Evidence

Question 1

• Definition of Relevance:
• • Materiality: Proposition must be “of consequence.” Need not be an ultimate issue. (matters to the outcome of case)
• • Probativeness: “Any tendency” to make the proposition more or less likely. Just needs to shift probabilities to any degree whatsoever.
• The court may exclude otherwise relevant evidence if
  it determines that the probative value of the evidence
  is substantially outweighed by one or more of the
  following pragmatic considerations:
• -Danger of unfair prejudice (the jury decides the case on emotional basis)
• -Confusion of the issues (evidence creates a side issue)
• -Misleading the jury (danger of jury giving undue
  weight to evidence)
• • Undue delay
• -Waste of time (not in Texas)

Answer 1

• In general, if evidence involves some other time,
  event, or person OTHER than that involved in the
  case at hand, the evidence is irrelevant/inadmissible.
• • Exception: 1. Plaintiff’s Accident History if cause of the plaintiff’s damage is at issue, 2. Substantial Similar Accidents Caused by Same Event or Condition (from Defendant): to show either a. existence of dangerous condition b. Causation c. Prior notice to the defendant (occurs before plaintiff’s ) 3. Intent in Issue 4. Comparable Sales on Issue of Value (Selling price of other property of similar type, in same general location, and close in time to period at issue, is some evidence of value of property at issue.) 4. Habit (as circumstantial evidence to prove act on a particular occasion, unlike Character evidence). 5. Industrial Custom as Standard of Care
• • -Habit: Proved by • Frequency of conduct • Particularity of circumstances (one circumstance)

Question 2

• Evidence that a person has, or does not have, liability
  insurance is inadmissible to prove the person’s fault
  or absence of fault.
• • Proof of ownership/control of instrumentality or
    location, if controverted (disputed).
• • Impeachment of a witness (usually on the grounds
    of bias).
• subsequent remedial measure: Inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning. (after accident)
  Policy: To encourage post-accident repairs, etc., to
  avoid future accidents. But such evidence may be admissible for some other relevant purpose, if controverted, such as:
• -Proof of ownership/control
• • Feasibility of safer condition （if disputed）
• For texas In a products liability action, evidence of written notification of a product defect sent by a manufacturer to a purchaser is admissible to prove existence of the defect.

Answer 2

• Evidence of a settlement (compromise) or offer to settle
  a disputed claim is inadmissible to:
• • Prove liability or weakness of a party’s case, or
• • Impeach through prior inconsistent statement or
    contradiction.
• • But can be used to prove bias
• • Statements of fact made in the course of settlement
    discussions are also inadmissible for these purposes.Statements of fact made in the course of settlement discussions are also inadmissible for these purposes.
• The exclusionary rule only applies if there is a claim
  that is disputed (at time of settlement discussion) either
  as to (1) validity or (2) amount of damages.
• • Look at if there is a claim first, then say if it is disputed (admitting 100% fault means no dispute on validity but may be disputed on damages)

Question 3

• Potential purposes for offering Character evidence:
• -Person’s character is a material element in the
  case. (element to prove, never a element of crime )
• -To prove conduct in conformity with character at
  the time of the litigated event, a/k/a character as
  circumstantial evidence of conduct on a particular
  occasion.
• -Witness’s bad character for truthfulness to impeach
  credibility (discussed in Impeachment
  module).
• Character for Defendant in Criminal:
• • Evidence of the defendant’s character to prove conduct in conformity is not admissible during the prosecution’s case-in-chief; However, defendant, during the defense, may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct in conformity, thereby opening the door to rebuttal by the prosecution.
• -evidence of specific instance of conduct is not permitted and need to be relevant character trait.
• • the defendant has “opened the door” by calling
    character witnesses, the prosecution may rebut:
    (1) By cross-examining defendant’s character witnesses
    with “Have you heard (reputation)” or “Did you know (opinion)” questions about specific acts of the defendant that reflect adversely on the particular character trait that the defendant has introduced (prosecution must have good faith basis for the question); purpose: to impeach character witness’s knowledge; and/or (2) By calling its own reputation or opinion witnesses to contradict the defendant’s witnesses. [but have to reflect the questioned trait ]

