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Intro (10102, 614)

1) Reasons for Evidence Rules


a) Insure that only reliable, trustworthy evidence is admitted.
b) Imposes important limits on scope and duration of trials (like relevance)
c) Reflects some mistrust of ability of jurors to disregard untrustworthy evidence or place too much weight.
d) Extrinsic policies (A/C confidentiality, privileges between husband and wife, etc.)
2) Sources of Law 4th/5th/6th and exclusionary rules / Statutes (like that creating FRE) / CL
3) FRE Effective 1975. 34 states (plus PR and military). Texas (civil 1983, crim 1985). Unified in 1998.
4) TRE TSC may promulgate rules AND repeal statute. BUT if legislature acts after TSC, new statute wins.
a) NOTE: When FRE is adopted, it is interpreted according to plain meaning, even if contrary to prior TX law.
i) BUT if possible to interpret either way, likely to conform to prior TX law.
5) TRE 101 Scope Apply in all civil/criminal except small claims, GJ, etc.
a) Hierarchy US Con, Fed Statutes, TX Con, CCP/penal code, civil statues, these rules, and CL.
6) TRE 102 Construe for admin fairness, efficiency, develop E law towards truth/justice. Tool for interpretation.
7) 1.6 Flow of a Typical Trial Review Chart
a) Pretrial Conference/Motions Selection of Jury/Bench Trials Sequestration of Witnesses Opening
Statements Ps case-in-chief Directed verdict (if applicable) Defense Case in Chief P moves for
DV Ps Rebuttal (limited to that presented by defense) Closing Charge Deliberations Verdict
b) On Jury Charge Gives substantive law, evidentiary rules, voting procedures.
i) Specific types of instructions: Admissibility, corroboration, cautionary, limiting, curative, sufficiency.
8) TRE 614 Exclusion of Witnesses (The Rule).**
a) Rule: At party request (OR sua sponte) court SHALL order Ws excluded so they cant hear T. Except:
i) 1. Party who is natural person (non-corporation), OR if civil, a spouse; (Spouse not in FED).
ii) 2. Representative of corporation designated by attorney.
iii) 3. Person whose presence is shown to be essential to presentation of partys case (e.g. SW).
(1) Burden Resister of 614 exclusion must show T ineffective without hearing other T.
(2) Experts NOT automatically exempted; must show they are essential. Alt. show them transcript.
iv) 4. Victim in criminal, unless V will T and court finds T will be materially affected by hearing other T.
(1) Step 1: WILL, not might, be affected. Step 2: Is the issue material?
(2) Also includes close relative of deceased victim / guardian of a victim.
(3) FED vs. TX 4) is by statute in FED. Result is the same.
b) Justification - Mutual influence, jury opportunity to detect inconsistencies.
c) Does not apply pretrial or preliminary matters (Voir dire, etc.)
d) Criminal Still have right to public trial must articulate reason on record for excluding friends.
i) Presence must be harmful. AoD standard for TC.
e) Instructions Dont converse with others.
f) Civil If W remains after rule invoked, STILL may be rebuttal W if parties didnt realize necessity.
g) Violations - Contempt (either witness or lawyer), exclude testimony (though never sworn), jury instruction
i) Exception Def. witness in criminal Constitutional concerns militate against W DQ. Factors:
(1) 1. Particular and extraordinary circ. show D or Ds attorney consented/connived/etc.?; 2. T crucial?
ii) If witness totally excluded, cant tell jury.
h) NOTE: Judges are sparse in providing rationale due to fear of commenting on the evidence.
9) FRE 614 (NOT in TRE). Judge may call or interrogate any W (party may cross)
a) Key - In order to disclose the truth and administer justice:

Rules of Completeness (10607)


1) TRE 106. Remainder/related writings * If writing/statement/depo (or part thereof) introduced by party
a) Adverse party may (at that time) intro other part OR W/S which should fairly be considered contemp.
i)

Why not introduce originally? Other part may in inadmissible or irrelevant.

ii) Rationale: Allows chance to cure false/misleading impressions.


iii) May trump hearsay rule. More of a timing rule; may interrupt to introduce.
b) FED (you can make opponent introduce) vs. TX (introduce yourself when objecting). (note- NOT in 107).
2) TRE 107 Optional Completeness* - If part of E introd other party may inquire into whole on same sub.
a) ANY other E NECESSARY to make it fully understood or explain may be given into evidence.
i)

E.g. If letter read, all letters on same subject may be read.

b) Very broad scope virtually any oral/written E introduced.


c) Requirements: 1. actually introd; 2. on the same subject OR necessary to make it fully understood.
d) Bypasses competency, hearsay, etc., BUT rule 403 (probative vs. prejudice) still applies.
e) 107 is admissibility rule; 106 is the timing rule.

Witness Examination (602, 611)


1) General Progression Call Ws, non-leading direct. Opponent cross and impeach, leading. Proponent clarifies.
2) TRE 602 *** Lack of Personal Knowledge (Link to 601).
a) Rule: Witness cant testify unless E introduced sufficient to show personal knowledge of matter.
i)

Such evidence may consist of witnesses testimony. (BUT 703 expert exception).
(1) PK inferred absent showing to the contrary.

b) CL elements of competence are basis for PK. Perceive/remember/communicate/truthfulness.


c) Process 104(b) - 1. Judge Enough for rational juror? 2. Jury makes final decision.
i)

Voir Dire Opponent may conduct brief VD to probe PK before judge rules.

d) Inferences - Rational and reasonable conclusions and inferences based on Ws perceptions = admissible.
e) Objection This is pure speculation by witness Motion to strike necessary to preserve error.
f) Note Cant ask 1 W if another is lying.
g) Connection 703 E need not have personally perceived if fact/data driven and R relied on.
h) Connection Hearsay e.g. 602 satisfied by I know only what I heard from Mrs. Smith, but this is still HS
i)

Connection 805 Distinguish PK of W from PK of hearsay declarant.

3) TRE 611(a) - ** Mode/Order of Interrogation - Court exercises R control over mode &order of Ws/E pres.
a) Purposes 1) ascertainment of truth; 2) avoid needless consumption of time; 3) protect W
b) E.g. O.J. Simpson trial called defense witness out of order
c) Appellate review TC conduct judged by AoD standard.
d) Questioning by Jurors? Criminal TX Never. FED OK.
i) Civil TX Sometimes may ask Q submit to judge after direct/X, judge reads to parties; may approve.
4) TRE 611 (b-c) ** - Form and Order of Questioning (note FRE provides even more broad discretion).
a) Direct Examination No leading Qs except as necessary to develop Ws T (balancing test).
i)

as necessary e.g. if W is scared, etc. Also fine in ALL preliminary matters.

ii) Type of Qs - Who, what, where, why to avoid leading. (object to preserve error on leading Qs).
(1) Unanswered leading questions are not evidence, instruct jury to disregard
iii) Hostile Witness May lead hostile witness on direct. E.g. prosecution calls Ds witness first.
b) Cross Examination Lead any witness except friendly.
i)

Leading questions permitted on: TX ANYTHING logically relevant; Fed ONLY issues from direct
(1) LQ Suggests desired answer; assumes facts unsupported or disputed by evidence.

ii) Credibility TX Yes, FED No. Why? Allows: 1) W to ID with community & bolster rep for truth;
2) jury assess W credibility; 3) elicits facts showing W biased or T false.
iii) D in Criminal Case - CC issues cannot limit Ds right to cross too much.
(1) When can D T without CX? Preliminary hearing OR attack voluntariness of confession or MtS.
(a) BUT If D testifies at guilt/innocence or punishment stage, D subject to wide-open CX.
iv) Preserving Error If CX denied CXing party makes timely OOP; show what D would have said.
v) If D doesnt answer? TC MAY allow state comment or impeachment, instruct jury to consider refusal,
or strike Ds direct testimony.
vi) Redirect and recross Discretionary. Redirect (only what was in cross). Recross (only redirect).

