Rules of Evidence

Question 1

Motions in Limine

Answer 1

In Fed. CRT they preserve objection

Not in TX Court

Question 2

Offer of Proof

Answer 2

Rule 103
Texas - question & answer mandatory if requested by party
Fed - question & answer discretionary

Question 3

Terms used for “error”

Answer 3

Rule 103
TX - “fundamental error”
FED - “plain error”

Question 4

Request for Limiting Instruction

Answer 4

Rule 105
TX - says must request limiting instruction or waive complaint on appeal
FED - rule doesn’t say it, but it’s the law anyway

Question 5

Remainder of or Related Writings or Recorded Statemetns

Answer 5

Rule 106
TX - clarifies, that remainder is permitted to be introduced through adverse party (not just proponent)
FED - not in rule, but in practice mostly

Question 6

Optional Completeness

Answer 6

Rule 107

No FED rule, but common law rule in FED court

Question 7

Judicial Notice

Answer 7

Rule 201
Same in FED & TEX
a. Judicial Notice of “Adjudicative Facts”
b. No reasonable dispute: generally known; or capable of accurate and ready determination
c. Discretionary - court may without request take notice
d. Shall take notice if supplied necessary information
e. Party is entitled to be heard - if not opportunity before, heard after judicial notice
f. Judicial notice may be taken at anytime
g. Jury MAY accept as conclusive fact

Question 8

Judicial Notice - Law of Other State or TX City/Cty

Answer 8

Rule 202 & 204

No FED rule

Question 9

Judicial Notice - Foreign Law

Answer 9

Rule 203

No FED rule of Evidence, but included in FRCP 26.1

Question 10

Presumptions

Answer 10

Not in FED Crim rules or TX Rules

But TX Penal Code has “Presumption” section

Question 11

Is relevance the same in Federal court?

Answer 11

Pretty much...
Rule 404(a) in FED cases if D offers evidence of pertinent character trait of victim, then the Gov't can offer evidence that D has the same trait

Question 12

To use other “crimes, wrongs, or other acts” what must the Gov’t do?

Answer 12

Rule 404(b)
Use the evidence for motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
AND prove the act occurred by preponderance of evidence Huddleston

Question 13

How may character be proved?

Answer 13

Rule 405
reputation or opinion
On cross, you can inquire into specific acts
FRE does not have requirement that: to be qualified to testify at the guilt stage of trial concerning the character of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense

Question 14

What is the rule number for Texas “Inadmissibility of Pleas, Plead Discussions, and Related Statements”?

Answer 14

Rule 410

Question 15

What are the exceptions to Rule 410?

Answer 15

Texas: if part of statement is admitted into evidence then other parts should be allowed in fairness to be considered (effectively optional completeness)
Federal: In later perjury or false statement prosecution, statements made under oath, with counsel present, on the record may be used. NOT in TX.

Question 16

What the Fed. Rule of Crim. Pro. that goes along with FRE 410?

Answer 16

Fed. Rule of Crim. Pro. 11

Question 17

What is the 5th Cir. test for whether a plea negotiation exists with regard to FRE 410?

Answer 17

2 Prong:

1. Whether D exhibited actual subject expectation to negotiate plea at time;
2. Whether accused’s expectation was reasonable given totality of circumstances

Question 18

Does 410 apply to witnesses that are not the accused?

Answer 18

No.

Question 19

Does TRE 410 provide more or less than TX Code of Crim. Proc.?

Answer 19

More, TCCP 27.02 implies that “nolo contendre” please are not admissible in CIVIL cases, whereas if withdrawn it cannot be used under 410

Question 20

What are the common situations that FRE 410 have been found not to apply?

Answer 20

1. Statements made for the benefit of someone else (not the D);
2. Gratuitous statements not meant to receive benefit;
3. A person cooperating with law enforcement before charges are filed;
4. Statements made after plea bargain has been made;
5. Grand jury testimony given by D as the result of plea bargain;
6. D who breaches plea bargain, loses benefit;
7. 410(4) - if plea is made and not withdrawn, discussions become admissible

Question 21

What’re the exceptions for TRE 412?

