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Such evidence may consist of witnesses testimony. (BUT 703 expert exception).
(1) PK inferred absent showing to the contrary.
Voir Dire Opponent may conduct brief VD to probe PK before judge rules.
d) Inferences - Rational and reasonable conclusions and inferences based on Ws perceptions = admissible.
e) Objection This is pure speculation by witness Motion to strike necessary to preserve error.
f) Note Cant ask 1 W if another is lying.
g) Connection 703 E need not have personally perceived if fact/data driven and R relied on.
h) Connection Hearsay e.g. 602 satisfied by I know only what I heard from Mrs. Smith, but this is still HS
i)
3) TRE 611(a) - ** Mode/Order of Interrogation - Court exercises R control over mode &order of Ws/E pres.
a) Purposes 1) ascertainment of truth; 2) avoid needless consumption of time; 3) protect W
b) E.g. O.J. Simpson trial called defense witness out of order
c) Appellate review TC conduct judged by AoD standard.
d) Questioning by Jurors? Criminal TX Never. FED OK.
i) Civil TX Sometimes may ask Q submit to judge after direct/X, judge reads to parties; may approve.
4) TRE 611 (b-c) ** - Form and Order of Questioning (note FRE provides even more broad discretion).
a) Direct Examination No leading Qs except as necessary to develop Ws T (balancing test).
i)
ii) Type of Qs - Who, what, where, why to avoid leading. (object to preserve error on leading Qs).
(1) Unanswered leading questions are not evidence, instruct jury to disregard
iii) Hostile Witness May lead hostile witness on direct. E.g. prosecution calls Ds witness first.
b) Cross Examination Lead any witness except friendly.
i)
Leading questions permitted on: TX ANYTHING logically relevant; Fed ONLY issues from direct
(1) LQ Suggests desired answer; assumes facts unsupported or disputed by evidence.
ii) Credibility TX Yes, FED No. Why? Allows: 1) W to ID with community & bolster rep for truth;
2) jury assess W credibility; 3) elicits facts showing W biased or T false.
iii) D in Criminal Case - CC issues cannot limit Ds right to cross too much.
(1) When can D T without CX? Preliminary hearing OR attack voluntariness of confession or MtS.
(a) BUT If D testifies at guilt/innocence or punishment stage, D subject to wide-open CX.
iv) Preserving Error If CX denied CXing party makes timely OOP; show what D would have said.
v) If D doesnt answer? TC MAY allow state comment or impeachment, instruct jury to consider refusal,
or strike Ds direct testimony.
vi) Redirect and recross Discretionary. Redirect (only what was in cross). Recross (only redirect).
i) Basic req. Must preserve error to obtain COA relief. Burden to object on counsel
b) Substantial right? Go through harmless error analysis. Deferential AoD standard. Instruction may cure
c) Objection. - Specific, timely objection appears on record.
i) Specific General is no objection at all. Protects judges and insulates appellate from additional work.
(1) Explain why specific aspect of E requires exclusion UNLESS clear from record.
ii) Timely If Q asks for inadmissible, object before answer. Answer inadmissible? obj, move to strike,
105. If physical/doc evidence when offered.
(1) Rationale Allows for timely correction, informs COA of issues.
(a) Prevents counsel from gambling on the trial result. Strategy is not a good enough reason.
(2) Exceptions:1) Objectionability evident later in trial; 2) less of issue for bench trials; 3) Novel claims.
iii) Waiver Explicit No objection. Implicit silence, introducing E, failure to renew earlier objections.
iv) Doctrine of Curative Admissibility Intro similar E to rebut or explain objected-to-inadmissible E
(1) Rationale: Shouldnt have to treat admission of inadmissible as harmless
(2) MUST make clear on record (away from jury) that opponent introduces to rebut, and does not waive.
v) Running objections Court has discretion on admission; ask ahead, be specific. When in doubt, repeat.
vi) Object consistently and persistently.
vii) Objections of different types: Objecting to one types doesnt preserve for another types
(1) E.g. cant object to lack of reliability in expert T, then object to lack of qualification on appeal.
d) Offer of Proof (bill of exception, filed afterwards, is procedural equivalent) For E error, say OoProof.
i) Timing Soon as practicable; MUST be before charge.
ii) Contents ID substance of excluded E for record (what would E have shown), unless apparent from
con.
iii) Purpose - Resolves doubts about the evidence that would have been given.
iv) Key: Appellate court must be able to reasonably determine the substance of the evidence excluded.
v) Method 1: Informal Speak with judge and read into the record; on sidebar or break.
vi) Method 2: Formal Q and A TC MAY do this; MUST on request. (Jury is excluded)
vii) Court may add comments - E.g. Let record reflect that each Q was followed by 30 seconds of silence.
viii)
Benefit - Serves to allow judge to reconsider and inform appellate court.
ix) NOTE: Preserve error in Texas, preserve claim of error everywhere else.
e) Hearing of Jury. Keep inadmissible (OoP hearing, etc.) away from jury hearing to extent practicable.
f) Fundamental Error in Criminal. COA may address even if not raised to attention of court. (FRE PE)
g) Vs. Plain Error - Feds use often; safety net if escapes attention; unlikely if waiver/forfeiture occurs.
h) Must get ruling Otherwise no preservation of error. If judge refuses, appeal that specifically.
i) Note: You can always claim on appeal that E was insufficient without objection.
i) Waiver (Intentional relinquishment or abandonment) vs. Forfeiture (failure to timely assert right).
6) TRE 104 Preliminary Questions ** - Be able to state who decides questions under what provision.
a) (a) GR Judge decides preliminary Qs on admissibility.
i) 1. Witness qualifications (Competency 601, Expert 702)
ii) 2. Existence of privilege (involve mixed Q of fact and law is there A/C, is person lawyer, etc.)
iii) 3. Admissibility of evidence (subject to (b)).
iv) NOT bound by RoE in making preliminary determination, EXCEPT on privilege.
(1) Necessary. Otherwise wouldnt have anything to work with on inadmissible. May listen to HS, etc.
v) BoProof GR POE standard for proponent
(1) Exceptions: privilege; HS (actions assertive under 801(a)?); 403 balancing test.
vi) Exceptional Cases Jury may second guess judge on Q of whether E obtained illegally under Con.
vii) NOTE: For voluntariness of confession, judge decides the fact issue, not jury.
b) (b) R Conditioned on Fact. Logically relevant ONLY if condition is fulfilled.
i) Process Would this, if admissible, be helpful? If no, reject on 402 grounds.
(1) If yes, sufficient for rational juror to believe in the evidence by POE? Yes, admit.
(a) Not whether judge actually believes evidence.
