Evidence - Mbe And Texas

Front 1

EVIDENCE RULES ABOUT WRITINGS

Back 1

WRITINGS

Front 2

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

Back 2

authentication, best evidence rule, hearsay

Front 3

The BEST EVIDENCE RULE concerns only _______.

Back 3

WRITINGS.
However, sound recordings, X-rays, films, videos, photographs, etc. are considered writings

Front 4

What is the BEST EVIDENCE RULE?

Back 4

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

Front 5

What constitutes an "ORIGINAL" writing for purposes of the BEST EVIDENCE RULE?

Back 5

1. The writing itself - or any negative of film or print, computer print out, etc.
2. Duplicate - any counterpart produced by any mechanical means that accurately reproduced the original (e.g. photocopy, carbon copy). NOTE: a duplicate is admissible the same as its original unless it would be unfair (e.g., fuzzy copy) or a genuine question is raised as to the authenticity of the original

***A HANDWRITTEN COPY is NEITHER an original nor a duplicate.

Front 6

The BEST EVIDENCE RULE only applies when a party is seeking to prove the contents of a _______.

Back 6

WRITING

Front 7

What are the two principle situations in which the BEST EVIDENCE RULE applies?

Back 7

1. The writing is a legally operative document (e.g. patent, deed, mortgage, divorce decree, written contract)
2.The witness is testifying to facts he learned solely from reading about them in a writing.

Front 8

Does the BEST EVIDENCE RULE apply when a witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact?

Back 8

No. For example, the BER would not apply if a police officer was testifying about a burglary that he observed on a stake out even though there was also a security camera video of the burglary. He could testify about what he personally observed. However, if the officer had ONLY observed the video of the burglary, then the BER would require production of the video.

Front 9

+What if the BEST EVIDENCE RULE applies but an original can not be produced?

Back 9

Then a court must be persuaded by a PREPONDERANCE OF THE EVIDENCE that an excuse has been established. Then secondary evidence will be admissible (e.g. testimony based on memory or a handwritten copy)

EXCUSES INCLUDE:
1. Original is lost or cannot be found with due diligence
2. Original was destroyed without bad faith
3. Original can not be obtained with legal process.

Front 10

What "escapes" from the BEST EVIDENCE RULE?

Back 10

1. VOLUMINOUS WRITINGS - can be presented through a summary or chart provided the original would be admissible and are available for inspection
2. CERTIFIED COPIES OF PUBLIC RECORDS - deeds, mortgages, birth certficates, etc.
3. COLLATERAL DOCS - If a court determines in its discretion that writings are collateral, the contents may be proven by secondary evidence; these are usually docs that are just not important enough to deal with (e.g. a headstone)

Front 11

A showing must be made that a writing is ______.

Back 11

Authentic: i.e. genuine; it is what it purports to be.

Front 12

Some documents are self-authenticating. What does this mean?

Back 12

They are presumed authentic - there is no need for foundation testimony in order to get these docs into evidence.

Front 13

++What documents are self-authenticating?

Back 13

1. OFFICIAL PUBLICATIONS - (i.e. government publications and pamphlets)
2. CERTIFIED COPIES OF PUBLIC OR PRIVATE RECORDS ON FILE IN PUBLIC OFFICE
3. NEWSPAPERS OR PERIODICALS
4. TRADE INSCRIPTIONS AND LABELS - ???
5. ACKNOWLEDGED DOCUMENTS - i.e. notarized documents
5. COMMERCIAL PAPER

Front 14

+In Texas, bussiness records can sometimes be self-authenticating. What do you need for this?

Back 14

1. Affidavit of custodian or other person capable of testifying that the record qualifies for a business records hearsay exception
2. business records hearsay exception is satisfied
3. original or exact duplicate of the business record is attached to the affidavit
4. Notice to other parties: Affidavit and attachment are filed with the court at least 14 days prior to trial and prompt notice is given to other parties

Front 15

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

Back 15

Is X the author of the document

Front 16

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

Back 16

1. Witness'personal knowledge: W observed X sign document
2. Proof of handwriting: by lay opinion of person familiar with X's handwriting, expert comparison, jury comparison
3. Ancient Document Rule
4. Solicited Reply Doctrine - Document can be authenticated by evidence that it was received in response to a pario communication to the alleged author

Front 17

+How are photographs authenticated?

