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75 Cards in this Set

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Rule 103 – Preservation of Error
- No error unless a substantial right of the party is affected.
- Objection: Ruling admitting evidence must be timely, on record, specific or apparent from the context. If objection outside the jury and evidence is admitted, do not need to object again.
- Objection: Ruling excluding evidence, you must make an offer of proof unless the objection was apparent from context.
- Objecting party shall make an offer of proof before the court’s charge. If a party requests, the offer shall be in question and answer.
- Proceedings shall be conducted outside the hearing of the jury as much as practicable to avoid hearing inadmissible evidence.
- Fundamental error in criminal cases is not affected by this rule.
* Federal rule: Q&A format is not mandatory for offers of proof if requested and fundamental error is called plain error and not limited to criminal cases.
Rule 105 – Limited Admissibility
- If evidence is admissible for one purpose but not another, the court shall, upon request when the evidence is entered, inform the jury of the evidence’s limited admissibility.
- If there is no request for such an instruction, this will not be a complaint that can be brought up on appeal.
- If evidence is excluded and was not introduced for its limited, admissible purpose, then this will not be a complaint upon appeal.
* Federal rule does not talk about complaining on appeal
Rule 401 – Definition of Relevance
- Relevant evidence is evidence that has any tendency to make any material issue (any fact of consequence) more or less probable than it would be without the evidence.
- It is a fairly low threshold.
* Federal rule is pretty much the same.
Rule 403 – Balancing Test
- Relevant evidence can be excluded by the judge if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury, undue delay, or needless presentation of cumulative evidence.
- The list of problems is exhaustive.
- Unfair prejudice: something that would make the jury sick especially if a limiting instruction wouldn’t cure the problem.
- Confusion of issues: bringing in collateral issues.
- Misleading the jury: presenting evidence that will be weighted too heavily by the jury.
- Undue delay: consuming too much of the court’s time.
- Needless presentation of cumulative evidence: there will always be some repetition in a court, must be needless repetition.
* Federal rule has an additional problem, waste of time.
Rule 404(a) – Character Evidence
- Evidence of a person’s character is not admissible for the purpose of proving action in conformity therewith.
- Three times when character evidence can be presented:
- Accused: an accused in a criminal case can present a good character defense and a party accused in a civil case involving moral turpitude.
- Victim: In a criminal case, evidence of a pertinent character trait of the victim may be used. Prosecution can present evidence of peaceable character of a victim in a homicide case if they are accused of being the first aggressor. The character of violence in the victim of assaultive conduct on the issue of self defense in a civil case may be presented. If the self defense is based off of a reasonable fear of the victim, then the rule is not implicated.
- Character of witness: basically anyone can impeach any witness’ credibility with reputation or opinion evidence of the character for truthfulness or untruthfulness. Also can use prior convictions
* Federal rule is basically the same except if the character of the victim is attacked the prosecution can attack the accused with the same character evidence.
Rule 404(b) – Character Evidence
- SIC’s cannot be used to show action in conformity therewith. But they can be used to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.
- Also can use SIC’s for context or background, impeachment, prior acts in a sexual assault relating to a consent defense, SIC’s between a child and defendant in a crime addressed by 38.37, and almost any SIC in a homicide case.
- If an accused requests, the prosecution must give reasonable notice that they are going to sue SIC’s.
- Must prove the SIC beyond a reasonable doubt before the jury can consider the evidence for its noncharacter purpose.
* Federal rule is basically the same except that it allows for notice during trial if permitted by the judge. Also only have to prove the SIC by a preponderance of the evidence.
Rule 405(a) – Character Evidence
- Generally, only opinion and reputation evidence is allowable to prove character. In a criminal case, must know the character before the crime took place.
- Cross examination can use relevant specific instances of conduct. For opinion, “Did you know?” and for reputation, “Have you heard?”
* Federal rule doesn’t have the requirement in criminal cases to know character before the crime occurred.
Rule 405(b) – Character Evidence
- SICs can be used when character is an essential element of a charge. Very rare. In civil cases it arises in negligent entrustment, child custody and libel. In criminal cases, happens in entrapment cases.
* Federal rule is essentially the same.
Rule 407 – Remedial Measures
- Remedial measures taken after an injury are not admissible to prove negligence, culpable conduct, defect in the product, defect in the design, or a need for warning.
- Remedial measure done before a specific injury can be admitted.
- Can also allow remedial measures for proving ownership, control or feasibility of precautionary measures if controverted, or impeachment.
