Texas Evidence

Question 1

What do the Texas Rules of Evidence (TRE) apply to?

Answer 1

Civil and criminal cases

DOES NOT APPLY TO:

1) Grand jury hearings;
2) Competency hearings;
3) Warrant application hearings;
4) pretrial detention hearings; AND
5) Direct contempt hearings.

UNLIKE FRE, TRE APPLIES TO:

1) Sentencing hearings; AND
2) Preliminary examining trials in felony cases.

Question 2

When determining admissibility of evidence, the judge is bound by the rules of evidence, EXCEPT those relating to ________________.

Answer 2

Privilege

Question 3

In order to make a timely objection, it must be ___________.

Answer 3

TIMELY, SPECIFIC, AND ACCURATE.

Question 4

T/F - If you object to evidence at trial, make case outside hearing of jury, and you are overruled, you DO NOT have to object again in the presence of the jury.

Answer 4

True. (TRE 103).

Question 5

What are motions in limine?

Answer 5

Motions made BEFORE TRIAL asking the court to rule on the admissibility of certain evidence.

Question 6

How is an objection to a pretrial evidence ruling preserved in Texas?

Answer 6

IF an objection to the motion in limine is overruled and the court make a “definitive” ruling that the evidence is admissible, counsel IS REQUIRED TO OBJECT AGAIN, ON THE RECORD, WHEN THE EVIDENCE IS OFFERED AT TRIAL, even though counsel objected before the trial and lost.

Question 7

T/F - When the pretrial ruling excludes evidence, the party who lost must again offer the evidence at trial and get a ruling on the record.

Answer 7

True

Question 8

What is the deal with limited admissibility and limiting instructions?

Answer 8

When evidence is admitted for a limited purpose, the objecting party MUST request a limiting instruction. If the party does not request a limiting instruction, the party has waived its objection.

Question 9

What are the two types of judicial notice in Texas?

Answer 9

1) Generally known facts; AND
2) Encyclopedic facts - not known to everyone, but may be easily obtained from authoritative sources (geographical facts).

Question 10

What instructions may a judge give after making a judicial notice?

Answer 10

1) Jury MUST take fact as conclusively proven; OR
2) Jury MAY take fact as conclusively proven, but is not required to.

CIVIL CASES - a conclusive instruction is appropriate. Once judicial notice is taken in a civil case, a party CANNOT introduce evidence to dispute or disprove that fact.

CRIMINAL CASES - the jury is told they MAY find, but are not required to find, judicially noticed fact proven.

Question 11

What is the difference between FRE and TRE with regard to the scope of cross-examination?

Answer 11

FRE - limited

TRE - anything that is relevant

Question 12

How must questions be formed when presented to a witness?

Answer 12

Counsel shall not lead witnesses on direct examination, EXCEPT when:

1) Witness is an adverse party;
2) Witness is a hostile witness;
3) Witness has limited understanding; OR
4) On preliminary, trivial, uncontested (foundational) matters.

Counsel is PERMITTED TO LEAD witnesses on CROSS-EXAMINATION, UNLESS counsel is examining his own client on cross-examination (i.e., opposing counsel had called his client on direct).

Question 13

What is the “sequestration of witnesses.”

Answer 13

On motion, all witnesses are excluded from the trial before testifying, EXCEPT:

1) Natural parties;
2) Entity parties’ representatives;
3) Spouses of the PARTIES; And
4) Persons essential to presentation of the case (experts).

Under TEXAS rules, a complaining witness in a CRIMINAL case may be allowed to hear trial testimony if court believes it would not affect the witness’s testimony.

Question 14

What is the “burden of proof.”

Answer 14

Two types:

1) Burden of production - required to put on some kind of evidence, or else issue is not raised; AND
2) Burden of persuasion - burden to persuade trier of fact on particular issue.

Question 15

What are the two types of presumptions?

Answer 15

1) Rebuttable presumptions; AND

2) Conclusive presumptions

Question 16

What is character evidence, and how is it put on? Is it admissible?

Answer 16

Evidence of a trait or propensity to act in a certain way on a particular occasion. The modes of proof for character are through: REPUTATION, OPINION, AND SPECIFIC INSTANCES.