3) TRE 410 Inadmissibility of pleas, plea discussions and related statements ***
a) The following are inadmissible against D who made plea, or participated in plea discussion:
b) 1. Withdrawn guilty plea.
c) 2. R11 statement: Civil Withdrawn guilty plea or any NC; criminal Withdrawn guilty plea or NC.
i) Exclude statements from plea colloquy, plea itself, any related statements in court.
ii) Bowie D pled, assessed punishment, withdrew plea/confession. RE to introduce confession at trial.
d) 3. Plea bargaining statement with an attorney for the prosecuting authority (NOT resulting in plea)
i) Requirements: Attorney AND for the prosecuting authority thus statements to police officers = A.
e) Optional completeness Applies. If party introduces plea bargain E if out of fairness
f) Limitation only for Ds statements if 3rd party not participating is subject of statements Admissible.
i) Why? Doesnt undermine goal of fostering negotiations or allowing D to withdraw plea.
g) Mezennato Permissible for DA to get D to sign wavier for 410. No DP Issue.
h) Compare with 408/409 NO use for other purposes here.
i) Fed only Perjury exception 410 exclusions may still be admissible in criminal prosecutions for perjury.
i) Requirements = Under oath on record; in presence of counsel.
Character Evidence
1) Shows a person is predisposed to act in a certain way (or establishes persons propensity to do a certain act).
a) Issue Admitting persons propensity raises questions on whether jury may apply to current situation.
b) General formulation CE inadmissible as circumstantial evidence of conduct.
c) Why inadmissible? Michelson CE is not irrelevant, rather it weights too much on the jury.
2) When is CE admissible? Defined by 404
3) How Proved? If admissible under 404Form determined by 405. OT, RT, SICs
Admissibility (404)****
1) (a) GR: E of C/C trait inadmissible to circumstantially prove action conduct on particular occasion.
a) Exception #1 Character of the accused (Good character defense)
i) (1)(A) Criminal case by accused, or by prosecution to rebut the same.
(1) Generally D presents E through Q to def. witness to show D not type of person to commit crime.
(a) Think class CE exercise Are you familiar with rep? What is it? NO SIC questions.
(2) Prosecution rebuttal IF D calls CW (CE in opening statements may be enough) P may cross.
(a) MUST be pertinent (read relevant per 401) question. have you heard?; Did you know? Qs.
(b) SIC USE If D bring in CE, prosecution MAY inquire into SICs of TW. Stuck with answer
(c) Note if prosecution calls new CW, they are limited to OT/RT.
(3) If D witness provides unprompted? D objects, MtS, indicate record no intent to open door.
ii) (1)(B) Civil: by accused if conduct involves moral turpitude (or accusing party to rebut) NOT in FRE.
(1) Process - Similar mechanics to criminal. Must be pertinent, opinion or reputation T only on direct.
(2) Moral Turpitude Yes public lewdness, theft, etc. / No DWI, drug possession, trespass.
b) Exception #2 Character of the victim
i) 1. Criminal Cases
(1) Non-homicide May introduce pertinent character trait of vic (or pro. to rebut). Subject to 412
(2) Hom. Pro. may offer E of peaceable C of V to rebut E V was 1st aggressor
(a) Process - D has first option to offer CE; prosecution responds. BUT for hom, D need not use CE
(b) FED (Attacking victim character opens door to CE on D) vs. TX (Does not).
ii) 2. Civil (assaultive conduct) CE on Vs violent C offered on S-D (or peaceable CE rebuttal). No FRE.
(1) Note: D couldnt respond with own CE here not moral turpitude.
iii) Self-Defense Theories
(1) Type 1 D in actual danger from victim. Obj. standard. CE on victim under 404(a)(2), no SICs.
(2) Type 2 D RBs they were in danger from victim. Subjective standard. Not 404/405.
(a) RT, OT, SICs to establish Ds state of mind. Key is that defendant was aware of Vs prior acts.
(b) communicated character Focus on Ds mind, not Vs character. V may respond with CE.
(3) Under either theory, may not present CE on V unless D shows some aggression by V.
c) Exception #3 Character of witness (SUBJECT TO 607, 608, 609)
i) If 60709 hurdles are met MAY introduce CE on credibility witness in form of RT or OT.
(1) This allows jury to infer general to specific; contra to 404.
(2) Opposing counsel may rehabilitate TW through another CW showing TW is truthful.
d) For all exceptions CE MUST relate to pertinent character trait.
2) TRE 404 (b) Other Crimes, Wrongs or Acts. **** NOT CE
a) GR E of OTHER crimes, wrongs, or acts NOT admissible to prove C to show conformity therewith.
i) TX Extraneous offense evidence. Elsewhere Extrinsic Acts.
b) Exceptions - MAY be admissible for other purposes (non-exhaustive list). SIC USE (non-character).
i) Criminal - After D requests MUST provide R notice of intent to introduce in case-in-chief E other
than that arising in the same transaction.
ii) Nonpropensity uses
(1) Motive Typically other acts by D against V. Great similarity not required.
(2) Opportunity E.g. access to crime scene; skills D has to commit crime.
(3) Intent and State of Mind Must be in issue to use 404(b) E (unless clearly inferable from act).
(a) If other acts show intent (not identity), less similarity between EA and charged offense.
(b) Doctrine of chances More likely that act occurring with similar results is intentional.
(4) Preparation or Plan Dont confuse similar EEs with preparation. Doing it before is not a plan.
(5) Knowledge or consciousness of guilt e.g. drug cases, knew purpose of conspiracy, etc.
(6) Identity Admissible only if in issue (e.g. D denies committing offense, presents alibi, etc.).
(a) This is attempting to establish MO. Must have distinctively common characteristics. 403 .
(7) Absence of Mistake or Accident Similar to intent
iii) Other Purposes
(1) res gestae Implications too broad. May try to force in hearsay, etc. under context/background.
(2) Context Evidence Under either category Must be relevant under 401, backstop of 403.
(a) Rogers Cat. 1 Same Trans. Contextual E Somehow connected to charged or primary offense
(i) ONLY if necessary to jurors understanding (like resisting arrest before charged offense).
(b) Rogers Cat. 2 General Background Contextual E Admit, unless improperly impugns Ds C.
(3) Rebuttal or impeachment If D opens door during opening/CX, may rebut def. theory with CE.
(a) E.g. If D makes sweeping generalizations about no trouble with law door is open.
(b) Might also be admissible to rebut statements that leave false impression with the jury.
(c) 608(b) 609 When impeaching with 404(b), cant ask CW about own SICs unless convicted.
(i) BUT 613(b) admissions on bias are more permissive.
(4) Sex Offenses
c) Application
i) Civil e.g. med mal. Good CE out. But might use prior acts to show lack of accident/mistake.
ii) Criminal Offenses not in charging instrument; before/after charged off. Normally pro.; D could intro.
iii) Admissibility process
(1) 1. If D raises 404(b) objection P MUST show acts relevant to material issue in the case.
(a) Reason must be relevant nonpropensity reason. If admissible, 105.
(2) 2. If opponent makes 403 objection, TC must balance probative and prejudicial per 403.
(a) Consideration of need is a factor. Open Q of whether D can stipulate to issue and avoid need.
iv) Notice Required if requested. Error to admit without notice. Request and response in writing.
(1) Limitations:1) only required if intends to use (rebuttal okay); 2) doesnt apply to same transaction.
(a) To protect for 1) Use MiL on any 404(b) acts. STILL object later.
(2) What is R notice? Substantial compliance may suffice. Surprise may be a factor. BF = exclude.
(3) Waiver - Failure to object to lack of notice will normally amount to waiver.
(3) Type C - That relates to the motive or bias of the alleged victim;
(4) Type D - admissible under Rule 609 (convictions of Ws used for impeachment); or (balancing test)
(5) Type E - Constitutionally required to be admitted;
ii) 2. Passes balancing test - Probative value outweighs (not substantially) the danger of unfair prejudice.
