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Texas Bar Exam Feb. 2024 > Evidence > Flashcards

Evidence Flashcards

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1
Q

Where FRE applies

A
  • civil, criminal, and non-summary contempt proceedings before all federal district courts and courts of appeals
  • federal bankruptcy courts
  • U.S. Courts of Federal Claims
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2
Q

FRE does not apply to

A
  • trial judge’s determination on preliminary question of fact governing admissibility
  • grand jury proceedings
  • preliminary examination in criminal cases
  • extradition or rendition proceedings
  • sentencing and probation hearings
  • proceedings to obtain a warrant or criminal summons
  • bail proceedings
  • summary contempt proceedings
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3
Q

Relevance: Rule 401

A

evidence is probative if it has any tendency to make a fact more or less probable than if evidence was not introduced at all

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4
Q

Relevance: Rule 403 Balancing Test

A

can exclude relevant evidence if probative value is substantially outweighed by the danger that it will cause unfair prejudice, confuse the issues, mislead the jury, cause undue delay, waste time, or result in needlessly cumulative evidence

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5
Q

Limiting Instruction

A

court can admit evidence for one purpose but not for others if it provides a limiting instruction to the jury telling them to only consider the evidence for permissible purposes

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6
Q

Policy-Based Exclusions of Relevant Evidence

A

even if relevant, can exclude:
- subsequent remedial measures
- offers to compromise and statements during settlement negotiations
- offers to pay medical expenses
- proof of liability insurance
- guilty pleas (in certain situations)

*even if not admissible for the specific policy reason, may be admissible for another relevant purpose, such as ownership, control, feasibility, motive, bias, prejudice, etc.

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7
Q

Subsequent Remedial Measures

A

evidence of measures taken after an injury are inadmissible to prove:
- negligence
- culpable conduct
- defect in manufacture or design
- need for a warning or instruction

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8
Q

Offers to Compromise / Statements During Settlement Negotiations

A

after claim made or threatened, evidence that someone furnished, promised, offered, or accepted valuable consideration in settling / attempting to settle a DISPUTED civil claim is INADMISSIBLE when:
- offered to prove liability or the absence of liability or the amount of the disputed claim
- offered to impeach a witness with a prior inconsistent statement or a contradiction

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9
Q

Offer to Pay Medical Expenses

A

offer to pay hospital and similar expenses resulting from injury are inadmissible to prove liability BUT other statements made during the conversation are admissible

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10
Q

Guilty Plea: Inadmissible

A
  • fact that defendant entered guilty plea that was later withdrawn or a plea of nolo contendere against defendant in any criminal or civil case
  • statements made to a prosecutor during plea discussions if the discussions do not result in a guilty plea or the plea is withdrawn
  • statements made by the defendant during the court’s questioning to determine whether the court will accept the guilty plea, if the court does not accept the guilty plea or the plea is later withdrawn

*2 and 3 may be admitted:
- if another statement made during plea negotiations is admitted and fairness requires consideration of the statements together OR
- in perjury prosecution, if statement was made under oath, on the record, and with counsel present

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11
Q

Proof of Liability Insurance

A

evidence that person was/was not insured against liability insurance is inadmissible to prove negligence or other wrongful conduct by that person

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12
Q

Competency

A

Presumed unless provided otherwise

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13
Q

Competency: Judges / Jurors

A

cannot serve as witness at that trial

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14
Q

Competency: Lay Witnesses

A
  • PERSONAL KNOWLEDGE

lay witness can share opinion IF:
- rationally based on witness’s perception
- helps jury to clearly understand the witness’s testimony or resolve a factual issue AND
- not based on scientific, technical, or other specialized knowledge

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15
Q

Competency: Expert Witnesses

A
  • testimony based on scientific, technical, or other specialized knowledge
  • witness is qualified as an expert, based upon knowledge, skill, experience, training or education
  • testimony is reliable and relevant
  • testimony is based on permissible sources of facts or date
  • testimony does not concern a criminal defendant’s mental state
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16
Q