DEFAULT RULE - Character evidence is NOT ADMISSIBLE TO PROVE that a person acted in CONFORMITY with a character trait, EXCEPT in very specific circumstances.

Question 17

What are the exceptions to the default rule on character evidence?

Answer 17

1) Character of the ACCUSED: Defendants in a CRIMINAL case are allowed to prove good character, but ONLY WITH REPUTATION AND OPINION TESTIMONY (NOT SPECIFIC ACTS). This OPENS THE DOOR for the prosecution to enter evidence of bad character.

TEXAS DISTINCTION - FRE follows the rule above. TRE goes further and allows good character evidence in a CIVIL CASE where the defendant is CHARGED WITH CONDUCT INVOLVING MORAL TERPITUDE.

2) Character of the VICTIM - Evidence of the VICTIM’S BAD CHARACTER may be offered in some cases and must be done so with OPINION OR REPUTATION (NOT SPECIFIC ACTS). Once attacked, prosecution can rebut with good character evidence

TEXAS DISTINCTION - FRE allows the prosecution to rebut with GOOD character of the victim AND BAD CHARACTER OF THE DEFENDANT. TRE ONLY ALLOWS PROSECUTION TO REBUT WITH GOOD CHARACTER EVIDENCE OF THE VICTIM.

Question 18

T/F - Character evidence will be admissible when character is an essential, required element of ANY claim.

Answer 18

True.

Question 19

Can evidence of prior bad acts be introduced?

Answer 19

Prior uncharged misconduct (extraneous offenses) CAN BE USED for purposes other than to show propensity. EXAMPLES INCLUDE (KIPPOMMIA):

1) Knowledge;
2) Intent;
3) Preparation;
4) Plan;
5) Opportunity;
6) Motive;
7) Lack of Mistake;
8) Identity; AND
9) Lack of Accident.

Question 20

Is evidence of habit admissible?

Answer 20

Habit evidence IS GENERALLY ADMISSIBLE to show that a person ACTED IN CONFORMITY WITH THAT HABIT on a specific occasion. To be admissible, the following THREE ELEMENTS ARE REQUIRED:

1) Frequently - must happen often (not once or twice);
2) Semi-Automatic Conduct - not carefully planned out, just something that happens;
3) Similar Circumstances - under similar circumstances, acts the same way.

Question 21

What makes a witness competent to testify?

Answer 21

The witness MUST:

1) Have FIRST-HAND PERSONAL KNOWLEDGE of a relevant matter (except for expert witnesses);
2) Have ability to understand and understand facts;
3) Take an OATH OR AFFIRM that they will tell the truth and be subject to penalties of perjury.

Specific Competency Rules:

1) Insane - presumed not to be competent (rebuttable). An INSANE PERSON MAY TESTIFY.
2) Jurors - generally MAY NOT TESTIFY as to what went on during DELIBERATIONS, EXCEPT: about outside influences AND to rebut a challenge to their qualifications.
3) No minimum age requirement as long as they have the mental ability to have perceived, determine the difference between facts and fancy, remember facts, and relate them intelligently at trial.

Question 22

Does Texas have a Dead Man’s Statute?

Answer 22

Yes. Where a deceased or incompetent person’s representatives are suing or being sued in their representative capacities, ORAL statements of the deceased or incompetent person ARE NOT ADMISSIBLE, UNLESS:

1) Independently corroborated; OR
2) The witness is called by an opposing party.

Question 23

Can specific instances be used to impeach a witness’s credibility?

Answer 23

NO, only opinion and reputation evidence.

Question 24

Can a party in Texas ask a witness on cross-examination about prior specific instances of untruthful conduct to impeach their credibility?

Answer 24

NOT IN TEXAS.

YES IN FEDERAL COURT

Question 25

In Texas, can previous convictions be used to impeach a witness?

Answer 25

YES but only with TWO TYPES:

1) Felony convictions; AND
2) Any crime, including misdemeanors, if the crime involved: (FRE) false statements or deceit; (TRE) MORAL TERPITUDE (broader than FRE)(anything vile, depraved and against morals, as well as dishonest and deceitful conduct).

Question 26

T/F - When conviction is being appealed, the conviction itself may be introduced into evidence in Texas, while you cannot in FRE.

Answer 26

False. Opposite.

Question 27

What is the key distinction between FRE and TRE with regard to prior inconsistent statements?