Role of the Participants (10305)


1) Role of the Proponent
a) Pretrial Judges love using pretrial early: saves times, no interruptions at trial, etc.
i) Motion in limine Advance ruling on evidence; NOT sufficient to preserve error must object at trial.
(1) If judge rejects objection need to make an offer of proof.
(2) Process - limine order, proponent violates, opp. objects & claims mistrial, contempt, other remedy.
(3) Always have order ready to sign.
ii) Motion to suppress Need not renew objection at trial; May be appealed; Judge need not hold hearing.
iii) Compare: MiL offer objectionable E away from jury; MtS specialized con. exclusion hearing.
b) Direct and redirect Governed by 611
c) Laying foundation or predicate Burden on proponent; use sponsoring, predicate, or foundation witness.
i) Procedure Walking and Talking.
(1) 1. Mark Show to Judge, Opposing Counsel, Witness.
(a) We request this exhibit be marked as for identification.
(b) Ask if opponent or judge wants to see. (Is this is the same I saw in discovery?)
(c) Let the record reflect that I am showing what has been marked as to opposing counsel.
(d) Show to witness.
(2) 2. Lay foundation or predicate Prove Up Establish all elements on found. with nonleading Qs.
(a) Do you recognize this? What is it? How do you know that?
(3) 3. Formally offer into E Your honor, we offer into E what has been marked as X for ID.
(a) This is the time to object. Anticipate objections.
(b) Court reporter changes marking to exhibit from ID
(4) 4. Show or read the exhibit to the jury Sometimes called publishing the exhibit.
d) Offer of Proof If judge excludes E, proponent should make an offer of proof to preserve issue for appeal.
2) Role of the Opponent
a) Pretrial MiL/MtS as above (MtS may be appealed, judge need not hold hearing).
b) Voir Dire of Witnesses Question W on competence (601) or personal knowledge (602), especially experts.
i) Out of order questioning thus subject to trial courts discretion. Schlueter Premature CX.
c) Specific/timely objections Every time objectionable evidence is offered. Failure is normally waiver.
d) Motion to Strike If proper question improper answer. Object, move to strike, instruct to disregard;
e) Limiting Instructions Request per FRE 105
f) Cross Examination American rule (FRE) Direct topics / English Rule (TRE) Anything relevant.
3) Role of the Judge
a) Role: Q of L, qualification of witnesses, Admissibility, preliminary determinations of fact, judicial notice
i) Question of law What is the applicable law and how does it apply?
b) Pretrial Limine (note: not final) and motions to suppress. Advantage Avoids mistrial.
c) Witness Qualifications Trial court decides competency/expert under 702
d) Privilege A/C, etc. Decide whether evidence is excluded if it qualifies.
e) Final determination on admissibility: 104(a), subject to 104(b) relevance, character evidence, hearsay, etc.
f) Preliminary Screener Relevant conditions of fact Did P produce E to convince rational juror by PoE.
g) Judicial Notice May take judicial notice of facts and instruct the jury. Speeds things up.
4) Role of the Jury
a) Jury decides facts of the case Is there sufficient evidence to prove alleged offense or CoA.
b) Determine what weight, if any, should be given to the admitted evidence (e.g. credibility & T of Ws).
c) Determine relevant conditions of fact Authenticity, personal knowledge
d) Jury nullification May ignore law, ignore judge, etc.
5) TRE 103. Rulings on Evidence - ****
a) RULE: No error for admitting/excluding E UNLESS 1) substantial right affected; 2) obj.; 3) OoProof

i) Basic req. Must preserve error to obtain COA relief. Burden to object on counsel
b) Substantial right? Go through harmless error analysis. Deferential AoD standard. Instruction may cure
c) Objection. - Specific, timely objection appears on record.
i) Specific General is no objection at all. Protects judges and insulates appellate from additional work.
(1) Explain why specific aspect of E requires exclusion UNLESS clear from record.
ii) Timely If Q asks for inadmissible, object before answer. Answer inadmissible? obj, move to strike,
105. If physical/doc evidence when offered.
(1) Rationale Allows for timely correction, informs COA of issues.
(a) Prevents counsel from gambling on the trial result. Strategy is not a good enough reason.
(2) Exceptions:1) Objectionability evident later in trial; 2) less of issue for bench trials; 3) Novel claims.
iii) Waiver Explicit No objection. Implicit silence, introducing E, failure to renew earlier objections.
iv) Doctrine of Curative Admissibility Intro similar E to rebut or explain objected-to-inadmissible E
(1) Rationale: Shouldnt have to treat admission of inadmissible as harmless
(2) MUST make clear on record (away from jury) that opponent introduces to rebut, and does not waive.
v) Running objections Court has discretion on admission; ask ahead, be specific. When in doubt, repeat.
vi) Object consistently and persistently.
vii) Objections of different types: Objecting to one types doesnt preserve for another types
(1) E.g. cant object to lack of reliability in expert T, then object to lack of qualification on appeal.
d) Offer of Proof (bill of exception, filed afterwards, is procedural equivalent) For E error, say OoProof.
i) Timing Soon as practicable; MUST be before charge.
ii) Contents ID substance of excluded E for record (what would E have shown), unless apparent from
con.
iii) Purpose - Resolves doubts about the evidence that would have been given.
iv) Key: Appellate court must be able to reasonably determine the substance of the evidence excluded.
v) Method 1: Informal Speak with judge and read into the record; on sidebar or break.
vi) Method 2: Formal Q and A TC MAY do this; MUST on request. (Jury is excluded)
vii) Court may add comments - E.g. Let record reflect that each Q was followed by 30 seconds of silence.
viii)
Benefit - Serves to allow judge to reconsider and inform appellate court.
ix) NOTE: Preserve error in Texas, preserve claim of error everywhere else.
e) Hearing of Jury. Keep inadmissible (OoP hearing, etc.) away from jury hearing to extent practicable.
f) Fundamental Error in Criminal. COA may address even if not raised to attention of court. (FRE PE)
g) Vs. Plain Error - Feds use often; safety net if escapes attention; unlikely if waiver/forfeiture occurs.
h) Must get ruling Otherwise no preservation of error. If judge refuses, appeal that specifically.
i) Note: You can always claim on appeal that E was insufficient without objection.
i) Waiver (Intentional relinquishment or abandonment) vs. Forfeiture (failure to timely assert right).
6) TRE 104 Preliminary Questions ** - Be able to state who decides questions under what provision.
a) (a) GR Judge decides preliminary Qs on admissibility.
i) 1. Witness qualifications (Competency 601, Expert 702)
ii) 2. Existence of privilege (involve mixed Q of fact and law is there A/C, is person lawyer, etc.)
iii) 3. Admissibility of evidence (subject to (b)).
iv) NOT bound by RoE in making preliminary determination, EXCEPT on privilege.
(1) Necessary. Otherwise wouldnt have anything to work with on inadmissible. May listen to HS, etc.
v) BoProof GR POE standard for proponent
(1) Exceptions: privilege; HS (actions assertive under 801(a)?); 403 balancing test.
vi) Exceptional Cases Jury may second guess judge on Q of whether E obtained illegally under Con.
vii) NOTE: For voluntariness of confession, judge decides the fact issue, not jury.
b) (b) R Conditioned on Fact. Logically relevant ONLY if condition is fulfilled.
i) Process Would this, if admissible, be helpful? If no, reject on 402 grounds.
(1) If yes, sufficient for rational juror to believe in the evidence by POE? Yes, admit.
(a) Not whether judge actually believes evidence.

(b) Anything novel/debatable should get out-of-court hearing. E.g. scientific.


(2) If opponent does not meet condition, opposing counsel objects and asks for instruction.
(3) Charge: May have heard E on book. If you think by POE book is authentic, give whatever weight.
ii) Conditional relevancy PK (602), Authenticity (90102), Occurrence of 404(b) Act (BRD standard).
(1) E.g. party seeking to introduce says it will be relevant when another fact is established.
(2) E.g. 404(b) Admit E of similar act if appropriate; then jury decides whether actually committed
iii) Recognizes introduction takes time (e.g. 1 W authenticates, other witness can demonstrate relevance).
c) (e) Weight/Cred. 104 doesnt stop weight/cred attacks. Jury decides how much to believe (guided by instr.)
i) E.g. If judge admits as rel doesnt mean opp cant attempt to show it is not rel or otherwise attack ad.
7) TRE 105. LIMITED ADMISSIBILITY - ****
a) (a) If admissible for one party/purpose but not another, court UPON REQUEST, SHALL restrict E to
proper scope and instruct jury accordingly.
i) TX ONLY NOT grounds for appeal unless you make request. Court may admit freely for any purpose.
ii) I.e. TC can safely admit/exclude if counsel fails to specifically offer for particular, proper purpose OR
fails to object and request 105 instruction. Burden on losing party.
iii) Connection - 403 - Limiting instruction may help in close cases.
iv) Connection 613/801 Consider PIS for credibility/non-hearsay purposes only.
b) (b) TX To preserve error for (a) exclusions proponent must have offered for limited, AD purp/party.
i) I.e. cant appeal rejection of E for limited purpose when it was not offered for that limited purpose.
ii) Basically places burden on counsel to show that multiple use E was offered for limited purpose