Answer 3

• Character continue IN SELF DEFENSE CASE: Criminal defendant may introduce evidence of victim’s violent character to prove victim’s conduct in conformity, i.e., as circumstantial evidence that victim was the first aggressor.
• Proper method: Character witness may testify to victim’s reputation for violence and may give opinion. No specifical instance of conduct. State of Mind is permissible
• Once defendant has introduced evidence of victim’s
  violent character, prosecution may rebut with opinion
  or reputation testimony regarding: (1) victim’s good
  character for peacefulness, and/or (2) defendant’s
  bad character for violence. (No.2 not in Texas)
• For non-character puposeOther crimes or specific bad acts of defendant are not admissible during the prosecution’s case-in-chief if the only purpose is to suggest that because of defendant’s bad character he is more likely to have committed the crime currently charged. (rob Bank A before and rob Bank B now)
• • But can be use to prove something more specific: Motive, Intent, Mistake or accident, Identity （signiature way of committing crime）, and Common scheme of plan
• Method of Proof of Independently Relevant
  Misconduct (1) By conviction or (2) by other evidence (witnesses, etc.) that proves the crime or act occurred.
  Conditional relevancy standard—prosecution need
  only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime. Upon defendant’s request, prosecution must give pretrial notice of intent to introduce MIMIC evidence. If relevant, MIMIC evidence can also be used in civil cases, such as tort actions for fraud or assault. (Court must insure that defendant is actually contesting the issue to which MIMIC crime is addressed)

Question 4

• In a case alleging sexual assault or child molestation,
  prior specific sexual misconduct of the defendant is
  admissible as part of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for any relevant purpose, including defendant’s propensity for sex crimes, i.e., conduct in conformity with character.

Answer 4

• Writing: Authentication - document is admissible
  if court determines there is sufficient evidence
  from which a reasonable juror could conclude document
  is genuine.
• • Methods of Authentication: 1. Witness’s personal knowledge: Witness observed X sign document. 2. Proof of handwriting:a. • Lay opinion: Lay witness testifies to opinion that X wrote document on basis of familiarity with X’s handwriting as result of experience in normal course of affairs. • Lay witness cannot become familiar with X’s handwriting for the sole purpose of testifying (cannot be for purpose of litigation).b. Expert comparison opinion c. Jury comparison. 3.Ancient document rule: a. 20 years old b. free of suspicion. c. found where you suppose to find. 4. Solicited reply doctrine: Document can be authenticated by evidence that it was received in
    response to a prior communication to the alleged
    author. (e.g. send a contract and then get a contract signed by X)
• • As long as some evidence for jury to conclude, judge will admit it.

Question 5

• Writing: Authentication of Photographs
  Witness may testify on the basis of personal knowledge
  that the photograph is a “fair and accurate representation” of the people or objects portrayed. (doesn’t have to be photographer)
• Self-Authenticating Documents Presumed authentic—no need for foundation testimony:
  • Official publications • Certified copies of public or private records on file in public office • Newspapers or periodicals • Trade inscriptions and labels • Acknowledged documents • Commercial paper
  • Certified business records (with reasonable written
  notice to adverse party) [for TEXAS, it can be through affidavit )
• Best Evidence Rule: In order to prove the contents of a writing, recording, or photograph, the original must be produced.
• • When Best Evidence Rule Applies
    Two principal situations: (1) The writing is a legally operative document; i.e., the writing itself creates rights and obligations. 2. (2) Witness is testifying to facts that she learned solely from reading about them in a writing.