Back 17

A witness may testify on the basis of personal knowledge that the photograph is a "fair and accurate represenation" of the people or objects portrayed. The sponsoring witness does NOT have to be the photographer or have seen the picture before in order to authenticate it.

Front 18

What is the Ancient Document Rule?

Back 18

A method of authenticating a document that states the authenticity of a document may be inferred if the document is:
1. At least 20 years old
2. Facially free of suspicion (e.g. no cross outs, white outs, erasures)
3. Found in a place of natural custody (e.g. safe deposit box, file)

Front 19

Give an example of a document that would be authenticated under the SOLICITED REPLY DOCTRINE?

Back 19

A mails K offer to B with the proper postage, adddress, etc and later receives an acceptance reportedly signed by B

Front 20

EVIDENCE RULES ABOUT WITNESSES

Back 20

WITNESSES

Front 21

Jurors may not testify as a witness in a case as to which they sat as a juror as to any matter or to statements made during deliberations or the effect anything had on deliberations EXCEPT...

Back 21

they may testify as to any outside influence and extraneous prejudicial information.

Front 22

What qualifications must a witness have to be competent to testify?

Back 22

1) have personal knowledge of the matters they are testifying about (with some exceptions)
2) Take an oath or affirmation

***In Texas only: In addition to the above, witnesses are incompetent to testify if the judge finds they were insane, a child or lacked sufficient intellect to relate events at the time of the events they witnessed or at trial.

Front 23

Does Texas have a Dead Man's Rule?

Back 23

Yes. But it has not been tested in over 10 years.

It states that an interested witness is incompetent to testify if:
a) civil action by or against decedent's estate or by or against decedent's heirs or legal represenative
b) either party to action seeks to testify to oral statement made by decedent

BUT party may testify as to decedent's oral statement if EITHER:
A) decedent's oral statement is corroborated by other evidence OR
B) incompetent party is called by adverse party to testify concerning decedent's oral statements (so the other side can call the "incompetent" party)

Front 24

Is there a "Dead Man's" rule or statute under the Federal Rules?

Back 24

NO! On the MBE, only apply a dead man's statute IF the question explicitly states the particular jurisdiction has a dead man's statute.

Front 25

What does the typical "Dead Man's Statute" say?

Back 25

In a civil action, an interested party is incompetent to testify in support of his own interest against the estate of a decedent concerning communication or a transaction between the interested party and the decedent.

Front 26

1. An expert witness must be _______ in order to testify.

2. What two things must a judge find in order to qualify an expert witness?

Back 26

1. qualified
2. They must have the qualifications (i.e. skeet)
and their specialized knowledge must helpful to the jury in deciding a finding of fact.

Front 27

+What are the things that are the various qualifications a court will consider in deciding if an expert is qualified?

Back 27

SKEET
Skill
Knowledge
Experience
Education
Training

Front 28

What is the special Texas rule regarding the qualification of expert witness in health care liability/med mal cases?

Back 28

The expert must be actually practicing the same type of health care as that of the defendant, either at the time of the testimony or at the time the claim arose.

Front 29

An experts' opinion must be based on a _____________.

Back 29

reasonable degree of probability or reasonable certainty

Front 30

***What are the three permissible data sources from which testifying expert witnesses can draw their opinions from without those references being considered hearsay?

***likely to be tested

Back 30

1. personal knowledge (e.g. treating physician)
2. other evidence in the trial record (testimony by other witnesses), exhibits already in the trial record (medical records, x-rays) made known to the expert by HYPOTHETICAL QUESTIONS
3. Facts outside the record if they are of they type reasonably relied upon by experts in the particular field in forming opinions.

