Texas Rules of Evidence

Question 1

When do the rules of evidence not apply?

Answer 1

Rules of privilege ALWAYS apply

• preliminary determination of admissibility by court
• proceedings before grand jury
• habeas corpus proceedings in extradition, rendition, or interstate detainer
• a hearing outside presence of jury to determine if there is sufficient evidence of incompetency to determine a jury determination
• proceedings regarding bail (except to deny, revoke, or increase bail)
• hearing on justification for pretrial detention not involving bail
• proceedings for issuance of search or arrest warrant
• proceedings in direct contempt determination

Question 2

When is an error predicated in the admission or exclusion of evidence?

Answer 2

A substantial right of the party is affected AND

1. An timely objection is made (admission of evidence)
2. An offer of proof is made (exclusion of evidence)

Question 3

When must an offer of proof be made?

Answer 3

As soon as practicable, but no later than before the court’s charge is read to the jury

Question 4

Are there any restrictions in which the offer of proof must be made?

Answer 4

No. But the court may, or at the request of the other party, direct the making of an offer in question and answer form.

Question 5

In what manner is a hearing on the admissibility of a confession conducted?

Answer 5

Outside the presence of the jury.

Question 6

Upon testifying on a preliminary matter outside presence of jury, is a defendant subject to cross-examination?

Answer 6

Yes, but not to other issues in the case.

Question 7

When may the remainder of related writings or recorded statements be admitted?

Answer 7

An adverse party may introduce any other part or any other writing or recorded statement which ought in fairness be considered contemporaneously with the part introduced by the other party.

Question 8

Discuss the Rule of Optional Completeness.

Answer 8

When a part of an act, declaration, conversation, writing or recorded statements is given in evidence by one party, the whole on the same subject may be inquired into by the other party AND any other act, declaration, conversation, writing, or recorded statements which is necessary to make it fully understood may be given in evidence.

Question 9

What kinds of facts may a court take judicial notice?

Answer 9

1. one generally known within the territorial jurisdiction of the trial court; or
2. once capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned

Question 10

When is it mandatory for a court to take judicial notice?

Answer 10

If requested by a party AND supplied with the necessary information.

Question 11

When can judicial notice be taken?

Answer 11

At any stage of the proceeding.

Question 12

Is it required for the jury to be instructed regarding judicial notice?

Answer 12

Yes. The court SHALL instruct the jury it MAY accept as conclusive any fact judicially noticed.

Question 13

Define “relevant evidence.”

Answer 13

Evidence having the tendency to make the existence of a fact of consequence to the action more probable or less probable than it would without the evidence.

Question 14

When is relevant evidence not admissible?

Answer 14

When provided by Constitution, statute, TRE, or other rules.

Question 15

When may relevant evidence by excluded on special grounds?

Answer 15

Its probative value is outweighed by danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Question 16

When is character evidence admissible?

Answer 16

1. Evidence of a pertinent character trait offered by the accused or in rebuttal by the prosecution.
2. Subject to TRE 412, evidence of a pertinent character trait of the victim offered by accused or the prosecution to rebut the same OR evidence of the peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence the victim was first aggressor.

Question 17

When is evidence of other crimes, wrongs, or acts admissible?

Answer 17

It is not admissible to prove character of a person to show action in conformity therewith.

It may be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

If timely request made by defendant prior to trial, State must give intent to offer evidence.

Question 18

What are the methods of proving character?

Answer 18

1. By testimony of reputation or opinion provided the witness is familiar with it prior to the day of the offense.
2. When a person’s character or character trait is an essential element of a charge, claim or defense, proof may be made by specific instances of that person’s conduct.

Question 19

When is evidence of previous sexual conduct admissible?

Answer 19

Reputation or opinion evidence of the past sexual behavior of the victim IS NOT admissible in prosecution of SA or ASA cases.