Answer 5

• Best Evidence Rule: In order to prove the contents of a writing, recording, or photograph, the original must be produced.
• • When Best Evidence Rule Applies
    Two principal situations: (1) The writing is a legally operative document; i.e., the writing itself creates rights and obligations. 2. (2) Witness is testifying to facts that she learned solely from reading about them in a writing.
• • When Best Evidence Rule Does NOT Apply
    When a witness with personal knowledge testifies to a
    fact that exists independently of a writing that records
    the fact.
• • Original Writing: The writing itself; any counterpart intended to have the same effect; any negative of film or print from the negative; computer print-out.
    • Duplicate: any counterpart produced by any mechanical means that accurately reproduced the
    original (e.g., photocopy, carbon copy).
• • Rule on duplicates: Duplicate is admissible to
    same extent as original UNLESS it would be unfair
    (e.g., bad photocopy of fuzzy fax), or genuine question
    is raised as to authenticity of original.
• • Excuses for Non-Production of Original
    • Lost or cannot be found with due diligence
    • Destroyed without bad faith
    • Cannot be obtained with legal process
    Court must be persuaded by preponderance of the
    evidence that excuse has been established; secondary evidence is then admissible (e.g., testimony based on memory, handwritten copy).

Question 6

• Witness: (1) Personal knowledge (can’t be told by other people). (2) Oath or affirmation.
• • In general (Multistate rules): Witness is not ordinarily
    incompetent merely because she has an interest—a
    direct legal stake—in outcome of the litigation.
    But, under a typical state “Dead Man’s Act,” in a civil
    action, an interested party is incompetent to testify
    in support of her own interest against the estate of a
    decedent concerning communications or transactions
    between the interested party and the decedent.
• • Texas Dead Man’s Rule (only to oral statement, not written)
    Interested witness incompetent if:
    • Civil action by or against decedent’s estate, or by
    or against decedent’s heirs or legal representatives.
    • Either party to action seeks to testify to oral statement
    made by decedent.

BUT, party may testify to decedent’s oral statement if
either:
• Decedent’s oral statement is corroborated by other
evidence, OR
• Incompetent party is called by adverse party (i.e.,
the estate) to testify concerning decedent’s oral
statement.

• • If a friend testify, then the party can testify through corroboration.

Answer 6

• Form of question:Leading question: Form of question suggests the answer (e.g., “Isn’t it a fact that . . . .”; or unevenly balanced alternatives). Generally allowed on cross-examination of witness. Generally NOT allowed on direct examination of witness, unless:
  • Preliminary/introductory • Youthful/forgetful witness
  • Hostile witness • Adverse party
• • Proper subject matter for Cross:
    • Matters within the scope of direct examination (contract damage v. contract formation), and
    • Matters that test the witness’s credibility.
• -In Texas: Cross-examination is not limited to scope of direct examination; may question witness on anything relevant to case.
• • (use before recorded recollection) Refreshing Recollection - Basic rule: Witness may not read from prepared memorandum; must testify on basis of current recollection. But if witness’s memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory. (cannot read the list word by word after seeing)
• Recorded Recollection (Hearsay Exception)： To establish this hearsay: • Showing document to witness fails to jog memory. • Witness had personal knowledge at former time. • Document was either made by witness, or adopted by witness. • Making or adoption occurred when event was fresh in witness’s memory. • Witness can vouch for accuracy of document when made or adopted.
• • Not introduce into evidence, can only be read into evidence (not exhibit)

Question 7

• Opinion testimony: Lay Witnesses
  Admissible if: • Rationally based on witness’s perception (personal knowledge). • Helpful to jury in deciding a fact. [v. expert - education/experience]
• • Texas rule on expert qualifications in medical malpractice cases: Expert must be actually practicing same type of health care as that of defendant, either at time of testimony or at time claim arose. (“Practicing” includes teaching at medical school or other relevant institution.)
• -Expert must have opinion based on reasonable degree of probability or reasonable certainty, and three
  permissible data sources:
  (1) Personal knowledge (e.g., treating physician).
  (2) Other evidence in the trial record (testimony by
  other witnesses, exhibits (medical reports, X-rays))—
  usually made known to expert by hypothetical question.
  (3) Facts outside the record if of a type reasonably
  relied upon by experts in the particular field in forming
  opinions.
• • For inadmissible hearsay, can still use if those information are the information usually used by experts in the field to form opinion (but cannot be communicated to the jury)
• • Reliability: use test 1. Testing of principles or methodology 2. Rate of error 3.Acceptance by experts in the same discipline 4. Peer review and publication. 5. Objective vs. subjective interpretation of data (Texas)
    6. Non-judicial use of principle or methodology (use outside of courtroom or only inside)