A reference to anything else is hearsay.

Front 31

A qualified expert physician testifies, "In my opinion, within a reasonable degree of probability, X has a disabling psychosis. My opinion is based on:
1) my own interview with X
2) Exhibits 1 and 2 (tests & medical records) in evidence
3) Interviews with X's friends
4) A written report prepared by Dr. Y (which is not in evidence).

Which are inadmissible hearsay?

Back 31

3 & 4 may be inadmissible hearsay UNLESS they are evidence reasonably relied on by doctors in his field. ANd then he can only state that he relied on them. He cannot read the interviews or the report by Dr. Y.

Front 32

In order to be admissible, expert opinion must be sufficiently _______.

Back 32

reliable

Front 33

+*What four factors will the federal courts look at to determine the reliability of principles and methodology used by an expert to reach his opinion?

Back 33

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

Front 34

+In TX, the courts differentiate between scientific and non-scientific expert testimony.

What are factors the TX courts look at to determine if the methodology behind the expert witness' testimony is reliable in scientific cases?

Back 34

TRAP ON
The fourt Daubert (TRAP) Principles PLUS:
*Objective vs subjective interpretation of the data
*Non-judicial use of principle or methodology

Front 35

+In TX, the courts differentiate between scientific and non-scientific expert testimony.

What are the factors the courts consider if the expert's testimony is based on non-scientific methodology (i.e. if the expert relies on personal skill and experience) in determining if the testimony is reliable?

Back 35

Then the test for reliability is less stringent. Then the courts simply seek to ensure that there is no ananlytical gap between the expert's methodology and the facts of the case.

Front 36

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

Back 36

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 37

+When is a non-expert witness'(i.e. lay-person)opinion admissible?

Back 37

When it is rationally based on the W's perception/personal knowledge and will be helpful to the jury in deciding a fact.

Front 38

What are some examples of "lay" opinions that are admissible?

Back 38

drunk/sober
speed of vehicle
sane/insane
emotions of another person
handwriting

Front 39

When are leading questions allowed on direct examination?

Back 39

Think HIYA
1. Hostile Witness
2. Introductory or Preliminary Matters
3. Youthful or Forgetful Witness
4. Adverse Party (or employee of adverse party)

Front 40

Are leading questions allowed on direct examination? On cross?

Back 40

Generally, NOT allowed on DIRECT (with exceptions).

Generally ALLOWED on CROSS.

Front 41

What is a leading question?

Back 41

When the form of the question suggests the answer (e.g. Isn't it a fact that..." or unevenly balanced alternatives).

Front 42

WRITING USED TO REFRESH MEMORY

Back 42

WRITING USED TO REFRESH MEMORY

Front 43

In general, a witness may not read from a prepared memo and must testify on the basis of his current recollection. If his memory fails him, what can be done?

Back 43

The witness may be shown a memo (or any other tangible item) to refresh his memory.

Front 44

X's house was burglarized and X then sues the insurance company to pay for the loss of several valueables in the house. While at trial, X can not remember all of the items that were stolen. To refresh X's recollection, his attorney shows him a list he prepared of the stolen items for the police right after the burglary. The insurance company objects on the grounds of lack of authenticity, best evidence rule and hearsay. What does the judge rule?

Back 44

Overruled as to all three. Any writing by an person can be used to refresh recollection.

Front 45

Once the witnesses memory is "refreshed," may he read the writing or list into evidence?

Back 45

No.

Front 46

+What foundation must be established to get the contents of a writing READ to the jury under the hearsay exception of PAST RECOLLECTION RECORDED?

Back 46

1. The writing must fail to jog the witness's memory
2. Witness had personal knowledge at former time
3. Writing was either made by the witness or adopted by the witness
4. The making or adopting occurred when the event was fresh in the witness's memory
5. Witness can vouch for the accuracy of the writing when made or adopted

*Remember, the writing will be READ into evidence only. The party sumbitting it does not get to offer the actual document into evidence as an exhibit, but the other side may introduce it as an exhibit.