Answer 27

Under TRE, before impeaching witnesses with a prior inconsistent statement, the witness MUST BE CONFRONTED WITH THE STATEMENT INCLUDING THE FOLLOWING:

1) Content of the statement;
2) Time made;
3) Where made; AND
4) To whom made.

The witness must be fully comprised of the allegation and given opportunity to either deny, explain, or admit it.

If the witness ADMITS THE STATEMENT, then the inconsistent statement is NO LONGER ADMISSIBLE.

Question 28

In Texas, can extrinsic evidence of witness’s bias be admitted?

Answer 28

Yes. BUT first they must be confronted with the evidence and given a chance to explain or deny.

Question 29

Can religious beliefs be used to impeach a witness?

Answer 29

NOT IN TEXAS.

Question 30

What is the Texas distinction with regard to Refreshing Recollection?

Answer 30

If, before testifying in a CRIMINAL TRIAL, a witness has used a document to refresh his or her recollection, the other side has an ABSOLUTE RIGHT TO SEE AND EXAMINE THE WITNESS REGARDING THE DOCUMENT.

FRE - do not permit this absolute right.

NOTE: Remember that even IRRELEVANT things can be used to refresh recollection.

Question 31

Can lay witnesses give opinions?

Answer 31

Only if TWO CONDITIONS are met:

1) The opinions are of the kind that lay people rationally make every day; AND
2) The opinions will be helpful to the fact finder.

Question 32

When can experts give opinions?

Answer 32

If they have specialized knowledge or skills, not available to the ordinary citizen, gained through education, training, or experiences.

The DAUBERT REQUIREMENTS - The expert’s opinion must generally have been arrived at through RELIABLE PRINCIPLES and methods that RELIABLY SUPPORT the opinions.

Opinion can be based on any information gained in the following ways:

1) Gained prior to trial (examination, tests, reading depositions);
2) Listening to testimony of other witnesses at trial; OR
3) Hypothetical questions based on trial evidence.

The facts or data relied upon may include inadmissible or unadmitted facts or data, IF they are of the type REASONABLY RELIED ON by experts in that field in forming opinions.

The expert MAY render an opinion DIRECTLY UPON THE ULTIMATE FACTUAL ISSUE to be decided by the trier of fact.

Question 33

What are the two types of exhibits?

Answer 33

Real Evidence (proponent claims was actually involved in the case)

Demonstrative Evidence (depiction of something real out of court)

Question 34

What does it mean to authenticate evidence?

Answer 34

Proving that the evidence is what the proponent claims it is. In Texas, this is called “laying the predicate.”

Burden of Proof - Must support a finding by a reasonable juror that it is what the proponent claims to be.

Question 35

How are real and demonstrative evidence authenticated?

Answer 35

Real - Witness with FIRST-HAND KNOWLEDGE MUST TESTIFY that the evidence is SUBSTANTIALLY UNCHANGED from how it was when initially seen or recovered.

Demonstrative - Witness authenticating must have FIRST-HAND KNOWLEDGE, and testify that evidence is a FAIR AND ACCURATE REPRESENTATION of what it purports to depict.

SELF-AUTHENTICATING EVIDENCE INCLUDES:

1) Public Documents that are under seal;
2) Official publications by public authorities (IRS);
3) Newspapers and magazines;
4) Trade inscriptions.

Records Reflecting Medical Expenses: under recent amendment to TRE, records relating to recoverable medical expenses may be authenticated with an affidavit by the custodian of the records.

Question 36

T/F - Under both FRE and TRE, business records can be authenticated with custodial statements.

Answer 36

True

Question 37

What is the Best Evidence Rule?

Answer 37

If introducing a document in order to prove substance or contents of the document, you must bring in the ORIGINAL document.

APPLIES TO THREE TYPES OF EXHIBITS:

1) Writings;
2) Recordings (video, audio, digital);
3) Photographs

Question 38

What does an “original” mean within the Best Evidence Rule? What is the rule? Are duplicates admissible?

Answer 38

Can Include:

1) Every print of a photo from a negative or digitally saved copy;
2) Printouts of electronically saved documents; and
3) Copies, of any kind, intended to have the same effect as the original.