- A written notification of a defect by the manufacturer is admissible to the extent that it is relevant.
* Federal rule doesn’t include the language about using a written notification by a manufacturer.
Rule 411 – Liability Insurance
- Cannot use whether a person did or did not have liability insurance to prove negligence or other wrongful conduct.
- Can use liability insurance to show proof of agency, ownership, or control if disputed and can be introduced to show bias or prejudice of a witness.
* Federal rule is basically the same.
Rule 501 – Privileges
- No person has the right to refuse to be a witness, refuse to disclose any matter, refuse to produce an object or writing, or prevent another from doing the same unless provided by Constitution (any constitution), statute, by these rules or other rules pursuant to statutory authority.
* Federal rule is common law.
Rule 503 – Lawyer Client Privilege
- Client is a person who is rendered professional legal services or consults with a lawyer with a view of obtaining legal services.
- Representative of the client is a person with the authority to obtain legal services on the clients behalf or for the purpose of effectuating legal representation of the client, makes or receives confidential communication while acting in the scope of their job.
- Lawyer is anyone who is authorized to practice law or the client reasonably believes is authorized to practice law.
- Representative of the lawyer is someone employed by the lawyer to assist or an accountant.
- Communication is confidential if not intended to be disclosed to third persons and is made in furtherance of the rendition of legal services.
- Client has the ability to stop anyone from testifying to any confidential communications they have provided to the lawyer.
- In a criminal case, anything the lawyer has learned from the criminal is confidential, not just confidential communications.
- There are a few exceptions to the privilege, the main two are the crime fraud exception and when the client sues for legal malpractice.
* Federal rule is common law.
Rule 504 – Marital Privilege
- Confidential communications made during marriage are privileged. Survives the divorce of the marriage as well.
- Major exceptions are the crime fraud exception or if there is a crime against he spouse, any minor child, or any member of the household, the communication is not privileged.
- There is also a testimonial privilege, the spouse of the accused has the right not to be called as a witness but can do so voluntarily. They can only testify regarding actions they’ve seen, not confidential communications.
- If the accused doesn’t call their spouse, where evidence that the spouse has knowledge, is a proper comment by the state.
- There are two exceptions to this rule, if the crime was against the spouse, any minor child or any member of the household, the spouse cannot refuse to testify or if the matter occurred prior to marriage.
* Federal rule is common law.
Rule 509 – Doctor Patient Privilege
- Patient is a person who consults or is seen by a physician to receive medical care.
- Physician is someone who is licensed to practice medicine or someone the patient reasonably believed was licensed to practice medicine.
- Communication is confidential if not disclosed to third persons other than those present to further the interest of the patient in the consultation or those participating in the diagnosis and treatment under the direction of the physician, including members of the patient’s family.
- This privilege is not applicable to criminal proceedings. However a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily is privileged in a criminal proceeding.
- The confidential communications and records of the identity, diagnosis, evaluation or treatment that are created or maintained by the physician are privileged.
- The privilege is not applicable when the patient is suing the doctor, when the patient waives the privilege with written consent, or when the patient in any proceeding has placed their physical or emotional condition as part of their claim or defense.
* Federal Rule is common law.
Rule 606(b) – Testimony by Jurors
- Juror may not testify basically about anything that occurs during deliberations or anything in the jury room that influences any jurors assent or dissent.
- Juror may testify whether any outside influence was improperly brought to bear upon any juror, or to rebut a claim that the juror was not qualified to serve.
* The federal rule allows a juror to testify to any extraneous prejudicial information was improperly brought to the jury’s attention. Also does not contain the rule dealing with rebutting a claim that the juror was not qualified to serve.
Rule 608(a) – Character Evidence Regarding Witnesses
- Credibility of a witness can be attacked by character evidence in the form of reputation or opinion testimony but may only discuss truthfulness or untruthfulness and truthful character is admissible only after the character of the witness has been attacked.
* Federal rule is basically the same.
Rule 608(b) – Character Evidence Regarding Witnesses
- SICs cannot be used to attack credibility of the witness except for prior convictions or to rebut a blanket statement that they’ve never done anything wrong.
* Federal rule is significantly different. You can attack the credibility of a witness with SICs but you may not use extrinsic evidence except for prior convictions. Can use SICs during cross-x, if probative for truthfulness or untruthfulness of the witness or the person the witness is testifying about. Testifying about matters that relate only to character for truthfulness does not operate as a waiver for the privilege against self-incrimination.