Front 47

If a writing is shown to a witness to refresh his recollection or memory, what rights do the opposing side have regarding that writing?

Back 47

The opposing side has the right to:
1) inspect the memory-refresher
2) use it on cross-examination
3) introduce it into evidence

Front 48

What if a writing is shown to a witness and he still can't remember...may the witness's attorney then seek to read the writing to the jury?

Back 48

Yes, under the Hearsay Exception of PAST RECOLLECTION RECORDED.

Front 49

RELEVANCY

Back 49

RELEVANCY

Front 50

*Evidence is relevant if it has...

Back 50

any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence.

Front 51

++All relevant evidence is admissible unless (a) some specific 1.______ is applicable OR (b) the court makes a discretionary determination that the probative value of the evidence is SUBSTANTIALLY OUTWEIGHED by the pragmatic considerations of: 2._____.

Back 51

1. exclusionary rule

2. danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, waste of time or unduly cumulative [these last three are ONLY considerations under the federal rules and not the TX rules.]

Front 52

With some exceptions, if the evidence concerns some time, event or person other than those involved in the case at hand, the evidence is _____.

Back 52

Inadmissible

Front 53

1.When is a plaintiff's accident history admissible?

+2.When are similar accidents caused by the same condition or event admissible?

Back 53

1.Accident History, etc. is not admissible merely to prove that P is accident prone or merely careless.

However, they are admissible: If the CAUSE of the plaintiff's injuries/damages are at issue (e.g. to show a prior accident caused his injuries)

2. Other accidents involving the same instrumentality or condition and occurring under SUBSTANTIALLY SIMILAR CIRCUMSTANCES may also be admitted to show:
1. the existence of a dangerous condition
2. causation
3. prior notice to defendant

Front 54

+A person's conduct on a prior occassion may also be admissible if it provides an inference of ____.

Back 54

1. Intent - e.g. a plaintiff in a sex discrimination case seeks to show that no women have been hired by the company in the past 6 years. This would be admissible because it provides an inference of intent.

Front 55

When are comparable sales admissible to prove the value of property?

Back 55

Selling price of other property of similar type, in same general location and close in time to the period at issue may be admissible oif there is an issue dealing with the value of property.

Front 56

***What is the difference between habit evidence and character evidence?

Back 56

Character evidence refers to a person's general disposition or propensity and is usually not admissible to prove conduct on a particular occassion.

Habit evidence usually is admissible and has 2 defining characteristics:
1. Frequency of the conduct
2. Particularily of the circumstances in which the person does the act. Key words that show habit evidence are: always, invariably, automatically and instinctively.

Front 57

When is evidence concerning liability insurance admissible? When is it not?

Back 57

It is not admissible to show a person's fault or absence of fault. It is admissible for some other relevant purpose like to show proof of ownership, control/location of instrumentality if those issues are disputed, or for the purposes of impeachment of a witness.

Front 58

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

Back 58

limiting instruction

Front 59

When are subsequent remedial measures admissible?

Back 59

They are not admissible to prove negligence, culpable conduct, product defect, need for warning etc. However, such evidence may be admissible for some other relevant reason such as to prove ownership, control or feasibility of a safer condition IF those issues are disputed.

Front 60

Evidence of a settlement or offer to settle is inadmissible to prove liability or weakness of a party's case if the claim is 1)______.

Additionally, statements of fact made in the course of settlement discussions are
2)______.

However, evidence of settlement may be admissible for purposes of impeachment of a witness on the grounds of 3)______.

Back 60

1) DISPUTED
2) Inadmissible
3) Bias

Front 61

What is a pre-requisite for the exclusion of settlement offers?

Back 61

The claim must be DISPUTED at the time of the settlement discussion as to EITHER validity of the claim OR amount of damages. EITHER ONE OF THESE AND ALL THE EVIDENCE CONCERNING THE SETTLEMENT IS EXCLUDED.