Originals are not required and any other evidence of content of document may be introduced IF the original is:

1) Lost or destroyed, IN GOOD FAITH;
2) Beyond the process of the court; OR
3) In the possession of the OPPOSING PARTY.

DUPLICATES ARE ADMISSIBLE IF:

1) There is no question as to the authenticity of the original; OR
2) It would not be unfair to admit the duplicate.

Question 39

T/F - With regard to privilege, it can be waived if the party intentionally OR negligently discloses some or all of the communication.

Answer 39

True.

Question 40

What is the Subject Matter Waiver Doctrine?

Answer 40

If a substantial part of the privileged communication is revealed, you WAIVE the privilege for the ENTIRE COMMUNICATION.

Question 41

Is there a special rule in Texas regarding inadvertent inclusion of privileged communication?

Answer 41

Yes. If included in MASS DISCOVERY inadvertently, the party is allowed to “CLAW BACK” without a waiver of privilege IF the disclosing party ACTS PROMPTLY UPON LEARNING OF THE DISCLOSURE.

Question 42

T/F - Under TRE and FRE, when an eavesdropper overhears a conversation intended to be confidential and privileged, the eavesdropper will be allowed to reveal the communication in court if the holder of the privilege was NEGLIGENT in taking reasonable measures to ensure its confidentiality.

Answer 42

True.

Question 43

How does Spousal Testimonial Immunity work in Texas?

Answer 43

APPLIES IN CRIMINAL CASES.

Spouse MAY refuse to testify against spouse who is charged.

DOES NOT SURVIVE DIVORCE.

Confidentiality doesn’t matter. Does not have to even relate to matters that occurred during the marriage.

EXCEPTIONS - THE SPOUSE MUST TESTIFY IF:

1) Crime charged was against spouse-witness, or member of the family in the household; OR
2) Testimony relates to matters occurring before marriage.

Question 44

How does the Spousal Confidences Privilege work in Texas?

Answer 44

APPLIES IN CIVIL AND CRIMINAL CASES.

DOES SURVIVE DIVORCE. ONLY APPLIES TO COMMUNICATIONS DURING THE MARRIAGE.

EXCEPTIONS - Spouse MAY TESTIFY IF:

1) Confidences were made in furtherance of a crime or fraud;
2) In civil suits between spouses (divorce);
3) In cases involving a crime committed by one spouse against the other spouse or a member of the household.

Question 45

What does the attorney-client privilege require? What isn’t protected?

Answer 45

Communication; to further rendition of legal services; between attorney (or any representatives) and client; made in CONFIDENCE; intended to remain confidential; and KEPT confidential.

EXCEPTIONS:

1) If services are sought to aid in commission of crime or fraud;
2) If there is a lawsuit involving breach of duty by lawyer or client (malpractice);
3) If the communication is between joint clients, and they have a lawyer in common, if they later are engaged in a dispute against each other.

Question 46

Explain the Physician-Patient Privilege.

Answer 46

ONLY APPLIES IN CIVIL CASES.

Holder of privilege is the patient, not the physician.

EXCEPTIONS: Patient Litigant Exception - does not apply if proceeding is brought by patient against the physician, OR where patient is a witness against the physician.

Consent/Waiver - Any waiver must be in WRITING, SIGNED by the PATIENT.

Question 47

Explain the Psychotherapist-Patient Privilege.

Answer 47

ONLY APPLIES IN CIVIL CASES

Extends to confidential communications regarding mental or emotional conditions, including treatment for alcoholism or drug addiction.

Question 48

When does the Communicant-Clergy Privilege apply?

Answer 48

APPLIES IN BOTH CIVIL AND CRIMINAL CASES.

Must have been made:

1) In Confidence; AND
2) To the clergy person IN HIS OR HER CAPACITY as the communicant’s SPIRITUAL ADVISOR.

Question 49

Are subsequent remedial measures admissible?

Answer 49

INADMISSIBLE to prove:

1) Negligence;
2) Culpable conduct;
3) Product defect;
4) Design defect;
5) A need for a warning or instruction.

ADMISSIBLE TO PROVE:

1) Ownership;
2) Control;
3) Feasibility (ability to make safer); and
4) To impeach a witness.

Question 50

What is the Product Recall Exception?

Answer 50

In Texas, a product recall IS ADMISSIBLE against the manufacturer to prove the EXISTENCE of a product defect.