Rule 609 – Conviction Time
- Can attack the credibility of a witness with a prior conviction if elicited from the witness or established by public record. The crime must be a felony or involved moral turpitude regardless of punishment. Furthermore, the court must determine that the probative value outweighs the prejudicial effect.
- Moral turpitude: conduct that is vile, base, or depraved; inherently immoral or dishonest. Swindling worthless check, theft, assault on female, bail jumping, violation of protective order, family violence, false statements, tax evasion, receiving and concealing stolen property, indecent exposure with intent to arouse.
- Cannot use conviction more than ten years old or ten years after the release, whichever is later, unless the court determines in the interest of justice, that the probative value substantially outweighs the prejudicial effect.
- If the person has completed rehabilitation, been pardoned, or paroled and has not been convicted of a crime subsequently, cannot use that crime.
- Cannot use juvenile adjudications for the most part.
- Appeal renders a conviction inadmissible.
- Cannot use a conviction if after timely written request by the adverse party which specifies the witnesses, the proponent fails to give sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
* If a crime is punishable by death or imprisonment over a year the conviction may be used:
- witness, if the probative value is not substantially outweighed by the prejudicial effect
- accused, if the probative value outweighs the prejudicial effect
* If a crime involved dishonesty or false statement, it can be used against any witness.
* A conviction over ten years is not admissible unless is substantially outweighs the prejudicial effect and written notice is given to the adverse party.
* There is no exclusion of convictions for probation or on appeal.
* A juvenile adjudication may be used in a criminal case for a witness other than the accused if the conviction could be used against an adult, and the court is satisfied that the evidence is necessary for a fair determination of guilt or innocence.
Rule 612 – Present Memory Refreshed
- If a witness uses a writing to refresh memory for the purpose of testifying either, while testifying, before testifying in a civil case (if the court OKs it), and before testifying in criminal cases, the adverse party may inspect it, use it for cross-x, and introduce it into evidence.
- If the writing contains admissible and inadmissible evidence, the court must take it in camera and excise the offending portions. Any excised portion objected to shall be maintained for the appellate courts
- If the writing is not handed over, any order in the interest of justice may be made. In a criminal case, when the prosecution does not comply the testimony of the witness may be struck or a mistrial may be declared.
* The federal rule is substantially the same except that it doesn’t differentiate when the witness may use writings in a civil and criminal case. Using writing before testifying in either one is subject to the judges determination in the interest of justice.
Rule 613(a) – Prior Inconsistent Statements
- If examining a witness with prior inconsistent statements, you must give the witness notice of the statement by providing the contents, the time and place of the statement, and to whom it was told. Then you must give them the chance to explain or deny such statement.
- If the witness admits the statement, then you may not use extrinsic evidence of the statement but if they waffle or deny the statement, you may use extrinsic evidence to prove it up.
- If the statement is written, you don’t need to show the witness but on request, must show it to opposing counsel.
- This rule does not apply to opposing party admissions.
* The federal rule is basically the same except that you don’t have to give the witness notice of the statement but if you want to use extrinsic evidence you must give them a chance to explain or deny.
Rule 613(b) – Bias or Interest
- Can use statements or SICs to prove bias or interest but you must give notice to the witness and an opportunity to explain or deny any of the accusations prior to using extrinsic evidence. If the witness admits the bias or interest, cannot use extrinsic evidence.
- A party shall be permitted to present evidence rebutting any evidence impeaching on of said party’s witnesses on grounds of bias or interest.
* No federal counterpart but case law states you can do this in federal court.
Rule 614 – Exclusion of Witnesses
- Called “invoking The Rule.”
- At the request of the party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and the court can do this sua sponte.
- Cannot exclude (not automatic)
- party who is a natural person (all cases) or spouse of party (civil only)
- officer or employee of a party or defendant that is not a natural person designated as its representative by its attorney
- person whose presence is shown by a party to be essential to the presentation of the party’s cause
- victim in a criminal case, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other witnesses
* The federal version is basically the same except that it doesn’t have a provision for spouses and it doesn’t have a provision for victims. It does have a provision for those who are authorized by statute.
Rule 701 – Lay Opinion
- If the witness is not an expert, opinions or inferences are limited to those which are rationally based on the perception of the witness and helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
* Federal rule states that the testimony cannot be based on scientific, technical, or other specialized knowledge within the scope of expert witnesses.
Rule 702 – Expert Witnesses
- If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of opinion or otherwise.
- The judge makes the preliminary determination of whether the witness may appear as an expert under Rule 104(a), this is the so called “gatekeeping” function.