Front 62

Which criminal pleas are admissible in that criminal proceeding and in subsequent civil litigation?
1. Offer to plead guilty
2. Withdrawn guilty plea
3. Plea of No contest
4. Plea of guilty

Back 62

1. inadmissible in both criminal and civil case
2. inadmissible in both criminal and civil
3. inadmissible in civil
4. admissible in both if both based on same facts under the rule of party admission

Front 63

Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is ________ to prove liability.

Back 63

always inadmissible

Front 64

CHARACTER EVIDENCE

Back 64

CHARACTER EVIDENCE

Front 65

A person's bad character for _______ is admissible to impeach them.

Back 65

truthfulness

Front 66

One of the potential purposes for which character evidence may be admissible is when a person's character is a ESSENTIAL ELEMENT OF THE CLAIM OR DEFENSE. However, this is very rare and this will usually be an INCORRECT answer on the MBE. What are the ONLY 2 situations where a person's character is admissible for this reason?

Back 66

1. Negligent Hiring or Entrustment (where the character of the person hired or entrusted is at issue)

2. Defamation

*NOTE: both of these are CIVIL cases so a person's character would NEVER be a material element in a CRIMINAL case

Front 67

CHARACTER EVIDENCE IN CRIMINAL CASES

Back 67

CHARACTER EVIDENCE IN CRIMINAL CASES

Front 68

Evidence of the defendant's character to prove conduct in conformity with is generally ______ during the prosecution's case-in-chief.

Back 68

NOT admissible

Front 69

Can the DEFENDANT in a criminal case introduce relevant character testimony?

Back 69

Yes, character evidence introduced by the DEFENDANT of his good character to show that he did not commit the crime charged IS ADMISSIBLE.

Front 70

What are the proper methods for a defendant in criminal case introducing character evidence?

Back 70

When character evidence is admissible through a character witness to prove conduct in conformity with, the only proper methods are:

REPUTATION TESTIMONY
-OR-
OPINION TESTIMONY (e.g. "I know the defendant and in my opinion he is a peaceful person.")

Further, the character traits must be relevant to the crime charged. E.g. testifying to D's peaceable nature when D is charged with a violent crime. Testifying that the D is law-abiding is always okay.

NOTE: The witness can NOT testify to specific incidences of conduct!!!

Front 71

If the prosecution asks a defendant's character witness about a specific instance of conduct to impeach the character witness, and the witness denies knowing about the instance, can the prosecution then introduce extrinsic evidence to prove the conduct?

Back 71

No. The prosecution has to take the W's answer. No extrinsic evidence is allowed to prove the conduct occurred.

Front 72

If the Defendant introduces evidence of a relevant character trait (by opinion or reputation testimony) to prove conduct in conformity with, what can the prosecution then do?

Back 72

Once the defendant has "opened the door," the prosecution may then introduce evidence of relevant character traits by opinion or reputation witnesses. The prosecution can do this in TWO ways:

1. By CXing D's character W's with "Have you heard" or "Did you know" questions about SPECIFIC ACTS of the D that reflect adversely on the character trait in question
-AND/OR-
2. By calling its own reputation or opinion witnesses to contradict the D's witnesses

Front 73

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

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

Back 73

1. reputation
2. opinion

Front 74

In order for the prosecution asking a "Have you heard..." or "Did you know..." question concerning a specific instance of conduct to try to impeach a D's character witness, what basis must the prosecution have for the question?

Back 74

They must have a GOOD FAITH basis for the question. I.e. they could not ask "Have you heard D was arrested last year for assaulting X?" if this never occured.

Front 75

When is evidence of the VICTIM'S character admissible in a criminal case?

Back 75

SELF-DEFENSE CASE: A criminal defendant may introduce evidence of a victim's violent character to prove conduct in conformity. In other words, when the D is claiming self-defense, as evidence the victim was the first aggressor.

Front 76

+What is the proper method for introducing evidence about the victim's character when the D is alleging self-defense?

How may the prosecution rebutt this evidence?

Back 76

The character witness may testify to the victim's reputation for violence and/or may give his opinion.

