Evidence - 2009 Tx Bar Exam

Front 1

Evidence is relevant if

Back 1

It has any tendency to make a fact of consequence more or less probable.

Front 2

All irrelevant evidence is

Back 2

Inadmissible

Front 3

All relevant evidence is

Back 3

Admissible unless
(1) an exclusionary rule applies, or
(2) court decides probative value is substantially outweighed by PRAGMATIC CONSIDERATIONS

Front 4

Relevance Balancing Test

Back 4

Weigh Probative Value against

(1)Danger of Unfair Prejudice
(2)Confusion of the Issues
(3)Misleading the Jury
(4)Undue Delay
(5)Waste of Time (not Tex)
(6)Unduly Cumulative

Front 5

Evidence of Similar Occurrences

Back 5

Generally not admissible

If concerns some TIME, EVENT, or PERSON other than that involved in the case - inadmissible

Front 6

Similar Occurrences - Exceptions

Back 6

Evidence of some recurring situations is admissible

Front 7

Plaintiff's Accident History

Back 7

Generally - inadmissible

BUT - plaintiff's prior accidents ADMISSIBLE if cause of plaintiff's damages is at issue
(this accident didn't cause these damages)

Front 8

Similar Accidents Caused by Same Event or Condition

Back 8

Generally - INADMISSIBLE

BUT - other accidents (1) involving same instrumentality or condition and (2) occurring under substantially similar circumstances - may be admitted
(1) Show existence of dangerous condition
(2) Causation, or
(3) Prior Notice to Defendant

Front 9

Intent in Issue

Back 9

A person's prior conduct may provide inference of intent on later occasion

exp - sue for sex disc. - may show hired no women despite quals for last 6 years

Front 10

Comparable Sales on Issue of Value

Back 10

Selling price of other property (1) of similar type, (2) in same general location, and (3) close in time to period at issue - some evidence of value of property at issue

Front 11

Habit (Person) / Routine (Business)

Back 11

A (1) repetitive response (2) to a particular set of circumstances.

ADMISSIBLE - circumstantial evidence of how a person or business acted on the occasion at issue

Frequency & Particularity

Front 12

Industrial Custom as Standard of Care

Back 12

Evidence of how others in the same trade or industry have acted in the recent past ADMISSIBLE as some evidence of APPROPRIATE STANDARD OF CARE (how this party should have acted)

Front 13

Policy Based Exclusions

Back 13

otherwise Relevant Evidence that is INADMISSIBLE for public policy reasons

Front 14

Liability Insurance

Back 14

Evidence that someone has (or does not have) liability insurance is INADMISSIBLE to prove PERSON's FAULT OR ABSENCE OF FAULT

Front 15

Proof of Liability Insurance ADMISSIBLE if

Back 15

Introduced for some other relevant purpose such as
(1) proof of ownership / control of instrumentality or location IF disputed
OR
(2) for purposes of impeachment

Front 16

Limiting Instruction

Back 16

Should be given to the jury whenever evidence is admissible for one purpose but inadmissible for another.

Tell jury to consider the evidence only for the permissible purpose.

Front 17

Subsequent Remedial Measures

Back 17

INADMISSIBLE to prove
(1) Negligence
(2) Culpable Conduct
(3) Product Defects, or
(4) Need for Warnings

BUT - ADMISSIBLE for other relevant purpose such as -
(1) Proof of Ownership / Control, or
(2) Feasibility of Safer Condition
IF - either is disputed

Front 18

Subsequent Remedial Measures
TX Exception

Back 18

Same as fed BUT -

In products liability action - evidence of written notification of a product defect sent by a manufacurer to a person is ADMISSIBLE to prove existence of defect.

Front 19

Settlements - CIVIL

Back 19

Evidence of SETTLEMENT or OFFER TO SETTLE a DISPUTED CLAIM is INADMISSIBLE to prove
(1) Liability, or
(2) Weakness of Party's Case

NOTE - may be ADMISSIBLE for purposes of showing BIAS

Statements of Fact made during course of settlement discussions is INADMISSIBLE

Front 20

When Settlement Exclusionary Rule Applies

Back 20

Only applies if there is a (1) CLAIM that is (2) DISPUTED (at time of settlement discussion) either as to (3) VALIDITY or (4) AMOUNT OF DAMAGES.

Front 21

Settlement - CRIMINAL

Back 21

INADMISSIBLE -
(1) Offer to plead guilty
(2) Withdrawn guilty plea
(3) Plea of nolo contendere
(4) Statements of fact

Front 22

Offer to Pay Hospital or Medical Expenses

Back 22

INADMISSIBLE - evidence that paid or offered to pay an accident victim's hospital or medical expenses is inadmissible to prove liability.