* The federal rule states that the testimony must be based upon sufficient facts or data, the testimony is a product of reliable principles and methods and the witness has applied the principles and methods reliably in the case.
Rule 801 – Hearsay
- A statement is an oral or written verbal expression or nonverbal conduct of the person if it is intended to substitute for verbal expression.
- Declarant is one who makes the statement.
- Matter asserted is any matter explicitly asserted or any matter implied by a statement.
- Hearsay is a statement that is made by and out of this court declarant that is used to prove the truth of the matter asserted whether it is explicit or implied.
- Remember, if the statement is not used to show the truth of the matter asserted, then it is not hearsay.

- Ways to use statements in non-hearsay manners:
- Operative facts, statements that have independent legal significance, statements concerning offer and acceptance.
- Statements offered to impeach, show that they’ve blown hot and cold on a subject, show mental output: fear, mental anguish, intent, motive, state of mind, attitude.
- Statements offered to show effect on hearer or reader, what the person did after they read or heard the statement, mental input: lacked notice, knowledge or belief on which a person acted, existence of probable cause to arrest, basis or opinion of lay witness, or basis and opinion of expert witness.
- A statement is not hearsay if the OCD takes the stand and is subject to cross-x and:
- The statement is inconsistent with their trial testimony and the prior statement was made under oath subject to the penalty of perjury (except grand jury) or deposition\
- The statement is consistent with their trial testimony and is offered to rebut an express or implied charge of recent fabrication or improper motive.
- One of identification of a person after perceiving that person
- Videotaped or filmed statements of child victims.
- A statement is not hearsay if the OCD is an opponent, made an admission, and that statement is being used against them if:
- It’s the party’s own statement in an individual or representative capacity.
- A statement of which the party has manifested an adoption or belief of its truth.
- A statement by a person authorized by the party to make a statement concerning the subject.
- A statement by the party’s agent or servant concerning a matter within the scope or agency of employment, while a relationship existed.
- A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
- A statement made in a deposition in the same case is not hearsay, only applies to civil cases.
* Federal rule uses assertion rather than expression and it doesn’t define TOMA. The federal rule doesn’t allow implied assertions or expressions. Additionally, it doesn’t include the rule concerning videotaped child’s testimony and it states that additional evidence must be supplied regarding authority to make a statement, agency, and conspiracy.
Rule 803 – Hearsay Exceptions
- A statement under this rule is admissible hearsay regardless of the declarant if it is:
- Present sense impression, statement describing an event or condition made while the declarant was perceiving the event or condition or immediately thereafter.
- Excited utterance, statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
- Then existing mental, emotional, or physical condition, statement of the declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health) but not including a state of memory.
- Statements for purposes of medical diagnosis or treatment, statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms or the cause or external source thereof as reasonably pertinent to diagnosis or treatment. (Chuck hit me with a 2x4. 2x4 maybe, not Chuck)
- Recorded recollection, if the witness cannot recall something which they had personal knowledge of, a statement shown to have been made or adopted by them when the matter was fresh and reflect that knowledge correctly, unless circumstances of preparation cast doubt on the creation of the document, can be used. If admitted, it can only be read by the proponent, the adverse party can admit it into evidence.
- Records of regularly conducted business, if a statement was created at or near the time by, or from information transmitted by, a person with knowledge, if kept in the regular course of business, and if it was the regular practice to make the statement, all as shown by the testimony of the custodian or other qualified witness, or by affidavit (902(10)), unless the circumstances of preparation lack trustworthiness. Business is any and every kind of regular organized activity whether conducted for profit or not.
- Public records, statement from a public office that describes the activities of the office, matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding criminal cases matters observed by police officers and other law enforcement personnel, in civil cases as to any party and in criminal cases against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.
- Statements in ancient documents, statements in document in existence twenty years or more the authenticity of which has been established.
- Learned treatises, to the extent called to the attention of an expert witness upon cross-x or relied upon by the expert in direct-x, statements contained in published treatises on a subject of history, medicine, science or art established as a reliable authority by the testimony or admission of the witness or other expert witness or judicial notice. If admitted, the statements may be read into evidence but not received as exhibits.
- Statements against interest, a statement that is against the pecuniary, or proprietary interest, subject them to civil or criminal liability, render a claim void or make the declarant subject to social disgraces, that a reasonable person in the declarant’s situation wouldn’t have made unless they believed it true. In criminal cases, a statement that would expose the declarant to criminal liability is not admissible unless corroborating circumstances indicate the trustworthiness of the statement.