Competency (601, 60304, 610)


1) General Rule Competence is presumed. Competence (ability to testify) vs. credibility (believability)
a) Competence is 104(a) judge will hold hearing. Usually incompetence goes to impeachment, not DQ.
2) Common Law Competence requirements (goes more to credibility than competence)
a) Mental capacity to perceive through senses
b) MC to remember
c) MC to communicate; AND
d) Moral capacity for truthfulness.
3) TRE 601 (a) Competency and Incompetency of Witnesses *** - Presumed competent Exceptions:
a) (1) Insane persons. Insane in the opinion of the court EITHER:
i) 1. at the time when they are offered as a witness, OR
ii) 2. Were in that condition when the events happened of which they are called to testify.
iii) Prior Adjudication of insanity - Raises rebuttable presumption of incompetence.
iv) Note: Mental capacity competence; condition MUST affect CL elements to impact competence.
(1) Thus it is common to use mental infirmity to impeach credibility, rather than DQ.
b) (2) Children OR OTHER PERSONS who after court exam, appear to lack intellect to relate transactions.
i) TX (judge has discretion on children/other persons; AOD standard) vs. Fed (Presumes competence).
ii) May examine without request, even in front of jury.
iii) Note: Confusing and inconsistent testimony is not disqualifying goes to credibility.
iv) Note HS exceptions for EU, TCCP exception for abuse. Generally, if too young for comp, no HS.
c) BOTH are 104(a) decisions. Apply rules in Fed in diversity cases regarding element of C/D. DMR too.
d) Judge might also bar for lack of PK (602), confusion (403), or embarrassment (611(a)).
4) TRE 601 (b) - "Dead Man Rule" (Texas civil actions only) - *
a) GR Bars either party from Ting against others as to any oral statement by testator, intestate, or ward
i) Avoid situations where parties each have different claims on what decedent said.
b) To Which Evidence Applies ONLY to uncorroborated ORAL statement.
c) When to apply- In civil action

i) 1. BY OR AGAINST E, A, or G when judgment rendered for or against in representative capacity; OR


ii) 2. Proceeding by or against an heir or legal rep of decedent based in whole or part on oral statement.
d) To Whom - Only to the testimony of a party to the action (or person with direct/substantial interest in issue)
i) Corroboration documentary E; T of 3rd party who heard; NOT statements of other party.
e) Waiver? If opponent calls party/witness to testify; OR if they fail to object.
f) Instruction As appropriate, give jury instruction that explains DMR and why person cant testify.
g) Example A and B have contract. A makes oral statements to B. A dies before performance. B sued Exec.
i) B cant testify about Bs statement unless corroborated or E calls B to stand and asks. Converse true.
5) TRE 603 Oath or Affirmation * Before T, every witness SHALL declare by oath or affirmation to tell truth.
a) Form Anything calculated to awaken the conscience and impress on W duty to tell truth.
i) Any form of oath by judge is okay, but witness cant choose. R accommodation for free exercise clause.
b) Failure to take = DQ. Does not make one incompetent.
c) Failure to give oath is harmless error. Must object timely to prevent testimony. Can just give retroactive.
d) Triggers perjury (false testimony must be under oath).
e) Not required for Child. Really just need to understand the need to be truthful.
6) TRE 610 * Religious Beliefs Cannot use E of religious beliefs/opinions to bolster or discredit W.
a) Beliefs or opinions Thus you can address basic matters such as I was going to church
b) MiL on discussion of church probably exclude mention of beliefs, but inclusion of the other evidence.
c) May be used in order to show bias based on affiliation with particular organization.
7) TRE 604 * Interpreters No stars Interprets subject to expert qualification and oath/aff. requirements.

Judge & Jury (605, 606)


1) TRE 605 Competency of Judge as W * - Judge presiding at trial may not T as W. No obj. nec.to preserve.
a) When to apply ONLY when presiding. OK if subsequent proceedings (collateral attacks, etc.)
i) Probably doesnt apply to pretrial. (Although maybe it would apply to motion to suppress).
b) When violated? If judges statement of fact is essential to the exercise of some judicial function? No
i) BUT if it is functional equivalent to testimony by a witness? Yes.
ii) ALSO JN of facts not commonly known or verifiable.
2) TRE 606 Competency of Juror as a Witness
a) (a) At the Trial.* - Juror MAY NOT testify at the current proceeding. Subsequent proceedings OK.
b) (b) In inquiry on validity of verdict/indictment **** - Juror may not testify (or by affidavit) as
i) 1. to any matter or statement occurring during the jurys deliberations,
ii) 2. OR effect of matter or statement on jurors mind or emotions or mental processes,
iii) 3. OR jurors mental process in reaching a verdict (assent or dissent).
iv) Exception 1 - Whether any outside influence was improperly brought to bear upon any juror; or
(1) Outside influence Force external to jurors and their deliberations that affects verdict.
(a) Schlueter May require an actual attempt to influence, rather than something more passive.
(2) FRE same, but TX construes OI more narrowly. E.g. newspaper is OI in Fed, but not TX.
(3) Does OI require new trial? Q of L; Was there an OI? Q of F.
v) Exception 2 - to rebut a claim that the juror was not qualified to serve.
(a) ONLY applies to allow juror to rebut claim, not to support a claim of DQ.
(i) E.g. If juror responds to claim they concealed information during Voir dire.
vi) Exception 2 in FRE extraneous prejudicial information improperly brought to jury attention.
vii) Policy reasons for Rule Candid jury discussion, pro. from harassment; finality
viii)Note: Third person with knowledge of jury misconduct may testify. Bailiff, etc.
ix) Examples: OK foreman bullies, jurors asleep/drugged/ disregarded judges instruction, drawing straws
on votes, newspaper smuggled. NO call from family member with facts, death threat during delib.

Relevancy (401403, 407, 411)


1) Facial logical relevance Key question is WHY? 1st hurdle. Relatively easy hurdle
2) TRE 401 Definition **** - E having ANY tendency to make existence of any material fact (of consequence
to determination of action) more or less probable than it would be without the E.
a) Or: Would R person believe E helpful in determining T/F of fact? Small nudge towards proof/disproof?
b) Two Parts: Materiality (any fact of consequence) AND Probativeness (more or less probable).
c) Ultimate Q: Why is E offered? Is there a direct or circumstantial logical connection between E and prop?
i) E.g. D seen buying knife/ car at scene of crime. Direct E, but circumstantial to prop that D killed V.
ii) Question you MUST be able to answer Counsel, why are you offering this evidence?
d) Direct Evidence Direct logical connection Admit if some basis for jury to believe. Establishes prop.
e) Circumstantial Evidence Requires an inference Case by case Q Can jury make this inferential leap?
f) Appellate Review AoD standard.
g) Sentencing Phase 401 is not precise fit; no strict compliance.
3) TRE 402 * Relevant in, irrelevant out EXCEPT as in Con., Statute, Rules, or statutory rules.
a) Application 1. Admissible under 401? 2. Admission contrary to 402 limitations? Four categories
above. 3. Any other rule implicated? Such as requiring balancing test.
b) 104(a) decision for judge, unless 104(b) implicated. Error to exclude if no problems with these Qs.
4) TRE 403 **** Exclusion of Relevant E on Special Grounds 104(a).
a) Rule: E may be excluded if its probative value is substantially outweighed by the danger of 1) unfair
prejudice, 2) confusing the issues, or 3) misleading jury, or 4) undue delay; 5) needless cumulative E.
b) TEX vs. FED Fed ALSO includes waste of time.
c) Legal relevance doctrine Authority of TC to exclude logically relevant evidence.
d) Objection Failure to make specific 403 objection = waiver. More than prejudicial or cumulative.
i) Normally made after exhausting specific objections. Assumes evidence is relevant.
ii) Criminal Objection to extraneous offenses will not preserve right to appeal based on 403.
e) Balancing Test (104(a)) process for judge AOD standard (but no record required)
i) 1. ID probative value Tough. Length of logic line. Strength of inference for circumstantial.
(1) May consider need for the evidence greater demand may prove greater value.
(2) If highly relevant may get more weight. But does not exclude weak evidence.
ii) 2. ID prejudicial dangers List is apparently exhaustive. (123 focus on jury, 45 are judicial economy)
(1) Unfair prejudice Undue tendency to suggest decision on improper basis (often emotional).
(a) Capacity of relevant E to lure FF into declaring guilt on diff. grd. than proof specific to offense
(i) E.g. inflammatory, though it is not excluded just because it is inflammatory (balancing).
(b) Courts are reluctant to exclude solely based on potential prejudicial effect.
(c) Photographs Consider size, #, color/b&w, sub, detail, gruesomeness, close-ups?, Clothed?
(i) Photograph admissible if verbal description would be admissible.
(ii) Availably of alternative means of proof?
(d) Decent gauge Would 105 instruction be effective? If not, probably exclude.
(2) Confusion of Issues E collateral to issues at hand (especially with impeachment E).
(a) Just because it is confusing does not mean exclude it.
(3) Misleading the jury Jury would give too much weigh (thus less weight in bench trial).
(a) Distinguish from confusion. E.g. evidence of past accident may not confuse, but may mislead.
(4) Undue Delay AND 5. Cumulative Evidence Avoid needlessly cumulative
iii) 3. Weigh one against other - Cost-benefit analysis. Key is substantially outweighs.
iv) Burden On OPPONENT of E to show balance tips towards exclusion.
v) Focus is on effect on trial; judge will consider efficacy of 105 instruction.
vi) Appellate Review of Balancing AoD standard. (BUT judges are coy on reasons comment on E).