(1) Burden Proponent. Compare with 403, where burden is on opponent.
(2) Unfair prejudice could be against victim (possible stigma)
d) TX vs. FED FED applies to civil and criminal. TX = Criminal ONLY.
2) FRE 41315 Very permissive for rape/molestation/pedophilia E, even to show propensity. (TCCP kids only)
3) Compare TCCP: E of C/W/A committed by D against child V are admissible on rel. matters. Trumps 404/5
a) Includes: 1) state of mind of D and child; AND 2) previous/subsequent rel. between D and child.
Habit (406) **
1) Rule: E of persons habit or orgs routine practice IS RELEVANT to show conformity on particular occ.
a) Whether corroborated or not; regardless of presence of eyewitnesses,
2) Differentiating 404 and 406 What is habit or routine?
a) 406 is more reliable on behavior in recurrent situation. 404 more amorphous (what someone feels/knows).
b) TC has discretion - More regular and precise conduct = better chances. If fails as often as succeeds, not H/R.
3) Habit must be relevant.
4) Proving Habit TX and FED have allowed through OT and SICs. Some authority for RT. NO hearsay.
a) Could be custom, industry standard, etc.
SICs
1) Non-character use
a) Impeachment/rehabilitation GR - W cant be impeached/rehabilitated based on bad or good SICs.
i) Exception 1 - Witness may be impeached if SIC results in conviction (609).
ii) Exception 2 - Witness may be impeached through SICs which show bias (613).
iii) Exception 3 - Blanket denial of any wrongdoing may be rebutted with SICs.
iv) TEX v. FED In FED, may impeach witness with personal SICs.
b) 404(b) May be admitted for non-character purposes.
2) Character Use
a) 405(a) Cross May inquire into SICs of TW, NOT CW. Stuck with answer; no EE.
b) FRE - 413-415 May admit crimes in sexual assault or child molestation on anything relevant.
i) TX CCP - E of Ds SICs against child victim shall be admitted for bearing on relevant matters.
c) 405(b) Character is essential Element.
d) 406 - May admit SICs to prove person or organizations habit.
3) Forbidden
a) Cant ask CW about SICs that dont result in conviction (608(b)).
b) Generally not admitted to show charater (404(b)).
4) Proving the extrinsic Act
a) FED Huddleston - Judge makes 104(b) determination could R jury find conditional fact by POE.
i) Protections against abuse: 1. Requirement of 404(b) that evidence be offered for proper purpose; 2.
Relevancy under 402 enforced through 104(b); 3. Assessment of TC under 403; 4. 105.
b) TX Harrel - Judge makes 104(b) determination could a reasonable jury find conditional fact by BRD
Authentication/ID (90102)
i) Gun from scene; Ds maid says not where normal. Expert says unique; Gun shop says sold to D. Weak.
e) Demonstrative Evidence Authenticate via SW with PK that DE is fair/adequate representation.
i) Includes charts, videos, photos, etc.
ii) If tech based Functioning properly when E created, operator trained, and not changed since creation.
2) TRE 901 Requirement of Authentication or Identification ***
a) (a) GR. If condition precedent to admissibility need E sufficient to support finding E is what pro
claims.
i) Objection Objection, your honor, insufficient predicate.
ii) Relevance - Can still argue relevance May be authentic, but still irrelevant.
iii) 104(b) - Judge makes conditional ruling under 104(b) Could the jury?
iv) Failure to auth conditional E? Object, motion to strike, instruction to disregard. If not, waiver.
(1) BUT if overruled, may explain/rebut w/o waiving
b) (b) Illustrations. NOT exhaustive
i) 1. Testimony of witness with knowledge. (W with PK that offered E is real thing).
(1) Photos, x-rays, slides, silent motion pictures Pictorial testimony W with K states that it: 1)
accurately represents scene OR 2) substantially the same as scene at relevant time.
(a) Need not have taken photograph .
(b) Silent W theory May show picture/video/etc. came from reliable process or system (prove up).
(2) Audiotapes/Videotapes 7 part test. Civ = yes, crim = no
(3) Charts, maps, diagrams, computer animation If E jury room. If a prop, stays out of jury room.
(4) Documents T of W with knowledge that doc is what it is claimed to be is sufficient authentication.
(a) If execution observed? Where, when, who present, what happened, W must recognize, how?
(b) Not observed? Recognizes handwriting, familiar with HW, sufficient basis for familiarity.
(c) Note: Cant read from doc before authentication.
(d) BR SW with PK says it came from business.
(5) Real, Physical, Demonstrative Distinguish, when necessary, from original physical evidence
(a) 1. Physical - Readily identifiable. T of person who can ID distinctive marks. 1st Tier.
(i) More unique characteristics, better chances. GET IDENTIFIABLE dont want fungible.
(ii) FD Unique char., W obs. before, W IDs, ID rests on unique, same con.as far as W knows.
(iii) Ready identifiability is 104(b) judgment for judge/jury.
(b) 2. Phys - Chain of custody If prop cant get IDd through distinctive marks, etc., OR if fungible.
(i) Process - Call those who handled item, explain how they received and what they did.
1. Look at links, receipt, care/custody, disposition, and gaps.
2. Breaks go to weight, but not necessarily AD. Generally dont keep E out. 2 nd Tier.
a. BUT use if condition of E at time in question is material issue in case.
(c) 3. Inferential see above.
(d) Demonstrative See prove up above.
(e) Similar Objects If not misleading; MAY get item sufficiently similar if jury instructed. 403.
(6) Tests, Experiments, Demonstrations Must be substantially similar.
ii) (2) Nonexpert opinion on handwriting. Lay person MAY identify handwriting if familiar. (601, 602)
(1) Show by T that W has seen person write, etc. CANNOT gain familiarity just for trial.
iii) (3) Comparison by trier or expert W. Auth. by comparison with genuine ex.; judge alone or with expert.
(1) TEXAS Judge determines whether genuine, jury must go with it. FED Jury determines
(2) Writing, ballistics, fingerprints, etc.
(3) Cannot refuse to provide sample by invoking Fifth Amendment protections.
iv) (4) Distinctive characteristics and the like. Taken in conjunction with circumstances
(1) Method 1 Appearance distinctive enough in light of circto allow ToF to conclude authentic.
(2) Method 2 Consider with other methods (T of W with PK, etc.) to make determination on auth.
(3) Reply letter doctrine Reply refers to matters ONLY commrwould know, commr must be real.
(a) Works for writings, telegrams, voices, etc.
(4) Public officer - Potentially authentic if they have come from public offices.
v) (5) Voice identification. W with 601/602 can ID voice; but voice prints rarely successful.
(1) BUT if offered for truth, hearsay problem. If duplicate, BE problem.
vi) (6) Telephone conversations. Show that call made to assigned number works if: (faxes too).
(1) (A) Person - circumstances, including self-ID, show the person answering to be the one called; or
(2) (B) Business - call made to business / conversation related to business R transacted over the phone.
vii) (7) Public records or reports. Establish that source of record is public office where such docs are kept.