* There are a few differences with the federal rule. Regarding recorded recollection, there is nothing talking about circumstances which cast doubt on the document’s trustworthiness. Also, there is nothing in the federal rule regarding learned treatises and statements against interest are included in Rule 804 which states that the declarant be unavailable to testify. Also, in statements against interest, there is no social disgrace language and you only need corroboration in a criminal case when the statement tends to exculpate the accused and place the declarant in jeopardy of criminal liability.
Rule 804 – Hearsay Exceptions
- A witness is unavailable under this section because:
- of a privilege
- they refuse to testify even after a court order
- testifies to a lack of memory of the subject matter of the declarant’s statement
- they cannot attend because of death or then existing physical or mental illness
- the declarant is absent and the proponent can not procure the declarant’s attendance or testimony by process or other reasonable means.
- A declarant is not unavailable if through wrong doing of the proponent of the statement.
- A statement is admissible hearsay if the declarant is unavailable and:
- Former testimony, in civil cases, testimony given as a witness at another hearing or in the deposition of another proceeding, if the party against whom the testimony is offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, it is the same thing without depositions.
- Dying declarations, a statement made by a declarant while believing that death was imminent, concerning the cause or circumstances of what they believed to be their impending death.
-Statement of personal or family history, statement concerning own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated. Also a statement concerning all of these matter and death, of another person if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information.
* Federal rule doesn’t distinguish between civil and criminal cases regarding depositions, can use them in either if made pursuant to the law. In order to use a dying declaration, it has to be a homicide.
Rule 902(10) – Business Records Accompanied by Affidavit
- If a record in the nature of admissible hearsay rule 803(6)(records of regularly conducted business), is attached with a sworn affidavit, and it is filed with the court 14 days before trial with notice given to the other party, it shall be authenticated.
* Federal rule is essentially the same.
Rule 1002 – Best Evidence Rule “Original Document” Rule
- To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.
- If the contents of the writing, recording, or photograph are not being proved, then this rule does not apply.
* Federal rule is basically the same.
End Four Star Rules
Start Three Star Rules
Rule 104(a) – Preliminary Questions
- Qualification of a person to be a witness, existence of a privilege, or the admissibility of evidence shall be determined by the court.
- Judge is not bound by the rules of evidence when considering these topics except for privileges.
* Federal rule is identical
Rule 104(b) – Preliminary Questions
- When relevancy depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence to fulfill that condition.
- Judge must determine if there is enough evidence for a jury to reasonably believe that the fact exists before taking into consideration the evidence that relied upon that condition. These include:
- personal knowledge
- authenticity of evidence
- extraneous offense (beyond a reasonable doubt)
* Federal rule is identical
Rule 104(c)(d)(e) – Preliminary Questions
- Admissibility of a confession shall be conducted outside of the jury in a criminal case. Other than confession hearings, all other preliminary hearings may be conducted outside of the jury when the interests of justice require or when an accused in criminal case requests.
- The accused in a criminal case does not by testifying on a preliminary matter become subject to cross-x.
- This rule doesn’t state anything about weight and credibility.
* Federal rule is basically the same except that if the accused is a witness in any trial, they can request to have preliminary matters outside of the jury. Also, the accused in any trial is not subject to cross-x if testifying to preliminary matters.
Rule 408 – Compromises
- Evidence of furnishing, offering, or attempting to offer or accepting or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed is not admissible to prove liability or invalidity of the claim. Evidence of conduct or statements made in negotiations is not admissible. Rule does not exclude evidence when it is offered for another purpose, such as proving bias or prejudice or interest, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
* Federal rule is identical.
Rule 410 – Plea Discussions
- Cannot use pleas or plea discussions including
- a plea of guilty that was later withdrawn
- in civil cases, plea of nolo contendere, in criminal cases a plea of nolo contendere that was later withdrawn
- in a civil case, a plea of guilty that was later withdrawn or a plea of nolo contendere or in a criminal case, plea of guilty that was later withdrawn or a plea of nolo contendere that was later withdrawn
- any statement made in the course of plea discussions with an attorney for the prosecuting authority, in a civil case, that do not result in a plea of guilty or that result in a plea of guilty later withdrawn or in a criminal case, that do not result in a plea of guilty or a plea of nolo contendere or that results in a plea later withdrawn, of guilty or nolo contedere.
- Can use plea discussions in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement out in fairness be considered contemporaneously with it.