Front 23

Character Evidence - Definition

Back 23

A person's general propensity or disposition.

Front 24

Character Evidence

Criminal Cases - Defendant's Character

Back 24

Evidence of defendant's character is NOT ADMISSIBLE during the Prosecutor's CASE-IN-CHIEF to show <b>conduct in conformity</b> thereof

NOTE - Defendant may intro this evidence and put in issue for Prosecution's Rebuttal

Front 25

Character Evidence

Criminal Cases - Prosecution's Rebuttal

Back 25

If Defendant "opens door" by calling character witnesses, prosecution may rebut
(1) by CXing character witness with "Have you heard" or "Did you know" to impeach
and/or
(2) by calling own reputation or opinion witnesses.

Front 26

Character Evidence

Criminal Cases - Victim's Character in Self Defense Case

Back 26

Criminal defendant may introduce evidence of victim's violent character to prove victim's conduct in conformity therewith (circ evid that he was aggressor)

Method - character witness testifies to victim's REPUTATION for violence or may give OPINION as to violent nature.

Front 27

Character Evidence

Criminal Cases - Victim's Character in Self Defense Case

Prosecution Rebuttal

Back 27

TEXAS - rebuttal limited to evidence of victim's good character

FED - Evidence of victim's good character AND/OR defendant's character for violence

Remember - only REPUTATION or OPINION

Front 28

Criminal Cases - Self Defense

Defendant's Knowledge of Victim

Back 28

If the defendant, was aware AT THE TIME of the alleged self defense of either (1) victim's violent reputation, or (2) prior specific acts of violence - such awareness may be proven to show defendant's state of mind (fear).

Shows defendant acted reasonably.

Front 29

Character Evidence

Criminal Cases - Victim's Character in Sexual Misconduct Cases

Back 29

Rape Shield Laws - where defendant is alleged to have engaged in sexual misconduct, following is ordinarily INADMISSIBLE -
(1) opinion or reputation evidence about the victim's sexual propensity,
or
(2) evidence of specific sexual behavior of the victim.

Front 30

Character Evidence

Criminal Cases - Victim's Character in Sexual Misconduct Cases - Exceptions

Back 30

May show -
(1) specific sexual behavior of the victim to show defendant wasn't source of semen or injury to victim
(2) victim's sexual activity with the defendant IF defense of CONSENT asserted, or
(3) where exclusion would violate defendant's right of due process

Front 31

Applicability of Rape Shield Laws

Back 31

Federal - Civil and Criminal

Texas - ONLY Criminal

Example - Sue for Sexual Harassment - only applies if in Fed Court

Front 32

"Have you heard" questions should be directed at 1.____ witnesses.

"Did you know" questions should be directed at 2._____ witnesses.

Back 32

1. reputation
2. opinion

Front 33

***A _________ should be given to the jury when evidence is admissible for one purpose but not for another.

Back 33

limiting instruction

Front 34

Character Evidence - Civil Cases

Back 34

Under the Federal Rules character evidence is _______ except in the two narrow circumstances (negligent hiring & defamation) where it is an essential element. This is true even of civil cases based on criminal conduct.

Front 35

Character Evidence - Civil
Texas

Back 35

In TX, character evidence is generally inadmissible but there are two exceptions (other than defamation and negligent entrustment). What are these two exceptions?

Front 36

Character Evidence - Civil

Like in criminal cases, character may only be proven through ___ or ___ testimony.

Back 36

1. reputation

2. opinion

Front 37

Defendant's Other Crimes for Non-Character Purposes

True or False. A defendant's other crimes or bad acts may be admissible for non-character purposes.

Back 37

True. If a D's other crimes or bad acts show SOMETHING SPECIFIC ABOUT THE CRIME CHARGED - something more than mere bad character - such evidence may be admissible bearing on guilt.

Can't say - once a robber always a robber

Front 38

Defendant's Other Crimes for Non-Character Purposes

***What are the most common non-character purposes for which prior crimes or bad acts may be admissible?

Back 38

MIMIC:
*Motive
*Intent
*Mistake or accident (absence of)
*Identity (MO)
*Common Scheme or Plan

Front 39

How can the prosecution/plaintiff prove the MIMIC related crime?

Back 39

1. By conviction

2. By evidence (witness, etc.) that proves the crime occurred. The standard that must be met is conditional relevancy. The prosecution need only produce sufficient evidence from which a reasonable juror could condlude that the defendant committed the other crime.