Specific instances of behavior is also not admissible UNLESS:

1. it is evidence necessary to rebut or explain scientific or medical evidence offered by the State
2. it is past sexual behavior with the accused offered by the accused on issue of consent to the charged offense
3. it relates to motive or bias of the allege victim
4. it is admissible under TRE 609
5. it is constitutionally required to be admitted
6. the probative value outweighs danger of unfair prejudice

Question 20

What is the procedure for offering evidence under TRE 412?

Answer 20

The defendant must inform the court outside the presence of the jury prior to introducing any evidence or asking any question. The court then conducts an in camera hearing recorded by the court reporter to determine admissibility.

The record of the in camera hearing shall be sealed by the court in the event of an appeal.

Question 21

When is a communication “confidential?”

Answer 21

If it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

Question 22

Discuss attorney-client privilege in a criminal case.

Answer 22

1. The client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services.
2. The client has the privilege to prevent the lawyer or his representative from disclosing any other fact which came to the knowledge of the lawyer by reason of the attorney-client relationship.

Question 23

Who can claim the attorney-client privilege?

Answer 23

It may be claimed by the client.

Also, the person who was the lawyer at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the client.

Question 24

What are the exceptions to the attorney-client privilege?

Answer 24

1. furtherance of crime or fraud.

2. breach of duty by a lawyer or client

Question 25

Discuss husband-wife privilege in a criminal case.

Answer 25

A communication is confidential if made privately by any person to the person’s spouse and it is not intended for disclosure to any other person.

A person has a privilege during or after the marriage to refuse to disclose and to prevent another from disclosing a confidential communication made to the person’s spouse while they were married.

Question 26

Who can claim the husband-wife privilege?

Answer 26

It may be claimed by the person or by the spouse on the person’s behalf.

Question 27

What are the exceptions to the husband-wife privilege?

Answer 27

1. furtherance of crime or fraud.

2. crime against spouse or minor child.

Question 28

Discuss the privilege of a spouse not to testify against the other spouse in a criminal case.

Answer 28

The spouse of the accused has a privilege not to be called as a witness for the state. The spouse can testify voluntarily for the state, even if the accused objects.

Question 29

What are the exceptions to the privilege of a spouse not to testify against the other spouse in a criminal case?

Answer 29

1. family violence cases or bigamy cases

2. as to matters that occurred prior to marriage

Question 30

Discuss the physician-patient privilege in a criminal case.

Answer 30

There is not such a privilege in criminal proceedings.

However, a communication to any person involved in treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

Question 31

When is a child incompetent to testify?

Answer 31

After being examined by the court appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.

Question 32

A witness may not testify to a matter unless . . . .

Answer 32

Evidence is introduced sufficient to support a finding the witness HAS PERSONAL KNOWLEDGE OF THE MATTER.

Question 33

When is a juror competent to testify as a witness?

Answer 33

1. Whether any outside influence was improperly brought to bear upon any juror; or
2. To rebut a claim the juror was not qualified to serve.

Question 34

Who may impeach a witness?

Answer 34

The credibility of a witness be attacked by any party, including the party calling the witness.

Question 35

When may the credibility of a witness be attacked or supported in the form of reputation or opinion?

Answer 35

1. As to character for truthfulness or untruthfulness;

2. Evidence of truthfulness is only admissible after the character for truthfulness has been attacked

Question 36

When may specific instances of conduct be inquired into on cross-examination?

Answer 36

1. It cannot be other than under TRE 609

2. It cannot be proved by extrinsic evidence

Question 37

When may evidence that the witness has been convicted of a crime be admitted?

Answer 37

1. Elicited by testimony or public record
2. Only if a felony or crime of moral turpitude
3. The court determines probative value outweighs prejudicial effect to a party

Question 38

What is the time limit for evidence of a conviction under TRE 609 is admissible?

Answer 38

It is not admissible if more than 10 years have elapsed since the date of the conviction or the release from confinement, whichever is later UNLESS the court finds, in the interest of justice, the probative value of the conviction substantially outweighs its prejudicial effect

Question 39

Is a conviction admissible under TRE 609 during the pendency of an appeal?