* In federal rule, cannot use nolo contendere plea in any situation but you can use a withdrawn nolo contendere plea in all situations. Also the federal rule states that plea discussions can be used in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
Rule 505 – Clergy Privilege
- Member of the clergy is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed to be by the person consulting with such individual.
- Communication is confidential if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
* Federal rule is the common law.
Rule 508 – Informer Privilege
- United States, a state or a subdivision thereof has a right to refuse to disclose the identity of a person who assisting an investigation of a possible violation of the law to a law enforcement officer or member of a legislative committee.
- The privilege is claimed by the appropriate representative of the public entity except the privilege shall not be allowed in criminal cases if the prosecutor objects.
- Exceptions
- Voluntary disclosure by the informant to those who would resent him or appearing as a witness at trial.
- If the informer might be able to give testimony necessary to a fair determination of the merits or on guilt or innocence and the public entity invokes the privilege, the court shall order an in camera hearing. If the court finds that the informant could probably give helpful testimony and the public entity refuses to disclose, in a civil case the judge can do anything and in a criminal case the court shall dismiss the charges on request from defendant and can do so itself sua sponte. Any evidence presented in camera shall be sealed and preserved for appellate use and the information shall not be divulged without consent of the public entity.
- If information from the informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the informant is reliable or credible, it may require the identity of the informer to be disclosed. The court shall direct the disclosure in camera if requested by the public entity. If disclosure is made in camera, it shall be sealed.
* Federal rule is common law
Rule 510 – Mental Health / Drug Privilege
- Professional is any person authorized to practice medicine, licensed by the State of Texas to treat mental or emotional disorder, involved in the treatment of drug abusers or reasonably believed by the patient to be included in the preceding categories.
- Patient is any person who consults a professional for purposes of diagnosis, evaluation or treatment of any mental or emotional disorder including alcoholism and drug addiction or is being treated voluntarily for admission to voluntary treatment for drug abuse.
- Representative of the patient is any person bearing written consent of the patient, a parent if the patient is a minor, a guardian if the patent has been adjudicated incompetent, or a patient’s personal representative if they are deceased.
- A communication is confidential if not intended to be disclosed to third persons other than those present to further the interest of the patient in the diagnosis, examination, evaluation, or treatment who are participating under the direction of the professional including members of the patient’s family.
- In civil cases, confidential communications between a professional and patient shall not be disclosed along with records of the identity, diagnosis, evaluation or treatment of a patient which are created or maintained by a professional are confidential.
- Exceptions
- When the patient sues the professional including malpractice suits and licesne revocation hearings.
- When the patient waives the right in writing to the privilege of confidentiality.
- As to a communication or record relevant to the issue of the physical, mental, or emotional condition of a patient in any proceeding in which any party relies upon the condition as part of the party’s claim or defense.
* Federal rule is common law
Rule 511 – Waiver of Privilege
- A person waives the privilege if the person voluntarily discloses or consents to disclosure any significant part of the privileged matter or the person calls a person to whom privileged communications have been made to testify as to the person’s character or character trait insofar as such communications are relevant to such character or character trait.
Rule 513 – Comment on Privilege
- No comment can be made on any privilege except when an accused doesn’t call his spouse to testify and no inference can be made therefrom.
- In jury cases proceedings shall be conducted so as to facilitate making claims of privilege outside the hearing of the jury.
- Can comment upon a claim of privilege against self-incrimination in a civil case.
- Can request a jury instruction that the jury should not draw any adverse inferences from a claim of privilege.
Rule 601(a) – Competency
- General rule is that everyone is competent to testify.
- Insane persons, in the opinion of the court who are currently insane or were insane at the time of the witnessed events are considered incompetent.
- Children or other persons who after being examined by the court, appear not to posses sufficient intellect to relate transactions are considered incompetent.
* Federal rule states that everyone is considered competent but in civil cases that are determined by state law, the law of the state shall determine competency.
Rule 602 – Personal Knowledge
- A person may not testify unless sufficient evidence is introduced to support a finding that the witness has personal knowledge of the matter. The testimony of the witness may prove personal knowledge. Expert witness’ do not need personal knowledge.
* Federal rule is identical.
Rule 611 – Mode and Order of Interrogation
- Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to provide for effective presentation of evidence, avoid needless consumption of time, and protect witnesses from harassment.
- Cross examination can include any matter relevant to any issue in the case including credibility.