Answer 7

• Expert witness continue:
• • Learned Treatise in Aid of Expert Testimony (hearsay exception)
• • • On direct examination of party’s own expert: Relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to
      prove truth of matter asserted) if established as reliable
      authority.
• • • On cross-examination of opponent’s expert: Read
      into evidence to impeach and contradict opponent’s
      expert. Also comes in as substantive evidence.
      Read into evidence only: The learned treatise may not
      be introduced as an exhibit.
• • -Almost no time ultimate issue objection will be sustained. (Criminal cases: FRE only: “Ultimate issue” is still proper objection if expert seeks to give direct opinion that defendant did or did not have relevant mental state (e.g., “D’s insanity prevented him from understanding that he was shooting at a human being”).
• • -In Texas: UExpert witness may testify in terms of “negligence,” “proximate cause,” or “lack of testamentary capacity” if proper legal standard is used.

Question 8

Question:

• A defendant may call a qualified witness to testify as to the defendant’s good reputation (or that he has heard nothing bad) for the trait involved in the case. Under Federal Rule 405, the witness may also give his personal opinion concerning that trait of the defendant. However, the witness may not testify as to specific acts of conduct of the defendant to prove the trait in issue.
• If the defendant puts her character in issue, the prosecution may rebut the defendant’s character evidence by calling qualified witnesses to testify to the defendant’s bad reputation for the particular trait involved. The witness may also testify as to his own personal opinion regarding the trait at issue of the defendant. However, introducing evidence about specific acts by the defendant is not allowed (whether by calling witnesses or introducing documentary proof of the act).
• When witness denies, prosuector cannot prove by extrinsic evidence
• only the defendant can put his character in issue, and the filing of criminal charges does not have the effect of putting the defendant’s character in issue
• The accused in a criminal case can introduce evidence of his good character to show his innocence of the alleged crime. Federal Rule 405 allows the defendant to call a qualified witness to testify as to his personal opinion concerning a trait of the defendant that is involved in the case.
• Walkthrough: if the defendant puts his character in issue by having a character witness testify as to his opinion of the defendant, the prosecution may rebut with evidence of the defendant’s bad character or cross exam. ->The prosecution may only introduce character evidence (witness) in the form of reputation or opinion testimony (not specific acts in the past)

Answer 8

Question:
- In a typical breach of contract, battery, or product liability case, the character of the parties is not directly at issue.

• proof of specific instances of a person’s conduct is admissible when character is directly in issue.
• For Civil Case: specific instance of act can be used.
• Other crimes and wrongdoings of a defendant are sometimes admissible to prove motive, opportunity, intent, preparation, plans, knowledge, identity, or absence of mistake [Fed. R. Evid. 404(b)] provided, however, that the probative value of the evidence is not substantially outweighed by prejudice or other Rule 403 considerations.
• Normally a writing used to refresh is not placed into evidence. However, under Federal Rule of Evidence 612, if a writing is used to refresh the recollection of a witness, the opposing party has a right to introduce the document into evidence.
• Federal Rule 803(5) permits the introduction of an out-of-court memorandum or other record of the event made by the witness at a time when the witness’s memory of the event was fresh. The fact that the witness’s memory of the actual event is insufficient even after reviewing the summary would satisfy that standard, assuming a proper foundation has been laid for reading the statement into evidence. If the past recollection recorded is admissible, the record itself may not be admitted; unless it is offered into evidence by the adverse party, the offering party may only read the record to the jury

Question 9

• Impeachment: Bolstering Own Witness
• • In general, not allowed until after witness’s credibility has been attacked.
• • When a witness himself boltering his early statement, it is hearsay
• • • Exception—prior identification of a person: Might
      seem like hearsay (out-of-court statement offered to
      prove truth of statement), but prior identification by
      trial witness is not barred by hearsay rule. It is labeled
      as “exclusion” from hearsay, and comes in as substantive evidence. Reliability factors: identification was closer in time to event, and witness on stand can be cross-examined.