Expert Testimony: Relevant and Reliable

A

Relevant: helps jury understand evidence or determine a fact at issue

Reliable (Daubert):
- reliably tested
- subjected to peer review and publication
- known or potential rate of error
- generally accepted in the scientific community

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17
Q

Expert Testimony: Independently Admissible

A

expert can base opinions on facts or data that is not admissible if others in the field would similarly rely on those facts and data

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18
Q

Expert Testimony: Criminal Defendant’s Mental State

A

no blanket prohibition on expert offering opinion on an ultimate issue. BUT cannot opine on whether defendant did or did not have the mental state or condition necessary to establish an element of the crime charged or defense asserted

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19
Q

Order and Scope of Examination

A

scope of cross is limited to matters affecting credibility and matters raised on direct.

Trial court should exercise reasonable control over order and scope of presenting evidence and examining witnesses to facilitate a determination of the truth, avoid wasting time, and protect witnesses from harassment or undue embarassment

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20
Q

Leading questions

A
  • not allowed in direct UNLESS witness is hostile, adverse party, or identified with an adverse party.
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21
Q

Judicial Notice

A

should be granted upon party request or court’s own motion if the fact:
- is an adjudicative fact (relates to parties or issue in case) and
- not subject to reasonable dispute because it either (a) is generally known within the court’s territorial jurisdiction or (b) can be accurately and readily determined by reference to sources whose accuracy cannot reasonably be questioned

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22
Q

Exclusion of witnesses

A

upon party request or court’s own motion, court must exclude witness so that it cannot hear other witness testimony.

CANNOT EXCLUDE:
- person who is party to the case
- employee or officer to the case, after being designated by counsel as that party’s representative
- someone who presence has been shown by one of the parties to be essential to that party’s presentation of its case
- someone authorized by statute to be present

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23
Q

Refreshing a Witness’s Recollection

A

party can refresh a witness’s memory using any item IF:
- witness indicates cannot recall fact important to the case AND
- adverse party has opportunity to inspect the item and cross witness

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24
Q

Refreshing a Witness’s Recollection: Admissibility

A

item itself cannot be admitted by proponent but adverse party may admit to the extent it relates to the testimony

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25
Q

Types of Impeachment Evidence

A
  • prior inconsistent statements
  • bias or interest
  • sensory or mental defect
  • contradiction
  • character evidence
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26
Q

Prior Inconsistent Statements (for impeachment)

A

do not need to be under oath. Can be in form of testimony or extrinsic evidence.

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27
Q

Prior Inconsistent Statements: Extrinsic Evidence

A

only allowed if
- pertains to material matter
- witness has chance to explain or deny statement AND
- adverse party is given opportunity to examine the witness about the statement

The opportunity to explain or deny is not required if:
- being used to impeach a witness that is a party to the case OR
- made by a hearsay declarant

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28
Q

Bias or Interest

A

never a collateral matter.

No limit on use of extrinsic evidence to impeach on these grounds

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29
Q

Sensory or Mental Defect

A

never a collateral matter.

No limit on use of extrinsic evidence to impeach on these grounds

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30
Q

Contradiction

A

no limitation on use of extrinsic evidence to impeach on these grounds UNLESS collateral issue.

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31
Q

Types of Character Evidence

A
  • reputation or opinion testimony
  • evidence of prior acts
  • prior criminal conviction
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32
Q

Character Evidence: Reputation or Opinion Testimony

A

only character trait relevant to impeachment is untruthfulness.

Cannot rehabilitate until witness’s credibility attacked.

