Tre V. Fre Evidence

Front 1

Objection to preserve error

Back 1

FED: if the objection is made at hearing in limine, it does not need to be made again when the issue comes up at trial.

TEX: even if objection is made at hearing in limine, it must be made again when the issue comes up at trial, or else the error is not preserved for appeal.

Front 2

Offer of Proof

Back 2

FED: Court's discretion whether a question and answer style offer is required.

TEX: Court's discretion, but also required if a party requests it.

Front 3

Plain Error

Back 3

FED: Plain error, can occur in Criminal or Civil setting.

TEX: Called Fundamental Error, application restricted to criminal cases.

Front 4

Character Evidence in Civil Cases

Back 4

FED: Neither party may offer character evidence in a Civil case.

TEX: D may offer character evidence in a civil case in two circumstances -
1. party is accused of conduct involving "moral turpitude", can offer character evidence in rebuttal OR
2. party is accused of assaultive conduct, can offer evidence of Victim's assaultive character.

Front 5

Prior Acts or Crimes offered as proof of element other than character (motive, intent, preparation, plan, knowledge, identity, or absence of mistake)

Back 5

FED: admissable upon evidence sufficient to support a finding by a preponderance that the D committed the act.

TEX: requires evidence sufficient to support a finding beyond a reasonable doubt that the D committed the act (i.e. if he were on trial, it would at least go to the jury).

Front 6

What opens the door to Prosecution offering character evidence against the accused?

Back 6

FED: Either, D opens the door by introducing character
OR, D opens door by giving evidence of pertinent trait of the victim
In either case, Prosecution must restrict character evidence to the trait introduced by D.

TEX: Same, except does not provide for Prosecution introducing evidence of same trait of D's character in response to evidence about victim's character.

Front 7

Character witness' familiarity with accused

Back 7

must have been familiar with either reputation or underlying facts on which opinion is based prior to:

FED: day of the arrest for the offense.

TEX: the day the offense was committed.

Front 8

Perjury Evidence

Back 8

FED: Even if otherwise protected, statements made by D under oath, on the record, and in the presence of counsel are admissible against D in a Criminal proceeding for Perjury or False Statement.

TEX: No equivalent exception

Front 9

Admissibility of Pleas

Back 9

FED: D's prior plea of Nolo Contendre is not admissable

TX: In a Criminal proceeding, a prior plea of Nolo Contendre is admissable.

In FED and TEX: pleas of Guilty or Nolo Contendre are not admissible if they were later withdrawn

Front 10

Relevance of Victim's past sexual behavior in criminal case

Back 10

FED: not admissible on any Criminal proceeding involving sexual misconduct, except:
1. if necessary to prove another person, not D is source of semen or other physical evidence
2. evidence of other sexual behavior toward D to prove consent, or if used by the prosecution, OR
3. exclusion would violate constitutional rights of D

TEX: inadmissability limited to prosecutions for sexual assault (incl. attempts)
Additional exceptions in Texas:
1. relates to motive or bias of victim
2. is admissible under Rule 609, evidence of past conviction used to impeach witness

Front 11

Past Sexual behavior of Victim in Civil cases

Back 11

FED: evidence inadmissible
it meets stricter balancing test: probative value Substantially outweighs danger of harm to any victim and of unfair predjudice to any party
Also victim must open the door for reputation - evidence of alleged victim's reputation is admissable only if it has been placed in controversy by the victim.

TX: no particular rule on inadmissibility of past behavior of victim in civil cases. Probably would be generally excluded under 404.

Front 12

Specific Act Evidence against D charged with Sex Offense

Back 12

FED: exception to general rule, prior acts of sexual assault of molestation may be offered against D whenever relevant, including to show character.
Note: prosecution must give D notice it is going to use this evidence.

TEX: no corresponding rule, limited to prior act of molestation against same child by D.