Answer 9

• IMPEACHMENT METHODS
  (1) Prior inconsistent statements
  (2) Bias, interest, or motive to misrepresent
  (3) Sensory deficiencies
  (4) Contradiction
  Methods showing general bad character for truthfulness:
  (5) Bad reputation or opinion about witness’s character
  for truthfulness
  (6) Criminal convictions
  (7) Bad acts (without conviction) that reflect adversely
  on witness’s character for truthfulness、
• For each method, consider:
  • Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from
  other witnesses), or is party bound by witness’s
  answers to impeaching questions?
  • Assuming extrinsic evidence is permissible, must
  witness first be confronted with impeaching fact
  as a prerequisite to introduction of extrinsic evidence?

Question 10

• IMPEACHMENT METHODS
  (1) Prior inconsistent statements - Any witness may be impeached by showing that on
  some prior occasion, she made a material statement
  (orally or in writing) that is inconsistent with her trial
  testimony. For Purpose: To suggest trial testimony is false or mistaken. -> but still not admissible as substantive evidence unless under oath
• And Prior inconsistent statements made under oath and as part of a formal hearing, proceeding, trial, or deposition may be admitted both for impeachment and as substantive evidence—to prove the truth of the matter asserted in the prior inconsistent statement.
• But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement, but not necessarily before proof with extrinsic evidence.
  Exception to confrontation requirement: No confrontation required and no opportunity to explain need be given if witness is opposing party. （In Texas confrontation is a must）
• Opposing party does not get the benefit of confrontation.

Answer 10

• (2) Bias, interest, or motive to misrepresent:Witness is party; friend, relative or employee of party;
  expert witness being paid by party; person with grudge
  against a party, etc. - Confrontation is at court’s discretion
• • In Texas (Witness must be told of circumstances or statements that allegedly show bias and given immediate opportunity to explain or deny.) Extrinsic evidence allowed: yes
• (3) Sensory deficiencies:Anything that could affect witness’s perception or memory. e.g. Bad eyesight, bad hearing, intellectual disability, consumption
  of alcohol or drugs at time of event or while on
  the witness stand.
• • Confrontation is not required. Extrinsic evidence allowed: yes

Question 11

• (4)Contradiction Truthfulness or Untruthfulness
  Cross-examiner, through confrontation of witness,
  may try to obtain admission that she made a mistake
  or lied about any fact she testified to during direct
  examination. If the witness admits the mistake or lie,
  she has been impeached by contradiction. However,
  if she sticks to her story, the issue becomes whether
  extrinsic evidence may be introduced to prove the
  contradictory fact.
  Rule: Extrinsic evidence is not allowed for the purpose
  of contradiction if the fact at issue is collateral. A
  fact is collateral if it has no significant relevance to the
  case or to the witness’s credibility.

Answer 11

• 5) Bad reputation or opinion about witness’s character
  for truthfulnessCall a character witness to testify that target witness has bad reputation for truthfulness, or that character witness has low opinion of target witness’s character for truthfulness.
  Purpose: To suggest that target witness is not telling
  the truth on the witness stand.
  Confrontation required? No.
  Extrinsic evidence allowed? Yes.
• • No specific instance of conduct !

Question 12

• (6) Prior Criminal convictions:
• • Any crime (felony or misdemeanor) involving
    dishonesty or false statement may be used to
    impeach, and the court has NO DISCRETION to
    exclude such convictions.
• • If a conviction does not involve dishonesty or
    false statement, it must be a felony, and the court
    has discretion (balancing test) to exclude (generally Rule 403 balancing test—probative value not substantially outweighed by unfair prejudice; stricter balancing test when witness is criminal defendant—probative value must outweigh unfair prejudice).
• • Conviction or realse from jail must be within 10 years.
• • Method of proof: (1) As witness to admit prior conviction, OR (2) introduce record of conviction (extrinsic). Not required to confront witness prior to introduction of record of conviction.
• • TEXAS - crimes that can be used to impeach:
    • Felonies of any type
    • Crimes of moral turpitude (dishonesty, violence,
    and sex misconduct)
    Court’s discretion: Probative value must outweigh prejudicial
    effect. All convictions are subject to this balancing
    test.
• • • Pending appeal: Cannot use conviction to impeach if an appeal of the conviction is pending (no such limit under FRE, but pendency of the appeal is admissible).

