admissibility of character evidence of the victim in violation of the Rules of Evidence and Daniels’ constitutional rights? ¶3 2. Did the District Court err by refusing Daniels’proposed jury instructions on justifiable use of force in defense of an occupied structure and burglary as a forcible felony? FACTUAL AND PROCEDURAL BACKGROUND…
Practitioners open STATE OF MONTANA, Plaintiff and Appellee, v. LARRY B. DANIELS, Defendant and Appellant when Montana character evidence turns on the distinction in this sentence: "Rules of Evidence and Daniels’ constitutional rights?" Do not lift it out of the facts the court was deciding.
STATE OF MONTANA, Plaintiff and Appellee, v. DOUGLAS JAMES GUILL, Defendant and Appellant — Nelson, J., concurring
…e. As we have noted before, § 26-1-103, MCA, does not admit character evidence excluded by M. R. Evid. 404(b), see State v. Berosik, 2009 MT 260, ¶ 45, 352 Mont. 16, 214 P.3d 776, and evidence that satisfies § 26-1-103, MCA, is still subject to,exclusion under M. R. Evid. 403, see State v. Detonancour, 2001 MT 213, ¶¶ 29-31, 306 Mont. 389, 34 P.3d 487. Indiscriminate use of the…
STATE OF MONTANA, Plaintiff and Appellee, v. DOUGLAS JAMES GUILL, Defendant and Appellant — Nelson, J., concurring is worth reading on Montana character evidence because the court put the point in its own words: "As we have noted before, § 26-1-103, MCA, does not admit character evidence excluded by M. R. Evid. 404(b), see State v. Berosik, 2009 MT 260, ¶ 45, 352 Mont. 16, 214 P.3d 776, and evidence that satisfies § 26-1-103, MCA, is still subject to,exclusion under M. R. Evid." Use that passage as the starting point, then read the facts that precede it.
STATE OF MONTANA, Plaintiff and Appellee, v. DARWIN KEITH BEROSIK, Defendant and Appellant — Nelson, J., concurring
…“must not be expanded to the point that the prohibition of character evidence under M. R. Evid. 404(b) is swallowed.” Opinion, ¶ 46.1 believe that here, however, Berosik’s prior acts (e.g., the sexually charged conversations and contacts with his stepdaughters) during the years preceding the charged offenses do not “form[ ] part of a transaction which is itself the fact in dis…
Practitioners open STATE OF MONTANA, Plaintiff and Appellee, v. DARWIN KEITH BEROSIK, Defendant and Appellant — Nelson, J., concurring when Montana character evidence turns on the distinction in this sentence: "M. R. Evid. 404(b) is swallowed.” Opinion, ¶ 46.1 believe that here, however, Berosik’s prior acts (e.g." Do not lift it out of the facts the court was deciding.
STATE OF MONTANA, Plaintiff and Appellee, v. ANNE MARIE STOUT, Defendant and Appellant — Nelson, J., dissenting
…e must not be expanded to the point that the prohibition of character evidence under M. R. Evid. 404(b) is swallowed,” State v. Berosik, 2009 MT 260, ¶ 46, 352 Mont. 16, 214 P.3d 776, and we have accordingly limited the admission of evidence under § 26-1-103, MCA, to evidence that is “inextricably linked” to a fact in dispute, State v. Guill, 2010 MT 69, ¶¶ 25-30, 355 Mont. 490…
On character evidence, STATE OF MONTANA, Plaintiff and Appellee, v. ANNE MARIE STOUT, Defendant and Appellant — Nelson, J., dissenting speaks to the Montana dispute in this passage: "M. R. Evid. 404(b) is swallowed,” State v. Berosik, 2009 MT 260, ¶ 46, 352 Mont. 16, 214 P.3d 776, and we have accordingly limited the admission of evidence under § 26-1-103, MCA, to evidence that is “inextricably linked” to a fact in dispute, State v." The surrounding opinion shows how the court applied that language to the record.
STATE OF MONTANA, Plaintiff and Appellee, v. JASON DEAN FRANKS, Defendant and Appellant
…ejudicial than probative under M. R. Evid. 403 and improper character evidence under M. R. Evid. 404(b). Franks pointed out he was acquitted of those charges. The State responded it intended to offer testimony explaining that C.L.’s delayed disclosure was prompted by the newspaper article. The State explained it also intended to offer expert testimony about disclosure patterns…
Practitioners open STATE OF MONTANA, Plaintiff and Appellee, v. JASON DEAN FRANKS, Defendant and Appellant when Montana character evidence turns on the distinction in this sentence: "M. R. Evid. 403 and improper character evidence under M. R. Evid. 404(b). Franks pointed out he was acquitted of those charges. The State responded it intended to offer testimony explaining that C.L.’s delayed disclosure was prompted by the newspaper article." Do not lift it out of the facts the court was deciding.
Frequently asked questions
What is the primary evidence source in Montana?
Montana applies the Montana Rules of Evidence. Montana's rules mirror the FRE; Mont. R. Evid. 401–902 govern district court trials with federal precedent cited persuasively.
How do Montana courts decide relevance and unfair prejudice?
Under Mont. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Montana?
Party-opponent statements under Mont. R. Evid. 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Mont. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Montana?
Mont. R. Civ. P. 30 and 32 govern civil depositions and trial use. Mont. R. Crim. P. 16 controls criminal discovery; prior testimony may be admitted under Mont. R. Evid. 804(b)(1) when the declarant is unavailable.
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Montana authenticity practice starts with Mont. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under Mont. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Mont. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.