Front 13

Spousal Privilege

Back 13

Slightly different exception:

FED: prosecution for a crime against any child or household member of one of the spouses

TEX: prosecution for a crime against any minor child

Front 14

Physician Patient and Psychologist Patient

Back 14

FED: Broad Privileges

TEX: Narrower Privileges
only available in civil proceedings, except in course of voluntary drug or alcohol treatment

Front 15

Competency

Back 15

FED: no requirements of competency. However judge can exclude testimony on basis of relevancy.

TEX: mentally insane adults or young children can be found incompetent by the court.

Front 16

Dead Man's Rule

Back 16

FED: no Dead Man's Rule

TEX: In Civil actions by or against executors, gaurdians etc., neither party can testify to statement of intestate or ward, unless the testimony is corroborated or unless the witness is called at the trial to testify thereto by the opposite party.

Front 17

Juror as Witness

Back 17

In both Juror can testify to outside influence

FED: also can testify as to whether extraneous prejudicial information was brought in

TEX: juror can testify to rebut a claim that he/she was not qualified to serve.

Front 18

Evidence of Character and Conduct of Witness

Back 18

FED: acts other than crimes bearing on witnesses character for truthfulness cannot be proved by extrinsic evidence;
Also, by testifying, witness does not waive self-incrimination rights as to specific instances of conduct relating only to his/her credibility.

TEX: acts other than crimes may not be inquired into

Front 19

Impeachment by Evidence of Prior Conviction - Types of Crimes

Back 19

FED:
Can use Felony or Crime involving Dishonesty or False Statement

TEX:
Felony or Crime involving Moral Turpitude
Cant use crime if probation was satisfactorily completed, or conviction is on appeal.

Front 20

Impeachment by Evidence of Prior Conviction - Balancing Test

Back 20

FED: requires balancing test for felonies, strict balancing test when witness is the accused.

TEX: requires strict balancing test for any past conviction

Front 21

Cross Examination Scope

Back 21

FED: restricted to subject matter of the direct examination OR matters affecting witness credibility. Court can expand at its discretion.

TEX: Wide open cross examination

Front 22

Writing Used to Refresh Memory

Back 22

FED: Adversary may inspect the writings witness uses BEFORE TESTIFYING (rather than during)used only if court determines it is necessary in interests of justice

TEX: In Civil cases, same as Fed.
In Criminal cases, adverse has right to examine materials used by witness, even before testifying.

Front 23

Foundation Requirements for Impeaching Witness with Prior Statements

Back 23

FED: no requirement to tell witness contents, time or place of prior statement. On request prior inconsistent statement will be shown to opposing counsel.

TEX: Witness must be told the contents of the statement and the time/place it was made, (Foundation)

Front 24

Extrinsic Evidence to Prove Prior Inconsistent Statement

Back 24

FED: If matter is not collateral, it can be offered as long as witness has opportunity to explain or deny at some point.

TEX: only allowed after witness unequivocally denies making the prior statement (and only if matter is not collateral).

Front 25

Court Calling and Questioning Witnesses

Back 25

FED: court can call witnesses, and it can interrogate these witnesses or those called by either party on its own motion or at the suggestion of a party.

TEX: does not have a rule allowing this.

Front 26

Witnesses that may not be excluded from hearing testimony

Back 26

In TEX, also:

party's spouse in a civil case

limits exception officer exception in criminal cases to allow state's "case officer" to be excluded.

Front 27

Bases of Expert Testimony

Back 27

FED: otherwise inadmissible facts or data shall not be disclosed or inferred to jury by expert unless their value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect

TEX - less strict balancing test:
court will exclude otherwise inadmissible facts or data if
1. they are unfairly prejudicial OR
2. danger that they will be used for a purpose other than explaining or supporting expert opinion outweighs their probative value for this purpose.

Front 28

Expert Opinion on Ultimate Issue

Back 28

Generally testimony will not be excluded because it embraces an ultimate issue to be determined by the trier of fact.

However, FED rule holds that no expert witness testifying with respect to the mental state of criminal D may state an opinion as to whether D had mental state required for element of a crime charged or a defense.

Front 29

Voir Dire on expert testimony

Back 29

FED: no rule

TEX: In Criminal case, adverse party shall be permitted to conduct a voir dire examination re underlying facts, prior to expert giving opinion or disclosing underlying facts,
In Civil case, Party may be permitted to do so at court's discretion.