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33
Q

Character Evidence for Impeachment: Prior Acts

A

not admissible for impeachment UNLESS
- probative to truthfulness / untruthfulness and offered on cross OR
- out of the mouth of a hostile witness on direct

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34
Q

Character Evidence for Impeachment: Prior Convictions

A

any crime that has not been pardoned/annulled and required dishonesty or a false statement is admissible.

crime not involving dishonestly only admissible if:
- civil case
- criminal case against non-defendant witness
- criminal case against defendant and probative value outweighs prejudicial effect

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35
Q

Character Evidence for Impeachment: Prior Convictions - Ten-Year Limitation

A

if more than years have passed from date of conviction or defendant’s release from confinement (whichever later), not admissible UNLESS:
- for a crime requiring proof of dishonesty OR a felony crime
- probative value, supported by specific facts and circumstances, substantially outweighs prejudicial effect and
- adverse party given reasonable written notice of intent to use evidence

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36
Q

Character Evidence for Impeachment: Admissibility of Juvenile Adjudications

A

admissible if:
- offered in criminal case
- against a witness other than defendant
- an adult’s conviction for that crime would be admissible for impeachment and
- evidence necessary to fairly determine guilt or innocence

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37
Q

Character Evidence: Other Purposes

A

inadmissible if offered to prove that the person acted in conformity with that character or trait.

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38
Q

Character Evidence: When Admissible

A

Civil, Criminal: reputation, opinion, or specific act character evidence admissible IF trait was essential element of a charge, claim, or defense

Criminal: reputation or opinion character evidence admissible if
- defendant first offers evidence and evidence pertains to defendant’s pertinent good character trait or victim’s pertinent bad character trait. When door opened, prosecution can offer evidence on same trait in rebuttal. OR
- homicide case in which case prosecutor can offer evidence of victim’s trait of peacefulness or nonviolence to rebut evidence of first aggressor

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39
Q

Character Evidence: Other Purposes - Specific Acts

A

prior convictions and past. Not admissible unless:
- evidence admitted in civil / criminal case for another relevant purpose: (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, (8) absence of mistake, (9) lack of accident OR
- opposing counsel asking character witness about specific acts on cross in civil/criminal case. But if witness denies hearing of / knowing of specific acts, cannot introduce extrinsic evidence to prove acts occurred

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40
Q

Character Evidence: Other Purposes - Habit

A

can offer evidence to show person or organization acted in conformity. Consider:
- frequency
- specificity of action

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41
Q

Character Evidence: Victim’s Sexual History

A

in sex-offense trials (civil and criminal), following is inadmissible:
- evidence offered to prove victim engaged in other sexual behavior
- evidence offered to prove victim’s sexual predisposition

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42
Q

Character Evidence: Victim’s Sexual History - Criminal Case Exceptions

A

Evidences of SPECIFIC INSTANCES (not reputation or opinion) admissible:

  • if evidence offered by defendant to prove perpetrator was someone else
  • if evidence offered includes specific instances of sexual behavior with defendant and is offered to prove consent
  • if evidence offered includes specific instances of sexual behavior with defendant and is offered by the prosecutor
  • if evidence is needed to avoid a violation of the defendant’s constitutional rights
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43
Q

Character Evidence: Victim’s Sexual History - Civil Case Exception

A

evidence of SPECIFIC INSTANCES of victim’s sexual behavior admissible where the evidence’s probative value substantially outweighs the danger of unfair prejudice or other harm

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44
Q

Character Evidence: Defendant’s Sexual History

A

in criminal cases involving sexual misconduct, may admit evidence that defendant committed ANY OTHER sexual assault on victim or anyone else.

Can be considered for any relevant matter, including to show acted in similar manner.

No time limit.

Do not need a conviction.

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45
Q

Hearsay: Definition

A

(1) out-of-court (2) statement (3) offered for the truth of the matter.

Inadmissible unless exemption or exception applies

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46
Q

out-of-court

A

statements made outside the current proceeding

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47
Q

statements

A

oral, written, or non-verbal conduct, but must be assertion and declarant must be person, not a machine or animal

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48
Q

Assertions: non-verbal conduct

A

assertion IF actor intended to make assertion by engaging in the conduct.

observer’s interpretation that it is an assertion is not sufficient

49
Q

Assertion: silence

A

assertion if a reasonable person in the declarant’s position would have denied or otherwise responded to what someone else just said or did

50
Q

Offered for the truth

A

offered to prove the contents of the declarant’s assertion. Not offered for the truth when offered:
- to prove the effect the assertion had on the listener or reader
- to impeach the testimony of the witness
- as circumstantial evidence of declarant’s state of mind or emotion
- for independent legal significant/consequences

51
Q

Hearsay Exemptions

A

NOT HEARSAY

  • prior inconsistent statements
  • prior consistent statements
  • prior identification
  • admissions by party opponents
52
Q

Prior Inconsistent Statements

A

admissible if made under oath at another trial, hearing, proceeding, or deposition.