Under both FRE and in TX, the prosecution may then introduce evidence of the victim's good character with reputation/opinion testimony.
Under the FEDERAL RULES ONLY, the prosecution may THEN prove the DEFENDANT'S character for violence.

Front 77

+Can the defendant offer evidence of a SPECIFIC INSTANCE of the victim's prior violence?

Back 77

No. Not unless the defendant is offering this evidence to show that he was aware of this prior act of violence to show his (the D's) state of mind - fear - to prove that he acted reasonably in responding as he did to the victim's aggression.

Front 78

What evidence about the VICTIM is ordinarily inadmissible under Rape Shield Laws?

Back 78

1. Opinion or reputation evidence about the victim's sexual propensity -OR-
2. Evidence of specific sexual behavior of the victim

Front 79

What are the exceptions to the Rape Shield Laws? In other words, what evidence is admissible about the victim's sexual history?

Back 79

1. The victim's specific sexual behavior that proves that someone other that the D was the sources of the semen or injury to the victim
2. Victim's sexual activity with the defendant IF the defense of consent is asserted
3. Where exclusion of the evidence would violate the defendant's right of due process

Front 80

+When do Rape Shield Laws apply?

Back 80

TX - Criminal only
Federal - Civil & Criminal

Front 81

+Is prior sexual misconduct of the defendant admissible as part of the case-in-chief in a criminal case for sexual assault or child molestation?

Back 81

Yes, under the Federal Rules ONLY, this evidence is admissible for ANY relevant purpose including defendant's propensity for sex crimes.

Front 82

CHARACTER EVIDENCE IN CIVIL CASES

Back 82

CHARACTER EVIDENCE IN CIVIL CASES

Front 83

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.

Back 83

inadmissible

Front 84

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

Back 84

1. MORAL TURPITUDE EXCEPTION: A civil defendant accused of conduct involving moral turpitude may introduce evidence of his good character. Moral turpitude is a crime involving "grave infringmenent" of community sentiment. Examples include crimes of dishonesty, violence, sexual misconduct, theft, swindeling, false report of a crime, prostitution. Public intoxication, DWI, MIP and gambling are NOT crimes of moral turpitude.

1. SELF-DEFENSE/VICTIM'S CHARACTER ADMISSIBLE EXCEPTION: Civil D's accured of assaultive/violent conduct may prove the victim's character to suggest the victim was the first aggressor.

**want to look this up in notes because a civil action is not based on a "crime"

Front 85

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

Back 85

1. reputation

2. opinion

Front 86

ADMISSIBILITY OF D'S OTHER CRIMES/BAD ACTS FOR NON-CHARACTER PURPOSES

Back 86

ADMISSIBILITY OF D'S OTHER CRIMES/BAD ACTS FOR NON-CHARACTER PURPOSES

Front 87

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

Back 87

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.

Front 88

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

Back 88

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

Front 89

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

Back 89

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 conclude that the defendant committed the other crime.

Front 90

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

Back 90

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

Front 91

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

Back 91

pretrial notice

Front 92

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 92

civil

Front 93

If a prior bad act or crime gets in under a MIMIC category, the prosecution may use that evidence as part of its ______.

Back 93

case-in-chief

Front 94

WITNESS TESTIMONY AND ULTIMATE ISSUE

Back 94

WITNESS TESTIMONY AND ULTIMATE ISSUE

Front 95

Opinion testimony (lay or expert) is permissible even if it addresses an ultimate issue in the case (i.e. "X was drunk") EXCEPT...

Back 95

Under the FRE ONLY in a criminal case the expert seeks to give a direct opinion that the D did or did not have the relevant mental state (e.g. D's insanity prevented him from understanding he was shooting a human being)

Front 96

Testimony will very rarely be objectionable because the witness is testifying to the "ultimate issue." However, testimony may be objectionable if the witness testifies purely in legal jargon and it is not helpful to the jury. Give an example of the later.

Back 96

Witness says, "It looked to me as though D was engaged in conduct constituting a reckless disregard for the safety of others."