Answer 39

No.

Question 40

Discuss notice as it relates to the admissibility of a conviction under TRE 609.

Answer 40

If the adverse party timely requests notice of intent to use such evidence and it is not given, then it cannot be used against that witness.

Question 41

Discuss the scope of cross-examination?

Answer 41

A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.

Question 42

When can leading questions be used and not be used?

Answer 42

• The should not be used on direct examination unless necessary to develop testimony.
• They should be allowed in cross-examination.
• They should be allowed if a party calls a hostile witness, an adverse party, or a witness identified with an adverse party

Question 43

If a witness uses a writing to refresh memory for the purpose of testifying either while testifying or before testifying . . . .

Answer 43

the adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce parts of it as it relates to the testimony of the witness.

Question 44

Discuss examining a witness concerning a prior inconsistent statement and bias or interest.

Answer 44

1. The witness must be told the contents of the statement and the time and place and the person to whom it was made, and must be given a chance to explain or deny the statement.
2. If the witness admits to making the statement, extrinsic evidence shall not be admitted.

Question 45

When is a prior statement of a witness which is consistent with his testimony admissible?

Answer 45

It is inadmissible EXCEPT when its consistent with his testimony and it is offered to rebut a charge of recent fabrication or improper influence

Question 46

When does “The Rule” apply to a victim in a criminal case?

Answer 46

It does not authorize the exclusion of the victim UNLESS the victim will testify and the court determines the victim’s testimony will be materially affected if they hear other testimony during the trial.

Question 47

Discuss production of witness statements in a criminal case.

Answer 47

On the motion of the party who did not call the witness, the court shall order the attorney who called the witness to produce any statement of the witness that is in their possession and that relates to the subject matter to which the witness testified.

THIS DOES NOT APPLY TO THE DEFENDANT.

Entitled to a recess to examine the statement and prepare to use it.

If the party chooses not to produce the statement then the testimony of the witness is stricken from the record and the trial proceed OR IF IT IS THE STATE who elects not to comply, the court shall declare a mistrial if required in the interest of justice.

Question 48

Discuss opinion testimony of a lay witness.

Answer 48

It is limited to those opinions or inferences which are:

1. rationally based on the perception of the witness;
2. helpful to a clear understanding of the witness’ testimony or the determination of a fact issue

Question 49

Define “declarant.”

Answer 49

A person who makes a statement.

Question 50

Define “statement.”

Answer 50

An oral or written verbal expression OR

nonverbal conduct of a person if it is intended by the person as a substitute for verbal expression

Question 51

Define “hearsay.”

Answer 51

A statement, other than one made by the declarant while testifying at trial or hearing, offered to prove the truth of the matter asserted.

Question 52

What statements are not hearsay?

Answer 52

1. Prior statement by witness at trial or hearing and is subject to cross-examination concerning the statement AND
   
   • inconsistent with declarant’s testimony and was given under oath at a trial, hearing, or other proceeding except a grand jury proceeding, or in a deposition
   • consistent with declarant’s testimony and is offered to rebut a charge against declarant of recent fabrication or improper influence
   • one of identification of a person made after perceiving the person; or
   • taken and offered in a criminal case under 38.071 CCP
2. Admission by a party opponent
   
   • a statement by a co-conspirator

Question 53

What are the hearsay exceptions for an unavailable declarant?

Answer 53

1. Former testimony
   
   • Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
2. Dying Declarations
   
   • A statement made by a declarant while believing the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
3. Statement of Personal or Family History

Question 54

Discuss “hearsay within hearsay.”

Answer 54

Hearsay included within hearsay is not excluded if each part of the combined statements conforms with an exception to the hearsay rule.

Question 55

When can the credibility of a hearsay declarant be attacked?

Answer 55

When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked by any evidence which would be admissible for those purposes if the declarant had testified.