5) TRE 411 Liability Insurance****


a) GR: No E on liability insurance is admissible on issue of acting negligent or otherwise wrongfully.
i) Exceptions: E offered for another issue
(1) If disputed - proof of agency, ownership, or control, (non-exhaustive list)
(a) Note Counsel may stipulate to remove in dispute
(b) E.g. Company denies person works for them. P introduces E they paid for drivers insurance.
(2) Whether or not disputed - bias or prejudice of a witness. E.g. E that W dislikes insurance company.
(3) Key is there independent/logically relevant reason for introducing?)
b) Exclusion Rationale: Weak logical relevance (more or less careful?); Jury may decide on ability to pay.
c) When to apply ONLY for liability insurance. Thus property, etc. is excluded.
d) Nonevidentiary? Generally may mention insurance on VD, but not to educate on liability insurance.
6) TRE 407 Subsequent Remedial Measures; Notification of Defect ****
a) 1. AFTER injury/harm allegedly caused by event; 2. measures taken that would make injury/harm less
likely; 3. E of these SRM NOT admissible to show neg., culpability, defect, need for warning.
i) Exception If introduced for another purpose (nonexhaustive)
(1) If controverted ownership, control, feasibility of precautionary measures. Anytime Impeachment
(2) E.g. D denies ownership, P shows evidence D repaired machine after events. Controverted.
b) Rationale: Little logical relevance, should encourage fixing without fear of use against a party.
c) Application: Often design, but could include any actions that would have lessened harm (policy change).
d) Is it remedial? Greater distance in time or circ. between injury & remedial measure is weaker connection.
i) If actions are not remedial, dont apply. Could exclude under 401 as irrelevant; 403 as unfairly prej.
e) Timing Key moment is date of injury or harm. Thus if fix occurs after manufactured, but before P is
injured, it is admissible. E.g. Market explodes after manufacturer recognizes flaws and fixes.
f) Response MiL, argue 403, if not get 105.
g) TX ONLY Recall notice admissible on EXISTENCE of defect to the extent relevant.

Pretrial compromise (40810)


1) TRE 408 Compromise and Offers to Compromise ***104(a)
a) Rule: Statements from negotiations/ADR/etc. on a claim DISPUTED as to validity or amount is NOT
admissible to prove liability, validity of claim, or amount.
i) BUT does not require exclusion of E otherwise admissible just because it was put on the table.
(1) Distinguish discoverable from admissible. May discover, but lose on 408 admissibility challenge.
ii) E.g. I know I owe you $800 would you accept $450 not in dispute.
b) Exception May offer E for another purpose, such as (nonexhaustive. Key is logically relevant reason).
i) A. Proving bias or prejudice or interest of a witness or a party,
(1) E.g. Mary Carter Agreements Void as against PP (P settles with D, uses D for E against D2/3).
(2) Impeachment use FED Cannot use on parties. TX Witness or party.
ii) B. negativing a contention of undue delay, (show you were attempting to settle, not just stall)
iii) C. or proving an effort to obstruct a criminal investigation or prosecution.
c) Typical use Civil, but applies to criminal as well.
d) Rationale Judicial economy, settle claims, PP encourages negotiating, minor relevance.
2) TRE 409 Payment of Medical and Similar expenses *- E of promise/offer/furnishing pay for medical bills,
etc. occasioned by injury not admissible to prove liability for injury.
a) I will pay your medical bills. Out (BUT NOT It was my fault, I will pay your medical bills)
b) Rationale: PP supports good Samaritan rule. Protects those who help out of legal/moral responsibility.
c) E.g.: Company says it has workers comp coverage = IN, Police say they would take care of bills = OUT
d) Exception - Implicitly permits evidence to be used for other purposes, such as impeachment, bias.
i) E.g. X and Y injured, Z pays bills. X sues Z. Y Ts for Z. You can introduce to show Zs bias.

3) TRE 410 Inadmissibility of pleas, plea discussions and related statements ***
a) The following are inadmissible against D who made plea, or participated in plea discussion:
b) 1. Withdrawn guilty plea.
c) 2. R11 statement: Civil Withdrawn guilty plea or any NC; criminal Withdrawn guilty plea or NC.
i) Exclude statements from plea colloquy, plea itself, any related statements in court.
ii) Bowie D pled, assessed punishment, withdrew plea/confession. RE to introduce confession at trial.
d) 3. Plea bargaining statement with an attorney for the prosecuting authority (NOT resulting in plea)
i) Requirements: Attorney AND for the prosecuting authority thus statements to police officers = A.
e) Optional completeness Applies. If party introduces plea bargain E if out of fairness
f) Limitation only for Ds statements if 3rd party not participating is subject of statements Admissible.
i) Why? Doesnt undermine goal of fostering negotiations or allowing D to withdraw plea.
g) Mezennato Permissible for DA to get D to sign wavier for 410. No DP Issue.
h) Compare with 408/409 NO use for other purposes here.
i) Fed only Perjury exception 410 exclusions may still be admissible in criminal prosecutions for perjury.
i) Requirements = Under oath on record; in presence of counsel.

Character Evidence
1) Shows a person is predisposed to act in a certain way (or establishes persons propensity to do a certain act).
a) Issue Admitting persons propensity raises questions on whether jury may apply to current situation.
b) General formulation CE inadmissible as circumstantial evidence of conduct.
c) Why inadmissible? Michelson CE is not irrelevant, rather it weights too much on the jury.
2) When is CE admissible? Defined by 404
3) How Proved? If admissible under 404Form determined by 405. OT, RT, SICs

Admissibility (404)****
1) (a) GR: E of C/C trait inadmissible to circumstantially prove action conduct on particular occasion.
a) Exception #1 Character of the accused (Good character defense)
i) (1)(A) Criminal case by accused, or by prosecution to rebut the same.
(1) Generally D presents E through Q to def. witness to show D not type of person to commit crime.
(a) Think class CE exercise Are you familiar with rep? What is it? NO SIC questions.
(2) Prosecution rebuttal IF D calls CW (CE in opening statements may be enough) P may cross.
(a) MUST be pertinent (read relevant per 401) question. have you heard?; Did you know? Qs.
(b) SIC USE If D bring in CE, prosecution MAY inquire into SICs of TW. Stuck with answer
(c) Note if prosecution calls new CW, they are limited to OT/RT.
(3) If D witness provides unprompted? D objects, MtS, indicate record no intent to open door.
ii) (1)(B) Civil: by accused if conduct involves moral turpitude (or accusing party to rebut) NOT in FRE.
(1) Process - Similar mechanics to criminal. Must be pertinent, opinion or reputation T only on direct.
(2) Moral Turpitude Yes public lewdness, theft, etc. / No DWI, drug possession, trespass.
b) Exception #2 Character of the victim
i) 1. Criminal Cases
(1) Non-homicide May introduce pertinent character trait of vic (or pro. to rebut). Subject to 412
(2) Hom. Pro. may offer E of peaceable C of V to rebut E V was 1st aggressor
(a) Process - D has first option to offer CE; prosecution responds. BUT for hom, D need not use CE
(b) FED (Attacking victim character opens door to CE on D) vs. TX (Does not).
ii) 2. Civil (assaultive conduct) CE on Vs violent C offered on S-D (or peaceable CE rebuttal). No FRE.
(1) Note: D couldnt respond with own CE here not moral turpitude.
iii) Self-Defense Theories
(1) Type 1 D in actual danger from victim. Obj. standard. CE on victim under 404(a)(2), no SICs.
(2) Type 2 D RBs they were in danger from victim. Subjective standard. Not 404/405.