Front 97

+In Texas, an expert witness may testify in terms of ____, ____ or _____ if the proper legal standard is used.

Back 97

negligence, proximate cause or lack of testamentary capacity

Front 98

+When is one of the only times that "ultimate issue" will be a correct objection?

Back 98

On the MBE (so under the FRE)in a criminal case where the expert seeks to give a direct opinion that the D did or did not have the relevant mental state.

Front 99

CROSS-EXAMINATION, IMPEACHMENT, CREDIBILITY

Back 99

CROSS-EXAMINATION

Front 100

What is cross-examination limited to under the Federal Rules?

Back 100

CX under the FRE is limited to ONLY:
1. matters within the scope of DIRECT EXAMINATION
-and-
2. matters within the scope of the witness's CREDIBILITY

Front 101

What is cross-examination limited to under the Texas rules?

Back 101

CX in TX is not limited to matters within the scope of direct examination; may question witness on anything relevant to the case

Front 102

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

Back 102

In general, this is not allowed until after the witness's credibility has been attacked

Front 103

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

Back 103

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

Front 104

++++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 104

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 105

Can you impeach your own witness?

Back 105

Yes, always.

Front 106

++***What are the seven methods of impeachment?

Back 106

1. Prior inconsistent statements
2. bias, interest or motive to misrepresent
3. sensory deficiencies
Bad Character for Truthfulness:
4. Bad Reputation or Opinion for truthfulness
5. Criminal Convictions
6. Bad acts that reflect negatively on W's character for truthfulness
7. Contradiction

Front 107

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

Back 107

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 108

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

Back 108

1. impeach

2. substantive evidence.

Front 109

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

Back 109

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

Front 110

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

Back 110

When it is given under oath AND 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 111

**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 111

**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 112

A party's own admission is admissible against them both as 1._________ evidence and as 2.__________ evidence.
3. Does the party get an opportunity to explain or deny?

Back 112

1. impeachment

2. substantive

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

Front 113

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

Back 113

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 114

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

Back 114

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 115

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

Back 115

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 116

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

Back 116

1. No.
2. Yes.

Front 117

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

Back 117

reputation or opinion

Front 118

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

Back 118

1. No.

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

Front 119

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

Back 119

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

Front 120

++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 120

*Conviction or release from prison, whichever is later, must be within 10 years of trial

*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 121

++If evidence of a prior criminal conviction is introduced to impeach a witness' credibility, how can you introduce this evidence?

Back 121

Ask witness to admit to prior conviction -OR- simply introduce record of conviction. Confrontation of the witness is NOT required.

Front 122

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

Back 122

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 123

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

Back 123

CAN NOT

Front 124

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

Back 124

Not in Texas. But can under Federal Rules.

Front 125

+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 125

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 126

+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 126

1. 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 127

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

Back 127

1. No. This might confuse the jury.

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

Front 128

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

Back 128

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 129

Is Confrontation while the witness is on the stand required in TEXAS for the following:
Sensory Deficit
Bias
Bad Character for Truthfulness
Prior Inconsistent Statement

When is confrontation on the stand required for the above under the federal rules?

Back 129

TX - on stand confrontation required:
Bias
PIS


Fed. Rules Confrontaiton Required:
PIS - opportunity to explain has to be given but does not have to be immediate while on stand
Bias - court's discretion

Confrontation not required in TX or under the FR for either:
Sensory Deficit
Bad Character for Truthfulness

Front 130

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

Back 130

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 131

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

Back 131

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

Front 132

PRIVILEGES

Back 132

PRIVILEGES

Front 133

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

Back 133

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

Front 134

TX: The general rule that extraneous offenses are inadmissible to prove the D's guilt does not apply...

Back 134

in certain prosecutions for crimes against children.

Evidence of other crimes, wrongs or acts committed by the D against the victim of the charged crime is admissible bearing on allrelevant matters if the prosecution is for an assaultive or sexual crime against a child uner 17 years old.