Answer 21

Offered if:

1. necessary to rebut or explain scientific or medical evidence offered by the State;
2. to explain past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
3. it relates to the motive or bias of the alleged victim;
4. is admissible under Rule 609; or
5. it is constitutionally required to be admitted; and

Its probative value outweighs the danger of unfair prejudice.

NOTE: this applies ONLY to specific instances of conduct NOT reputation or opinion

Question 22

What cases do TRE 412 apply to?

Answer 22

1. Sex assault;
2. Agg. Sex Assault;
3. Attempt to Commit Sex Assault
   NOTE: FRE 412 applies in any criminal case

Question 23

What is the primary procedural difference between TRE 412 and FRE 412?

Answer 23

Federal rule requires filing of intent to use sexual conduct evidence 14 days before trial - serve state, and complainant

Question 24

Which exception differs in TRE 412 from FRE 412?

Answer 24

“motive or bias” exception - practically, this should be protected by D’s 6th Amendment right to cross-examine on such things

Question 25

What is the Texas rule number for FRE 413-415?

Answer 25

There is no TRE; however, TCCP 38.37 has been amended to allow the same evidence

Question 26

Which privilege does Texas have that Federal law does not?

Answer 26

Physician-patient Privilege

Question 27

What broad exception does Texas have for privilege that FRE law does not?

Answer 27

Privilege does not exist if prosecution is for a minor child victim.

Question 28

What is considered a child for FRE 414?

Answer 28

younger than 14

Question 29

How much notice is the Gov’t supposed to give before offering extraneous child sex crimes as relevant evidence?

Answer 29

15 days

Question 30

What is the rule number for “Evidence of Similar Crimes in Child Molestation Cases”?

Answer 30

FRE 414

TCCP 38.37 allows similar evidence

Question 31

What is the rule number for “Evidence of Similar Crimes in Sexual Assault Cases”?

Answer 31

FRE 413

TCCP 38.37 allows similar evidence

Question 32

What is required under the “Rape Shield Law” in Federal cases that is not required in Texas?

Answer 32

“file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered”

Question 33

Does the FRE have a privilege rule?

Answer 33

Yes, 501. It leaves privilege to “common law”

Question 34

What are the exceptions for TRE spousal privilege?

Rule #?

Answer 34

“crime against the person’s spouse, a member of the household of either spouse, or any minor, or bigamy”
TRE 504(b)
TCCP 38.10

Question 35

What is the difference between TRE and Federal common law with regard to spousal privilege?
Texas Rule #?

Answer 35

The Texas exception for children and household members

Question 36

Who may invoke spousal privilege?

Rule #?

Answer 36

For Confidential information, a person, person’s guardian, or person’s spouse
For Not Testifying - person or guardian NOT spouse
Rule 504

Question 37

Can clergyman claim privilege?

Answer 37

Clergy to whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the communicant.
Rule 505

Question 38

What context does clergy privilege apply?

Answer 38

confidential communication to clergy in their professional character as spiritual adviser
Rule 505

Question 39

Do people have a privilege against telling people their vote?

Answer 39

person’s vote at a political election conducted by secret ballot unless the vote was cast illegally
Rule 506

Question 40

TRADE SECRETS?

Answer 40

TRE 507

Question 41

Does the FRE have any special privilege provision?

Answer 41

Yes, FRE 502 “Attorney-Client Privilege and Work Product; Limitations
on Waiver” this allows disclosures made for reporting to State or Federal agencies to maintain their character as privileged or work-product

Question 42

Are the Texas and Federal rules different with regard to competency of witness to testify?

Answer 42

Yes, FRE 601 provides that ANY witness is competent “Every person is competent to be a witness except as otherwise provided in these rules.”
TRE 601 Identifies specifically “Insane Persons” 1. time of testimony; or 2. time of event; and “Children of other persons” 1. examined by the court; 2. appear not to possess sufficient intellect to relate transactions”

Question 43

Can a party or judge make a reference to or inference from invocation of privilege?

Answer 43

TRE 513, No.

