Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
209 Cards in this Set
- Front
- Back
|
What do judges look to when determining whether an evidentiary error is harmful? |
Generally, whether an "error affects a substantial right of the party" and "caused a rendition of an improper judgment."
|
|
|
What is the remedy for a inadvertent evidentiary error? |
An Instruction to Disregard to the jury.
|
|
|
What do you need to get a case reversed on appeal for an evidentiary error? |
|
|
|
When does an error in the exclusion of evidence require reversal? |
An error in the exclusion of evidence requires reversal if it is both
|
|
|
What are the two harm standards in criminal cases? |
So, it's only error if it "affects substantial rights." |
|
|
Constitutional Errors |
An appellate court must reverse unless the state proves beyond a reasonable doubt that the error did not contribute to the conviction.
The burden is on the state to show harmlessnesss beyond a reasonable doubt.
Raised in an objection. |
|
|
What does Rule 103 (a)(1) require when evidence has been erroneously admitted? |
A party, on the record must
|
|
|
What are the three issues presented by rulings? |
|
|
|
What do you need to do to preserve error on a ruling erroneously admitting evidence? |
A party, on the record, must:
|
|
|
Is it a ruling? |
|
|
|
Express Rulings |
Objections:
Motions:
|
|
|
Implied Rulings |
Get in the habit of asking for clarification: "To be clear, your honor, is the court overruling my objection?" |
|
|
Refusal to Rule |
You have to know what it is because the rule requires you to object. If you make a request and you don't get a clear, and unambiguous ruling, then you have to object.
"Your honor, I respectfully object to the court's refusal to rule." |
|
|
Is the ruling on the record? |
|
|
|
Informal Bill of Exception |
Recite what happened into the record. Court: "The record will so reflect." There's either an express adoption (preferred) or no challenge). |
|
|
Formal Bill of Exception |
Tells the story of what occurred in writing (objection & ruling);
When filed, a formal bill of exception should be included in the appellate record.
Deadlines:
|
|
|
What do you do if a court refuses to sign a bill of exception and files their own? |
File your bill of exception along with the affidavits of at least three people who observed the matter. |
|
|
What is the purpose of a bill of exception? |
A bill of exception is not used to obtain a ruling. It is used to solve the problem of an absence of a ruling in the record. |
|
|
Is the ruling adverse? |
In some situations, you object, the objection is sustained and you have nothing to complain about. In others, you objection may be sustained, but it didn't solve the problem.
In neither of those situations is the ruling adverse.
|
|
|
What 4 things/3 things do you do when something harmful is heard by the jury despite your objection? |
*Powell thinks that you don't need to object and move to strike. |
|
|
What is required for an objection to be timely? |
You must object when the grounds for an objection first become apparent to you.
|
|
|
What are the requirements for disclosing exhibits in federal court? |
The proponent is required to make a disclosure identifying every exhibit that you (1) intend to offer; and (2) may offer.
The disclosure must be made 30 days before trial.
Within 14 days, a party may serve and file a list of objections. |
|
|
What is required for an objection to meet the specificity requirement? |
|
|
|
What does Powell think about a general objection? |
A general objection is no objection.
It's not specific and it fails to preserve error. |
|
|
"Grounds" for an Objection |
Verbally describe the rule that has been violated in most situations. The only exception is rule 403, in which you actually state the rule.
"Straightforward communication in plain english will always suffice." |
|
|
"Parts" of Evidence to Which You're Objecting |
It's not the judge's job to figure out which part of evidence you're objecting to.
You're required to point to a particular place in a document or identify a specific portion of testimony. |
|
|
Do you need to keep objecting in Federal Court after making your first objection to evidence? |
No. As long as you have objected timely to the evidence and there is a definitive ruling on the record, you don't need to keep objecting.
Running objections are relics of the past in federal court.
However, you are permitted to renew an objection. |
|
|
What's the exception to renewing an objection in Federal Court? |
If you have a conditional or provisional ruling, (e.g., "If X happens/doesn't happen, I might change my mind), you must renew your objection at the appropriate time. |
|
|
Can you stop objecting in Texas State Court once you get a definitive ruling? |
NO! You cannot stop objecting. You must: (1) renew the objection; (2) make a running objection; or (3) object to all of it outside of the presence of the jury (in a criminal case). |
|
|
How can you get opposing counsel to waive an objection? |
Keep asking questions to keep opposing counsel objecting until:
OC may choose their jury verdict over an appeal and waive their objection. |
|
|
Requirements of a Running Objection |
An agreement that allows you to pretend you're objecting to all of it.
Identify:
|
|
|
Requesting a Running Objection |
"Your honor, may I have a running bill as to [adequately specific and unambiguous grounds] so that I don't have to continue to re-urge my objection as the law requires me to do." |
|
|
Open Door Doctrine |
If you go into part of a bigger subject and the other side wants to go into another part of the same subject, you have "opened the door."
So, you can't keep the other party from going through the same door. They can put on evidence of it even if you haven't.
This can happen by mentioning a subject in voir dire or opening statement. |
|
|
Three Types of Pre-Trial Motions |
|
|
|
Motion in Limine |
"At the threshold."