Answer 12

• (7) Bad acts (without conviction) that reflect adversely
  on witness’s character for truthfulness. (TEXAS not permit this)
• • Confrontation on cross-examination is the only permissible means. No extrinsic evidence is permitted.
    Cross-examiner must have good-faith basis, and ability
    to inquire lies in court’s discretion.
• • Violent act does not count for truthfulness.

Question 13

• Impeachment question:
  1. Arrest doesn’t mean conviction
  2. Can only ask, cannot spend time to prove

Answer 13

• REHABILITATION
• -Showing Witness’s Good Character for
  Truthfulness When allowed: Opponent used methods of attacking witness’s general bad character (bad reputation or opinion; convictions; bad acts).
  How: Character witness provides reputation or opinion
  testimony about witness’s good character for truthfulness.
• • Prior Consistent Statements
    When allowed: • Witness is charged with fabrication based on a recent motive or improper influence, and the statement was made before the motive arose ( only option in Texas) ; OR
    • The statement rehabilitates a witness impeached
    on another ground, such as prior inconsistent
    statement or faulty memory.

Question 14

• Hearsay:
• • Not Hearsay - Some out-of-court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement. Categories below:
• • Verbal Act (Legally Operative Facts) -> Contract offer or cancellation, making gift, bribe, perjury, fraud, defamation, words accompanying ambiguous acts
• • Effect on Listener or Reader -> look at the purpose of asserted claims.
• • Circumstantial Evidence of Declarant’s State of
    Mind
• • Clock read is not hearsay

Answer 14

• THE HEARSAY EXCLUSIONS
• • Prior Statements of Testifying Witnesses
    General rule: A witness’s own prior statement, if offered to prove the truth of the matter asserted in the
    statement, is hearsay and is inadmissible unless an
    exception applies.
• • • However, the following prior statements of a testifying
      witness are excluded from the definition of hearsay:
      • Witness’s prior statement of identification.
      • Witness’s prior inconsistent statement, IF made
      under oath and during a formal trial, hearing, proceeding,
      or deposition.
      • Witness’s prior consistent statement offered to rehabilitate
      the witness (see Impeachment module
      for admissibility of prior consistent statements).
• -Opposing Party’s Statements
  Any statement made by a party (plaintiff or defendant)
  is admissible against that party. Traditionally called
  “admissions.”
• • • • Statement by agent/employee admissible against
      principal/employer if statement concerns matter
      within scope of agency/employment and is made
      during the existence of agency/employment relationship.
      • Statement of co-conspirator admissible against
      party if made during and in furtherance of the
      conspiracy.

Question 15

• HEARSAY EXCEPTIONS:
  1. DECLARANT MUST BE UNAVAILABLE - Grounds of Unavailability
  • Death or illness
  • Absence from jurisdiction
  • Privilege
  • Stubborn refusal
  • Lack of memory
• • Former Testimony (same issue in both cases)
    The former testimony of a now-unavailable witness,
    if given at a former proceeding or in a deposition, is
    admissible against a party who, on the prior occasion,
    had an opportunity and motive to cross-examine or
    develop the testimony of the witness. Issue in both
    proceedings must be essentially the same.
• -TEXAS: In civil actions, the deposition of a witness taken in the same proceeding is admissible without a need to show that witness has become unavailable.

Answer 15

• HEARSAY EXCEPTIONS:
  2. Statements Against Interest
  An unavailable declarant’s statement against his:
  • Pecuniary interest (money)
  • Proprietary interest (property)
  • Penal interest (exposure to criminal liability) [In criminal cases, statements against penal interest must be corroborated.]
  • Social interests (Only in Texas, hatred, disgrace)
• • Distinguished from opposing party statements:
    • Must be against interest when made.
    • Any person (not merely party) can make statement
    against interest.
    • Personal knowledge is required.
    • Declarant must be unavailable. (In TEXAS NOT REQUIRED)

Question 16

• HEARSAY EXCEPTIONS:
  3. Dying Declarations (Apply in coma too)
  Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.