(1) May also admit under 902 if self-authenticating. (hearsay, BE rule).
viii)(8) Ancient docs or data compilation. Evidence that a document or data compilation, in any form,
(1) (A) is in such condition as to create no suspicion concerning its authenticity,
(2) (B) was in a place where it, if authentic, would likely be, AND
(3) (C) Has been in existence twenty years or more at the time it is offered.
ix) (9) Process or system. Evidence describes process / shows that process produces accurate result.
x) (10) Methods provided by statute or rule.
3) TRE 902. Self-Authentication EE as CP to admissibility not required with respect to:
a) (1) Domestic Public Documents under Seal. ** - Need seal, signature, US or territories. Passport, etc.
b) (4) Certified Copies of Public Records. ** In compliance with (1)(2)(3) above.
i) TX VS. FED Acts of congress only in Fed (Statute or other rule in TX)
ii) Connection - 1005 Authorizes copies. 803 treats some public documents as hearsay exceptions.
(1) In conjunction with 803(10), (1)-(4) may show no report or entry exists.
iii) NOTE Pen packets very tough to admit. May require certification by clerk where conviction occurred.
iv) If this fails, subpoena relevant person (clerk who gave you document, etc.)
c) (8) Acknowledged Documents ** Documents accompanied by a certificate of acknowledgment executed in
the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
d) (10) Business Records Accompanied by Affidavit. *** (NOT in FRE). E.g. medical records.
i) File with clerk and notice to opp/ 14 days ahead, unless W to verify 901(b)(1). Aff/ form not critical.
ii) Key Connection Hearsay exception under 803(6)(7) for business records. Auth 1 st, then HS.
e) (11) Presumptions under Statutes or Other Rules. e.g. TRCP 193.7 Discovery self-auth. unless obj.
4) NOTE: Opponent is still free to offer rebuttal evidence that item is not authentic or otherwise inadmissible.
a) Failure to object to admissibility at trial may preclude objection on appeal.
Credibility Evidence
1) Stages and Types
a) Bolstering Generally impermissible Calling W in attempt to bolster/increase cred. BEFORE attacked.
b) Impeachment Attack either
i) 1) testimony of W in this case, (PISs, E contradicting T, Expert T contra); OR
ii) 2) Gen. C for untruthfulness. Bias/M/I (613(a)), CL comp, truthful character, prior convictions
c) Rehabilitation - Redirect, PCS, corroboration of Ws T, E of Ws truthful character, Expert T
2) Bias under Federal Rules Doesnt address directly. Case law indicates it is permissible for impeachment.
a) Bias examples Relationship to party, past relationships, personal or financial stake in the outcome.
3) TRE 615 * - May force production of any statement by witness on SM after testimony on direct.
Impeachment
1) TRE 607 Who may impeach * Any party may attack credibility of a witness.
2) TRE 608(a) Opinion and Reputation Evidence of Character **** RT / OT okay for credibility attack.
a) Limit 1 - E may refer ONLY to character for truthfulness or untruthfulness (not same as honesty);
b) Limit 2 Truthful character of W MUST have been attacked by RT/OT/otherwise. I.e. W must have Td.
i) Or otherwise? Slashing cross-examination that effectively served as a character attack.
ii) This is anti-bolstering limitation.
c) Process: Step 1 TW testifies. Step 2 CW Ts about untruthful character of TW. Step 3 Cross of CW
(HYH/DYK). May inquire into prior truthful acts of TW. SIC USE. Shows no 602.
3) TRE 608(b) SICs ****
a) Rule - SICS of any cred. (read character) W, other than 609, may not be inquired into/proved by EE.
i) TX vs. Fed FED May cross witness on personal SICs at discretion of court if probative of t/un-t.
ii) Limited to 608(a) RT/OT. If W lies, you are stuck with answer. You cant introduce EE to prove acts.
iii) Note: Possible to get CWs SICs through 404/405 if relevant for another purpose. Or 609.
iv) Objection Must object to cross that violates 608(b) to preserve error.
b) Excep 1 - Rebut False Impression Counsel must show E necessary to correct FI left by Ws T. Like 107.
i) Door opening T: 1. Good SICs; 2. Blanket statements on good beh.; 3. Blanket denials of conduct type.
ii) May use exception if D creates FI with irrelevant/collateral matters; BUT cant bait on cross and attack.
iii) Expert T If expert Ts D is not the type of person may cross on awareness of Ds SICs.
c) Exception 2 - Bias, Interest, Motive Under 613(b). 613 covers trustworthiness in particular case, not gen.
i) Objection to 608(b) doesnt preserve for 613(b), and vice versa.
d) Exception 3 PIS BUT may be admissible to impeach CW with PIS about SICs.
4) TRE 613(a) - Examining Witness Concerning Prior Inconsistent Statement. ****
a) Before using PIS by W, MUST tell W of contents/time/place/person to whom made, AND opp to deny/exp.
i) If witness unequivocally admits statement NO EE.
ii) I.e. Extrinsic proof of inconsistent statement is admissible, UNLESS W unequivocally admits.
iii) If written, dont have to show to W at the time, but must show on request to opposing counsel.
b) PIS Definition Witness testimony on the stand contradicts a statement the witness made prior to trial.
i) Explicit S, silence, opinions, NOT PI acts or conduct.
ii) Not hearsay (UNLESS offered to show the truth of the matter).
c) Hearsay PIS? Notice and opp to explain NOT required.
d) Authentication Still required per 901(a) to ensure it is Ws statement.
e) Optional Completeness and Correcting False impression May allow admissibility
f) Methodology Steps for impeaching with PIS pg. 100 YB
i) 1. Prior statement inconsistent? - 104(a) question for TC. Includes opinions, silence, but not conduct.
ii) 2. Confirm direct testimony. 3. Lay 613 foundation (notice and contents and opp to explain)
iii) 4. Is witness admitting? 5. If not, admit EE.
g) Collateral Fact Rule Forbids impeachment by PIS on irrelevant matters. PIS must relate to issue in case.
i) Cant draw in irrelevant information just to show that witness was, at some other time, untruthful.
h) Criminal Statements admissible = pre-arrest silence/statements; post-arrest/Miranda statements.
5) Impeachment by Contradiction Possible, but collateral rule applies. No EE if collateral.
6) Impeachment on CL elements
7) TRE 613 (b) **** Examining Witness Concerning Bias or Interest. SAME STEPS AS PIS. (NOT IN FRE)
a) Party shall be allowed to present E rebutting impeachment on grounds of bias or interest. (REHAB)
b) Definition Relationship of party and W that might influence W to slant T, even unconsciously, for/against.
c) SIC rules dont apply here. MAY use SICs in Cross of Witness on bias/interest.
d) Relevance FF is judge of credibility should be entitled to all E bearing on accuracy/reliability of T.
e) Collateral Bias or interest is never collateral, but E offered to show interest must be rel. to that purpose.
i) Burden is on proponent to show logical connection/nexus between Ws T and Ws potential motive.
f) Pecuniary Interest If W has, relevant for 613(b) impeachment. E.g. Mary Carter rule.
g) Limiting Instructions Should request when impeachment evidence on bias or interest is admitted.