Relief sought is requiring parties to approach the bench before the subject-matter is addressed. This allows an objection to be made outside of the presence of a jury when evidence is prejudicial.
A motion in limine will NOT preserve error! |
|
|
Violation of a Motion in Limine |
A violation of a motion in limine is usually committed by an uninformed witness. It constitutes a violation of a court order. You may be entitled to a mistrial. You can ask for sanctions: striking testimony, instruction to disregard, striking some pleadings. |
|
|
Motion to Exclude |
There is no rule on it or allowing it.
In state court, you must secure a running objection because you're required to re-urge. |
|
|
What needs to be done if your motion to exclude is denied in state court? |
You need to secure a running objection. Even if the other side tenders the order, you need to offer yours with a running objection. |
|
|
Motion to Suppress |
Only applies in criminal cases.
Must be made in writing. Identify it as such and cite the rule number from the code of criminal procedure.
You do not have to re-urge or objection if you move to suppress and that motion is denied. |
|
|
How do you deal with very damaging evidence before trial? |
1. Make a motion to exclude and force the issue pre-trial; 2. Minimize the impact in front of a jury by bringing it out first and putting your own spin on it.
If you do that, you have waived exclusion and waived your objection and there is no appealable error on it. If you need the error in exclusion for appeal don't inoculate. Use the reply doctrine as well. |
|
|
The Reply Doctrine |
You have the right of reply without waiving an objection by opening the door. But if it happens again, you object or waive. |
|
|
What needs to be done to preserve error when evidence is excluded? |
Where evidence is excluded and the error affects a substantial right, the party must inform the court of its substance by an offer of proof.
(A.k.a. a Bill of Exception in Texas) |
|
|
Components of an Offer of Proof |
3. Ruling |
|
|
Purpose of an Offer of Proof |
Allow the appellate court to consider if there was error and there was harm.
Allow the trial judge to reconsider the ruling in light of the actual evidence. |
|
|
Timing of the Offer of Proof |
You have to ask the court's permission to make an offer of proof. You don't have the right to make one immediately. It may be delayed. So you must remember to make it.
If the judge refuses to allow you to make an offer of proof, you must object in order to preserve error. |
|
|
When is it too late to make an offer of proof? |
It's not clear. So the key to determining when it's too late is asking when the judge can still do something to correct it - to prevent the harm? |
|
|
What is the last component of an offer of proof? |
You need to re-offer the evidence after you complete your offer of proof and obtain a second ruling. |
|
|
En Masse Exhibits |
If any of an exhibit is admissible, then all of it is inadmissible. Redact/Segregate the inadmissible portion of the evidence, then offer the new exhibit in order to get around the problem.
|
|
|
What do you need to do to preserve error after redacting a portion of an en masse exhibit? |
You must make an offer of proof for the inadmissible part of the enmasse exhibit. Whatever has been redacted needs to be included in the offer of proof. |
|
|
What are the two forms of an offer of proof? |
Narrative: State everything you need to into the record to make a complete offer of proof; Q&A: Witness is on the stand, he supplies the answers.
|
|
|
Which form of an offer of proof should you use? |
Texas: The court may, and at the request of the parties shall, direct the making of an offer of proof in Q&A form.
Federal: Court has complete discretion and may require a Q&A form if it so desires. |
|
|
En Masse Testimonial Evidence and Oral Redaction |
Separate out the admissible evidence from the inadmissible. There are two methods:
1) Re-ask each question, re-offer each answer. Separate each answer so it stands on its own merits.
2) Entire Series: "At this time, YH, I offer each question separately and independently as its own offer of proof and ask the court to admit..." |
|
|
Fundamental Error |
Typically evidence was admitted and the court's error in admitting the evidence is so bad that you don't have to preserve error.
Don't rely on this.
In Texas it only applies in Criminal Cases anyway. |
|
|
How can an opponent ask the court to restrict the scope (purpose/person) of evidence? |
First, you need to object. Then, upon request, the court shall restrict the evidence to its proper scope and instruct the jury accordingly.
The burden is on the opponent to request a limiting instruction to preserve error.
|
|
|
How can a proponent offer evidence for a limited purpose or person? |
The burden is on the proponent to offer the evidence for the limited purpose or party.
Then, upon request, the court shall restrict the evidence to its proper scope and instruct the jury accordingly. |
|
|
Does another party's objection or offer of proof preserve evidence for you? |
Texas: Each party is required to make his own objection or offer of proof in order to preserve error.
Federal: Each party is required to object/offer only if it would make a difference as to which party offers. Otherwise, parties are joined in objection. |
|
|
Why would you offer evidence for a limited purpose? |
An offer of evidence without limitation is offered initially for every purpose. When an opponent objects and it's excluded, it's all out unless the proponent makes an offer for a limited purpose. |
|
|
What is a 403 Objection? |
The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, needless presentation of cumulative evidence. |
|
|
How is evidence excluded under Rule 403? |
403 is a rule of discretion that calls upon the court to weigh the "dangerous conditions" and "probative value."
The scales must shift "substantially" – probative value must be low and the weight of the "dangerous conditions" must be high – in order for evidence to be excluded. |
|
|
Who has the burden in a 403 consideration? |
The burden is on the objecting party to show that the conditions substantially outweigh the probative value. |
|
|
What does probative value mean in the context of rule 403? |
"The strength of the evidence to establish a proposition."