Front 40

In all cases where a party seeks to introduce a prior bad act or crime, the court must _____ and _____.

Back 40

*weigh the probative value vs. the prejudice
*give limiting instructions if the evidence is admitted

Front 41

Upon the defendant's request, the prosecution must give _____ of its intent to introduce MIMIC evidence.

Back 41

pretrial notice

Front 42

If relevant, prior bad acts or crimes that meet one of the MIMIC categories can also be used in ____ cases such as tort actions for fraud or assault.

Back 42

civil

Front 43

If relevant, prior bad acts or crimes that meet one of the MIMIC categories can also be used in ____ cases such as tort actions for fraud or assault.

Back 43

Case-In-Chief

Front 44

When a question asks about a WRITING, what three issues (besides relevance) should you be aware of?

Back 44

authentication, best evidence rule, hearsay

Front 45

What is AUTHENTICATION?

Back 45

A showing that the writing is genuine or it is what it purports to be.

Front 46

In absence of a stipulation as to authenticity...

Back 46

a FOUNDATION must be made in order for the document to be admissible

Front 47

What is the main issue the court is trying to decide when determining if a document is authentic?

Back 47

Is X the author of the document?

Front 48

What are the general methods for authenticating a document/writing?

Back 48

Four different methods -

(1) Witness' personal knowledge - Witness observed X sign the document
(2) Proof of Handwriting -
(a) Lay Opinion - lay witness familiar with handwriting
(b) Expert Comparison Opinion
(c) Jury Comparison
(3) Ancient Documents Rule
(4) Solicited Reply Doctrine

Front 49

What is the Ancient Document Rule?

Back 49

Authenticity may be inferred IF document is -
(1) at least 20 years old,
(2) facially free of suspicion, and
(no erase marks, whiteout, etc)
(3) found in a place of natural custody.
(desk drawer, file cabinent, etc.)

Front 50

What is the Solicited Reply Doctrine?

Back 50

A document can be authenticated by evidence that it was received in response to a prior communication to the alleged author.

Exp - P mails contract to X and later receives it back signed by X.

Front 51

Authentication - Standard for Admission

Back 51

Conditional Relevancy Standard - document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude that the document is genuine.

Front 52

What are Self-Authenticating Documents?

Back 52

Documents that are PRESUMED AUTHENTIC - no need for foundation testimony or extrinsic evidence - they are automatically admitted

Front 53

Major Types of Self-Authenticating Documents

Back 53

(1) Official Publications (gov't pamphlets, etc..)
(2) Certified Copies of Records on file in Public Office (deeds, mortgages, etc..)
(3) Newspapers or Periodicals
(4) Trade Inscriptions or Labels
(5) Acknowledged Documents (notarized certification)
(6) Commercial Paper

Front 54

TEXAS Rule - Self-Authentication of Business Records

Back 54

Business Records are self-authenticating IF -
(1) Affidavit that record qualifies for hearsay exception
(2) Exception is satisfied
(3) original or exact duplicate of the record is attached to affidavit, and
(4) provide notice - filed with court 14 days prior to trial and prompt notice given to other side

Front 55

Authentication of Photographs

Back 55

Must have - Witness with personal knowledge testify that the photograph is a "FAIR and ACCURATE REPRESENTATION" of the people or objects portrayed.

Front 56

What is the Best Evidence Rule?

Back 56

"ORIGINAL WRITINGS" Rule

In order to prove the contents of a writing, recording, or photograph, an original must be produced.

Front 57

Best Evidence Rule - Definition

Back 57

A party who seeks to prove the contents of a writing (which includes sound recordings, X-rays, films, etc.) must either
(1) Produce the Original Writing, or
(2) Provide an acceptable excuse for its absence.

Front 58

When does the Best Evidence Rule apply?

Back 58

When a party is seeking to prove the contents of a writing.

Usually either -
(1) Writing is a Legally Operative Document, or
(2) Witness is testifying to facts that learned SOLELY from the writing.

Front 59

When does the Best Evidence Rule not apply?

Back 59

When a witness with personal knowledge testifies to a fact that exists independently of a writing which records a fact.

Front 60

What is an ORIGINAL WRITING?

Back 60

Either -
(1) the writing itself, any counterpart intended to have same effect (multiple org.), any film negative or print from the negative, or a computer print-out.
OR
(2) Duplicate - any counterpart produced by any mechanical means that accurately reproduced the original.