Type of case:
• Criminal: Homicide only. (In Texas, all types)
• Civil: All types.

Answer 16

• RULE 803 EXCEPTIONS:

1. Excited Utterance
   Statement concerning a startling event and made
   while declarant is still under the stress of excitement
   caused by the event.

look for: startling event, short passage of time, statement, explantory phrases.

2. Present Sense Impression
   Description of an event made while the event is occurring or immediately thereafter.
3. Then-Existing Mental or Physical Condition
   (Present State of Mind)

• Contemporaneous statement concerning declarant’s
  own present state of mind, feelings, emotions, or physical condition. [ something like, I do not love something anymore ]
• Decalaration of intent counts too -> I am going to….
• present physical condition

4. Statement for Purposes of Medical Diagnosis or
   Treatment
   Statement made to anyone (but usually involves medical personnel) concerning past or present symptoms or general CAUSE of condition for the purpose of treatment or diagnosis.

Question 17

5. Business Records (Records of Regularly
   Conducted Activity)
   Elements:
   • Records of any type of business or organization
   (can be nonprofit)
   • Made in the regular course of business (germane
   to business)
   • The business regularly keeps such records
   • Made at or near the time of the event recorded
   • Contents consist of information observed by employees
   of the business (must have business duty
   to report)
   - - Not all part, only the part that conform the rule
6. Public Records
   Records of a public office or agency setting forth:
   • The activities of the office or agency. (Payroll records.)
   • Matters observed pursuant to a duty imposed by
   law. (Weather Bureau records of temperature.)
   • Findings of fact or opinion resulting from an investigation authorized by law. (FAA report on cause of plane crash.)

Exception: Police reports and investigatory findings
are not admissible against the defendant in a criminal
case. Nor is the prosecution in such cases allowed to
introduce a police report against the defendant under
the alternative theory of business records.

Answer 17

• Hearsay and the Confrontation Clause
  Regardless of whether a hearsay exception is satisfied,
  the Sixth Amendment right of confrontation
  prohibits the use of “testimonial” hearsay statements
  against a criminal defendant if the declarant is unavailable and the defendant has had no opportunity for cross-examination.
  Defining “Testimonial”: Includes sworn testimony
  (e.g., grand jury, prior trial, preliminary hearing). But
  also includes statements to police officers (sworn or
  unsworn) and certain documents, as discussed below.
  Statements to Law Enforcement—Determine Primary
  Purpose
  • Providing information to aid police in ongoing
  emergency = nontestimonial.
  • Providing information to help police gather
  information for eventual prosecution = testimonial.

Forensic Analysis Reports
Report that has the effect of accusing a targeted person
of criminal conduct (e.g., blood alcohol results) is
testimonial. If analyst who drafted the report is unavailable
to testify, there may be a Confrontation violation.

Question 18

• PRIVILEGES
• • “Communication”: Privilege does not apply to underlying information, pre-existing documents, or physical evidence.
• • Does not apply to physical evidence (like a phone)
• • Primary purpose of communication must be to obtain
    or render legal services, not business or social advice.
• • Exceptions: 1. Future crime or fraud 2.Client puts legal advice in issue 3. Attorney-client dispute
• • For physician-pateient -> Federal follow state law.
    In federal-court actions based solely on federal law,
    privilege exists for psychotherapists, but not for
    usual physician-patient confidences (e.g., gallbladder
    treatment). -> has to relate to medical condition
• • If there is a third party present, no privilege
• • In Texas -Texas exceptions:
    • No doctor-patient privilege in criminal cases. However, a communication to a person who is examining or treating another for drug or alcohol abuse is not admissible in a criminal proceeding.
    • No privilege if any party relies on patient’s physical
    or mental condition as part of party’s claim or
    defense.