It's how hard the evidence pushes toward a "yes" answer.
|
|
|
What factors does a court consider in determining probative value in a 403 consideration? |
1. Strength of logical inference; 2. Centrality of the evidence; 3. Is this etraneous event evidence?; 4. How badly does the proponent need this evidence? |
|
|
What is the trial court prohibited from doing in determining probative value in a 403 consideration? |
The court assumes the evidence is true, assigns all the weight possible, then decides how valuable it can be. A trial judge may not: 1. Judge the credibility of the evidence; or 2. Weigh it against other evidence. |
|
|
What does strength of logical inference mean in a 403 analysis of probative value? |
Does this evidence have a strong tendency or a weak tendency to prove the proposition? If true, how far does it get us? |
|
|
What does centrality of the evidence mean in a 403 analysis of probative value? |
How closely or directly linked to the central issues of the case is this evidence? How directly does it go to an ultimate issue? |
|
|
How is evidence of extraneous events considered in a 403 analysis of probative value? |
Evidence of extraneous events will always lead to an admissibility fight.
Remoteness and similarity of the extraneous events will be considered? |
|
|
Why is how badly a proponent needs the evidence considered in determining probative value under Rule 403? |
If it's all a proponent has, then the probative value of the evidence is through the roof. If the proponent has tons of evidence, then it's not going to be. |
|
|
Is all cumulative evidence prohibited under Rule 403? |
No. you can present cumulative evidence; you just can't present needlessly cumulative evidence. |
|
|
What can an objecting party do to cause probative value on the Rule 403 scales to drop? |
As soon as a party offers to stipulate, probative value will drop because the proponent doesn't need to rely on the evidence.
Once an offer to stipulate is made, that offer can be brought up. Probative value will be low, so only danger is left to be considered. |
|
|
What is the "Danger of Unfair Prejudice" in Rule 403? |
"Evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action may cause a jury to base its decision on something other than the established proposition in the case."
EX: "Illiterate Mexicans" |
|
|
How do you make a 403 objection based on confusion and misleading? |
Confusion of the Issues and Misleading the Jury should be used together.
It's also best used when you have evidence introduced for a limited purpose. Objection should shift from your original one, then to 403 after the limited purpose is allowed. |
|
|
Waste of Time and Undue Delay in Rule 403 |
Very important to trial judges. Once the evidence is admitted, it will add additional time to a trial. Best used when it's a satellite issue. |
|
|
Needlessly Presenting Cumulative Evidence |
All evidence is supposed to be cumulative to a certain extent. But at a certain point, just stop. You don't need 17 metallurgists to prove a beer can was defectively designed. |
|
|
Photographs and the Danger of Unfair Prejudice |
Some of it can cause unfair prejudice, but in some cases emotional photos that are not shocking or gruesome will not cause unfair prejudice. |
|
|
Where and how do you make a 403 objection? |
You object at the bench and you do it with passion. |
|
|
What is the basic analysis for hearsay? |
1) Is it a statement? 2) Was it made out of court? 3) Is it offered to prove the truth of the matter asserted?
|
|
|
How do you know if something is offered "for the truth of the matter asserted?" |
Why is the proponent offering this evidence?
Ask: - What did the declarant assert to be true? - What is the proponent trying to prove is true? - Do they match? Is the proposition true because the declarant said so? |
|
|
Statement |
(1) An oral or written assertion; or (2) Nonverbal conduct of a person, if intended by the person as an assertion. |
|
|
Declarant |
The person who makes a statement. |
|
|
Hearsay |
Statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. |
|
|
What is an assertion? |
An expression by a person that conveys information with the intent to do so. - Oral assertions - if intended to be an assertion; - Written assertions - if intended as an assertion; - Nonverbal conduct - if intended as an assertion? |
|
|
What does out of court mean? |
A statement is out of court if the declarant makes the statement anywhere except the witness chair in this trial. |
|
|
What are the two ways out of court statements are used as evidence? |
1) Offered because the declarant believes the matter is true (HEARSAY).
2) Proves something in the case, whether correct or not (NOT HEARSAY). |
|
|
Can questions and imperatives be statements for hearsay purposes? |
Yes, but they should always throw up a red flag.
Ask: - Is this really an assertion? - Look at each statement separately; pick each statement apart. - Remember that a statement must be relevant to prove a proposition. |
|
|
Is non-verbal conduct hearsay? |
Non-verbal conduct - if commonly understood and if intended as an assertion, can be hearsay.
Conduct that is not asserted is not hearsay. |
|
|
How do you know if non-verbal conduct is hearsay? |
Look to the circumstances to determine whether a person intended conduct to be an assertion. If so, it qualifies as a statement under the hearsay rules. |
|
|
Who has the burden to show that conduct was intended to assert? |
The objecting party! |
|
|
If a witness testifies to their own out of court statement, is it hearsay? |
It IS hearsay unless one of three exceptions in 801(d)(11) applies (or if it's not offered for the truth of the matter asserted).