1. Not a proper subject of comment or inference;
2. Should claim without knowledge of jury;
3. If jury may draw “adverse inference” from claim of privilege, party is entitled to limiting instruction

Exception, Failure of D to call spouse as witness TRE 504(b)

Question 44

What is the difference between FRE and TRE “Personal Knowledge” rule?

Answer 44

None. TRE & FRE 602 the same

Question 45

Is there an evidentiary requirement for a witness to take an oath?

Answer 45

Yes. TRE & FRE 603

“form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to” testify truthfully

Question 46

What are the differences between FRE and TRE for interpreters?

Answer 46

None. Rule 604 - interpreter must be qualified as “expert”

Question 47

Can jurors testify in a trial in which they are a juror?

Answer 47

NO, TRE & FRE 606 - party shall be afforded opportunity to object outside the juries presence

Question 48

How do the rules for “Inquiry into Validity of Verdict or Indictment” compare?

Answer 48

TRE & FRE 606(b) both “juror may not testify as to any matter or statement occuring durign the juries deliberation, or …mind or emotions or mental process…”
BOTH exception: whether outside influence improperly brought to bear
TRE rebut claim juror not qualified to serve
FRE extraneous prejudicial information was brought to jury’s attention

Question 49

Who may impeach a witness?

Answer 49

TRE & FRE 607 anyone, even party calling

Question 50

Which rule relates to character or conduct of a witness?

Answer 50

Rule 608

Rule 609 - impeachment by evidence of conviction

Question 51

What kind of evidence can be used to attack credibility of a witness?

Answer 51

TRE & FRE 608 credibility of a witness may be attacked by “opinion and reputation” evidence
the rules have different limitations

Question 52

What are the limitations on attacks on credibility?

Answer 52

TRE & FRE 608 require “opinion or reputation” evidence
Only character for truthfulness or untruthfulness
Truthfulness only admissible after it’s been attacked
TRE Specific instances of conduct other than 609 NOT OK
FRE Specific instances of conduct other than 609 OK, but no extrinsic evidence

Question 53

Does a witness have to waive 5th Amendment right if asked about specific instances of conduct related to truthfulness?

Answer 53

FRE 608, no, witness does not waive 5th A right to those instances
TRE 608 - does not allow inquiry into specific instances of conduct, SO not an issue

Question 54

What kind of evidence does 609 relate to?

Answer 54

TRE 609 - convictions for evidence of “credibility” of witness
FRE 609 - convictions for evidence of “truthfulness” of witness

Question 55

What kind of convictions can be used in rule 609?

Answer 55

TRE 609 - felony or crime of moral turpitude (regardless of punishment) AND probative value outweighs prejudice
FRE 609 crime punishable by death or excess of one year probative value of admitting this evidence outweighs prejudice effect to the accused; if not “accused” testifying then apply 403 prejudice test!!
Also, can admit crime “required proof or admission of an act of dishonesty or false
statement by the witness” (no balance test)

Question 56

What is the notice requirement for using convictions for impeachment?

Answer 56

TRE 609 after timely written request, party must give notice in time to contest
FRE 609 only has to give notice of offenses older than 10 years (no request required)

Question 57

What is the time limit on using convictions for impeachment of a witness?

Answer 57

TRE & FRE 609
10 years unless
The judge finds probative value substantially outweighs its prejudice (Inverted 403)

Question 58

Are juvenile adjudications admissible to impeach a witness?

Answer 58

TRE 609(d) evidence of adjudication admissible ONLY in other Juvenile proceeding (Title III Family Code) - also if required by Constitutions (Davis v. Alaska Rule) 
FRE 609(d) generally not admissible, Judge may, in a criminal case allow adjudication of a witness OTHER THAN ACCUSED if conviction of the offense would be admissible to attack the credibility of an adult and evidence is necessary for a fair 
determination of the issue of guilt5 or innocence.

Question 59

Can convictions that are still on appeal be used?

Answer 59

TRE 609(e) NO. 
FRE 609(e) YES, but also fact that appeal pending is admissible also

Question 60

What is the limit on use of religious beliefs or opinions?