Duplicates admissible to same extent as original unless(1) unfair (blurry, unreadable, etc.), or (2) genuine question raised as to authenticity of original.

Handwritten copies NEVER okay

Front 61

Excuses for Non-Production and Burden of Proof

Back 61

Must establish by PREPONDERANCE OF THE EVIDENCE that original -
(1) was LOST or CANNOT BE FOUND WITH DUE DILIGENCE
(2) was DESTROYED without bad faith, or
(3) CANNOT BE OBTAINED with legal process.

Front 62

What are the "escapes" or exceptions to the Best Evidence Rule?

Back 62

(1) Voluminous records may be presented through summary or chart IF originals would be admissible AND are available for inspection
(2) Certified copies of Public Records
(3) Collateral Documents or those not important to outcome of litigation.
(4) Items extremely difficult to bring into court, like a headstone for example.

Front 63

Competency of Witness - To testify must have

Back 63

Have to have -
(1) PERSONAL KNOWLEDGE - what they perceived with their own senses
and
(2) Make an OATH or AFFIRMATION

Front 64

TEXAS - In addition to personal knowledge & affirmation, a witness is incompetent to testify if -

Back 64

Court finds either -
(1) Insane at time of events witnessed or at trial, or
(2) Child or other person who lack sufficient intellect to relate events witnessed.

Front 65

A juror is may not testify (is not competent)

Back 65

(1) in same case sitting as a juror on any matter,
or
(2) in any other case as to
(a) statement made in deliberations, or
(b) effect anything had on deliberations.

NOTE - MAY TESTIFY as to any (1) outside influence or (2) extraneous prejudicial information.

Front 66

Dead Man's Statute

Back 66

In a CIVIL action, an INTERESTED PARTY is INCOMPETENT to testify in support of own interest AGAINST THE ESTATE of a decedent concerning COMMUNICATIONS OR TRANSACTIONS between interested party and decedent

Front 67

Dead Man's Statute - MBE

Back 67

There is no such statute in the Federal Rules of Evidence. So only apply on MBE if question says state has one.

Front 68

Dead Man's Statute - TEXAS

Back 68

An INTERESTED WITNESS is INCOMEPTENT if -
(1) Civil Action by or against decedent's estate, heirs, or legal representative
AND
(2) Either party to action seeks to testify to ORAL STATEMENT made by decedent.

BUT - May testify as to decedent's oral statement IF EITHER
(1) decedent's oral statement is corroborated by other evidence, or
(2) Incompetent party is called by adverse party to testify concerning statement.

Front 69

What is a LEADING QUESTION?

Back 69

One where the FORM of the question SUGGESTS THE ANSWER

Exp - "Isn't it a fact that..." or unevenly balanced alternatives

Front 70

When are leading questions allowed?

Back 70

NOT ALLOWED on DIRECT EXAMINATION unless
(1) Preliminary or Introductory Matter
(2) Youthful or Forgetful Witness
(3) Hostile Witness, or
(4) Adverse Party or under thier control.

ALLOWED on CROSS-EXAMINATION

Front 71

Writings in Aid of Oral Testimony
What is Refreshing Recollection?

Back 71

RULE - A witness may not read on the stand from a prepared memorandum. The witness must testfy on basis of their recollection.
BUT - If the witness's memory fails, may be shown either a memorandum or any other tangible item to jog his memory.

Front 72

Safeguards against abuse of Refreshing Recollection

Back 72

Adversary has the right to -
(1) Inspect the memory refresher
(2) Use it on cross-examination, and
(3) Introduce it into evidence.

Front 73

Writings in Aid of Oral Testimony - Describe the PAST RECOLLECTION RECORDED hearsay exception.

Back 73

Builds on REFRESHING RECOLLECTION process - writing may now serve as substitute for witness's memory.

If exception is met - may be read into evidence but not included as exhibit.

Front 74

What are the elements of the PAST RECOLLECTION RECORDED hearsay exception.

Back 74

Foundation for admissiblity -
(1) Showing writing to witness fails to jog memory
(2) Witness had personal knowledge at former time
(3) Writing was either MADE or ADOPTED by the witness
(4) Making or adoption occurred when EVENT WAS FRESH in witness's memory, and
(5) Witness can vouch for accuracy of writing when made or adopted.

Front 75

When may a LAY WITNESS give OPINION TESTIMONY?

Back 75

A lay opinion is admissible if it is -
(1) RATIONALLY BASED ON WITNESS'S PERCEPTION (personal knowledge), and
(2) HELPFUL to jury in deciding a fact.