(a) RT, OT, SICs to establish Ds state of mind. Key is that defendant was aware of Vs prior acts.
(b) communicated character Focus on Ds mind, not Vs character. V may respond with CE.
(3) Under either theory, may not present CE on V unless D shows some aggression by V.
c) Exception #3 Character of witness (SUBJECT TO 607, 608, 609)
i) If 60709 hurdles are met MAY introduce CE on credibility witness in form of RT or OT.
(1) This allows jury to infer general to specific; contra to 404.
(2) Opposing counsel may rehabilitate TW through another CW showing TW is truthful.
d) For all exceptions CE MUST relate to pertinent character trait.
2) TRE 404 (b) Other Crimes, Wrongs or Acts. **** NOT CE
a) GR E of OTHER crimes, wrongs, or acts NOT admissible to prove C to show conformity therewith.
i) TX Extraneous offense evidence. Elsewhere Extrinsic Acts.
b) Exceptions - MAY be admissible for other purposes (non-exhaustive list). SIC USE (non-character).
i) Criminal - After D requests MUST provide R notice of intent to introduce in case-in-chief E other
than that arising in the same transaction.
ii) Nonpropensity uses
(1) Motive Typically other acts by D against V. Great similarity not required.
(2) Opportunity E.g. access to crime scene; skills D has to commit crime.
(3) Intent and State of Mind Must be in issue to use 404(b) E (unless clearly inferable from act).
(a) If other acts show intent (not identity), less similarity between EA and charged offense.
(b) Doctrine of chances More likely that act occurring with similar results is intentional.
(4) Preparation or Plan Dont confuse similar EEs with preparation. Doing it before is not a plan.
(5) Knowledge or consciousness of guilt e.g. drug cases, knew purpose of conspiracy, etc.
(6) Identity Admissible only if in issue (e.g. D denies committing offense, presents alibi, etc.).
(a) This is attempting to establish MO. Must have distinctively common characteristics. 403 .
(7) Absence of Mistake or Accident Similar to intent
iii) Other Purposes
(1) res gestae Implications too broad. May try to force in hearsay, etc. under context/background.
(2) Context Evidence Under either category Must be relevant under 401, backstop of 403.
(a) Rogers Cat. 1 Same Trans. Contextual E Somehow connected to charged or primary offense
(i) ONLY if necessary to jurors understanding (like resisting arrest before charged offense).
(b) Rogers Cat. 2 General Background Contextual E Admit, unless improperly impugns Ds C.
(3) Rebuttal or impeachment If D opens door during opening/CX, may rebut def. theory with CE.
(a) E.g. If D makes sweeping generalizations about no trouble with law door is open.
(b) Might also be admissible to rebut statements that leave false impression with the jury.
(c) 608(b) 609 When impeaching with 404(b), cant ask CW about own SICs unless convicted.
(i) BUT 613(b) admissions on bias are more permissive.
(4) Sex Offenses
c) Application
i) Civil e.g. med mal. Good CE out. But might use prior acts to show lack of accident/mistake.
ii) Criminal Offenses not in charging instrument; before/after charged off. Normally pro.; D could intro.
iii) Admissibility process
(1) 1. If D raises 404(b) objection P MUST show acts relevant to material issue in the case.
(a) Reason must be relevant nonpropensity reason. If admissible, 105.
(2) 2. If opponent makes 403 objection, TC must balance probative and prejudicial per 403.
(a) Consideration of need is a factor. Open Q of whether D can stipulate to issue and avoid need.
iv) Notice Required if requested. Error to admit without notice. Request and response in writing.
(1) Limitations:1) only required if intends to use (rebuttal okay); 2) doesnt apply to same transaction.
(a) To protect for 1) Use MiL on any 404(b) acts. STILL object later.
(2) What is R notice? Substantial compliance may suffice. Surprise may be a factor. BF = exclude.
(3) Waiver - Failure to object to lack of notice will normally amount to waiver.

(4) You can still prosecute something labeled as extraneous.


v) Objections Specific/timely. Failure to object = waiver (even ineffective assistance of counsel).
(1) Object to make prosecution articulate specifically what use it intends to make of EE.
(2) Inadvertent 404(b) disclosure normally not fatal, especially with instruction.
(3) Irrelevant, and applies to character. Make them give relevant (401) non-C reason every time.
vi) Proof of Crime/Wrong/Act Must establish D committed alleged acts (conviction not necessary)
(1) TX Criminal standard Must establish BRD. Note Fed is POE.
(a) Judge determines under 104(b) that reasonable jury could determine BRD EO was committed.
(2) TX Civil POE standard.
(3) Acts need not even be criminal or misconduct.
vii) Limiting Instruction Get a tight 105 instruction when 404(b) acts admitted. Reference BoP.
(1) Waiver - Failure to request may waive, may be ineffective assistance of counsel.
(2) Curing Error - Limiting instruction or instruction to disregard may cure error in admitting EE.
(3) Single Theory - Only Ps theory for why EE is mentioned valid in instruction, not another.
(4) Failure to give limiting instruction may be reversible error.

Form (405) ****


1) TRE 405(a) Reputation or Opinion (DONT FORGET 403 Balancing).
a) GR: If CE admissible proof may be made by reputation or opinion testimony.
i) Applies only in guilt-innocence phase. Not true in FRE.
ii) OT Found. Sufficiently familiar with pertinent C trait. Do you hang out with X?
iii) RT Found. How did W hear about pertinent C trait? Same community? What do they say?
(1) Specific hearsay exception. Interpret community broadly (neighborhood, social, work, etc.)
iv) Expert T on Character Profile and Syndrome
(1) Always valid Describe common characteristics of class of persons (child abuse victims, etc.)
(2) CE implicated - Describe P/S generally, then offer opinion on whether person fits. May trigger 404/5
b) Criminal cases - MUST be familiar with rep or basis for opinion PRIOR to day of offense. (No FRE)
c) SIC USE- If T admitted ON CROSS, may inquire into SICs of TW. (Have you heard, did you know).
i) 1. Must be some GF factual basis for inquiring about the incidents.
(1) No fishing expeditions but TC has discretion. Ask away from jury for reasons for Qs.
ii) 2. Inquiries about SICs must be relevant to the character trait testified to on direct.
(1) E.g. if testimony went to peacefulness, dont raise truthfulness on cross.
iii) You are stuck with the answer given on cross. No follow ups. Cant introduce EE.
iv) Rationale Show CW not knowledgeable about person, OR willing to overlook SICs in assessing C.
v) Connection 608(b) Cant ask CW about own SICs not resulting in conviction.
vi) Connection 403 Balancing test applied to 405(a) cross to limit prejudice.
2) (b) If C/trait is essential element of charge/C/D May prove with SICs. SIC USE (Character) 402, not 404.
a) Civil neg. hiring/entrustment (NOT neg.), punitive $, child custody, libel, slander. Crim - Entrapment

Sex Offenses (412, FRE 41315)


1) TRE 412 Evidence of previous sexual conduct in Criminal cases **
a) Note Often conflicts with other RoEs. 412 should override other rules, including 404/405.
b) (a) RE/OE In pro. for sexual assault or attempt: RE/OE of past victim sexual behavior NOT admissible.
i) NO exceptions to the rule on opinion or reputation evidence.
c) (b) Evidence of Specific Instances. In same prosecution SICs NOT admissible UNLESS: SIC USE
i) 1. Falls under one of these categories
(1) Type A - Necessary to rebut or explain scientific or med. E offered by State; (DNA, bruising, etc.)
(a) ONLY after pro opens door. E.g. P shows E of injury D shows SIC for another source.
(b) NOTE: Must be relevant AND necessary. If consent is at issue, this evidence is neither.
(2) Type B If D says victim consented May introduce past sexual behavior with D ONLY.