Answer 60

TRE & FRE 610 cannot be offered for: “credibility is impaired or enhanced”

Question 61

When may a party lead a witness?

Answer 61

TRE & FRE 611

1. Cross
2. Direct of adverse party
3. Witness identified with an adverse party
4. To “Develop the testimony of the witness”

Question 62

What is the “scope of cross”?

Answer 62

TRE 611 any relevant issue raised in the case
FRE 611 limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Question 63

When is a party entitled to review a writing reviewed to refresh memory?

Answer 63

TRE 612 if used WHILE testifying, or BEFORE testifying

FRE 612 if used WHILE testifying, or BEFORE testifying AND “ it is necessary in the interests of justice”

Question 64

What if a witness uses a document to refresh memory WHILE testifying?

Answer 64

TRE & FRE 612

1. entitled to have the writing produced at the hearing;
2. to inspect it;
3. cross-examine the witness thereon; and
4. to introduce in evidence those portions which relate to the testimony of the witness.

Question 65

What if a document used to refresh memory has matters not related to subject of testimony?

Answer 65

TRE & FRE 609
Court examines the writing in camera, excise portions not so related, and order delivery of the remainder to the party entitled thereto.
Any portion withheld over objections shall be preserved for the appellate court.
If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Question 66

Who can call witnesses to testify?

Answer 66

FRE 615 Either party and court - parties entitled to cross-examine witnesses.
No Texas rule.

Question 67

Who can question a witness?

Answer 67

FRE 615 court or either party

Question 68

When can a party object to the court calling or questioning a witness?

Answer 68

FRE 615 may be made at the time or at the
next available opportunity when the jury is not present.
No Texas Rule.

Question 69

When can witnesses be excluded from the courtroom?

Answer 69

TRE 614 & FRE 615

Either court or party can request exclusion

Question 70

What is the federal rule of excluding witnesses from courtroom?

Answer 70

FRE 615
Either court or party can request exclusion, other than
(1) a party who is a natural person, or
(2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or
(3) a person
whose presence is shown by a party to be essential to the presentation of the party’s case;
(4) persons authorized by statute

Question 71

What is the Texas rule for excluding witnesses from courtroom?

Answer 71

TRE 614
Either court or party can request exclusion, other than
(1) a party who is a natural person;
(2) an officer or employee of a defendant in a criminal case that is not a natural person designated as its representative by its attorney;
(3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause; or
(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial.

Question 72

How do the Texas and Federal rules differ concerning exclusion of witnesses?

Answer 72

TRE 614 - no exception for State’s “case officer”

TRE specifically exempts victims (Fed. statute also does FRCP 60)

Question 73

What is the rule of production of witness statements in criminal cases?

Answer 73

TRE 615 (No FRE) 
However, Fed. has FRCP 26.2 derived from Jencks Act.

Question 74

What is the TX rule for examining witnesses concerning prior inconsistent statements?

Answer 74

TRE 613
Before further cross-examination concerning, or extrinsic evidence of such statement may be allowed, the witness must be told:
1. the contents of such statement and the time and place and the person to whom it was made, and;
2. must be afforded an opportunity to explain or deny such statement.
You don’t have to show witness written statement, but on request opposing counsel gets to see.

If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2)

Question 75

What is the Fed. rule for examining witnesses concerning prior inconsistent statements?

Answer 75

1. The statement need not be shown nor its
   contents disclosed to the witness at that time, but on request opposing counsel it shall be provided.
2. Extrinsic evidence is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

Question 76

What is the difference between Fed. and TX rules regarding examining prior inconsistent statements?

Answer 76

1. FRE 613 says nothing about bias or interest;
2. FRE 613 doesn’t require the witness be informed of time or place of statement, or person it was made to
3. FRE 613 extrinsic evidence OK, if witness later can explain AND other party gets to interrogate on statement

Question 77

What is the rule about impeaching witness about bias or interest?

Answer 77

TRE 613(b)
Impeaching witness by proof of circumstances or statements showing bias or interest on the part of such witness:
1. before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, must make known to witness circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made; and
2. Witness must be given an opportunity to explain or to deny such circumstances or statement. 