Examples - Drunk/Sober, Speed of Vehicle, Sane/Insane, Emotions of Another, Handwriting

Front 76

Expert Witness

Qualifications?

Back 76

May be qualified through -
(1) Education,
AND/OR
(2) Experience

TEXAS Note - Med Mal Claims - must be actually practicing same type of health care as that of defendant at either time of testimony or claim arose.

Practicing includes teaching at medical school.

Front 77

What is the proper subject matter of Expert Witness testimony?

Back 77

SCIENTIFIC, TECHNICAL, or OTHER SPECIALIZED KNOWLEDGE that will be helpful to jury in deciding fact.

Front 78

What is the proper basis of expert's testimony?

Back 78

Expert must have an opinion based on "REASONABLE DEGREE OF PROBABILITY or REASONABLE CERTAINTY.

Only 3 permissible data sources -
(1) Personal Knowledge
(2) Other evidence IN TRIAL RECORD made known to expert by HYPOTHETICAL QUESTION, or
(3) Facts OUTSIDE RECORD if of a type REASONABLY RELIED UPON by experts in the particular field in forming opinions.

Front 79

To be admissible, expert opinion must _______.

Back 79

MUST BE SUFFICIENTLY RELIABLE

Front 80

Federal Reliability Factors

Back 80

Court serves as "gatekeeper" and uses four primary factors to determine reliability of principles and methodology

TRAP

(1) Testing of principles or methodology
(2) Rate of Error
(3) Acceptance by other experts in same discipline
(4) Peer review and publication.

Front 81

TEXAS - Reliability Factors

Back 81

If opinion is based on SCIENTIFIC METHODOLOGY court uses - TRAP ON

(1) Testing of principles or methodology
(2) Rate of Error
(3) Acceptance by other experts in same discipline
(4) Peer review and publication
(5) Objective v. Subjective interpretation of data, and
(6) Non-judicial use of principal or methodology

IF opinion is based on NON-SCIENTIFIC METHODOLOGY (relying on personal skill and experience) different test

Court ensures NO ANALYTICAL GAP between methodology and facts of the case.

Front 82

Learned Treatise in Aid of Expert Hearsay Exception: When and how can a learned treatise or periodical be admitted into evidence?

Back 82

A relevant part of a "learned treatise" may be READ (not introduced as an exhibit) into evidence:
1) as substantive evidence (to prove the truth of the matter asserted) on direct examination of party's own expert
-OR-
2) On cross-examination to impeach and contradict opposing party's expert. In this later, the evidence still comes in as substantive evidence.

Front 83

Objection of Ultimate Issue

Back 83

Generally no longer valid. Opinion testimony may address an "ultimate issue" in a case.

TEXAS - Expert Witness may testify to "negligence", "proximate cause" or other legal terms if proper legal standard is used.

FED - CRIMINAL CASES - "Ultimate issue" is proper objection if EXPERT gives direct opinion on a RELEVANT MENTAL STATE.

Front 84

Describe RIGHT TO CX

Back 84

A party has a RIGHT to cross-examine ANY OPPOSING WITNESS WHO TESTIFIES at the trial.

Front 85

What is the Federal PROPER SCOPE of CX?

Back 85

May only cross-examine as to
(1) Matters WITHIN THE SCOPE of direct examination, and
(2) Matters that test witness's CREDIBILITY

Front 86

TEXAS - Reliability Factors

Back 86

If opinion is based on SCIENTIFIC METHODOLOGY court uses - TRAP ON

(1) Testing of principles or methodology
(2) Rate of Error
(3) Acceptance by other experts in same discipline
(4) Peer review and publication
(5) Objective v. Subjective interpretation of data, and
(6) Non-judicial use of principal or methodology

IF opinion is based on NON-SCIENTIFIC METHODOLOGY (relying on personal skill and experience) different test

Court ensures NO ANALYTICAL GAP between methodology and facts of the case.

Front 87

Learned Treatise in Aid of Expert Hearsay Exception: When and how can a learned treatise or periodical be admitted into evidence?

Back 87

A relevant part of a "learned treatise" may be READ (not introduced as an exhibit) into evidence:
1) as substantive evidence (to prove the truth of the matter asserted) on direct examination of party's own expert
-OR-
2) On cross-examination to impeach and contradict opposing party's expert. In this later, the evidence still comes in as substantive evidence.

Front 88

Objection of Ultimate Issue

Back 88

Generally no longer valid. Opinion testimony may address an "ultimate issue" in a case.

TEXAS - Expert Witness may testify to "negligence", "proximate cause" or other legal terms if proper legal standard is used.