- Leading questions should not be used on direct-x but can be used on cross-x. Sometimes can use leading during direct-x when necessary to develop the testimony of the witness. Also can use leading questions when a party calls a hostile witness, an adverse party, or a witness associated with an adverse party.
* In the federal rule, cross-x is limited to topics brought up on direct-x unless the court determines that more inquiries may be made.
Rule 703 – Bases of Opinion Testimony by Experts
- Facts or data may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If a type reasonably relied upon by experts in forming opinions the facts or data need not be admissible evidence.
* The federal rule is essentially the same except inadmissible evidence relied upon by the expert may not be disclosed to the jury by the proponent unless the court determines that their probative value in assisting the jury substantially outweighs their prejudicial effect.
Rule 705 – Disclosure of Facts
- An expert doesn’t need to disclose the facts or data relied upon in forming an opinion unless the court requires otherwise. The expert may disclose on direct examination or be required to disclose on cross-x the underlying facts or data.
- A party against whom the opinion is being offered shall have an opportunity to voir dire the expert in a criminal case and may be able to in a civil directed to the underlying facts and this shall be done out of the hearing of the jury.
- If the court determines that the underlying facts or data do not provide a sufficient basis for the opinion, it is inadmissible.
- If the underlying data is inadmissible the court shall exclude the data if the danger that it will be used for another purpose outweighs their value as explanation or support or are unfairly prejudicial. A limiting instruction shall be given if inadmissible data is admitted upon request.
* The federal rule only states that the expert may make opinions without disclosing their data first and may be required to disclose data on cross-x.
Rule 805 – Hearsay Within Hearsay
- Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception (exemption or non-TOMA reason) to the hearsay rule provide in these rules.
* Federal rule is identical.
Rule 806 – Impeaching Hearsay Declarant
- When a hearsay statement has been admitted, the credibility of the OCD may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if the declarant had been a witness. Evidence of a statement or conduct used to impeach the witness is not subject to any requirement that the declarant may have been afforded an opportunity to explain or deny. If the declarant is called as a witness by the adverse party, can cross-x the declarant.
* Federal rule is basically the same.
Rule 901(a)(1-9) – Authentication
- Requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
- Methods of proving up:
- Testimony of witness with knowledge
- Nonexpert opinion on handwiritng
- Comparasin by trier or expert witness
- Distinctive characteristics
- Voice identification
- Telephone conversations
- Public records or reports
- Ancient documents
- Process or system
* Federal rule is basically the same
Rule 1003 – Duplicates
- A duplicate is admissible to the same extent of the original unless a question is raised as to the authenticity of the original or in the circumstances it would be unfair to admit the duplicate in lieu of the original.
* Federal rule is identical.
End Three Star Rules
Begin One and Two Star Rules
Rule 106 – Remainder of Writings
- When a writing or recording is introduced, the adverse party may at that time introduce any other part or any other writing which ought in fairness be considered contemporaneously with it. Includes depositions.
* Federal rule is the same except it doesn’t include depositions and the adverse party can require the proponent to introduce the whole document.
Rule 107 – Optional Completeness
- When a part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given into evidence, as when a letter is read, all letters on the same subject between the same parties may be given. Includes depositions.
* No federal counterpart.
Rule 201 – Judicial Notice
- Judicially noted fact must be one not subject to reasonable dispute that it is either generally known within the territorial jurisdiction of the trial court, or capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.
- Court can take judicial notice whether requested or not.
- Court shall take notice if requested by party and supplied with the necessary information.
- A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notice, request may be made after judicial notice is taken.
- Judicial notice can be taken at any time.
- In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In criminal cases, the court shall instruct the jury that it may, but is not required to accept as conclusive any fact judicially noticed.
* Federal rule is identical.
Rule 402 – Relevancy
- Relevant evidence is generally admissible, evidence that is not relevant is not admissible.
* Federal rule is basically the same.
Rule 406 – Habit
- Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of an eyewitness, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit. Can use any evidence to prove this up.
* Federal rule is the same.
Rule 409 – Payment of Medical Expenses
- Evidence of furnishing or promising to furnish medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
* Federal rule is the same.
Rule 412 – Rape Shield Rule
- Reputation or opinion evidence of the alleged victim’s sexual behavior is not admissible.
- SICs of the alleged victim’s sexual behavior are also not admissible unless it is evidence:
- that is necessary to rebut or explain scientific or medical evidence offered by the State
- of past sexual behavior with the accused and is offered by the accused upon the issue of consent
- relates to the motive or bias of the alleged victim
- is a past conviction
- or is constitutionally required
- In order to be admitted the probative value must outweigh the danger of unfair prejudice.