8) TRE 609(a) Impeachment by evidence of conviction of crime **** a) GR For cred. attacks: E of Ws convictions valid if admitted by W or established by public record only if:
i) Factor 1: if the crime (regardless of punishment) was 1) a felony, or 2) involved moral turpitude; AND
(1) TX vs. FED FED NO MT. BUT allows crimen falsi (dishonest/false statement) convictions.
(a) FED No regardless of punishment language. punishable by >1yr instead. Effect is same.
9)
10)
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ii) Factor 2: Court determines probative value of conviction outweighs (not 403) prejudicial effect.
(1) TX vs. Fed TX outweighs. Fed against accused outweighs; for other substantially
(a) Fed - Crimen Falsi - Automatically admissible as to any witness. No balancing.
(2) Weigh 1) impeachment value; 2) temporal proximity of prior offense; 3) similarity of offenses; 4)
importance of Ds testimony; AND 5) Importance of Ds credibility as W.
b) Proving Conviction BoP on impeaching party. Cross, public records, witness/partys judicial admission.
i) UNLIKE regular cross - impeaching party not bound by answer - May offer independent EE.
c) Revealing Conviction Details- GR - Cant go into the details of the offense (unless relevant on B/M/I).
i) Details allowed - Generally provide only name of offense, date and place, and punishment.
ii) Connection 403 objection and balancing. 107 optional completeness.
d) Preserving Error Luce - D must T to preserve claim of improper impeachment with a prior conviction.
i) Ohler - Introducing conviction during direct examination waives right to complain about admissibility.
e) Limiting Instruction Unless admissible as substantive E under another rule - request limiting instruction.
TRE 609 (b) presumptively inadmissible if > 10 years old unless prob. substantially outweighs prej. (rev. 403)
a) Timing Date of conviction or release from confinement, whichever is later.
b) If Intervening Convictions Use balancing test from 609(a) when introducing to show lack of reformation.
c) Exception Witness opens door If W claims no past conduct with law, door is open. Use 403 test.
i) NOTE Only works when it comes out on direct, or volunteered statement on cross.
(e) Pendency of Appeal. Pendency of an appeal renders evidence of a conviction inadmissible. FRE contra.
a) Exception When witness opens door with no prior criminal conduct testimony.
(f) Notice. Not admissible if after timely written request, proponent fails to give adverse party sufficient
written notice of intent to use and opportunity for AP to contest.
a) TX vs. FED Fed contains similar provision, but it applies only for more than 10 years old.
Generally Logical relevance is propensity to ignore social norms (thus would follow suit with oath)
Rehabilitation
1) When is W Impeached? Only after truthfulness attacked.
a) Rehabilitate if - overall tone and tenor of Cross implied that witness is a liar.
2)
3)
4)
5)
6)
i) TC will determine if R juror would believe Ws character for truthfulness has been attacked.
b) Attack DOES NOT occur merely because
i) Opponent present contradictory testimony.
ii) Opponent presents inability of witness to observe matter.
iii) OR evidence of motive for testifying against party
iv) Generally PIS is not an attack on truthfulness.
c) If you move too quickly and get bolstering objection approach and clarify with judge.
Method 1 - Redirect Explain inconsistencies or address points from cross.
Method 2 PCS 613(c) PCS inadmissible EXCEPT under 801(e)(1)(B) NOT in FRE.
a) Foundation
i) 1. PCS declarant testifies at trial and subject to CX; consistent with the declarants testimony
ii) 2. There is express or implied charge against decl. of recent fabrication OR improper influence/motive.
iii) 3. PCS used for REBUTTAL of that charge.
iv) 4. PCS occurred BEFORE charge arose.
b) Hearsay exception Thus admissible for rebuttal to impeachment AND as to substance.
c) To use PCS for rehab proponent must show PCS on same SM/incident about which W testified at trial.
d) Possible exception If opponent elicits portion of PCS rule of optional completeness.
e) Form Consistent statement to family members, videotape, prior pleadings, etc.
Method 3 - Corroborating T Counsel may also introduce E to bolster or rehabilitate. Careful of cumulative.
Method 4 E of Truthful C Per 608(a) After attack Free to offer E of Ws character for truthfulness.
Method 5 - Expert T e.g. child abuse characteristics and conformity, have expert say them dont match.
Opinion Testimony
Lay Witness Opinion T (701) ****
1) If W NOT testifying as expert W testimony in form of opinions or inferences is limited to those which are:
a) Type 1 - rationally based on the perception of the witness (602) AND
b) Type 2 - Helpful to (jury) a) clear understanding of the Ws T OR b) the determination of a fact in issue.
i) Helpful necessary. Does it benefit the fact-finding process? Like a 401 test.
c) FEDERAL ONLY Type 3 Not based on scientific, technical, or spec. knowledge within scope of 702.
i) TX is easier for expert to offer lay opinion testimony. BUT highly trained lay may have to qual as exp.
2) Use of lay witness testimony (Fact witness preferable)
a) Collective (shorthand) Fs Ws conclusory opinion (not facts on which based). Car was going very fast.
b) Skilled Observation Because of familiarity, witness can provide an opinion regarding authenticity.
3) Witness Bias Should still be able to give opinion if it meets 701 test. Goes to the weight, not admissibility.
4) Examples
a) Generally age, causation, credibility, size, intoxication, mental capacity, value
b) Value - may estimate own prop value, IF some basis. NOT sentimental value OR other persons property.
c) Mental Capacity Civil (mental capacity of testator/grantor); Criminal (sanity or insanity)
5) Impermissible Types
a) Speculative (I guess, I think, etc.). BUT language isnt automatic exclusion if PK requirement met.
b) Questions of law reluctant to allow on legal issue e.g. testamentary capacity(question of law).
c) Deductive reasoning But dont get hung up on the language.
6) Expert Testimony Required Some matters (med mal) are beyond the scope of lay T. Encouraged in PL.
b)
c)
d)
e)
f)
g)
h)
4) Bases of opinions testimony by experts (TRE 703) *** Facts/data upon which E basis opinion/inference
MAY be those perceived by, reviewed by, or made known to expert at or before hearing. (Part 2 Data)
a) If of a type reasonably relied upon by experts in the particular field facts/data need not be admissible.
b) Type 1: Personal knowledge Most persuasive (may have examined injured party, etc.).
c) Type 2: Trial Data Data or facts presented to the expert during trial. Usually hypos.
i) Must be admissible, BUT need not be admitted. If not admitted, the opinion is primary E, not data.
ii) Hypo topics docs and T admitted, maybe what counsel anticipates will be admitted (obj. possible).
iii) Safety valve 705 May disclose facts on which opinion is based.
d) Type 3: Outside Sources May be based entirely on inadmissible if RR upon by experts in field.
i) 1 Ecant T to opinion of another. BUT E may be able to form opinion in part based on O of another.
e) FIT Theory must fit facts.
f) Smuggling Party may attempt to use 703 to get inadmissible E in. Use 705 to get basis for opinion.
g) Connection 614 may need expert to stay in trial.
5) Op. on Ultimate Issue ** (704) OT/inference T NOT objectionable because it embraces ult. issue for ToF.
a) Key is the opinion/inference T helpful? If not, reject. Still have to meet 701(lay) or 70203 (ET)
b) Mixed Q of L/F E may offer O on mixed Q IF there is sufficient legal criteria form which to form opinion.
i) E.g. Negligence Explain definition, then ask whether it is met.
c) FED - No expert T on whether D has requisite mental state. BUT TX W cant T on law Result same.