Answer 18

• PRIVILEGES RELATED TO MARRIAGE
• -Spousal Immunity - In criminal cases only, a spouse cannot be compelled to testify against the defendant-spouse.
• -Confidential Communications between Spouses
  In any type of case, a spouse is not required, and is
  not allowed in the absence of consent by the other
  spouse, to disclose a confidential communication
  made by one to the other during the marriage (privilege
  survives divorce). Both spouses hold this privilege.
• • Exceptions Applicable to Both Privileges:
    • Communications or acts in furtherance of future
    crime or fraud
    • Communications or acts destructive of family unit
    (e.g., spousal or child abuse)
    • Additional Texas exception: All types of disputes between spouses (e.g.,breach of contract)
    • Additional Texas exception: Incompetency/commitment proceedings
• • If a spouse wants to testify, he can but he can’t reveal the communication because both spouse has that prilivege.

Question 19

Texas:
1. Evidence of a complainant’s past sexual conduct is inadmissible in a tort action arising from a sexual assault if the evidence is offered to prove the complainant’s character and thereby establish that the complainant consented on the occasion in question.

2. On issue of causation, an expert may give an opinion only if 1. in a suit against a physician or health care provider, the expert is a physician; 2. in a suit against a dentist, the expert is a dentist or physician; or 3. in a suit against a podiatrist, the expert is a podiatrist or physician.
3. Unlike Federal Procedure, Evidence of any written notification of a product defect sent by a manufacturer to a purchaser is admissible to prove the existence of the defect.
4. Unlike the Federal Rules, the Texas Rules do not permit a witness to be impeached with a conviction that is pending on appeal. Also crimes that are older than the general 10-year limit may be introduced if the probative value of the evidence substantially outweighs the prejudicial effect.
5. The Texas Rules of Evidence prohibit impeaching a witness with specific acts of misconduct that did not result in a conviction. (Under the Federal Rules, a witness may be impeached on cross-examination with a prior act of misconduct that is probative of truthfulness, but the act may not be proven by extrinsic evidence.)

Answer 19

Texas:
6. The Texas Rules provide that statements made in depositions taken in the same proceeding are not hearsay, whether or not the deponent is present.

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Question 20

Question:

1. Statements by or attributable to a party and offered against that party are not considered hearsay under the Federal Rules. If a party fails to respond to accusatory statements where a reasonable person would have spoken up, his silence may be considered an adoptive statement.
2. Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes.
3. Spousal immunity may be invoked in criminal cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding.
4. For marital communication, the communication must be made during a valid marriage. Divorce will not terminate the privilege retroactively, but communications after divorce are not privileged.

Answer 20

Workshop Question:

5. Judge can exclude evidence if probative value is substantially outweighed by the danger of unfair prejudice, confusion of issue, cummluative evidence, waste of time.
6. Judical Notice -> accurate and ready determination, or facts of common knowledge within the jurisdiction of the court. -> In Civil Case - conclusive for jury, In Criminal, the prosecutor’s burden of producing evidence is satisfied.
7. Best evidence -> original copy is preferred for written, recording, drawings, unless it is unavailable.
8. Authentiction: writing: 1. Jury, 2. Expert 3. Someone with familiarity before trial. Voice: 1. someone with famiility, before or for purpose of trial. 2. Expert, 3. Jury
9. In Criminal case - The prosecution cannot present any reputation or opinion evidence of bad characters for the purpose of showing defendant acts in conformity of that bad character.( Before open the door by defendant) Defendant can introduce good characters evidence in opinion or characters (but not specific acts or instance)
10. No prior crimes or prior acts to show propensity, but can be used to prove MIMIC - 1. Motive, 2. Intent, 3. Mistake, absence of 4. Identity 5. Common plan or Scheme.
11. In Civil Case: Characters evidence is not admissible unless it’s directly in issue or is essential element in plaintiff’s defense or claims (Defamation cases, Child custody case, Fraud case, Negligent entrustment case)
12. Impeachment method:
    - Bias -> extrinsic evidence ok., prior inconsistent statement, extrinsic evidence ok only if prior statement under oath.

• Prior Conviction: 10 years, if not a conviction relate to truthfulness -> at judge’s discretion.
• Specific Act -> at judge’s discretion, no extrinsic evidence.
• Reputation or opinion -> may be proed by extrinsic evidences.