FED - CRIMINAL CASES - "Ultimate issue" is proper objection if EXPERT gives direct opinion on a RELEVANT MENTAL STATE.

Front 89

Describe RIGHT TO CX

Back 89

A party has a RIGHT to cross-examine ANY OPPOSING WITNESS WHO TESTIFIES at the trial.

Front 90

What is the Federal PROPER SCOPE of CX?

Back 90

May only cross-examine as to
(1) Matters WITHIN THE SCOPE of direct examination, and
(2) Matters that test witness's CREDIBILITY

Front 91

What is the PROPER SCOPE of CX in TEXAS?

Back 91

May question the witness about anything relevant to the case at bar.

Not limited by Direct.

Front 92

Credibility and Impeachment

Is bolstering (i.e. attempting to strengthen W's credibility) of your own witness allowed?

Back 92

In general, this is not allowed until after the witness's credibility has been attacked (then it is rehabilitation)

Front 93

Generally, is a witness's prior consistent statement allowed?

Back 93

No. Inadmissible because:
1. bostering
2. minimum probative value
3. hearsay

Front 94

Is the prior identification of a person admissible? For example, a witness who identified the D, sitting in court, as the perpetrator, says, "I picked the D out of a line up two days after the crime" okay?

Back 94

Yes. This is an EXCLUSION (not an exception) to hearsay. It is non-hearsay. Prior identification by a trial witness is not barred by the hearsay rule.

Front 95

Can you impeach your own witness?

Back 95

Yes, always.

Front 96

Impeachment Methods

What are the seven methods of impeachment?

Back 96

PBS BBC C

(1) Prior Inconsistent Statements
(2) Bias, Interest, or Motive to Misrepresent
(3) Sensory Deficiencies

Bad Character for Truthfulness -
(4) Bad Reputation or Opinion about witness's character for truthfulness
(5) Bad Acts (w/o conviction) that reflect adversly on witness's character for truthfulness
(6) Criminal Convictions

(7) Contradiction

Front 97

With respect to impeachment, what two issues need to be considered?

Back 97

1. Can impeaching fact be proven by extrinsic facts or is party bound by witnesses answers to impeaching questions

2. If extrinsic evidence is permissible, must witness first be confronted with the impeaching fact as a prerequisite to introduction of extrinsic evidence? (in other words, do I have to say it to their face first while they are on the stand?)

Front 98

A prior inconsistent statement may be used to 1.______ a witness but may not be used as 2. ______.

Back 98

1. impeach

2. substantive evidence.

Front 99

Prior Inconsistent Statements Generally

Back 99

Any witness may be impeached by showing that -
(1) on some prior occasion,
(2) they made a material oral or written statement,
(3) that is inconsistent with their trial testimony.

Purpose - suggest trial testimony is false or mistaken

Front 100

Why can a prior inconsistent statement not be used as substantive evidence?

Back 100

Because it would be hearsay if offered to prove the truth of the matter asserted.

Front 101

When can a prior inconsistent statement be used as substantive evidence (i.e. to prove the truth of the matter asserted)?

Back 101

When it is
(1) given under oath AND
(2) as part of a formal hearing, proceeding, trial or deposition.

OR

It is a party's own statement under the "Party Admission" Exception to hearsay

Front 102

**Must the witness who is impeached by a prior inconsistent statement be confronted with the impeachment while on the stand?

**This is commonly asked on the Texas Evidence and Procedure section

Back 102

**TEXAS RULE: Confronation on stand usually required. Witness must be told of the prior inconsistent statement, time and place and to whom the statement was made and must be given an immediate opportunity to explain or deny the statement.

FEDERAL RULE: Confrontation timing is flexible. Immediate confrontation is not necessary, but after proof by extrinsic evidence, the witness must be given an opportunity at some point to return to the stand to explain or deny the statement.

**EXCEPTION: No confrontation required and no opportunity to explain need be given if the witness is the opposing party.

Front 103

A party's own admission is admissible against them both as (1)_________ evidence, and (2)__________ evidence.

(3) Does the party get an opportunity to explain or deny?

Back 103

1. impeachment

2. substantive

3. No in TX and federal court, no need to given opposing party an opportunity to explain or deny.

Front 104

Bias, Interest or Motive to Misrepresent - In General

Back 104

Purpose - To suggest testimony is false, slanted, or mistaken in party's favor

Example - Witness is party; friend, relative or employee of party; expert witness being paid; person with a grudge, etc..

Front 105

BIAS: Must the witness be confronted with their bias while on the stand?

