TX Rules

Question 1

What exception to juror testimony does the TX rule add? What exception does it remove?

Answer 1

ADDS: Jurors can take the stand to “rebut a claim that the juror was not qualified to serve.”
REMOVES: Jurors can take the stand to talk about extraneous prejudicial information brought to the jury’s attention.

Question 2

What change do the TX Rules make re specific instances of the conduct of a witness for impeachment purposes?

Answer 2

Can’t bring them up during cross-examination, as you can under FRE 608 (specific acts going to truthfulness).

Question 3

What some important changes the TX rules make to Rule 609?

Answer 3

(1) Always allows crimes of “moral turpitude” whereas the FRE’s always allow “crimes of dishonesty.”
(2) TX applies the 403+ balancing for everyone, whereas the FRE’s use regular 403 balancing if the witness is the defendant.
(3) TX requires notice for any prior convictions for impeachment under 609—FRE only requires notice for remote convictions.
(4) TX bars admission of the prior conviction of probation was completed.

Question 4

What’s the scope of cross-examination under the TX Rules and under the Fed. Rules?

Answer 4

TXRE: any relevant matter
FRE: only matters raised on direct

Question 5

Which allows the court to call witnesses and interrogate them, the FRE or TXRE?

Answer 5

FRE only

Question 6

How is TXRE 701 different from FRE 701 (lay witnesses)?

Answer 6

TXRE 701 allows a lay witness to testify about sciency, experty stuff.

Question 7

How is TXRE 704 different from FRE 704 (opinion on ultimate issue)?

Answer 7

TXRE allow an expert to give an opinion on the ultimate issue, even if that means giving an opinion about a criminal’s mental state.

Question 8

How is the TXRE different re admitting an expert witness’s underlying facts/data?

Answer 8

TXRE applies a much stricter balancing test. FRE allows if probative value to helping the jury outweighs prejudicial effect.

Question 9

How is the TXRE “prior statement by a witness” non-hearsay provision different?

Answer 9

TX excludes grand jury proceedings from “other proceeding.” The FRE doesn’t exclude or include grand jury, but has been interpreted to include grand jury proceedings.

Question 10

TXRE 801 doesn’t require unavailability to admit a __________ as non-hearsay. How is that different from the FRE?

Answer 10

deposition

FRE treats a deposition as hearsay—has to come in under the former testimony exception (so the declarant has to be unavailable).

Question 11

How is the TXRE statements against interest hearsay exception different from the FRE?

Answer 11

TX doesn’t require the witness to be unavailable. Also includes social interest—”object of hatred, ridicule, or disgrace.”

Question 12

How is the TXRE’s definition of “unavailability” different from the FRE?

Answer 12

TX considers the witness “available” if they were available for a deposition.

Question 13

How is the TXRE’s dying declaration hearsay exception different from the FRE?

Answer 13

TX allows in all cases—the FRE only allows in homicides and civil cases.

Question 14

Does TX have a residual hearsay exception?

Answer 14

No

Question 15

How is the TXRE authentication via comparison provision different from the FRE?

Answer 15

TX requires the exemplar to be “genuine”

Question 16

How is the TXRE’s exception to requiring the original evidence different from the FRE?

Answer 16

TX includes an exception for when the original isn’t located in Texas. There is no equivalent in the FRE.

Question 17

What interests are included in TXRE’s statements against interest hearsay exclusion?

Answer 17

Penal, pecuniary, and social

Question 18

Does TX have a physician-patient privilege in criminal proceedings?

Answer 18

No, but voluntary treatment for alcohol and drug treatment is not admissible in a criminal proceeding.

Question 19

In TX, who has the burden of proving waiver or privilege?

Answer 19

In criminal cases, the party claiming waiver has to prove waiver.

In civil cases, the party claiming a privilege has to prove no waiver, if there is some amount of privileged information disclosed.

Question 20

When may character evidence of the ACCUSED be offered under the TXRE?

Answer 20

General rule: It CANNOT be offered for propensity.

EXCEPTIONS: The accused can offer evidence of his/her pertinent character trait in (and the accusing party may rebut same):

(1) a criminal case, or
(2) a civil case re “moral turpitude”

Question 21

When may character evidence of the VICTIM be offered under the TXRE?

Answer 21

General rule: It CANNOT be offered for propensity.

EXCEPTIONS:

(1) (same as FRE) In a criminal case, the accused can offer evidence of pertinent character trait of the victim (and prosecution may rebut same)
(2) (same as FRE) In a HOMICIDE case, prosecution may offer peacefulness of the victim
(3) In civil case re assaulting conduct, accused can offer evidence of pertinent character trait of the victim (and prosecution may rebut same)

Question 22

If the accused in a criminal case offers evidence attacking a pertinent character trait of the victim, may the prosecution offer evidence against the accused on the same character trait (as under the FRE)?

Answer 22

No. The prosecution can only rebut character attack of the victim.

Question 23

If a character witness offers reputation/opinion testimony, do they have to have acquired the reputational knowledge or opinion before the offense, after the offense, or either?

Answer 23

In CRIMINAL cases, must have been acquired BEFORE the offense.

In CIVIL cases, no distinction.

Question 24

What is the burden of proof for offering TXRE 404(b) prior bad acts (non-criminal)?

Answer 24

Beyond a reasonable doubt

Question 25

Are prior pleas of “no contest” (not withdrawn) admissible under TXRE? FRE?

Answer 25

TXRE: Yes

FRE: No

Question 26

Under TXRE, if a party uses a writing to refresh a witness’s memory, when is opposing counsel entitled to inspect it? Under FRE?

Answer 26

TXRE: Always

FRE: Always, if consulted during testimony; if justice so requires, if consulted before testifying

Question 27

When may extrinsic evidence of a party’s prior inconsistent statement be admitted for purposes of impeachment, under TXRE? Under FRE?

Answer 27

TXRE: Not clear when the evidence may be admitted—but it definitely may NOT be admitted if the party unequivocally admits to the statement.

FRE: Only after the party has had a chance to explain or deny the statement, and OC has had an opportunity to examine the witness about it.