6) TRE 705 Disclosure of Facts or Data Underlying Expert Opinion ***
a) F/D Disclosure. E may give OT or inference T and give reasons without prior disc. of F/D.
i) UNLESS 1) court requires; OR 2) may disclose on direct, or may be REQUIRED to disclose on cross.
b)
c)
d)
e)
f)
g)
ii) Rationale Sometimes it is a waste of time to establish basis. Discovery should provide enough info.
iii) If data otherwise inadmissible 105 limiting instruction if too much disclosure. If written 106 / 107
iv) Land Appraisers More permissive of OT; no pure speculation, but TC has discr. on other land sale HS.
Voir dire. Opponents, on request, in CIVIL MAY, or CRIMINAL SHALL, be given VD opportunity
directed at underlying F/D on which opinion is based, out of the hearing of the jury. (NOT in FRE)
i) If Voir dire shows expert not qualified, cant give opinion.
Admissibility of opinion. If court determines underlying facts/data do not provide SUFFICIENT BASIS
for experts opinion under 702/703 opinion inadmissible. (Not in FRE)
i) Burden on Proponent ONLY when, after VD, opponent makes PF showing of insufficient basis.
Balancing test - If F/D inadmissible exclude 1) IF the danger they will be used for purpose other than
explanation or support for Es O outweighs value as explanation or support; or 2) if unfairly prejudicial.
i) Note Opinion is still admissible, just not facts.
ii) Exclude if prejudicial impact outweighs beneficial value in explaining experts opinion.
iii) Compare with FED Fed= SUBSTANTIALLY outweighs.
Limiting instructions. If otherwise inadmissible shown to jury, 105 instruction.
Process
i) 1. If facts/data insufficient to form basis for OT exclude.
ii) 2. If sufficient basis established does E form basis of the opinion admissible on other ground?
(1) 2a) if independently admissible, 705(d) not implicated.
(2) 2b) If not independently admissible balance prej. of possible misuse against explanatory value.
(a) If misuse outweighs value, dont disclose underlying facts.
(b) BUT opinion may still be admitted. Perhaps 105 to limit impact.
Object to trigger 705(d). Judge need not maintain a record on balancing factors.
Best Evidence
1) Theory Certain types of evidence are inherently more trustworthy use them if available.
a) Does not literally require the most credible or persuasive E to prove/disprove a fact(best evidence principle)
2) Application Only to writing, recordings, and photo that are a material issue at trial.
3) Process
a) Step 1 Proffered evidence meets 1001 def of writing, recording, or photograph AND contents in issue.
b) Step 2a Produce Original 1002 OR Step 2b If no original, produce duplicate per 1003.
c) Step 3 As an alternative, establish exception per 1005, 1006, 1007, or excuse per 1004.
i) Step 3b Produce secondary E (oral T, summary of contents, copy out of compliance with 1003, etc.)
d) OR avoid altogether dont produce to prove contents, but for other purpose.
e) OR avoid altogether get testimony to the same effect.
4) TRE 1001 Definitions **
a) Writings and Recordings. Letters, words, etc. in handwriting, elec. recording, or other data compilation.
b) Photographs. Stills, X-ray films, video tapes, motion pictures. (easy normally only demo E; prints OK).
c) Original. Writing or recording intended to have same effect by person executing or issuing.
i) Photo - negative or any print therefrom. Computer data Any accurate printout = original.
d) Duplicate. Accurately reproduced (copy, etc. or other equiv. techniques) duplicate of orig. (may enlarge)
5) TRE 1002 Requirement of Originals **** - To prove content, the original is required EXCEPT per rules.
a) If you cant get original as required, cant intro other.
b) Generally No dispute on originality. If not issue, may provide T interpreting writing; incomplete copy.
c) Does not apply to:
i) Events BE rule does not apply to T about an event, even if reduced to writing, photo, or recording.
ii) Testimony merely drawing attention to writing (officer testifies about event, mentions a report).
iii) Writing used to refresh recollection under 612.
iv) Supporting opinion testimony under 703
v) Attack W credibility concerning Ws understanding of content of a writing.
6)
7)
8)
9)
10)
vi) Collateral rule When W/P/R used to supplement Ws T, NOT to prove a controlling issue.
d) When are the contents in issue?
i) 1. Writing itself is crucial element of CoA (K, promissory note, will or lease, etc.)
ii) 2. Proponent seeks to prove a fact or the nonexistence of a fact by use of the writing.
e) Other Hurdles still exist Hearsay, authentication, and relevancy
f) Bypassing rule Call W to testify to overheard oral statement, not the recording/writing/etc.
TRE 1003 ***Admissibility of Duplicates - Duplicate is admissible to the same extent as an original unless
a) (1) a question is raised as to the authenticity of the ORIGINAL or (not what proponent claims, etc.)
b) (2) in the circ it would be unfair to admit the duplicate in lieu of the original (alterations, illegible).
c) Burden Opponent has burden of objecting on either grounds
d) Proponent may still show why these issues dont destroy authenticity.
TRE 1004 Admissibility of other evidence** - Original not required, and E admissible IF:
a) (a) Originals Lost or Destroyed. UNLESS lost or destroyed in BF.
b) (b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
c) (c) Original Outside the State.
d) (d) Original in Possession of Opponent. Other party put on notice, yet not produced.
e) (e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.
TRE 1005 Public Records *- Contents of official record/doc AUTHORIZED to be recorded and ACTUALLY
recorded, IF OTHERWISE ADMISSIBLE, MAY BE PROVED by Copy.
a) Copy may be certified by 902 or testified to by witness who has compared with original.
b) If copy cannot be obtained with R diligence, other E may be given (like oral T).
c) Does not apply to business records.
TRE 1006 Summaries *- May use chart, summary or calculation as substitute for contents of voluminous
records IF they are otherwise admissible and cannot be conveniently examined in court.
a) Must make original available at reasonable time/place. Court may order production.
b) Distinguish summaries (evidence) from props (not evidence).
TRE 1007 Testimony or Written Admission of Party *- May prove content if person against whom offered
admits in writing or testimony without accounting for non-production..
Hearsay
1) Statement made by declarant outside trial or hearing, offered into E to prove TOMA.
2) Rationale (Note Common Mistake just because some elements are here does not make it hearsay.
a) Out of court statement normally not under oath;
b) may be error in transmission of statement
c) FF cant observe declarants demeanor;
d) Inability to cross-examine
3) Formula - S (WOVE/NVC) [801(a)] + OTCD [person 801(b) + location 801(d)] + TOMA (IS/E/I) [801(c)(d)]
Definitions (801(a-d))****
1)
(a) Statement. (1) Oral or written verbal expression OR (2) nonverbal conduct (if intended as sub for VE).
a) FED (assertion) - Statement must be intended as assertion. Q, exclamation, etc. dont count.
i) UNLESS the statement is a functional equivalent of declarative statement.
b) TX (expression). Q or non-declarative utterance might be statements. Implied assertions are within HS.
i) Wright v. Doe Implied assertions of letters was that they were sent to competent person. Hearsay. Out.
c) Type 1a Assertive verbal (oral and written) conduct. E.g. its cold. Hearsay in TX and FED.
i) Functional equivalent response to is it cold? with rhetorical question, etc.
d) Type 1b- Assertive nonverbal conduct intended as sub for verbal assertion. E.g. Nod, gesture, etc.
i) BoP reversed. Burden on opponent to show declarant intended actions as sub for verbal expression.