For these to apply, the declarant must testify and be subject to cross examination. |
|
|
What are the three situations in which a witness-delcarant's OOC is not HS? |
1. Inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding.(OOC≠IC). 2. Consistent with declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or to rehabilitate D's credibility as a witness. 3. One of identification of a person made after perceiving the person. |
|
|
Why is it important if the words are the story or are the story-telling? |
Words that are the occurrence are not hearsay because they are not offered to prove the truth of the matter asserted - they are the matter asserted. |
|
|
What are the three categories of statements that are not offered for the truth of the matter asserted? |
1. Operative facts 2. Impeachment 3. State of mind |
|
|
Operative Facts |
"Res gestae" or the things done.
- If the conversation occurred is the operative fact.
- "Information acted on." |
|
|
Operative Facts & Agency |
Agency cannot be shown by declarations or statements of the alleged agent standing alone; but where there is evidence sufficient to show the fact of the agency or employment prima facie or statements of the alleged agent are admissible on corroboration. |
|
|
Impeachment & TOTMA |
Not being used for TOTMA, although it would normally be hearsay. |
|
|
State of Mind |
We're not trying to prove an event, but trying to prove the belief; We don't care if the belief is accurate, just that he had the belief. E.g., Negligence (whether he acted reasonably under the circumstances).
All OOC statements reflect declarant's state of mind. The statement can only be used if the that person's state of mind is relevant and material. |
|
|
What are the five ways of determining what a person believes? |
1. Person states what he believes. (DE) 2. Person perceives an event/occurrence. (CE) 3. Person is told of an event/occurrence. (CE) 4. Person acts based on a belief. (CE) 5. Person speaks based on a belief. (CE) |
|
|
How is a person's statement of what they believe different from the other four ways of determining what they believe (state of mind statements)? |
A person's statement of what they believe is, by definition, hearsay, because it's offered for the TOTMA. However, it will generally be admissible under the state of mind exception. |
|
|
What are the two State of Mind Theories? |
1) Hearsay state of mind theory —> Admissible under the state of mind exception; 2) Non-hearsay state of mind —> Not offered for TOTMA but to prove the listener's state of mind. |
|
|
What is an implied assertion? |
These are situations where the declarant believes something and we're using his belief to prove our proposition, even though he did not actually make an assertion.
They are not always hearsay. |
|
|
How do declarants assert their beliefs? |
1. Explicitly; 2. By hinting at it indirectly; 3. When a statement necessarily assumes another fact is true. |
|
|
What does it mean to "imply?" |
To necessarily assume. To indicate without saying openly or directly; To Hint, suggest, or intimate; to have as a necessary part, condition, or effect; to contain, include or involve naturally or necessarily. |
|
|
Are implied assertions treated differently in Federal and Texas court? |
Yes.
Federal: If there was no intention to assert, it's not a statement and not HS. If dec. does not intend to assert a fact; it's highly unlikely that he's lying. Statements that necessarily assume another fact are not hearsay.
Texas: Do not need an assertion to check the statement box - but the statement must be an assertion to be hearsay. All assertions of belief are hearsay in Texas. |
|
|
What is non-hearsay? |
Statements that are offered for the truth of the matter asserted, but are nonetheless excluded from the definition of hearsay altogether. |
|
|
What statements are non-hearsay? |
1. Admissions 2. Prior inconsistent statements 3. Prior consistent statements 4. Prior statements of identification
|
|
|
What's the difference between non-hearsay and exceptions to hearsay? |
Exceptions are hearsay statements which are admissible for the TOTMA because they are reliable or "not wanting of trustworthiness."
Non-hearsay statements are out of court statements offered for TOTMA but are not hearsay for some other reason. |
|
|
Non-Hearsay: Statement of an Opposing Party |
To meet the exclusion, statement must be offered against an opposing party and: 1. Was made by an opposing party in either an individual or representative capacity; 2. Party manifested that it adopted or believe the statement to be true; 3. It was an authorized admission; 4. It is an admission by agent/employee on a matter w/in scope; 5. Made by a co-conspirator in furtherance of the conspiracy.
|
|
|
How do you analyze whether a statement is a statement of an opposing party? |
1. Who made the statement? (Opposing party in an individual or representative capacity/agent/authorized/co-conspirator/manifest/adopted.)
2. Who is the statement offered against? |
|
|
How can a party adopt a statement under as the statement of an opposing party? |
(1) Saying "I adopt"; agreement, etc. (2) Forwarding e-mail with a manifestation of belief; (3) Relying on something; (4) Responding to another parties' statement; (5) Saying nothing when it would be natural to respond. |
|
|
Independent Contractors & Statement of an Opposing Party - Agent/Employee |
Traditional agency principles are incorporated into the agent/employee rule. ICs are not agents or employees.
|
|
|
Must an agent or employee have speaking authority in order to be a statement concerning a matter within the scope of agency? |
Nope. |
|
|
Are off duty statements by an agent or employee "statements concerning a matter within the scope of agency?" |
There is no course of requirement here; it's only scope of. So, yeah. Off duty statements can be concerning a matter within the scope of agency/employment. |
|
|
Can a court use hearsay evidence in making its preliminary determination on whether or not a predicate is established for purposes of determining the admissibility of evidence? |
Yes. A court can use hearsay evidence in making its preliminary determination. |
|
|
What happens when the predicate is also an ultimate question? |
There are two fact findings that must be made: 1) By the court 2) By the jury.