(3) Type C - That relates to the motive or bias of the alleged victim;
(4) Type D - admissible under Rule 609 (convictions of Ws used for impeachment); or (balancing test)
(5) Type E - Constitutionally required to be admitted;
ii) 2. Passes balancing test - Probative value outweighs (not substantially) the danger of unfair prejudice.
(1) Burden Proponent. Compare with 403, where burden is on opponent.
(2) Unfair prejudice could be against victim (possible stigma)
d) TX vs. FED FED applies to civil and criminal. TX = Criminal ONLY.
2) FRE 41315 Very permissive for rape/molestation/pedophilia E, even to show propensity. (TCCP kids only)
3) Compare TCCP: E of C/W/A committed by D against child V are admissible on rel. matters. Trumps 404/5
a) Includes: 1) state of mind of D and child; AND 2) previous/subsequent rel. between D and child.

Habit (406) **
1) Rule: E of persons habit or orgs routine practice IS RELEVANT to show conformity on particular occ.
a) Whether corroborated or not; regardless of presence of eyewitnesses,
2) Differentiating 404 and 406 What is habit or routine?
a) 406 is more reliable on behavior in recurrent situation. 404 more amorphous (what someone feels/knows).
b) TC has discretion - More regular and precise conduct = better chances. If fails as often as succeeds, not H/R.
3) Habit must be relevant.
4) Proving Habit TX and FED have allowed through OT and SICs. Some authority for RT. NO hearsay.
a) Could be custom, industry standard, etc.

SICs
1) Non-character use
a) Impeachment/rehabilitation GR - W cant be impeached/rehabilitated based on bad or good SICs.
i) Exception 1 - Witness may be impeached if SIC results in conviction (609).
ii) Exception 2 - Witness may be impeached through SICs which show bias (613).
iii) Exception 3 - Blanket denial of any wrongdoing may be rebutted with SICs.
iv) TEX v. FED In FED, may impeach witness with personal SICs.
b) 404(b) May be admitted for non-character purposes.
2) Character Use
a) 405(a) Cross May inquire into SICs of TW, NOT CW. Stuck with answer; no EE.
b) FRE - 413-415 May admit crimes in sexual assault or child molestation on anything relevant.
i) TX CCP - E of Ds SICs against child victim shall be admitted for bearing on relevant matters.
c) 405(b) Character is essential Element.
d) 406 - May admit SICs to prove person or organizations habit.
3) Forbidden
a) Cant ask CW about SICs that dont result in conviction (608(b)).
b) Generally not admitted to show charater (404(b)).
4) Proving the extrinsic Act
a) FED Huddleston - Judge makes 104(b) determination could R jury find conditional fact by POE.
i) Protections against abuse: 1. Requirement of 404(b) that evidence be offered for proper purpose; 2.
Relevancy under 402 enforced through 104(b); 3. Assessment of TC under 403; 4. 105.
b) TX Harrel - Judge makes 104(b) determination could a reasonable jury find conditional fact by BRD

Authentication/ID (90102)

1) GR Serves to establish underlying logical relevance of E ties to facts of the case.


a) I.e. Manner by which proponent of E proves it is what he/she says it is. Addresses conditional relevancy.
b) Purpose Ensures FF considers only authentic reliable E.
c) What to authenticate? - Writings, physical evidence, voices, tapes, photos, video, scientific E, charts,
d) Circumstantial (inferential) proof - May develop an inference that piece of E in question is authentic.

i) Gun from scene; Ds maid says not where normal. Expert says unique; Gun shop says sold to D. Weak.
e) Demonstrative Evidence Authenticate via SW with PK that DE is fair/adequate representation.
i) Includes charts, videos, photos, etc.
ii) If tech based Functioning properly when E created, operator trained, and not changed since creation.
2) TRE 901 Requirement of Authentication or Identification ***
a) (a) GR. If condition precedent to admissibility need E sufficient to support finding E is what pro
claims.
i) Objection Objection, your honor, insufficient predicate.
ii) Relevance - Can still argue relevance May be authentic, but still irrelevant.
iii) 104(b) - Judge makes conditional ruling under 104(b) Could the jury?
iv) Failure to auth conditional E? Object, motion to strike, instruction to disregard. If not, waiver.
(1) BUT if overruled, may explain/rebut w/o waiving
b) (b) Illustrations. NOT exhaustive
i) 1. Testimony of witness with knowledge. (W with PK that offered E is real thing).
(1) Photos, x-rays, slides, silent motion pictures Pictorial testimony W with K states that it: 1)
accurately represents scene OR 2) substantially the same as scene at relevant time.
(a) Need not have taken photograph .
(b) Silent W theory May show picture/video/etc. came from reliable process or system (prove up).
(2) Audiotapes/Videotapes 7 part test. Civ = yes, crim = no
(3) Charts, maps, diagrams, computer animation If E jury room. If a prop, stays out of jury room.
(4) Documents T of W with knowledge that doc is what it is claimed to be is sufficient authentication.
(a) If execution observed? Where, when, who present, what happened, W must recognize, how?
(b) Not observed? Recognizes handwriting, familiar with HW, sufficient basis for familiarity.
(c) Note: Cant read from doc before authentication.
(d) BR SW with PK says it came from business.
(5) Real, Physical, Demonstrative Distinguish, when necessary, from original physical evidence
(a) 1. Physical - Readily identifiable. T of person who can ID distinctive marks. 1st Tier.
(i) More unique characteristics, better chances. GET IDENTIFIABLE dont want fungible.
(ii) FD Unique char., W obs. before, W IDs, ID rests on unique, same con.as far as W knows.
(iii) Ready identifiability is 104(b) judgment for judge/jury.
(b) 2. Phys - Chain of custody If prop cant get IDd through distinctive marks, etc., OR if fungible.
(i) Process - Call those who handled item, explain how they received and what they did.
1. Look at links, receipt, care/custody, disposition, and gaps.
2. Breaks go to weight, but not necessarily AD. Generally dont keep E out. 2 nd Tier.
a. BUT use if condition of E at time in question is material issue in case.
(c) 3. Inferential see above.
(d) Demonstrative See prove up above.
(e) Similar Objects If not misleading; MAY get item sufficiently similar if jury instructed. 403.
(6) Tests, Experiments, Demonstrations Must be substantially similar.
ii) (2) Nonexpert opinion on handwriting. Lay person MAY identify handwriting if familiar. (601, 602)
(1) Show by T that W has seen person write, etc. CANNOT gain familiarity just for trial.
iii) (3) Comparison by trier or expert W. Auth. by comparison with genuine ex.; judge alone or with expert.
(1) TEXAS Judge determines whether genuine, jury must go with it. FED Jury determines
(2) Writing, ballistics, fingerprints, etc.
(3) Cannot refuse to provide sample by invoking Fifth Amendment protections.
iv) (4) Distinctive characteristics and the like. Taken in conjunction with circumstances
(1) Method 1 Appearance distinctive enough in light of circto allow ToF to conclude authentic.
(2) Method 2 Consider with other methods (T of W with PK, etc.) to make determination on auth.
(3) Reply letter doctrine Reply refers to matters ONLY commrwould know, commr must be real.
(a) Works for writings, telegrams, voices, etc.
(4) Public officer - Potentially authentic if they have come from public offices.

v) (5) Voice identification. W with 601/602 can ID voice; but voice prints rarely successful.
(1) BUT if offered for truth, hearsay problem. If duplicate, BE problem.
vi) (6) Telephone conversations. Show that call made to assigned number works if: (faxes too).
(1) (A) Person - circumstances, including self-ID, show the person answering to be the one called; or
(2) (B) Business - call made to business / conversation related to business R transacted over the phone.
vii) (7) Public records or reports. Establish that source of record is public office where such docs are kept.
(1) May also admit under 902 if self-authenticating. (hearsay, BE rule).
viii)(8) Ancient docs or data compilation. Evidence that a document or data compilation, in any form,
(1) (A) is in such condition as to create no suspicion concerning its authenticity,
(2) (B) was in a place where it, if authentic, would likely be, AND
(3) (C) Has been in existence twenty years or more at the time it is offered.
ix) (9) Process or system. Evidence describes process / shows that process produces accurate result.
x) (10) Methods provided by statute or rule.
3) TRE 902. Self-Authentication EE as CP to admissibility not required with respect to:
a) (1) Domestic Public Documents under Seal. ** - Need seal, signature, US or territories. Passport, etc.
b) (4) Certified Copies of Public Records. ** In compliance with (1)(2)(3) above.
i) TX VS. FED Acts of congress only in Fed (Statute or other rule in TX)
ii) Connection - 1005 Authorizes copies. 803 treats some public documents as hearsay exceptions.
(1) In conjunction with 803(10), (1)-(4) may show no report or entry exists.
iii) NOTE Pen packets very tough to admit. May require certification by clerk where conviction occurred.
iv) If this fails, subpoena relevant person (clerk who gave you document, etc.)
c) (8) Acknowledged Documents ** Documents accompanied by a certificate of acknowledgment executed in
the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
d) (10) Business Records Accompanied by Affidavit. *** (NOT in FRE). E.g. medical records.
i) File with clerk and notice to opp/ 14 days ahead, unless W to verify 901(b)(1). Aff/ form not critical.
ii) Key Connection Hearsay exception under 803(6)(7) for business records. Auth 1 st, then HS.
e) (11) Presumptions under Statutes or Other Rules. e.g. TRCP 193.7 Discovery self-auth. unless obj.
4) NOTE: Opponent is still free to offer rebuttal evidence that item is not authentic or otherwise inadmissible.
a) Failure to object to admissibility at trial may preclude objection on appeal.