Back 105

TX: Yes. W must be told of circumstances or statements that allegedly show bias and given an immediate opportunity to explain or deny.

Federal: Court's discretion

Front 106

BIAS: If confrontation requisite is met, may bias be proven by extrinsic evidence?

Back 106

TX: Yes, if witness denies bias or fails to admit bias unequivocally

Federal: Yes, court has discretion to permit extrinsic evidence even if party admits the bias

Front 107

Sensory Deficiencies - In General

Back 107

Anything that could affect witness's perception or memory.

Example - bad eyesight or hearing, mental retardation, consumption of alcohol or drugs

Purpose - to suggest mistake

Front 108

What is considered a "sensory deficiency" for purposes of impeaching a witness?

Back 108

Anything that could affect witness's perception or memory: bad eyesight or hearing, mental retardation, consumption of alcohol or drugs at time of event or while on the stand.

Front 109

SENSORY DEFICIT: 1. Is confrontation required?
2. Extrinsic evidence allowed?

Back 109

1. No.
2. Yes.

Front 110

BAD CHARACTER FOR TRUTHFULNESS:
Any witness is subject to impeachment by this method through ___ or ___ testimony.

Back 110

reputation or opinion

Front 111

BAD CHARACTER FOR TRUTHFULNESS:
1. Is confrontation required?
2. Extrinsic evidence allowed?

Back 111

1. No.

2. Yes - this is the only way you can do this

Front 112

May a witness who is testifying to a witess's bad character for truthfulness give examples of specific instances of conduct?

Back 112

No. No specific instances of conduct even to show the basis of the opinion.

Front 113

Criminal Convictions - In General

Back 113

Purpose - to suggest testimony is false

Relevance - person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.

Front 114

In Federal court, when is a prior criminal conviction admissible for impeachment purposes (i.e. to show a witness has a character for untruthfulness)?

Back 114

*Conviction of any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach a W. (for MBE purposes, look for crimes involving the uttering or writing of false words like forgery - not shoplifting)

*If conviction does not involve dishonesty, it must be a FELONY and then court may exclude if it finds in its discretion that it is outweighed by a danger of unfair prejudice to a party.

Front 115

Method of Proof - How do you prove up a prior criminal conviction?

Back 115

Either -
(1) Ask witness to admit prior conviction
or
(2) Introduce record of conviction (extrinsic evidence)

NOTE - Not required to confront witness prior to introduction of record of conviction

Front 116

What are the rules in Texas about introducing criminal convictions to impeach a witness?

Back 116

Same as Federal Rules but with 3 distinctions:

1) Felonies of any type and crimes of moral turpitude (i.e. violence, sexual misconduct) can be used to impeach

2) Balancing of impeachment value against potential prejudices to a party applies to ALL convictions.

3) Cannot use a conviction to impeach if an appeal of the conviction is pending (under FR, this doesn't matter)

Front 117

If a criminal conviction was the subject of a pardon, annulment or other procedure BASED ON A FINDING OF INNOCENCE then the conviction (CAN or CANNOT) be used to impeach

Back 117

CANNOT

Front 118

If a witness has successfully completed probation for a crime, can the conviction be used to impeach them?

Back 118

Not in Texas. But can under Federal Rules.

Front 119

If there was a pardon, certificate of rehabilitation, annulment or other equivalent procedure BASED ON A FINDING OF REHABILITATION, can the conviction be used to impeach a witness?

Back 119

No unless:
Federal Rules: the D is subsequently convicted of a crime punishable by death or imprisonment of more than one year (i.e. a felony)

TX: subsequently convicted of a felony or crime of moral turpitude

CLUE: Just think - if the rehab didn't take they don't get to keep the benefit of it.

Front 120

Bad Acts w/o Conviction

Are bad acts or prior arrests that did not result in a conviction that reflect on a person's truthfulness admissible to impeach a witness?

Back 120

. In Texas- NO! In TX only convictions are admissible.

2. FR - Only prior bad acts that reflect on the character for truthfulness. Confrontation on CX is required and extrinsic evidence is not admissible if the witness denies the bad act. CX must have good faith basis for asking the question.

Front 121

***1.Can an attorney ask a witness if they have ever been "arrested" or "indicted" for a crime they were not conviced of?
***2. What if the criminal proceeding is pending and the witness is a witness for the prosecution?

Back 121

1. No. This might confuse the jury.

2. Yes. Under both Texas Rules and Federal Rules because this might show BIAS!

Front 122

When is extrinsic evidence to prove a contradiction in the wintess's story admissible?