The best practice here is to have the court make the determination outside of the presence of the jury. |
|
|
Who is an "opposing party?" |
It is NOT the victim of the crime.
An agent of the government could be an opposing party under this rule.
In a wrongful death survival case, is the decedent an opposing party? - Survival —> The Estate speaks for the deceased. - WD —> The Deceased is not a party. |
|
|
How are depositions treated differently as hearsay in Federal Court and Texas Court? |
- In Texas, a statement made by a person in a deposition is testimony, not hearsay
- In Federal Court, depositions are hearsay, although they can be used if the declarant is not available. |
|
|
How are prior inconsistent statements treated differently as non-hearsay in Texas and Federal Court? |
Federal: PIC must have been made under oath, subject to penalty of perjury at trial, a hearing, or other proceeding or deposition.
Texas: Statements made during a grand jury proceeding are not admissible under the PIC rule! |
|
|
What is an 803 Exception to Hearsay? |
They deal with hearsay statements, but for reliability reasons, they are admissible.
The availability of a witness is immaterial under Rule 803. |
|
|
Present Sense Impression Exception |
Statement describing an event or condition made (1) While the declarant was perceiving the event or condition; or (2) Immediately thereafter (Fact ? for the Judge).
*Key: The amount of time that passes between the event and the statement; Must describe or explain the event.
|
|
|
Excited Utterance Exception |
- Relating to a startling event or condition; - Made while the declarant was under stress of excitement; - Caused by the event or condition
*Key: Is the declarant still under the influence of excitement when the statement was made? Time is not determinative, but it relevant. |
|
|
State of Mind Exception |
|
|
|
Medical Diagnosis or Treatment Exception |
DECLARANT IS ALWAYS THE PATIENT.
|
|
|
Past Recollection Recorded Exception |
|
|
|
How doe the "Past Recollection Recorded" Exception differ from refreshing the W's Memory? |
Here, the witness doesn't remember even after refreshing his memory. With a refreshment of W's recollection, the witness actually remembers, he just needs his memory jogged. |
|
|
Texas's Past Recollection Recorded Exception |
Texas has an added trustworthiness provision (modeled after the Business Records Exception).
Opponent has the burden of proving untrustworthiness by showing something about the document's preparation casts doubt on the trustworthiness. |
|
|
How can a witness vouch for a statement he has no memory of? |
Routine practice, for example. |
|
|
Business Records Exception |
Was Exhibit 1 made by, or from information transmitted by, a person with knowledge of the events or conditions recorded? Was the record made at or near the time of the events or conditions recorded? Was it in the regular course of business to make such records? Was it in the regular course of business to keep such records? |
|
|
Must a declarant or the witness have personal knowledge in order to use the Business Records Exception? |
NO! Only the source – somebody within the business who had a duty to report/record information – must have personal knowledge, not others in the chain of transmission; The witness need only be able to answer the four predicate questions based on PK. |
|
|
What are some potential problems with the Business Records Exception? |
Every time you have a BR, you have double hearsay problems. To get around this, combine the BRE with another hearsay exception.
|
|
|
Palmer Objection |
Accident reports made in anticipation of litigation are not as trustworthy and are therefore not admissible under the BRE.
Make by: 1. Take the W on VD and establish the document was made with an eye toward litigation; 2. Point to the fact that it was not made in the regular course of business and the fact that it's not TW. |
|
|
Public Records and Reports Exception |
Three kinds of dox: 1) Setting forth activities of an office or agency; 2) Setting forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report. (Not matters observed by LE.) 3) In civil - factual documents |
|
|
Grounds for Admission of Public Records and Reports |
Unless the sources are untrustworthy: - Timeliness of investigation - Special skill/experience of official - Whether a hearing was held and the level at which it was conducted; - Possible motivation problems |
|
|
Ancient Documents Exception |
Statements in a document in existence twenty years or more the authenticity of which is established.
