Evidence Distinctions

Question 1

Evidence rules do not apply in these proceedings

Answer 1

1) Grand juries
2) Habeas corpus proceedings
3) incompetency proceedings to determine if defendant can stand trial
4) proceedings regarding bail, other than to deny, revoke or increase bail;
5) pretrial detention justification proceedings
6) issuance of warrant
7) direct contempt

Question 2

Plain error

Answer 2

Fundamental error and applies in criminal cases

Question 3

Limited use

Answer 3

Party seeking to introduce evidence for a limited purpose must request the court restrict the scope of the evidence and instruct the jury.

Question 4

Completeness

Answer 4

Adverse party may introduce remaining or other material as complete evidence contemporaneously.

Question 5

Judicial notice

Answer 5

A court may take judicial notice of certain facts, but must if a party requests. The other party has to receive notice and is entitled to object and be heard.

Question 6

Notice of foreign laws

Answer 6

Parties must give reasonable notice to the court and all other parties and at least 30 days prior to trial, provide whatever proof of the foreign law the party will rely upon.

Question 7

Judge calling a witness

Answer 7

No rule permitting it in Texas

Question 8

Cross-examination

Answer 8

Not limited to what came up in direct, but anything relevant goes

Question 9

Character evidence in civil case

Answer 9

• Allowed by a party accused of conduct involving moral turpitude, or by the accusing party to rebut the same evidence.
• A party accused of assaultive conduct in a civil case may offer evidence of the alleged victim’s character for violence.

Question 10

Character in a criminal case

Answer 10

Unlike federal law, Texas does not allow the prosecution to offer rebuttal evidence of the defendant’s bad character after the defendant has introduced evidence of the victim’s bad character.

Question 11

Reputation/opinion

Answer 11

During guilt stage, witness must have formed the opinion or known about the reputation prior to the commission of the offense.

During punishment stage, that’s not a requirement.

Question 12

Testimony of accomplices

Answer 12

A conviction cannot be based on the uncorroborated testimony of an accomplice.

Evidence that merely shows that the offense was committed is insufficient.

Question 13

Jury testimony

Answer 13

• To prove outside influence that came to bear on deliberations.
• To rebut a challenge to their qualifications to sit as a juror.

Question 14

Dead Man’s Rule

Answer 14

• Applies in civil cases where a diseased or incompetent person’s representatives are suing or being sued in their representative capacities.
• Testimony about an oral statement of the deceased or incompetent person is not permitted, unless it is independently corroborated or the witness is called by an adverse party.

Question 15

Impeaching with character evidence

Answer 15

-Unlike federal rule, cannot ask a witness on cross-examination about a prior instance of untruthful, non-conviction misconduct to impeach credibility.

Question 16

Impeaching with convictions

Answer 16

• Felony convictions
• Any convictions, if they involve false statements or deceit, or (only in TX) moral turpitude.

-Requires advance written notice of intent to use a conviction if the adverse party has made a timely written requests that such notice be given.

Question 17

Inadmissible convictions for impeachment

Answer 17

• Inadmissible if the witness has satisfactorily completed probation and has not been convicted of a later felony or crime involving moral turpitude.
• Juvenile adjudications inadmissible unless constitutionally required or permitted by the family code when the witness is a party.
• Conviction being appealed may not be introduced into evidence.

Question 18

Prior inconsistent statement

Answer 18

• Witness must be confronted with the prior inconsistent statement, including (1) the content, (2) the time, (3) where, and (4) to whom it was made.
• Witness must be given an opportunity to deny or explain it, but this may have to wait until re-direct.
• If the witness admits it, extrinsic evidence of the statement is inadmissible.

Question 19

Silence

Answer 19

Post-arrest, pre-Miranda silence may not be used to impeach a later inconsistent statement.

Question 20

Impeach with bias

Answer 20

-Admissible, but must first confront the witness.

Question 21

Refreshing Recollection

Answer 21

-If, in a criminal trial, witness uses document to refresh his recollection, other side has an absolute right to see it and examine the witness regarding the document.

Question 22

Voir dire examination of expert witnesses

Answer 22

• Discretionary in civil.

- Must be permitted in criminal.

Question 23

Expert testimony

Answer 23

• Does not exclude expert testimony on the mental state of a criminal defendant (unlike FRE)
• Inadmissible facts or data will be excluded, on objection, if the danger of misuse outweighs their explanatory value.
• Court generally not permitted to call its own witness.
• Verified reports of auditors are admissible as expert opinions.

Question 24

Translations

Answer 24

With an affidavit of a qualified translator if the translation and underlying documents are served on all parties at least 45 days before trial

Question 25

Copies

Answer 25

Allowed if the original is located outside of Texas.

Question 26

Waiver of privilege

Answer 26

Privilege may be waived if the person calls as a character witness a person to whom privileged communications have been made and the privileged information is relevant.

Question 27

“Claw-back” of privileged info

Answer 27

• Up to 10 days after discovering the disclosure to amend the response and identify the material or information inadvertently disclosed.
• Opposing party must promptly return the inadvertently disclosed material.

Question 28

Spousal testimonial immunity

Answer 28

-Only applies in criminal cases

Exceptions:

1) Furtherance of a crime or fraud
2) Crimes committed by one spouse against the other spouse or a member of the household
3) Testimony relates to matters occurring before the marriage

Question 29

Exceptions to spousal confidences privilege

Answer 29

1) Furtherance of a crime or fraud
2) Crimes committed by one spouse against the other spouse or a member of the household
3) Civil suits among the spouses

Question 30

Physician-patient privilege

Answer 30

Only applies in civil cases, generally.

Limited in criminal cases if made :

1) to a person involved in the treatment of or examination for alcohol/drug abuse; and
2) by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse

Question 31

Psychotherapist-patient privilege

Answer 31

• Civil cases only

- Confidential communications regarding mental or emotional conditions

Question 32

Communicant-clergy privilege

Answer 32

Must be made to the clergy person in his or her capacity as the spiritual advisor.

Question 33

Subsequent remedial measures

Answer 33

Generally inadmissible, but a written product recall is admissible against the manufacturer to prove a product defect.

Question 34

Statements in plea discussions

Answer 34

Limited in criminal cases to statements made during plea negotiations that do not result in a guilty or nolo contendere plea, or result in such pleas that are later withdrawn.

Question 35

Rape shield rule

Answer 35

Only applies in criminal cases.

Can be used to:

1) rebut medical evidence
2) with defendant to prove consent
3) to prove bias or motive to falsity
4) conviction
5) required by Constitution

Question 36

Prior sexual conduct of the defendant

Answer 36

In a criminal case when the defendant is accused of sexual assault against a minor or attempt or conspiracy to commit sexual assault, may offer evidence of the defendant’s past offenses if similar in nature.

Question 37

Not hearsay

Answer 37

• Prior inconsistent statement, made under oath at a prior proceeding
• Statements made in a deposition admissible in a civil case if taken in the same proceeding
• Statement made by a child under 14 to an adult if the child is the victim of sexual abuse, the statement concerns the abuse, and the adult was the first to whom the child made a statement other than the defendant

Question 38

Hearsay exceptions

Answer 38

• Dying declarations (unlike FRE, ok for all cases, not just homicides and civil cases)
• Statements against interest (includes social, and witness need not be unavailable