Credibility Evidence
1) Stages and Types
a) Bolstering Generally impermissible Calling W in attempt to bolster/increase cred. BEFORE attacked.
b) Impeachment Attack either
i) 1) testimony of W in this case, (PISs, E contradicting T, Expert T contra); OR
ii) 2) Gen. C for untruthfulness. Bias/M/I (613(a)), CL comp, truthful character, prior convictions
c) Rehabilitation - Redirect, PCS, corroboration of Ws T, E of Ws truthful character, Expert T
2) Bias under Federal Rules Doesnt address directly. Case law indicates it is permissible for impeachment.
a) Bias examples Relationship to party, past relationships, personal or financial stake in the outcome.
3) TRE 615 * - May force production of any statement by witness on SM after testimony on direct.

Impeachment
1) TRE 607 Who may impeach * Any party may attack credibility of a witness.
2) TRE 608(a) Opinion and Reputation Evidence of Character **** RT / OT okay for credibility attack.
a) Limit 1 - E may refer ONLY to character for truthfulness or untruthfulness (not same as honesty);
b) Limit 2 Truthful character of W MUST have been attacked by RT/OT/otherwise. I.e. W must have Td.
i) Or otherwise? Slashing cross-examination that effectively served as a character attack.
ii) This is anti-bolstering limitation.

c) Process: Step 1 TW testifies. Step 2 CW Ts about untruthful character of TW. Step 3 Cross of CW
(HYH/DYK). May inquire into prior truthful acts of TW. SIC USE. Shows no 602.
3) TRE 608(b) SICs ****
a) Rule - SICS of any cred. (read character) W, other than 609, may not be inquired into/proved by EE.
i) TX vs. Fed FED May cross witness on personal SICs at discretion of court if probative of t/un-t.
ii) Limited to 608(a) RT/OT. If W lies, you are stuck with answer. You cant introduce EE to prove acts.
iii) Note: Possible to get CWs SICs through 404/405 if relevant for another purpose. Or 609.
iv) Objection Must object to cross that violates 608(b) to preserve error.
b) Excep 1 - Rebut False Impression Counsel must show E necessary to correct FI left by Ws T. Like 107.
i) Door opening T: 1. Good SICs; 2. Blanket statements on good beh.; 3. Blanket denials of conduct type.
ii) May use exception if D creates FI with irrelevant/collateral matters; BUT cant bait on cross and attack.
iii) Expert T If expert Ts D is not the type of person may cross on awareness of Ds SICs.
c) Exception 2 - Bias, Interest, Motive Under 613(b). 613 covers trustworthiness in particular case, not gen.
i) Objection to 608(b) doesnt preserve for 613(b), and vice versa.
d) Exception 3 PIS BUT may be admissible to impeach CW with PIS about SICs.
4) TRE 613(a) - Examining Witness Concerning Prior Inconsistent Statement. ****
a) Before using PIS by W, MUST tell W of contents/time/place/person to whom made, AND opp to deny/exp.
i) If witness unequivocally admits statement NO EE.
ii) I.e. Extrinsic proof of inconsistent statement is admissible, UNLESS W unequivocally admits.
iii) If written, dont have to show to W at the time, but must show on request to opposing counsel.
b) PIS Definition Witness testimony on the stand contradicts a statement the witness made prior to trial.
i) Explicit S, silence, opinions, NOT PI acts or conduct.
ii) Not hearsay (UNLESS offered to show the truth of the matter).
c) Hearsay PIS? Notice and opp to explain NOT required.
d) Authentication Still required per 901(a) to ensure it is Ws statement.
e) Optional Completeness and Correcting False impression May allow admissibility
f) Methodology Steps for impeaching with PIS pg. 100 YB
i) 1. Prior statement inconsistent? - 104(a) question for TC. Includes opinions, silence, but not conduct.
ii) 2. Confirm direct testimony. 3. Lay 613 foundation (notice and contents and opp to explain)
iii) 4. Is witness admitting? 5. If not, admit EE.
g) Collateral Fact Rule Forbids impeachment by PIS on irrelevant matters. PIS must relate to issue in case.
i) Cant draw in irrelevant information just to show that witness was, at some other time, untruthful.
h) Criminal Statements admissible = pre-arrest silence/statements; post-arrest/Miranda statements.
5) Impeachment by Contradiction Possible, but collateral rule applies. No EE if collateral.
6) Impeachment on CL elements
7) TRE 613 (b) **** Examining Witness Concerning Bias or Interest. SAME STEPS AS PIS. (NOT IN FRE)
a) Party shall be allowed to present E rebutting impeachment on grounds of bias or interest. (REHAB)
b) Definition Relationship of party and W that might influence W to slant T, even unconsciously, for/against.
c) SIC rules dont apply here. MAY use SICs in Cross of Witness on bias/interest.
d) Relevance FF is judge of credibility should be entitled to all E bearing on accuracy/reliability of T.
e) Collateral Bias or interest is never collateral, but E offered to show interest must be rel. to that purpose.
i) Burden is on proponent to show logical connection/nexus between Ws T and Ws potential motive.
f) Pecuniary Interest If W has, relevant for 613(b) impeachment. E.g. Mary Carter rule.
g) Limiting Instructions Should request when impeachment evidence on bias or interest is admitted.
8) TRE 609(a) Impeachment by evidence of conviction of crime **** a) GR For cred. attacks: E of Ws convictions valid if admitted by W or established by public record only if:
i) Factor 1: if the crime (regardless of punishment) was 1) a felony, or 2) involved moral turpitude; AND
(1) TX vs. FED FED NO MT. BUT allows crimen falsi (dishonest/false statement) convictions.
(a) FED No regardless of punishment language. punishable by >1yr instead. Effect is same.

9)

10)
11)
12)

ii) Factor 2: Court determines probative value of conviction outweighs (not 403) prejudicial effect.
(1) TX vs. Fed TX outweighs. Fed against accused outweighs; for other substantially
(a) Fed - Crimen Falsi - Automatically admissible as to any witness. No balancing.
(2) Weigh 1) impeachment value; 2) temporal proximity of prior offense; 3) similarity of offenses; 4)
importance of Ds testimony; AND 5) Importance of Ds credibility as W.
b) Proving Conviction BoP on impeaching party. Cross, public records, witness/partys judicial admission.
i) UNLIKE regular cross - impeaching party not bound by answer - May offer independent EE.
c) Revealing Conviction Details- GR - Cant go into the details of the offense (unless relevant on B/M/I).
i) Details allowed - Generally provide only name of offense, date and place, and punishment.
ii) Connection 403 objection and balancing. 107 optional completeness.
d) Preserving Error Luce - D must T to preserve claim of improper impeachment with a prior conviction.
i) Ohler - Introducing conviction during direct examination waives right to complain about admissibility.
e) Limiting Instruction Unless admissible as substantive E under another rule - request limiting instruction.
TRE 609 (b) presumptively inadmissible if > 10 years old unless prob. substantially outweighs prej. (rev. 403)
a) Timing Date of conviction or release from confinement, whichever is later.
b) If Intervening Convictions Use balancing test from 609(a) when introducing to show lack of reformation.
c) Exception Witness opens door If W claims no past conduct with law, door is open. Use 403 test.
i) NOTE Only works when it comes out on direct, or volunteered statement on cross.
(e) Pendency of Appeal. Pendency of an appeal renders evidence of a conviction inadmissible. FRE contra.
a) Exception When witness opens door with no prior criminal conduct testimony.
(f) Notice. Not admissible if after timely written request, proponent fails to give adverse party sufficient
written notice of intent to use and opportunity for AP to contest.
a) TX vs. FED Fed contains similar provision, but it applies only for more than 10 years old.
Generally Logical relevance is propensity to ignore social norms (thus would follow suit with oath)