Writing need not be shown to the witness at that time, but on request it shall be shown to opposing counsel.
If the witness unequivocally admits such bias or interest, no extrinsic evidence.

A party is entitled to rebut.

NO FED RULE!

Question 78

What is the rule regarding witness statements?

Answer 78

TRE 615
1. After witness (other than the defendant) on direct examination, on motion of a party who did not call the witness, offering party shall produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter.

2. If offering party claims statement contains matter not related to the subject matter, court inspect in camera. Court shall excise the portions of the statement that do not relate to subject matter, and have delivered to the moving party. Portions withheld over objection shall be preserved for appellate court.
3. Upon application of that party, Court shall recess proceedings in the trial for a reasonable examination and for preparation for its use in the trial.
4. If party elects not to comply with an order to deliver a statement, the court shall order that the testimony be stricken and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.

No FRE but FRCP 26.2 derived from Jencks Act.

Question 79

What is considered a “statement” for TRE 615?

Answer 79

1. a written statement that is signed or otherwise adopted or approved;
2. Substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
3. Recorded statement made by the witness to a grand jury.

(In actual possession of State)

Same in FRCP 26.2 (in constructive possession of Gov’t)

Question 80

Is there a difference between to which statements TRE 615 and FRCP 26.2 apply?

Answer 80

Texas - in actual possession of prosecutor

Fed. - in constructive possession

Question 81

In what situations does the Federal rule concerning witness statements apply?

Answer 81

FRCP 26.2

1. At trial;
2. suppression hearing under Rule 12,
3. Rule 5.1(h) (preliminary hearing);
4. Rule 32(i)(2) (sentencing);
5. Rule 32.1(e) (hearing to revoke or modify probation or supervised release);
6. Rule 46(j) (detention hearing); and
7. Rule 8 of the Rules Governing Proceedings under 28 U.S.C. §2255.

Question 82

Does FRCP 26.2 apply to 28 U.S.C. §2255?

What is 28 U.S.C. §2255?

Answer 82

Yes.

Federal custody; remedies on motion attacking sentence

Question 83

What is considered a “statement” for FRCP 26.2?

Answer 83

(1) a written statement that the witness makes and signs, or otherwise adopts or approves;
(2) a substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or
(3) the witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.

(in constructive possession of Gov’t)

Same as TRE 615 (in actual possession of State)

Question 84

What is the remedy for failure to comply with request for testifying witness’ statement?

Answer 84

Party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness’s testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires.
TRE 615
FRCP 26.2

Question 85

Who may call and interrogate witness?

Answer 85

Parties
FRE 614
1. Court may, on its own motion or at
the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called;

2. The court may interrogate witnesses;
3. Objections to the calling of witnesses by the
   court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

Texas…no authority BUT judge should be careful

TCCP 38.05 Judge shall not at any stage make any remark calculated to convey to the jury his opinion of the case.

Question 86

What is the rule about opinions of law witnesses?

Answer 86

TRE & FRE 701
Non-expert opinions or inferences are limited to
(a) rationally based on the perception of the witness; and
(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

FRE 701 adds
Testimony cannot be based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Question 87

What is the difference between Texas and Fed. rule about lay witness testimony?

Answer 87

FRE 701 adds

Testimony cannot be based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Question 88

What is the rule regarding expert witness testimony?

Answer 88

TRE & FRE 702
Scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue;
2. A witness may qualify as an expert by knowledge, skill, experience, training, or education, 3. May testify thereto in the form of an opinion or otherwise.

FRE 702 adds
1. Must be based upon sufficient facts or data;
2. The testimony is the product of reliable
principles and methods, and;
3. The witness has applied the principles and methods reliably to the facts of the case.

Question 89

What is the difference between Tex. and Fed. Rule 702?

Answer 89

FRE 702 adds
1. Must be based upon sufficient facts or data;
2. The testimony is the product of reliable
principles and methods, and;
3. The witness has applied the principles and methods reliably to the facts of the case.

Question 90

Explain the rule regarding bases for expert testimony?