- The defendant must give notice of SICs to court outside the hearing of the jury. An in camera hearing is conducted and the judge determines what is and isn’t admissible. All evidence in the in camera proceeding is sealed.
* Federal rule is basically the same
Rule 502 – Required Reports Privilege
- Anyone making a return or report required by law to be made can stop the contents of the report from being disclosed if the law requiring it to be made so provides. No privilege exists in actions involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.
* Federal rule is common law.
Rule 512 – Compelled Disclosure
- A claim of privilege is not defeated by a disclosure which was compelled erroneously or made without opportunity to claim the privilege.
Rule 601(b) – Dead Man’s Rule
- In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward unless that testimony to the oral statement is corroborated or unless the witness is called by the opposite party. The judge shall in a proper case instruct the jury that the witness could not testify because of this law.
* Federal rule doesn’t include Dead Man’s Rule but it does state that in civil cases where the state law is applied, the state’s law regarding competency shall be used.
Rule 603 – Oath
- Before testifying, every witness hall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
- Federal rule is identical.
Rule 605 – Judge as Witness
- Presiding judge may not testify in that trial as a witness, no objection is needed to preserve error.
* Federal rule is identical.
Rule 606(a) – Testimony by Jurors
- Members of the jury may not testify as a witness before that jury in a trial for which they are sitting. If they are called, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
- Federal rule is identical.
Rule 607 – Who May Impeach
- Any party may attack the credibility of any witness even if they called them.
* Federal rule is identical.
Rule 610 – Religion
- Cannot attack the credibility of any witness using their beliefs or opinions on matters of religion.
- Could use matters of religion to show bias or improper motive.
* Federal rule is the same.
Rule 615 – Production of Witness Statements in Criminal Case
- After a witness has testified, the party who did not call the witness can move and the court shall order disclosed any other statement by the witness the opposing counsel or party has.
- The court can excise inadmissible portions of the statement in camera and turn over all portions which concern the subject matter the witness was testifying to. Any portion withheld shall be preserved and made available to the appellate court.
- Recess shall be given to the party receiving the document for review upon request of that party.
- If the other party doesn’t comply the court shall order the testimony of the witness stricken or if the prosecutor refuses to comply shall declare a mistrial if required by the interest of justice.
- A statement is a written statement by the witness or adopted by them, substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or transcription, or a statement however taken made by a witness in a grand jury.
* No federal counterpart.
Rule 704 – Ultimate Opinion
- Testimony in the form of opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
* Federal rule is basically the same except that it states an expert may not testify that an accused did or didn’t have the mental state constituting an element of the crime charged or defense thereto.
Rule 802 – Hearsay Rule
- Hearsay is generally not admissible unless these rules or other rules say so. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.
* Federal rule doesn’t contain any mention of objection.
Rule 902 (1)(4) – Self Authenticating Documents
- Domestic public documents under seal
- Certified copies of public records
* Federal rule is basically the same.
Rule 1001 – Best Evidence Rule Definitions
- Writings or recordings consist of letters, words or numbers or their equivalent set down by handwriting or other means.
- Photographs shall include still photographs, x-ray films, video tapes, and motion pictures.
- Original is a writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An original of a photo is a negative or any print from it. If data is on a computer, anything readable by sight or printout shown to reflect the data accurately is an original.
- Duplicate is a counterpart that can be made and accurately reproduces the original.
* Federal rule is identical.
Rule 1004 – Excuses for Non-production
- Original is not required and other evidence of the contents of a writing recording or photograph is admissible if:
- Original is lost or destroyed unless done so in bad faith
- Original is not obtainable by any available judicial process or procedure
- Original is outside the state
- Original is in the possession of the opponent and they refuse to turn it over
- Or any writing recording or photograph that is not closely related to a controlling issue.
* Federal rule is basically the same although it doesn’t contain the language outside of the state.
Rule 1005 – Public Records
- The contents of an official record authorized to be recorded or filed and actually done, if otherwise admissible may be proved by copy certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy cannot be obtained by the exercise of reasonable diligence, other evidence may be used.
* Federal rule is identical.
Rule 1006 – Summaries
- The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals shall be made available for examination or copying. The court may order them produced in court as well.
* The federal rule is basically the same.
Rule 1007 – Party’s Testimony or Written Admission
- Contents of writings, recordings, or photos may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission without accounting for the non-production of the original.
* Federal rule is basically the same.