For prior statements, declarant who made prior statement must be subject to cross in the current proceeding.

53
Q

Prior Consistent Statements

A

admissible to rehabilitate the witness’s credibility after it has been attacked.

For prior statements, declarant who made prior statement must be subject to cross in the current proceeding.

54
Q

Prior Identification

A

admissible. includes line-up, show-up, photographic array

55
Q

Admissions By Party Opponents

A

admissible if offered against the opposing party and made by:
- the opposing party
- someone else but adopted by the opposing party
- someone else authorized by the opposing party to make the statement
- the opposing party’s agent or employee during and within the scope of that relationship or
- co-conspirator of the opposing party during the course of, and in furtherance of, the conspiracy

56
Q

Hearsay Exceptions: Unavailability Immaterial

A
  • present sense impression
  • excited utterance
  • then-existing statement of mental, emotional, or physical condition
  • statement made for purpose of medical diagnosis or treatment
  • past recollection recorded
  • business records
  • public records and reports
  • statements in learned treatise, periodical, or pamphlet
  • reputation concerning character
57
Q

Present Sense Impression

A
  • describing an event or condition that
  • was made while or immediately after seeing or hearing the event or condition
58
Q

Excited Utterance

A
  • relates to a startling event
  • made while the declarant is under the stress of excitement caused by the event
59
Q

Then-Existing Statement of Mental, Emotional, or Physical Condition

A

statement expressly referring to a then-existing state of mind, emotion, or physical condition (knowledge, intent, motive, pain, health).

HILLMON RULE: statement of then-existing intent to do something in the future is admissible to prove the declarant followed through with that intent

60
Q

Statement Made for Purpose of Medical Diagnosis or Treatment

A
  • made for purposes of medical diagnosis or treatment (current/past symptoms, medical history, cause of condition) that is
  • made to someone who is helping to provide such diagnosis or treatment
61
Q

Past Recollection Recorded

A
  • concern a matter the witness cannot currently recall to testify fully and accurately
  • concern a matter that the witness did know about when the witness created the record
  • have been made or adopted by the witness when the matter was fresh in the witness’s memory (based on personal knowledge or adopted after a person with personal knowledge made the record)
  • accurately reflect the witness’s knowledge at the time it was made
62
Q

Past Recollection Recorded: Admissibility

A

if requirements met, witness can read into the record.

Not admitted unless offered by adverse party.

63
Q

Business Records

A
  • be made at or near the time of the matter recorded, by someone with personal knowledge
  • relate to an activity that the business regularly conducts
  • be the type of record the business regularly keeps
  • be from a trustworthy source of recorded information or method of recording
  • be established by (a) testimony of the custodian or another qualified witness or (b) an authenticated, certified document from the custodian to that effect
64
Q

Absence of a Business Record

A

same requirements as a business record but can be used to prove that a matter is not contained in the record.

65
Q

Public Records and Reports

A

record or statement by public officer that describes:
- officer’s activities
- matters observed by a public official who had a duty to report that matter, excluding observations by law enforcement personnel in criminal cases, or
- factual findings from a legally authorized investigation, except when offered in a criminal case against a defendant.

The source of the information recorded or method of recording must be trustworthy.