Back 122

Evidence about a contradiction is not admissible if the fact is collaterol. A fact is collaterol if it has no relevance to the case or the witness's credibility. It must be a key issue in the case.

Front 123

If a witness's trial testimony is charged as a recent fabrication or as the product of improper influence, what can be done?

Back 123

A prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge IF the statement was MADE before the motive to fabricate arose.

Front 124

How can you rehabilitate a witness after their character for truthfulness has been attacked?

Back 124

Call a character witness who will testify about the other witnesses good character for truthfulness.

Front 125

What are the three types of privileges that are commonly tested?

Back 125

1. Spousal
2. Attorney/Client
3. Physician/Patient

Front 126

Elements of Attorney Client Privilege

Back 126

Applies to -
(1) Confidential Communications
(2) between attorney and client
(3) made during professional, legal consultation
(4) unless privilege is waived or an exception is applicable

Front 127

What are the principal categories of non-hearsay purposes?

Back 127

(1) Verbal Act - legally operative words
(2) To Show Effect on Person Who Heard or Read the Statement
(3) Circumstantial Evidence of Speaker's State of Mind

Front 128

When is a Prior Statement of a Trial Witness - Admissible and Inadmissible?

Back 128

INADMISSIBLE - If offered to prove the truth of the matter asserted.

ADMISSIBLE due to Exclusion -
(1) Witness's prior statement of IDENTIFICATION
(2) Witness's prior INconsistent statement
(3) Prior consistent statement to rebut recent fabrication or improper motive or influence

Front 129

What are Party Admissions?

Back 129

Any statement made by a party is admissible against the party.

Front 130

What is a Vicarious Admission?

Back 130

A statement by an agent/employee is admissible against principal/employer if
(1) the statement concerns matter WITHIN THE SCOPE of agency/employment, and
(2) is made DURING agency/employment.

Front 131

List the Hearsay Exceptions

Back 131

(1) Former Testimony
(2) Statement Against Interest
(3) Dying Declaration

(4) Excited Utterance
(5) Present Sense Impression
(6) Present State of Mind
(7) Declaration of Intent
(8) Present Physical Condition
(9) State for purpose of medical treatment or diagnosis
(10) Business Records
(11) Public Records

Front 132

Which hearsay exception must the witness by unavailable?

Back 132

(1) Former Testimony
(2) Statement Against Interest
(3) Dying Declaration

Front 133

What are the grounds of unavailability?

Back 133

(1) Death or Illness
(2) Absence from Jurisdiction
(3) Privilege
(4) Stubborn Refusal
(5) Lack of Memory

Front 134

Former Testimony

Back 134

The former testimony of a now-unavailable witness, if given at a former proceeding or in a deposition, is admissible against a party who, on the prior occasion, had an opportunity and motive to CX the witness.

Front 135

Statement Against Interest

Back 135

An unavailable declarant's statement against either his -
(1) Pecuniary Interest - financial
(2) Proprietary Interest - expose to civil liability
(3) Penal Interest - expose to criminal liability

Front 136

Dying Declaration

Back 136

Statement made under the belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant's death.

FED - Used in all civil cases but only in HOMICIDE criminal cases.

TEX - used in all cases

Front 137

Excited Utterance

Back 137

Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event

Front 138

Present Sense Impression

Back 138

Description of event made while the event is occurring or immediately thereafter.

Front 139

Present State of Mind

Back 139

Contemporaneous statement concerning declarant's present state of mind, feelings, or emotions.

Front 140

Declaration of Intent

Back 140

State of declarant's intent to do something in the future, including the intent to engage in conduct with another person.

Front 141

Present Physical Condition

Back 141

Statement made to anyone about declarant's CURRENT physical condition.

Front 142

State for Purpose of Medical Treatment

Back 142

Statement made to anyone concerning PAST or PRESENT symptoms or GENERAL CAUSE OF CONDITION for the purpose of treatment or diagnosis.

Front 143

Business Records

Back 143

(1) Records of any type of business
(2) made in the regular course of the business
(3) the business regularly keeps such records
(4) made at or about the time of the event recorded
(5) contents consist of (a) info observed by employees, or (b) statement that falls in other exception.

Front 144

Public Records

Back 144

Records of a public office or agency setting forth -
(1) activities of office or agency, or
(2) matters observed pursuant to a duty imposed by law, or
(3) findings of fact or opinion resulting from an investigation authorized by law.

Front 145

How do you impeach hearsay declarants?

Back 145

May use any of the impeachment methods to attach the credibility of a hearsay declarant.