Answer 90

TRE & FRE 703

1. Facts or data that re bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing.
2. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,
3. The facts or data need not be admissible in evidence.

FRE 703 adds
Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the PROPONENT of the opinion or inference unless the court determines that their probative value to evaluate the expert’s opinion substantially outweighs their prejudicial effect. (Inverted 403) (Stricter than TRE 705)

Question 91

What is the difference between Tex. and Fed. Rule 703?

Answer 91

FRE 703 adds
Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the PROPONENT of the opinion or inference unless the court determines that their probative value to evaluate the expert’s opinion substantially outweighs their prejudicial effect. (Inverted 403) (Stricter than TRE 705)

Question 92

What is the rule about embracing the ultimate issue?

Answer 92

TRE & FRE 704
Testimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue.

FRE 704 adds
Expert testifying as to mental state of a defendant in a criminal case CANNOT state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element or defense. Such ultimate issues are
matters for the trier of fact alone.

Question 93

What is the difference between Tex. and Fed. 704?

Answer 93

FRE 704 adds
Expert testifying as to mental state of a defendant in a criminal case CANNOT state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element or defense. Such ultimate issues are
matters for the trier of fact alone.

Question 94

What is the rule regarding experts disclosing underlying facts or data use?

Answer 94

TRE & FRE 705
Expert may testify in terms of opinion or inference and give the expert’s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise.

Texas - The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.

Fed - cannot disclose on direct. See FRE 703

Question 95

What procedure is available for opposing party before expert gives opinion?

Answer 95

TRE 705(b) 
Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. 
This examination shall be conducted out of the hearing of the jury.

NOT in FRE 705 (remember restriction in 703)

Question 96

How does judge evaluating admissibility of underlying facts or data of expert testimony?

Answer 96

705(d)

1. Balancing test - Underlying facts or data would be inadmissible, exclude if the danger that they will be used for a purpose other than as explanation or support for the expert’s opinion outweighs their value as explanation or support or are unfairly prejudicial. (Straight up balance)
2. If otherwise inadmissible limiting instructions hall be given upon request.

No Fed. provision

Question 97

What is the rule regarding court appointed experts?

Answer 97

FRE 706
The court may on its own motion or on the
motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations.
The court may appoint any expert witnesses
agreed upon by the parties, and may appoint expert witnesses of its own selection.
An expert witness shall not be appointed by the
court unless the witness consents to act.
A witness so appointed shall be informed of the witness’ duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate.
A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party.

Expert shall be subject to cross-examination by each party, including a party calling the witness.

In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the
court appointed the expert witness.

Nothing in this rule limits the parties in calling expert witnesses of their own selection.

No Tex. rule - may run afoul of Texas Code of Crim. Proc. 38.05

Question 98

What is the definition of “statement” for purposes of hearsay?

Answer 98

TRE 801
(1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.
FRE 801
(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the
person as an assertion

Question 99

What is the definition of “hearsay”?

Answer 99

TRE & FRE 801
a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Question 100

Is “hearsay” the same in Tex. and Fed. rule?

Answer 100

Not exactly, because of definition of “statement” and the Texas definition “Matter Asserted”

Texas is broader, in that it applies to matters implied by the statement; whereas, the Federal rule applies to matters explicitly asserted

Question 101

What is the definition “Matter Asserted”?

Answer 101

TRE 801
includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.

FRE does not define

This works to make Texas hearsay definition broader (as to implied meaning)

Question 102

What is excluded by definition from hearsay?

Answer 102

1. Prior statement by Witness; and
2. Admission by Party Opponent.

Note, “Depositions” in civil cases.

Question 103

What is considered a “Prior Statement by Witness” for purposes of hearsay?

Answer 103

TRE & FRE 801(e)(1)
Declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition; or
(B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; or
(C) one of identification of a person
made after perceiving the person;

1. Texas, excludes grand jury testimony (even if cross)
2. Texas includes non-hearsay statements of child (under 13) pursuant to 38.071 <- not constitutional

Question 104

What is considered an “Admission by Party-Opponent”?