Front 30

Out of Court Statement Offered to Prove Matter Implied

Back 30

FED: out of court statement offered to prove a matter implied by the statement is NOT hearsay

TEX:out of court statement offered to prove a matter implied IS hearsay

Front 31

Prior Inconsistent Statement as Non-hearsay

Back 31

FED - grand jury ok

TEX - explicitly excludes grand jury testimony

Front 32

Depositions as Non-hearsay

Back 32

FED - no specific rule

TEX - in Civil cases, depositions from same proceeding are not hearsay, even if witness is available

Front 33

Hearsay Exception for Judgment of a Previous Conviction

Back 33

FED - 1. can still use even if appeal is pending

2. only allows judgement of felonies to be admissable, and only if D did not plead nolo condendre

TEX - 1. cannot use if an appeal is pending

2. In Criminal proceedings - allows judgment of any crime and includes convictions on pleas of nolo contendre.
In Civil proceedings, only felonies, and not those where D pled nolo contendre.

Front 34

Hearsay Exception for Statement against Interest - Availiability

Back 34

FED - requires that declarant be unavailable

TEX - no requirement of unavailiability

Front 35

Hearsay Exception for Statement against Interest - Statements that Qualify

Back 35

FED -
against money or property interests OR
tended to subject declarant to criminal or civil liability

TEX:
two fed exceptions, plus - make declarant an object of hatred, ridicule or disgrace.

Front 36

Former Testimony from Different Proceeding Hearsay Exception

Back 36

FED - requires that witness be unavailiable for trial

TEX - not just at trial, but could not be deposed as well

Front 37

Dying Declaration Hearsay Exception

Back 37

FED: Exception only applies for homicide cases and Civil cases, not other Criminal proceedings

TEX: Exception applies to all cases

Front 38

Residual Exception

Back 38

FED: hearsay that does not come in under any exception is allowed if it is
A) offered as evidence for material fact
B)more probative on the point than any other availaible evidence
C) purpose of rule and justice advanced by inclusion
D) notice is given

TEX: No stupid residual exception

Front 39

Authenticating by Comparison

Back 39

FED: can be established by comparison with specimens that have been authenticated (i.e. to be supported by evidence that wouldbe sufficient to support a finding of genuineness)

TEX: (higher standard) can be established by comparison to specimens that have been found by the court to be genuine.

Front 40

Admissability of other Evidence than Original

Back 40

TEX: excuses non-production of original when document is located outside Texas.

Front 41

Silence as an adoptive admission in criminal cases

Back 41

FED: post arrest silence of accused who has not received Miranda warnings can be used

TEX: Post arrest silence can't be used regardless of whether accused was read his rights

Front 42

Statement against interest that tends to expose the declarant to criminal liability

Back 42

FED: must be corroborated by evidence clearly indicating trustworthiness if offered to exculpate D

TEX: must be corroborated regardless if it is offered to exculpate or inculpate of D.

Front 43

Presenting extrinisic evidence of Bias to impeach a witness

Back 43

FED: as long as witness can be re-called, so they hae opportunity to admit or deny at some point, extrinsic evidence can be presented


TEX: Other party must lay a foundation on cross, give time, place, person, substance, and then give the witness an opportunity ot admit, deny or explain. If the witness unequivocally admits the bias, no extrinsic evidence can be presented.

Front 44

If one side uses an otherwise privileged writing to refresh a witness' recollection during testimony, do they lose the privilege on the remainder of the document, or just the portions that were actually used to jog the witness' memory?

Back 44

FED: takes generous view of allowing parties to use the writing and only waive privilege to the parts used, rather than the whole doc.

TEX: Single document rule - the entire document becomes unprivileged if any significant part of it is disclosed.

Front 45

can an unknown eavesdropper to a confidential spousal communication testify to its contents?

Back 45

FED: Yes, the privilege remains intact, but it does not bind outside parties (unlike Attorney-Client)

TEX: No, if there was reasonable expectation of privacy.