66
Q

Statements in Learned Treatise, Periodical, or Pamphlet

A
  • publication established as reliable authority by an expert witness or judicial notice AND
  • statement brought to the expert witness’s attention on cross or relied on during direct
67
Q

Reputation Concerning Character (Hearsay Exception)

A

allowed when offered to impeach or for other purposes permitted by character evidence rules

68
Q

Hearsay Exceptions - Unavailability Required

A
  • former testimony
  • dying declaration
  • statement against interest
  • forfeiture by wrongdoing
69
Q

Unavailability

A
  • exempted from testifying on account of privilege
  • refuses to testify about a matter after being ordered to do so by the court
  • testifies that declarant cannot remember subject matter
  • cannot testify because of illness, mental infirmity, or death
  • absent and cannot be compelled to appear through subpoena or other reasonable means
70
Q

Former Testimony

A

witness in the current case previously gave testimony under oath at (1) this or a different trial, (2) a hearing, or (3) deposition (but not in an affidavit).

Criminal cases: can be used against party who had opportunity AND similar motive to question declarant through direct or cross (i.e., did not involve uncontested issue)

Civil cases: same as criminal but former testimony can also be offered against predecessor in interest with opportunity and similar motive to question declarant

71
Q

Dying Declaration

A
  • made by the declarant while she believed her death to be imminent
  • related to the cause or circumstances of her impending death
  • offered in a civil case or homicide case
72
Q

Statement Against Interest

A

statement so against the declarant’s criminal, financial, and/or proprietary interests that a reasonable person in the declarant’s position would make statement only if believed it to be true.

If offered in criminal case and may expose declarant to criminal liability, must be supported by corroborating circumstances that clearly indicate trustworthiness.

73
Q

Forfeiture by Wrongdoing

A

statement offered against a party
- whose conduct caused the declarant to be unavailable as a witness AND
- who undertook that conduct for the purpose of making the declarant unavailable to testify as a witness

74
Q

Residual Exception

A

judge has discretion to admit statements that
- have sufficient guarantees of trustworthiness
- are more probative on the point for which they are offered than any other evidence that the proponent can obtain through reasonable efforts AND
- adverse party has received reasonable notice about the contents of the statement and that the proponent intends to use the statement

75
Q

Confrontation Clause

A

hearsay statement that is otherwise admissible can be admitted against a criminal defendant without violating Sixth Amendment if:
- statement is not testimonial in nature
- statement is or was subject to cross, OR
- defendant waived confrontation clause rights (i.e., made witness unavailable)

76
Q

Hearsay Within Hearsay

A

when hearsay statements contain other hearsay statements, entire statement will only be admissible if there are exemptions or exceptions that apply to each layer of hearsay

77
Q

Best Evidence Rule

A

to prove content of a writing, recording, or photograph, original or acceptable duplicate must be offered into evidence.

Oral testimony about contents not allowed unless exception applies.

78
Q

Best Evidence Rule: Original Item

A
  • actual item
  • counterpart intended by the author to have the same effect as the original
  • printout of electronic data that accurately reflects contents of the original
79
Q

Best Evidence Rule: Duplicate

A

acceptable if:

  • counterpart produced by mechanical or other process that accurately produces exact reproductions of originals
  • no genuine question about authenticity of original item
  • not be unfair to admit duplicate in lieu of original
80
Q

Best Evidence Rule: Exceptions

A

if exception applies, contents of original can be provided in any manner and original does not need to be produced:
- original lost or destroyed and not fault of proponent
- original cannot be obtained by judicial process
- opponent had control of original and failed to produce it after notice
- item relates to collateral issue
- item is certified copy of official or public record and copy is certified as correct or is testified to as being correct by witness who has compared with original
- summary, chart, or calculation offered to prove contents of voluminous documents that cannot be conveniently examined in court and originals/duplicates available to other parties for examination at a reasonable time or place
- party against whom offered described contents of it in prior testimony, deposition, or written statement and evidence being offered is that person’s prior testimony, deposition, or written statement

81
Q

Authentication

A

tangible items are authenticated by producing sufficient evidence to support a finding that the item is what the proponent claims it to be

82
Q

Authentication Methods

A
  • testimony of a witness
  • nonexpert testimony about handwriting
  • expert testimony re: handwriting
  • distinctive characteristics
  • opinion testimony about a voice
  • evidence about a telephone conversation
  • public record
  • ancient documents or data compilation
  • other methods
  • attested document
  • chain of custody
  • self-authentication
83
Q