Answer 104

TRE & FRE 801

The statement is offered against a party and is:

(A) the party’s own statement in either an individual or representative capacity;

(B) a statement of which the party has manifested an adoption or belief in its truth;

(C) a statement by a person authorized by the party to make a statement concerning the subject;

(D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or

(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

FRE 810 adds
The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Question 105

What is the difference between Rule 801 “Admission by a Party Opponent”?

Answer 105

FRE 810 adds
The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

Question 106

What is the rule for “Present Sense Impression”?

Answer 106

TRE & FRE 803(1)
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Question 107

What is the rule for Excited Utterance?

Answer 107

803(2)
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Question 108

What is the rule for Then Existing Mental, Emotional, or Physical Condition?

Answer 108

803(3)
Declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

Question 109

What is the rule for Statements for Purposes of Medical Diagnosis or Treatment?

Answer 109

804(4)
For purposes of medical diagnosis or treatment and describing medical history, 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.

Question 110

What is the rule for Recorded Recollection?

Answer 110

803(5)
A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly, If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Texas adds “unless the circumstances of preparation cast doubt on the document’s trustworthiness.”

Question 111

What is the rule for Records of Regularly Conducted Activity?

Answer 111

803(6)
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge:
1. kept in the course of a regularly conducted business activity; and
2. if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation,
3. All as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10),
unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Question 112

What is the rule for Absence of Entry in Record?

Answer 112

803(7)
Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

Question 113

What is the rule for Judgment of Previous Conviction?

Answer 113

803(22)

1. Tex. excludes conviction on appeal; Fed. treats as weight not admissibility
2. Tex. allows for any criminal case; Fed. only felony;
3. Tex. allows convictions on pleas of nolo contendre; Fed. does not

Convictions cannot be used for anything other than impeachment against the Accused.

Question 114

What is the rule for Statement Against Interest?

Answer 114

TRE 803(24) - availability of declarant immaterial
So far contrary to the declarant’s:
1. pecuniary or proprietary interest, or
2. tended to subject the declarant to civil or criminal liability;
3. Renders invalid a claim by the declarant against another;
4. Makes the declarant an object of hatred, ridicule, or disgrace;
that a reasonable person in declarant’s position would not have made the statement unless believing it to be true.
In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

FRE different 804(b)(3)

Question 115

What is the difference between Fed. and Tex. rule related to “Statement Against Interest”?

Answer 115

1. Tex. declarant availability immaterial; Fed. declarant must be unavailable;
2. Tex. includes “object of hatred, ridicule, or disgrace”; Congress deleted this from Sup. Court version;
3. As of 2010, corroboration pertains to both parties in Federal rules!

Question 116

What is the definition of “Unavailability” under TRE?

Answer 116

TRE 804(a)
(1)	is exempted by ruling of the court on the ground of privilege;

(2) persists in refusing to testify despite an order;
(3) testifies to a lack of memory;
(4) death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

Question 117

What is the definition of “Unavailability” under FRE?

Answer 117

FRE 804(a)

(1) ruling of the court of privilege; or
(2) persists in refusing to testify despite court order; or
(3) testifies to a lack of memory; or
(4) death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or TESTIMONY) by process or other reasonable means.

Note: (b)(2) dying; (b)(3) against interest; (b)(4) personal or family history

Question 118

What is the difference between FRE and TRE definition of “Unavailable”?

Answer 118

804(a)
Fed. makes attempt to procure testimony a requisite to “unavailability” in Statement Against Interest

HOWEVER, because deposition are so often used in criminal cases, it’s not required
must show attempted to subpoena and “good-faith effort was made prior to trial to locate and present the witness”

Question 119

What are the exceptions when a declarant is UNavailable?

Answer 119

TRE 804(b)

1. Former testimony;
2. Dying declaration;
3. Statement of personal or family history.

FRE 804(b)
adds 3. Statement Against Interest
Also, Dying Declaration can only be used in homicide cases

Question 120

What is the “Residual” hearsay exception?