Question 51

Are compromise and settlement offers in negotiation admissible?

Answer 51

If validity or amount of claim is in dispute, an offer of compromise will be excluded.

Offers of settlements CAN BE USED:

1) To prove BIAS or self-interest of a witness;
2) To negate a claim of undue delay; OR
3) To prove an effort to obstruct a criminal investigation or prosecution.

Offers to pay medical expenses are NEVER admissible to prove liability for injury (protects good Samaritans).

GUILTY PLEAS and statements made DURING plea negotiations CANNOT be offered by the prosecution in the following instances:

1) Guilty plea that is later withdrawn;
2) Statements made while entering a plea, IF later withdrawn;
3) Statements made during plea bargaining IF plea was NOT MADE OR LATER WITHDRAWN.

NOLO PLEAS CANNOT BE ADMITTED IN CIVIL CASES EVER OR IN A CRIMINAL CASE WHERE IT IS LATER WITHDRAWN.

Question 52

T/F - Statements made to police in an attempt to negotiate a plea bargain ARE admissible against the accused.

Answer 52

True as long as Miranda Rights are complied with.

Question 53

Does Texas have a “Rape Shield Rule?” Is there a Texas distinction here?

Answer 53

YES and YES

FRE APPLIES RULE IN CIVIL AND CRIMINAL.

TRE ONLY APPLIES RULE IN CRIMINAL CASES.

Generally, past sexual conduct cannot be raised. There are EXCEPTIONS:

1) Evidence of sex with others to rebut medical or scientific evidence;
2) Relationship with defendant may be used to prove CONSENT;
3) Otherwise to: (a) prove bias or motive to falsify; (b) prove conviction under Rule 609; or (c) when the Constitution requires it.

Question 54

Can prior sexual conduct of the defendant ever be admitted?

Answer 54

For prosecution of a defendant CHARGED WITH A SEX CRIME AGAINST A MINOR (under 18), the prosecution MAY introduce evidence of a prior sexual offense AGAINST THE SAME VICTIM OR ANOTHER MINOR.

Question 55

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. What is the “matter asserted.”

Answer 55

FRE - narrow definition (exactly what the statement says)

TRE - Includes facts that are implied by a statement where the relevance of the statement depends upon the declarant’s belief in the trust of the implied fact.

Example: John says “Open the door Richard!” It is not a direct assertion Richard is in the house. However, in Texas, this would be considered hearsay if used to prove that Richard was in the house. Not in FRE though.

Question 56

What is not hearsay?

Answer 56

1) Statements NOT offered to prove the truth of the matter asserted.
2) Legally Operative Verbal Acts - statements that are made legally significant by law (statement accepting a contract).
3) Notice - to show a hearer was aware of relevant information at a certain time.
4) Impeach a witness’s credibility.

Question 57

What is exempted from hearsay?

Answer 57

1) Prior inconsistent statements made by a witness if (a) at a PRIOR PROCEEDING (b) MADE UNDER OATH.
2) Prior consistent statements by a witness to rebut a claim that the witness’s trial testimony was fabricated or was subject to an improper influence or motive.
3) Prior identifications IF the declarant testifies and is SUBJECT TO CROSS-examination.
4) TEXAS - IN CRIMINAL TRIAL If pretrial testimony of a child is recorded and the child is victim of assault.
5) TEXAS - UNLIKE FRE, depositions in the same proceeding are ADMISSIBLE even if the declarant/witness is available to testify.
6) TEXAS - A child sexual assault victim’s first “outcry” regarding the assault is ADMISSIBLE IF mad to a person at least 18 years old, who is not the defendant.
7) Party Admissions

Question 58

What is included under “party admissions.”

Answer 58

1) Anything said to anyone, anywhere, anytime, EVEN IF not against interest when spoken if spoken by an opposing party;
2) Statements by anyone that have been adopted by an opposing party;
3) Statements by a party’s authorized spokespersons;
4) Statements by a party’s employee or agent about a matter within the scope of the employment or agency;
5) Statements by co-conspirators during and IN FURTHERANCE OF the conspiracy.

Question 59

What does it mean that a witness is “unavailable?”