Must be coupled with evidence that its condition raises no suspicion and it was found in a place that it would likely be if authentic. |
|
|
What are the "other exceptions" under 803 that pertain to records? |
Records of vital statistics, absence of public record or entry, records of religious organizations, family records, records. |
|
|
What are the "other exceptions" under 803 that pertain to property? |
Records of documents affecting an interest in property; statements of documents affecting an interest in property. |
|
|
What are the "other exceptions" under 803 that pertain to publications? |
Market reports, commercial publications, learned treatises. |
|
|
What are the "other exceptions" under 803 that pertain to reputation? |
Reputation concerning personal or family history, reputation concerning boundaries or general history, reputation as to character. |
|
|
What are the "other exceptions" under 803 that pertain to judgments? |
Judgment of a previous conviction, Judgment as to personal, family, or general history, or boundaries. |
|
|
What does it mean for a witness to be "unavailable?" |
It means that the declarant: (1) is exempted because some privilege applies; (2) refuses to testify despite a court order to do so; (3) testifies to not remembering; (4) is dead/sick/crazy; (5) absent and proponent has not been able to procure attendance/attendance or testimony. |
|
|
What makes a declarant unavailable when they are "absent" from the trial or hearing? |
The statement's proponent has not been able, by process or other reasonable means to procure: (A) Attendance (Former testimony; forfeiture by wrongdoing); or (B) Attendance or testimony ("Testimony" means deposition testimony.) |
|
|
What must a proponent prove when the declarant is absent? |
Process or other reasonable means: - Due diligence in obtaining service; - Process not successful, return of service; - Reasonable means were taken to procure. |
|
|
Difference in unavailability under the Federal and Texas Rules |
- Depositions are not hearsay in Texas - You must show that a person is not available to attend or give testimony. |
|
|
Former Testimony |
Applies to testimony that was given at at trial, hearing, lawful deposition whether given during the current proceeding or a different one; and
Is now offered against a party who had (or in a civil case whose predecessor in interest had) an opportunity and similar motive to develop testimony by direct, cross, or redirect. |
|
|
Statement by Dying Declaration/Under Belief of Imminent Death |
Applies in a prosecution for homicide or in a civil case.
It is a statement that the declarant, while believing his own death is imminent, made about is cause or circumstances.
(Valid whether the dude dies or not!) |
|
|
What if you don't have direct evidence that the declarant believed they were going to tie? |
You must prove the belief, so you use circumstantial evidence: - Nature of the injuries; - Medical opinions; - Declarant's conduct (prayer, asking for a priest) - "Am I going to die?"
|
|
|
Am I going to die? |
Won't defeat the belief unless you can show relief or adoption of the belief that they'll be ok. |
|
|
"Imminent Death" |
"Swift and certain doom."
State of mind must be exhibited by the evidence. |
|
|
Statement Against Interest |
NOT the same as a Statement of an Opposing Party.
At the time of its making, the statement is contrary to: - Declarant's pecuniary interest; - Proprietary interest; OR - Or to render invalid a claim by declarant against another
A reasonable person in declarant's position would not have made the statement unless believing it to be true. |
|
|
Difference between the Texas and Federal Rules for Statements Against Interest? |
Declarant's availability doesn't matter in Texas.
Texas rule also adds a "social interest." (Or to make declarant an object of hatred, ridicule, disgrace.) |
|
|
Exculpatory Statements v. Inculpatory Statements |
Exculpatory statements against penal interest (must have corroboration).
Inculpatory statements against penal interest (must have corroboration in Texas). |
|
|
Statement Against Interest Analysis |
1. Statement must be against interest at the time made; TEST: A reasonable person, knowing what declarant knew, would not make it unless believing it to be true.
2. Interests: Pecuniary, Civil Liability, Criminal Liability (Exculpatory/Inculpatory), render invalid declarant's claim against another.
|
|
|
Wrongdoing Exceptions |
Don't mess with witnesses. If you do and as a result they become unavailable, their testimony is admissible against you. |
|
|
Residual Exception |
*Only applies in Federal Court.
Covers OOC statements that seem reliable but don't fit into any exceptions.
You must comply with all procedural requirements. It cannot be used spur of the moment. The evidentiary standards is high at trial.
|
|
|
Procedure Required for the Residual Exception |
1. Advance notice; 2. Set out particulars of the statement; 3. Give the name and address of the declarant; 4. Meet the high evidentiary standard at trial. |
|
|
How do you meet the evidentiary standard required by the residual exception? |
- Offer it on a material fact; - More probative than any evidence which can be procured through reasonable efforts at trial; - Equivalent guarantees of trustworthiness as other exceptions; - General purposes and interests of justice will be served by admission.
|
|
|
Statement of Personal or Family History |
A statement concerning the declarant's own birth adoption, marriage, divorce....or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated.
Also applies to the death of another if the declarant was related to the other by blood, adoption or marriage, or intimately associated with the other's family. |
|
|
Outcry Exception |
Statements that describe the offense committed against a child abuse victim.
Relevant question: Who is the first person to whom the statement is made? - If the first statement is made, but not detailed, it's still an outrcy. - The subsequent, more detailed statement will not be admitted. |
|
|
Texas Oral Confession Statute |
No statement of an accused made as a result of custodial interrogation shall be admissible unless it is recorded in some manner.