Answer 120

FRE 807
Not covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness,
is not excluded by the hearsay rule, if the court determines that:
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and
the interests of justice will best be served by admission of the statement into evidence.

Not admitted unless proponent gives notice with a fair opportunity to prepare, including:

1. particulars
2. name; and
3. address

NO TEXAS RULE

Question 121

What is the rule regarding Attacking and Supporting Credibility of Declarant?

Answer 121

TRE & FRE 806
Applies to statement in exception or excluded by definition of hearsay:
1. credibility may be attacked;
2. If attacked may be supported;
3. By evidence which would be admissible for those purposes if declarant had testified as a witness.

Statement or conduct at any time, inconsistent
with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain.
If the party against whom statement was admitted calls declarant, then party entitled to cross-examine the declarant on the statement.

Question 122

What is the difference in Fed. and Tex. authentication?

Answer 122

Rule 901

In Fed. court must actually make finding of authentication, Tex. only need evidence authenticating

Question 123

What is a non-exclusive list of items that may be “authenticated”?

Answer 123

TRE & FRE 901

(1) Testimony of witness with knowledge
(2) Nonexpert opinion on handwriting
(3) Comparison by trier or expert witness
(4) Distinctive characteristics and the like
(5) Voice identification
(6) Telephone conversations
(7) Public records or reports
(8) Ancient documents or data compilation
(9) Process or system
(10) Methods provided by statute or rule

Question 124

Does a subscribing witness need to be called to testify to authenticate?

Answer 124

TRE & FRE 903
No, not unless jurisdiction governing validity requires it
NOTE: subscribing means witness, like for a will

Question 125

What should a court consider in authenticating an email?

Answer 125

1. the return address line;
2. date and time of correspondence;
3. the subject line;
4. the contents and the context;
5. internal characteristics such as grammar and spelling;
6. any other circumstances, including conversations or events either before or after the email that make it more likely that the message came from the person

Question 126

When is a duplicate admissible?

Answer 126

TRE & FRE 1003
Admissible unless:
(1) a question is raised as to the authenticity of the original; or
(2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Question 127

When are the contents of a writing, recording, or photo admissible?

Answer 127

TRE 1004
To prove the contents of an original the original is not required if:
(a) Originals Lost or Destroyed - unless bad faith;

(b) Original Not Obtainable;
(c) Original Outside the State;
(d) Original in Possession of Opponent;
(e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.

FRE excludes the “Outside State” exception

Question 128

What is the “Best Evidence Rule”?

Answer 128

Common law rule that is codified in Rules of Evidence 1001 - 1008

Question 129

Is the question of whether contents accurately reflect original a preliminary issue for the court?

Answer 129

Rule 1008
NO.
(a) whether the asserted writing ever existed; or
(b) whether another writing, recording, or photograph produced at the trial is the original; or
(c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

Court determines the “Conditional Facts” required for predicate, but ultimate issue of existence, authenticity of original, or correct reflection of original

Question 130

What is required for admission of a translated document?

Answer 130

TRE 1009

1. Affidavit of qualified translator;
2. Aff. sets forth qualifications;
3. Translation is fair and accurate;
4. Affidavit, document, and translation must be served 45 days before date of trial.

Objection, must be at least 15 days prior to trial, pointing out specific inaccuracies

NO FRE

Question 131

When do the FRE not apply?

Answer 131

Other than to privileges, FRE do not apply to:

(1) Preliminary questions of fact.—The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104.
(2) Grand jury;
(3) Proceedings for extradition or rendition;
(4) Preliminary examinations in criminal cases;
(5) Sentencing;
(6) Granting or revoking probation;
(7) Issuance of warrants for arrest;
(8) criminal summonses; and
(9) Search warrants.

Question 132

How do the rules of evidence apply in Special hearing to determine whether a sentence of death is justified?

Answer 132

18 USC § 3593(c)
Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.

Question 133

Are offenses that are “plead in bar” under Texas Code of Crim. Proc. 12.45 admissible under Rule 609 as a conviction?

Answer 133

No.
Not convictions for TX. Lopez CCA 2008
Not sentenced FRE 609, but may? be admissible if crime involving dishonesty.