Authentication Method: Testimony of a Witness

A

testimony of a witness with personal knowledge that the item is what it is claimed to be

84
Q

Authentication Method: Nonexpert Testimony About Handwriting

A
  • person familiar with author’s handwriting
  • familiarity not acquired for current litigation
85
Q

Authentication Method: Expert Testimony re Handwriting

A

testimony that items were written by author after compared with authenticated specimen of handwriting

86
Q

Authentication Method: Distinctive Characteristics

A

appearance, contents, substance, internal patterns

87
Q

Authentication Method: Opinion Testimony About a Voice

A

can be by any witness based on prior experience hearing the declarant’s voice

88
Q

Authentication Method: Evidence About a Telephone Convo

A

can be authenticated by a recipient who can testify that the recipient is familiar with caller’s voice or evidence that number was assigned to recipient and other evidence indicates that the recipient answered

89
Q

Authentication Method: Public Record

A

recorded or found in authorized public office

90
Q

Authentication Method: Ancient Document or Data Compilation

A

may be authenticated by evidence that item:
- is in condition that creates no suspicion about authenticity,
- was found in place where, if authentic, it would likely be, and - at least 20 years old when offered

91
Q

Authentication Method: Process or System

A

may be authenticated by evidence describing it and showing that it produces an accurate result

92
Q

Authentication Method: Other Methods

A

if allowed by federal statute or supreme court

93
Q

Authentication Method: Attested Document

A

if bears signature of attesting witness, does not require witness to testify about authenticity unless required by state law

94
Q

Authentication Method: Chain of Custody

A

can authenticate items not uniquely identifiable with evidence from every individual who handled the object about
- when and how the person obtained the object
- how it was preserved until it was delivered to the next person in the chain
- how and to whom it was delivered

95
Q

Authentication Method: Self-Authentication

A

no extrinsic evidence required for:
- public documents with the government’s seal or officer’s signature
- signed and attested foreign public documents
- certified copies of public records
- official publications
- newspapers
- trade inscriptions
- notarized documents
- commercial papers
- certified records

96
Q

Types of Privileges

A
  • spousal immunity privilege
  • marital communications privilege
  • attorney-client privilege
  • attorney work-product privilege
  • physician-patient privilege
  • psychotherapist-patient privilege
  • other privileges recognized by state courts
97
Q

Spousal Immunity Privilege

A
  • in criminal cases
  • witness who is married to the defendant
  • at the time of the witness’s testimony can refuse to testify about matters arising at any time.

Witness spouse holds privilege - defendant cannot prevent voluntary testimony

98
Q

Spousal Immunity Privilege: Exceptions

A
  • defendant is charged with crime against witness spouse or minor child of either spouse
  • witness spouse and defendant spouse were joint participants in the crime the defendant is being prosecuted for
99
Q

Marital Communications Privilege

A

oral and written communications between spouses are privileged if communication was
- made during the marriage and
- intended to be confidential

Both spouses can assert this privilege in any case, civil or criminal

100
Q

Marital Communications Privilege: Exceptions

A

does not apply if:
- one spouse charged for a crime against the other spouse or being sued by the other spouse or minor child of either spouse
- spouses were joint participants in a crime
- in a civil suit between spouses (like divorce actions)

101
Q

Attorney-Client Privilege

A
  • confidential
  • between an attorney, nonattorney working for attorney, or another attorney working with the attorney and the client/client’s representative
  • made for the purpose of providing legal services
    -made during an existing AC relationship or in connection with formation of the relationship

Client holds privilege but attorney can assert it on behalf of client. Extends beyond client’s death.