Nothing precludes the admission of a statement in open court, before a grand jury, res gestae of the arrest/offense, a voluntary statement that has bearing upon the credibility of the accused as a W. |
|
|
What is an opinion? |
An inference drawn from facts. |
|
|
Opinion Testimony by Lay Witnesses |
*Often allowed to determine testamentary capacity – it's helpful to hear from someone who knew someone before and after;
We let a witness do what jurors normally do when somehow the jury doesn't have the requisite knowledge and the witness's knowledge would be HELPFUL to the jury. |
|
|
Testimony in the form of an opinion is limited to one that is: |
- Rational and based on the witness's perception (PK); - Helpful to the jury; - Not based on scientific, technical, or other specialized knowledge (Not an Expert Opinion, Federal Rule, but applies in TX)
|
|
|
What kinds of opinions are lay opinions? |
Appearance of a person or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences. |
|
|
Requirements for Expert Testimony |
1. Qualified; (To form an opinion or otherwise); 3. Helpfulness; 4. Factual Basis: (Experts are permitted and often mostly base their opinions on second-hand facts); 5. Reliability; |
|
|
Experts may be qualified on the basis of: |
Knowledge, skill, experience, training, OR education. |
|
|
How is whether or not an expert is qualified determined? |
The decision is a preliminary question of fact decided by the court under Rule 104(a) - It must be proven with evidence; - That evidence comes from the witness; - You must qualify your expert as such before you get any expert opinion from him. (Ask him questions about his qualifications, in TX.) |
|
|
What other fact question arises regarding an expert's qualifications? |
The jury decides how much weight to give the expert's testimony based on his qualifications. |
|
|
Standard of Care Expert in a Suit Against a Physician |
- Must be a licensed physician; - Must be practicing medicine at the time of testimony or at the time the claim arose (includes teaching, consulting); - Knowledge of accepted standards of medical care for the diagnosis, treatment, etc. of the condition involved in the claim; - Qualified on the basis of training or experience to offer an expert opinion.
|
|
|
Standard of Care Expert in a Suit Against a Healthcare Provider |
Person doesn't have to be a physician. Physician might be familiar with the standard, but it could be anyone familiar with it. |
|
|
Causation Expert in a HC Liability Claim |
Must be a physician to be qualified to opine on cause - whether the claim is against a physician or non-physician.
Causation is always a medical question. |
|
|
What does "helpfulness" mean in the context of expert testimony? |
Is the opinion helpful to the jury? 1) Is the expert helping the jury decide something or understand the evidence better?
2) If the subject matter is within the common knowledge of lay people, does the Expert's knowledge add "precision and depth?" |
|
|
Factual Basis of Expert Testimony |
To be an admissible opinion, both the facts and the specialized knowledge must be sufficient. You'll usually know whether facts are sufficient because science will tell what facts are necessary. |
|
|
Three Ways an Expert May Acquire a Factual Basis |
1. Those perceived by the expert (PK); 2. Those made known to the expert at the hearing. (I.e., Expert listens to live testimony or hypothetical questions.) 3. Those made known to the expert before the hearing. |
|
|
Are experts subject to the rule? |
Could potentially fall under the essential presence exception; Burden rests with the party seeking to exempt an expert to establish that the witness' presence is essential; Show that an expert needs to be present "to form his opinions based on more accurate factual assumptions." |
|
|
What are the rules regarding hypothetical questions and expert testimony? |
- An expert can given an opinion before testifying to facts; - Facts do not have to be in evidence yet but you must get them in later;
(This rule gives you flexibility in your order of proof, but if a key fact is left out the opinion might be inadmissible.) |
|
|
What do you need to do if your expert is going to rely on a fact that is not admissible or not admitted? |
You need to lay the predicate that it's the type of information relied on by experts in the field. - "Reasonably relied upon" can end up being a whole hearing outside the presence of the jury.
|
|
|
Since you are permitted to tell the basis to the jury, does that extend to inadmissible information? |
Federal: "Shall not be disclosed unless..." - Burden is on the proponent to show that probative value substantially outweighs the prejudicial effect. Prejudice is that resulting from the potential misuse of the information by the jury for substantive purposes.
State: "Shall exclude if..." - Burden is on the opponent to show prejudice which means risk of use for a purpose other than explanation of the expert opinion. |
|
|
Is there a middle ground between the Texas Rule and the Federal Rule on inadmissible factual bases? |
Yes. You permit the expert to state the basis without providing the details of what it is. |
|
|
Learned Treatises |
- Published treatises, periodicals, pamphlets on subject of history, medicine, or other science/art; - Established as reliable authority by testimony or admission of the witness, other expert testimony, or judicial notice; - Called to the attention of an expert witness upon cross examination; OR Relied upon by an expert in direct examination; - Be read into evidence but may not be received as exhibits. |
|
|
When we say "Daubert" and "Reliability" what portion of 702 are we talking about? |
We are talking about (c) and (d); (c) Product of reliable principles and methods; (d) Expert has reliably applied the principles and methods to the facts of the case.
We are not talking about qualifications and we are not talking about any other part of 702. All of this is about KNOWLEDGE. If it's not knowlege, then we shouldn't be applying it to the facts of the case. |
|
|
What is the "Twilight Zone?" |
It's the time between ipse dixit and general acceptance. |
|
|
What was the Frye test for reliability? |
The scientific principle of discovery must be sufficiently established to have gained general acceptance in a particular field. |
|
|
What are the Daubert Factors for Reliability? |
1. Whether the technique has been tested or can be tested; 2. Whether the technique has been subject to peer review and publication; 3. Known potential rate of error; 4. General acceptance. |
|
|
What are the Robinson Factors for Reliability? |
1. Non-judicial uses; 2. Extent to which the technique relies upon the subjective interpretation of the expert; |
|
|
What are the Kelly Factors for Reliability? |
1. Qualifications of the expert; 2. Availability of other experts to test and evaluate the technique; 3. Clarity with which the underlying scientific theory and technique can be explained to the court; 4. Experience and skill of the persons who applied the technique on the occasion in question. |
|
|
What is the Scope of the Daubert Reliability Test? |
In Kumho, SCOTUS made it clear that the Daubert factors may or may not apply to every case. - The test is RELIABILITY and it is the RELIABILITY test that applies to ALL expert testimony. - However, what factors are used to determine reliability depend on the facts of each case. It's up to the TJ to do that as the "gatekeeper."