(1) 104(a) decision by judge. If not intended, NOT hearsay under FRE or TRE
e) Type 2 - Nonassertive VC. E.g. in response to Is it cold? declarant says brr AND temp in issue.
ii) 2. There is express or implied charge against decl. of recent fabrication OR improper influence/M.
iii) 3. PCS used for REBUTTAL of that charge.
iv) 4. PCS occurred BEFORE express or implied charge arose.
v) Limitation PCS MUST be same SM or incident about which declarant testified at trial.
vi) Optional Completeness - If opponent elicits a portion of PCS 107 may admit remainder.
vii) Express or implied charge Mere challenge to credibility or memory is not sufficient.
(1) Need only a suggestion that witness consciously altered T.
viii)Oath Not required for the PCS.
c) (C) Identification of a person made after perceiving the person; or
i) Typical Use W testifies at trial (inculpatory or exculpatory) about earlier out-of-court ID.
(1) E.g. Pretrial ID from lineup; report of W after crime that they saw person at a certain time/place.
ii) Rationale Earlier ID was under less suggestive conditions.
iii) Bolstering? - Dont treat as bolstering Testimony is relevant to issue of identification.
iv) Confrontation Clause - Pretrial ID of criminal D is testimonial; 3rd persons testimony on ID violates CC.
2) (2) Admission by party-opponent ****. The statement is offered against (one way only) a party and is:
a) NOTE Party need not take stand to apply.
b) (A) the partys own statement in either an individual or representative capacity;
i) Source Oral, written, nodding, stipulation, depo.
ii) Witness testifying Must have PK of the partys admission.
iii) Admissions binding on co-parties if privity.
c) (B) Party manifests adoption or belief in truth of a statement.
i) Method of adoption Verbal, nonverbal, silence.
ii) Burden BoP on proponent to show adoption by POE standard that party heard/understood/agreed.
iii) Proponent of statement has burden to show party/opponent understood, adopted by POE standard.
iv) TX Silence after arrest inadmissible. Federal Silence after arrest and Miranda inadmissible.
d) (C) a statement by a person authorized by the party to make S concerning the subject; e.g. press sec.
i) Burden Proponent must how independently that statement declarant was agent and had authority.
e) (D) 1) partys agent/servant on 2) matter within scope of agency/emp, 3) made during relationship.
i) Scope SM of statement within job descrtiption AND decl. performing duties when K of SM acquired.
f) (E) a statement 1) by co-conspirator of a party 2) during the course and in furtherance of the conspiracy.
i) Requirements All by POE standard
(1) 1. Conspiracy existed - common plan or enterprise, lawful or unlawful.
(a) 1) object; 2) plan to achieve object; and 3) agreement/understanding between 2 or more persons.
(2) 2. Decl. and D (against whom statements offered) were in conspiracy (or D later participated);
(3) 3. Statements were made in the course of an in furtherance of conspiracy.
(a) Timing of statement - After conspiracy (everything done that was planned) inadmissible.
ii) Boujaily MAY consider hearsay in determining if conspiracy exist, but not only hearsay.
3) (3) Depositions. CIVIL depo taken in SAME PROCEEDING (203.6 defines). UA NOT required. NO FRE.
a) Same proceeding includes proceeding in different court but same SM and parties/reps/successors.
b) No real foundation required.
c) Helps in 804(a)(5) When party absent, but willing to T.
d) Note Depo may be admissible for non-HS purpose (613(a) impeachment; substantive under 801(e)(1)(A)).
4) TRE 802 Hearsay Rule Hearsay inadmissible UNLESS rules allow OR statute allows.
a) Inadmissible hearsay admitted without objection will be accorded probative value.
b) 2. Personally perceived by decl. No conjecture, but rational inference OK (gas gauge empty = no gas AND
c) 3. Made while event/condition occurring or existing OR immediately thereafter.
d) E.g. Cop dictating impressions to tape adversarial prep. Compare cop radioing during chase PSI.
4) Excited Utterance (2) **** S relating to startling E/C made while decl. was under stress caused by E/C.
a) Requirements: The statement MUST (POE standard for all)
i) 1. S is product of startling occurrence/condition that produced nervous excitement (thus spon.)
ii) 2. Excitement still so dominated declarants mind that there was no time/opp to misrepresent.
(1) Timing is critical. Degree person is dominated turns on facts; never includes calm narrative.
iii) 3. Relates to the circumstances of the occurrence or condition that preceded it.
b) Proof of startling event or condition: Would a R person, at the time, have felt alarm, shock, etc.?
i) Statement must have logical nexus with sub. event, BUT event need not cause excitement.
(1) I.e. startling event may trigger EU on earlier incident.
c) PK requirement Must have PK; may establish though circumstantial evidence. 104(a) POE judge decision.
i) Note Declarant lacks PK, but becomes startled when learning of underlying startling event.
d) Children Even if too young to be competent, may admit if reqs met. TCCP allows EU on child abuse.
e) Res Gestae 404(b), TX Code Crim. Proc., 803(13) Dont use it, too many different meanings.
5) Existing Mental, Emotion or Phys. State (3)**** S of declarants THEN EXISTING state of mind/condition
a) Examples intent, plan, motive, design, mnental feeling, pain, bodily health
b) Cant use this memory to prove the remembered fact, only to show what speaker believed.
i) (If not TOMA, may be admissible to prove fact statement was made).
ii) BUT may prove will issues with memory/belief.
c) Hillmon If intent is material, expressed intent = testimony. Here, letters showed intention to leave at time.
i) Admit - jury makes the decision on truth or falsity.
d) If ambiguous on mental condition Inadmissible.
e) Present mental condition May admit S to prove declarants then existing plan, intent, for future conduct.
i) E.g. I hate X Offered as substantive evidence of hatred of X.
f) Compare (1 PSI) No describe req. (2 EU) No stress requirement. (4) Not medical, no past symptoms.
g) Opinions Polls May make it in under this exception.
6) Statements for Purposes of Medical Diagnosis or Treatment (4) ****
a) 1. Statements - For purpose of medical diagnoses or treatment
i) Direct or circumstantial E that D was seeking medical care AND knew S made for that purpose.
ii) Includes statements to non-medical person if intent is to seek care.
b) 2. Describing Med. history, past/present symptoms, pain, or inception or gen. char. of cause or source.
i) IF R pertinent to diagnosis or treatment. Key language Pathologically germane
ii) Must be the type of statement R relied upon by medical professionals.
c) Application Generally exclude statements by medical professionals to patients, or to each other.
i) Note May still include these statements to show state of mind, or 703/705 exception.
d) Application Kids Must understand reason for being honest with health care provider.
e) Application 3rd party Statements May be admissible if they meet 1. And 2. Above.
f) Application ID of defendant Normally not pathologically germane (except child abuse).