102
Q

Attorney-Client Privilege: Exceptions

A

does not apply to a communication
- about a future crime or fraud
- made in litigation between the attorney and client
- made in a dispute among multiple clients with common attorney
- related to client’s will in a dispute where will is being contested

103
Q

Attorney Work-Product Privilege

A

materials created in anticipation of litigation / trial are not discoverable unless opposing party can prove:
- substantial need for material AND
- inability to acquire material by other means without undue hardship

104
Q

Attorney Work-Product Privilege: Mental Impressions

A

absolutely privileged if:
- contains attorney’s thoughts about legal theories or opinions or recollections about what potential witness said AND
- made in preparation for trial

105
Q

Attorney-Client/Work-Product Privilege: Waiver

A
  • intentionally disclosed or inadvertently disclosed because privilege holder failed to take reasonable steps to prevent disclosure or rectify error AND
  • disclosed in federal or state proceeding or to a federal officer or agency
106
Q

Physician-Patient Privilege

A
  • confidential communications or observations
  • made to or observed by a physician
  • for the purpose of medical diagnosis or treatment

Patient holds the privilege

107
Q

Physician-Patient Privilege: Exceptions

A
  • litigation in which patient has put medical condition at issue
  • litigation between the patient and physician
  • situations where physician reasonably believes patient is a danger to herself or others
108
Q

Psychotherapist-Patient Privilege

A
  • confidential communications
  • made to a medical professional
  • for the purpose of diagnosis or treatment concerning the patient’s mental or emotional condition

Patient holds privilege

109
Q

Psychotherapist-Patient Privilege: Medical Professionals

A
  • psychotherapists
  • psychologists
  • mental health specialists
  • marriage counselors
  • social workers
110
Q

Psychotherapist-Patient Privilege: Exceptions

A
  • litigation in which patient has put medical condition at issue
  • litigation between patient and psychotherapist
  • communications concerning a future crime or fraud
  • communications made during a court-ordered examination
111
Q

Other Privileges

A
  • journalist’s privilege to protect identity of news sources
  • confidential statements made between penitent and member of the clergy
  • communications of tax advice by federally authorized tax practitioner in non-criminal tax proceedings in federal court
112
Q

Burden of Persuasion

A

obligation to convince fact finder according to applicable standard of proof.

on plaintiff for elements in P.F. case

on defendant for affirmative defense

113
Q

Standards of proof

A

degree to which party with burden of persuasion must persuade fact finder ‘

  • beyond a reasonable doubt (criminal)
  • clear and convincing evidence (civil cases with criminal elements usually, like fraud)
  • preponderance of the evidence (basically all civil)
114
Q

Burden of Production

A

burden of producing credible, admissible evidence

Initial burden on plaintiff to produce evidence for P.F. case. If fail, grant JMOL to defendant.

If does meet burden, burden may shift to defendant depending on claim at issue. If burden shifts and defendant does not carry it, must grant JMOL to plaintiff. If burden does not shift to defendant, judge denies JMOL and case goes to jury.

115
Q

Role of the Judge

A
  • deciding issues of law
  • ruling on admissibility of evidence
  • determining competency
  • determining whether expert qualified
  • determining whether testimonial privilege applies
  • providing instructions to jury on how to consider evidence and render verdict
116
Q

Preliminary Questions

A

not bound by RoE except for privilege. Generally decide by preponderance of evidence.

Must conduct hearing on preliminary question of admissibility OUTSIDE PRESENCE OF JURY if:
- pertains to admissibility of confession
- arises in criminal case in which defendant is a witness and defendant requests hearing OR
- justice so requires

117
Q

Conditional Relevance

A

if decision about relevance depends on existence of another fact, make initial determination of whether reasonable jury could find second fact to be true.

May admit on condition that proof of underlying fact be introduced and if not introduce, court must strike the conditionally admitted evidence and instruct jury to disregard it.

118
Q

Limiting Instruction

A

if court admits evidence for some purposes but not others and party against whom offered makes a timely request, court must issue limiting instruction to jury to restrict evidence to its proper scope

119
Q

Role of the Jury

A
  • deciding disputed issues of fact
  • making credibility determinations
  • determining weight to be given to admitted evidence

Texas Bar Exam Feb. 2024 (16 decks)

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