|
|
|
Reliability Determination is a Two-Step Process |
1) What are the applicable factors? 2) Application of the factors to the case. |
|
|
Where does one get reliability factors for experts? |
- Look to your experts to testify as to how to determine reliability in that field. - Look to the field to provide the court with evidence of how individuals in that field judge the reliability of their field. - Argue based on that evidence. |
|
|
Procedural Considerations for the Reliability Test |
- This is a decision for the TC under Rule 104; - Burden of persuasion is preponderance of the evidence (except in criminal cases, in which it's c/c); - Proponent of the expert testimony bears the burden. Objecting party doesn't need to prove anything; - Standard of review on appeal is abuse of discretion (even on SJ motions). |
|
|
Analytical Gap |
"Court may conclude that there is simply too great an analytical gap between the data and the opinion proffered."
Blurs the lines between the two types of no evidence challenges. |
|
|
Challenging "Conclusory Opinions" |
No evidence challenges because the expert stated a conclusion and reasons but data or method are unreliable. —> Requires an Admissibility Objection
Bare Unsupported Conclusion "No Evidence Challenge" —> Can be Raised for the First Time on J.N.OV. |
|
|
Can a court take judicial notice of the reliability of an expert opinion? |
Yes. SCOTUS anticipated this and blessed it.
However, there are limitations to when it's appropriate. |
|
|
Opinions on the Ultimate Issue |
You cannot ask pure questions of law and you cannot ask for a legal conclusion.
Don't do it. Use the factual elements instead.
Exception: You can ask about things like intent in a criminal trial. |
|
|
Proabability Standard |
Experts opinions that testify beyond a jury's knowledge must be based on a reasonable [medical, etc.] proabability.
This is a question of sufficiency instead of admissibility.
Don't object when someone doesn't do this. |
|
|
What is the problem with character evidence? |
The "peril to the innocent."
Juries believe it's more relevant than it is. |
|
|
Propensity Rule |
Rule AGAINST character evidence.
Evidence of a person's character is not admissible for the purpose of proving action in conformity therewith on a particular occasion.
THEN, there are exceptions. Boy, are there exceptions! |
|
|
Exceptions to the Propensity Rule |
1. Character of the Accused 2. Character of the Alleged Victim 3. Character of a Witness |
|
|
What is Character? |
A generalized description of a person's disposition with respect to a general trait.
|
|
|
Important Considerations for Character Evidence |
- Character trait itself (from which you can infer conduct); - The purpose for which it's offered; (Propensity is not ok.) - Method of Proof (Reputation, opinion, SIC). - Timing (Direct, Cross, Redirect, Case in Chief, Rebuttal) - Jurisdiction (State or Federal) |
|
|
Character of the Accused |
An exception to the propensity rule. - D may offer (once they open, anyone can go through it)... - Evidence (Reputation W/Opinion W)... - Of a pertinent trait of character
If defendant invokes, the prosecutor can rebut with the same. Can cross defendant, can ask "have you heard" of Rep/Op W. |
|
|
Can the state put the defendant's character into issue by its own cross examination? |
No! They cannot use cross-examination to transform a witness into a character witness. |
|
|
How are "have you heard" questions limited? |
- Relevance - Limiting instructions - Good faith basis (You can't just make stuff up.) - Must take the answer - Rule 403 applies (From of the question is not as important.) |
|
|
Reputation Predicate |
- Acquaintance with a defendant - Community in which they lived; - Circles in which they moved; - Reputation as to specific character trait. |
|
|
Opinion Predicate |
- Familiarity with defendant; - Familiar enough to form an opinion about a specific character trait? |
|
|
Character of the Alleged Victim |
"D may offer..." (State can't go first.) (Generally only applies to self defense. In TX, this provision can only be used in self defense cases.)
"Prosecutor may..." - Cross the Character W - HYH Questions - Offer rebuttal evidence about V's character - Offer a character W's testimony about D. |
|
|
Character of the Witness |
May be attacked by any party |
|
|
Character of the Alleged Victim in Homicide Cases |
Prosecution may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
Call a character W to say that V is not the kind of person that would have started the fight.
|
|
|
Character of the Witness |
Rule 607 - Character can be attacked by any party;
Rule 608 (a) Opinion and reputation testimony can be attacked with another witness; (b) SIC can be inquired into on cross examination. |
|
|
Conviction of a Crime |
If conviction of a crime and impeachment of truthful character are your goals, 609 is your rule.
It is limited to attacks on [character for truthfulness (Fed)/credibility (Tex.)]. |
|
|
Types of Crimes that can be used on Impeachment in 609 |
1) Serious Crimes (Maximum Possible Punishment)/Felony 2) Criminal lying/Misdemeanor Involving Moral Turpitude |
|
|
Remote Convictions Calculation |
609 (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence is only admissible if (403 test), notice. |