Answer 59

Unavailable means:

1) Declarant invokes privilege;
2) Dead;
3) Now disabled or ill;
4) Lack of memory;
5) Cannot be found (must show reasonable effort to find); OR
6) Refuses to testify, despite court order to do so.

UNAVAILABILITY CANNOT BE CAUSED BY THE PROPONENT OF THE HEARSAY, FOR THE PURPOSE OF PREVENTING TESTIMONY.

Question 60

What are the exceptions to hearsay under 804?

Answer 60

THESE ONLY APPLY IF THE DECLARANT IS UNAVAILABLE!!!

FORMER TESTIMONY - Admissible when made at any other proceeding, WHETHER RELATED OR NOT to the current proceeding, if the party against whom it is offered was at the prior hearing, had a similar opportunity, and a similar motive to examine the declarant witness. Even if made by a predecessor in interest, it is allowed against a successor in interest.

DYING DECLARATIONS - Must have belief of imminent death AND the statement concerns the cause of the believed impending death. IN TEXAS, this exception IS NOT RESTRICTED TO HOMICIDE OR CIVIL CASES (IT APPLIES TO ALL CASES).

Question 61

What are the hearsay exceptions under 803?

Answer 61

THESE APPLY WHETHER THE DECLARANT IS AVAILABLE OR NOT!!!

1) Present Sense Impression - Perceiving DURING OR IMMEDIATELY after.
2) Excited Utterances - STARTLING - STILL UNDER STRESS - DESCRIBING THE STARTLING EVENT
3) Existing Condition of Declarant - Defendant’s Physical conditions, including STATE OF MIND and PRESENT INTENTION to do something. DOES NOT INCLUDE MEMORIES.
4) Statements for Medical Diagnosis or Treatment - Made to anyone who could use the information to provide medical aide. Must be pertinent to TREATMENT OR DIAGNOSIS.
5) Past Recollection Recorded - Must be a memorandum or record adopted when the person KNEW the recorded facts. CANNOT BE ADMITTED INTO EVIDENCE BY THE PROPONENT. Can be read to jury or put into evidence by opposing party.
6) Business Records - Maker doesn’t need to testify. Custodian does not need to testify anymore either. Established with the same facts needed to authenticate the document. NOT ADMISSIBLE IF CREATED PRIMARILY FOR USE IN LITIGATION.
7) Learned Treatises - Can be used to impeach an EXPERT WITNESS. Can also be used to prove the truth of the matter asserted IF you can establish it is authoritative by: (a) reliance by an expert; OR (b) judicial notice.
8) Previous Convictions - MUST BE A FELONY. Can be offered to prove facts necessary to prove convicted crime.
9) Statements Against Interest - IN FRE, MUST BE UNAVAILABLE. IN TRE, AVAILABILITY IS IRRELEVANT. Admitted if: (a) statement is against penal, pecuniary, and proprietary interests; OR IN TEXAS against social interests (i.e., sexually transmitted disease).
10) Residual Exception - TEXAS DOES NOT HAVE A RESIDUAL EXCEPTION (unlike the FRE).

Question 62

What is double hearsay? What is the rule?

Answer 62

This is hearsay within hearsay. For all of the statement to be admissible, there must be an exception, exemption, or non-hearsay use for each level of hearsay.

Question 63

What are the 6th Amendment limitations on hearsay?

Answer 63

A criminal defendant’s Sixth Amendment rights to cross-examine their accuser TRUMPS the hearsay rule.

Right to confront prevents admission of hearsay evidence against the CRIMINAL defendant IF: (a) declarant is available to testify; OR (b) declarant is unavailable and there was no prior opportunity to confront and examine the declarant.

THE RIGHT ONLY APPLIES TO TESTIMONIAL HEARSAY OFFERED AGAINST THE ACCUSED AT TRIAL.

Question 64

What classifies as “testimonial?”

Answer 64

Any statements to or report by authorities that, viewed objectively, could be used in the investigation OR prosecution of a crime.

Statement to police which is primarily made to deal with an ongoing emergency is NOT TESTIMONIAL.

Question 65

Can a criminal defendant forfeit his 6th Amendment right to confront?

Answer 65

Yes.

Forfeits the right to confront a hearsay declarant if the defendant CAUSED the declarant to be unavailable, and ACTED WITH THE PURPOSE OF MAKING THE DECLARANT UNAVAILABLE.