7) (5) Recorded Recollection. **** Record on matter where W had PK but has insufficient recollection to T fully.
a) Timing Made or adopted by W when fresh in memory and to reflect knowledge correctly.
b) Trustworthiness Veto If the circumstances of preparation cast doubt on the docs trustworthiness. NO FRE
c) Use If admitted, the record is read into E. Either party may read; only adverse party offers as exhibit
i) Either party may read; only the adverse party may offer as exhibit.
d) Predicate (Declarant must T on 1,3, and 4) 1. Decl. had PK; 2. Original at or near time; 3. Decl lacks
recollection; AND 4. Declarant vouches for accuracy.
d) DOES NOT preclude E or T of the existence of event or fact. Just using the report.
2) TRE 503 **** Lawyer-Client Privilege
a) Client Person who is rendered legal services by lawyer (or potential clients).
b) Representative of the client
i) (i) Person authorized to get legal advice and act on it, on behalf of client (family, guardian, etc.)
ii) (ii) Any other person who, 1) for the purpose of effectuating legal representation for the client, makes or
receives a 2) confidential communication while acting in the 3) scope of employment for the client.
(1) Thus under 1) no privilege if employee asks company lawyer for legal advice.
(2) Confidentiality not broadcast, spread through organization, etc.
(3) With AC and legal entities, the relationship may not survive termination of the legal entity.
c) Lawyer - Authorized (OR reasonable believed to be) to engage in practice of law. Acting in capacity.
i) Protects client (e.g. if lawyer was disciplined and cant practice)
d) Representative of the lawyer is: 1) assists in legal services; or 2) accountant R necessary for LS.
e) Confidential communication - if not intended to be disclosed to 3rd persons OTHER THAN those to whom
disclosure is made in furtherance of rendition of LS to client (or those R necessary to transmit comm.
i) Public communication waives. In front of third party? Some exceptions (e.g. family/bus associates).
f) (b)(1) RULE - CLIENT has privilege on any confidential comm. made for purpose of pro. legal services.
i) Client to lawyer, and reps, between common clients and reps, between lawyer and their reps, etc.
ii) Note Though list nonexhaustive, it wont cover communications between parties.
g) (b)(2) Criminal CLIENT may prevent L or reps from disclosing ANY other fact known through AC rel.
h) (c) Who May Claim the Privilege?
i) Client/Cs guardian/personal rep of deceased C.
ii) Successor, trustee, or similar of corporation or org, whether or not in existence.
iii) Lawyer PRESUMED to have authority to claim, but ONLY on behalf of client (cant unilaterally waive).
i) (d) Exceptions. There is no privilege under this rule:
i) (1) C/F If services sought/obtained to further what client knew OR R should have known as C/F.
(1) Reasonably knowing protects client who rely on erroneous advice.
(2) Burden of establishing CF party seeking disclosure.
ii) (2) Claimants through same deceased client. If 2 or more parties claim through same deceased C,
relevant communication by the client is not privileged as to the others.
iii) (3) Breach of duty by a lawyer or client. Comm relevant to breach (didnt pay bill, etc.).
iv) (4) Document attested by a lawyer.
v) (5) Joint clients.
j) Procedure:
i) If privilege asserted, TC determines (in camera on docs) if privilege exists. EE permissible.
ii) Burden On party claiming privilege to request inspection or support claim. Or party claiming excep.
iii) Waiver If privilege is not claimed. Also if disclosed to 3 rd parties.
iv) Privilege may be established through testimony or affidavits.
(4) Note 502 may be mandatory reporting requirements and privilege under that rule as well.
ii) Note: Possible to protect if physician is hired by attorney (thus it would really be A/C privilege).
e) (c) CIVIL Cannot disclose communications between physician/patient or related records.
f) (d) Patient/Rep/Physician (on behalf of patient, authority presumed) holds privilege.
i) Burden on privilege seeking to show privilege or exception to privilege to produce E to support claim.
g) (e) Exceptions in a Civil Proceeding. (Virtually swallows the rule).
i) Malpractice Patient actions against doc AND license revoc. where patient is complaining W. (mal +)
ii) Written consent - when patient or their agent submits to written consent per (f)
iii) Proceeding where ANY party is relying upon physical, mental, or emotion condition as part of C/D.
(1) Most frequently encountered. E.g. when P alleges injury.
iv) Dr. disciplinary actions, involuntary commitment, abuse of institutionalized persons, doctor $ collection.
v) 509/510 DO NOT implicate offensive use doctrine.
h) (f) Consent. In writing & signed by patient/ rep. Include info covered, reasons released, person released to.
i) May withdraw to release of information, but this does not affect info disclosed before withdrawal notice.
ii) If consented disclosure, disclose only as consistent with the purposes for which authorization obtained.
2) TRE 510 Confidentiality of Mental health information in CIVIL cases - ***
a) Professional Authorized to practice, licensed by TX in treatment of mental/emotional disorder, involved in
treatment/exam of drug abusers; OR RBd (GF) by patient to be in any of the above three categories.
i) Note licensed is not tied to any particular notion of medicine (just needs state approval) Psych, etc.
b) Patient consults or interviewed for treatment OR treated/examined voluntarily in drug abuse treatment.
c) Representative of the patient person with written consent/minor/guardian/personal rep.
d) (b) GR Patient/prof. communication privileged in CIVIL cases (records too). Applies retroactively.
e) (c) Who May Claim the Privilege? 1) Patient; 2) patients rep; 3) Prof. (on behalf of P, authority presumed).
f) (d) Exceptions.
i) Malpractice exception as above.
ii) When patient or their agent submits to written consent (unlike 509, where (f) must be followed).
iii) When it is part of claim/defense.
iv) Involuntary commitment, court ordered exams ONLY about condition, fee collection.
Clergy (505) **
1) Member of Clergy priest/rabbi or similar functionary of religious organization or RBd so by person consulting.
2) Confidential Communications made privately and not intended for further disclosure.
a) Except to other persons present in furtherance of the purposes of the communication.
3) Rule May refuse to disclose and prevent others from disclosing comment to clergy in professional capacity.
a) Holder = communicant. Clergy must be acting in professional capacity as spiritual advisor.
4) Who Claims? 1) Person; 2) guar./cons./personal rep of deceased; 3) clergy (on behalf; authority presumed).
5) Unlike other privilege rules, no exceptions (BUT neglect of children, or 511 CW may get around it).
Informer ID (508) **
1) (a) GR. G entity has privilege to refuse disclosure of ID of person furnishing info in on law violation.
a) Holder - Government entity (holder of privilege) may block disclosure of ID of informer.
b) Protects ONLY identity. Communications only privileged if disclosure would effectively ID the informer.
2) (b) Who May Claim? Appropriate representative of public entity to which information furnished.
a) EXCEPTION Not allowed in criminal cases if the state objects.
i) If US attorney says they dont want to disclose, and DA objects privilege doesnt work.
3) (c) Exceptions.
a) (1) If informer or holder voluntarily discloses ID OR informer appears as witness for public entity.
i) Other side may not avoid privilege by calling suspected informers to see if they are in fact informers.
b) (2) If it R probability testimony on merits will aid fair determination of material issue
i) Civil cases If found and G entity decides not to disclose court makes any order justice requires.