13) Expert Opinions on Credibility


a) GR No expert opinion on the issue of credibility
i) Turro v. State Med examiner T says Ds version inconsistent with findings. NOT credibility E on D.
ii) Exception - Psychiatric evidence of mental condition admitted for impeachment.
b) Rationale FF should be capable of determining who is truthful; credibility is province of jury.
i) Note- dont strike expert T relevant on another issue simply because it corroborates other E.
c) General Rules on Admissibility of expert testimony on truthfulness and related topics Schultz
i) 1. Party during case or in cross may offer E only incidentally addressing credibility.
(1) Duckett Psych outlined symptoms of child abuse victims generally; showed conformity of child W.
(a) BUT cant ask expert about opinion on truth of statements.
(b) T may indirectly bolster credibility of witness.
ii) 2. Party may present expert T relating to capacity of class gen. recognized as impaired (children, MR)
iii) 3. Party may present general testimony directly attacking credibility of a person.
(1) E.g. character for fantasizing or susceptible to manipulation
iv) 4. Party may present general testimony directly supporting credibility (same examples as 3)
v) 5. In rebuttal, may offer specific testimony attacking or supporting credibility
(1) Specific instances where W lied / T that W didnt perceive/recall because of ment/phys impairment.
14) Types of impeachment evidence
a) Substance Use Only valid impeachment use: bias, correct aff. misrep from direct, or show lack of capacity.
b) Lack of capacity Must establish Ws perceptual capacity was phys. impaired at the time of observation .
c) Impeachment based on Mental Illness May raise if it impairs CL elements of competence. But 608(b).
d) Lack of Element of Competency i.e. couldnt see from vantage point, etc.

Rehabilitation
1) When is W Impeached? Only after truthfulness attacked.
a) Rehabilitate if - overall tone and tenor of Cross implied that witness is a liar.

2)
3)

4)
5)
6)

i) TC will determine if R juror would believe Ws character for truthfulness has been attacked.
b) Attack DOES NOT occur merely because
i) Opponent present contradictory testimony.
ii) Opponent presents inability of witness to observe matter.
iii) OR evidence of motive for testifying against party
iv) Generally PIS is not an attack on truthfulness.
c) If you move too quickly and get bolstering objection approach and clarify with judge.
Method 1 - Redirect Explain inconsistencies or address points from cross.
Method 2 PCS 613(c) PCS inadmissible EXCEPT under 801(e)(1)(B) NOT in FRE.
a) Foundation
i) 1. PCS declarant testifies at trial and subject to CX; consistent with the declarants testimony
ii) 2. There is express or implied charge against decl. of recent fabrication OR improper influence/motive.
iii) 3. PCS used for REBUTTAL of that charge.
iv) 4. PCS occurred BEFORE charge arose.
b) Hearsay exception Thus admissible for rebuttal to impeachment AND as to substance.
c) To use PCS for rehab proponent must show PCS on same SM/incident about which W testified at trial.
d) Possible exception If opponent elicits portion of PCS rule of optional completeness.
e) Form Consistent statement to family members, videotape, prior pleadings, etc.
Method 3 - Corroborating T Counsel may also introduce E to bolster or rehabilitate. Careful of cumulative.
Method 4 E of Truthful C Per 608(a) After attack Free to offer E of Ws character for truthfulness.
Method 5 - Expert T e.g. child abuse characteristics and conformity, have expert say them dont match.

Opinion Testimony
Lay Witness Opinion T (701) ****

1) If W NOT testifying as expert W testimony in form of opinions or inferences is limited to those which are:
a) Type 1 - rationally based on the perception of the witness (602) AND
b) Type 2 - Helpful to (jury) a) clear understanding of the Ws T OR b) the determination of a fact in issue.
i) Helpful necessary. Does it benefit the fact-finding process? Like a 401 test.
c) FEDERAL ONLY Type 3 Not based on scientific, technical, or spec. knowledge within scope of 702.
i) TX is easier for expert to offer lay opinion testimony. BUT highly trained lay may have to qual as exp.
2) Use of lay witness testimony (Fact witness preferable)
a) Collective (shorthand) Fs Ws conclusory opinion (not facts on which based). Car was going very fast.
b) Skilled Observation Because of familiarity, witness can provide an opinion regarding authenticity.
3) Witness Bias Should still be able to give opinion if it meets 701 test. Goes to the weight, not admissibility.
4) Examples
a) Generally age, causation, credibility, size, intoxication, mental capacity, value
b) Value - may estimate own prop value, IF some basis. NOT sentimental value OR other persons property.
c) Mental Capacity Civil (mental capacity of testator/grantor); Criminal (sanity or insanity)
5) Impermissible Types
a) Speculative (I guess, I think, etc.). BUT language isnt automatic exclusion if PK requirement met.
b) Questions of law reluctant to allow on legal issue e.g. testamentary capacity(question of law).
c) Deductive reasoning But dont get hung up on the language.
6) Expert Testimony Required Some matters (med mal) are beyond the scope of lay T. Encouraged in PL.

Expert Testimony (70205)


1) Generally dealt with pre-trial.
2) Daubert /Witness Qualficiation Prinicple and Theory(Kelly/robinson/etc.) Factual basis(703
3) T by Experts (702) **** If sci, tech, or spec knowledge will assist ToF to understand E or determine fact
issue a W qualified as expert by knowledge, skill, experience, training, or educate may give OT or otherwise.
a) Foundation SKETE W qualifications; T is scientific, etc.; 601 competence; assist trier of fact

b)
c)
d)

e)

f)
g)
h)

i) Opponent may ask for voir dire on expert qualifications.


ii) Might get bolstering objection (just say going for strong foundation); could stipulate if you want to.
iii) Judge may not rule when expert offered (or on VD) avoiding commenting on the evidence. Proceed.
702 testimony admissible even if based solely on hearsay.
Does it assist the ToF? Need not prove issue beyond understanding of average person. Must be pertinent.
Part 1 Underlying Theory
i) Frye general acceptance no longer valid.
ii) Daubert (Federal) FRE supplant the Frye test. TC 104(a) decision on validity, reliability, helpfulness.
(1) Considerations Can (or has) theory been tested? Peer reviewed? Error Rate? GA?
(2) POE standard for admitting expert. Theory is flexible reliability is key
iii) Kelly (TX Criminal) Proponent of novel evidence must prove by CCE proffered E is reliable.
(1) Three prongs: 1) underlying theory valid; 2) technique applying theory valid; 3) Properly applied.
iv) Nenno/Kuhmo Apply principles to nonscientific expert testimony.
v) Robinson (TX Civil) Proponent must prove by POE E is reliable.
vi) Other reliability Statutory Requirements may exist.
Qualification of Expert No bright line test. 104(a) decision, AoD standard.
i) Experience, standing alone, may be enough. Generalized experience is not (need specialized insight).
(1) Occupational status not enough; but lack of license or cert is not automatic DQ.
ii) TCCA Factors Field complex? Is opinion conclusive (would need more expertise)? Centrality of
expertise to resolution of lawsuit (more dispositive = more qualifications)
Appropriate topics Anything that meets test - (DNA, fatigue, computer software, blood spatter).
Authentication - May validate or authenticated under 901(b)(9) to help prove reliability.
Daubert hearing Court will hold gatekeeper hearing on experts away from presence of jury. 104(a)
i) Recurring problems - Analytical gaps (fit of theory and facts) / Anecdotal evidence / Improper
extrapolation of analysis (appears that expert has worked backwards, etc.) / Insufficient Foundation for
Expert Testimony / Ipse Dixit / Failure to exclude other causes / stating only general principles (common
sense, etc.) / temporal proximity

4) Bases of opinions testimony by experts (TRE 703) *** Facts/data upon which E basis opinion/inference
MAY be those perceived by, reviewed by, or made known to expert at or before hearing. (Part 2 Data)
a) If of a type reasonably relied upon by experts in the particular field facts/data need not be admissible.
b) Type 1: Personal knowledge Most persuasive (may have examined injured party, etc.).
c) Type 2: Trial Data Data or facts presented to the expert during trial. Usually hypos.
i) Must be admissible, BUT need not be admitted. If not admitted, the opinion is primary E, not data.
ii) Hypo topics docs and T admitted, maybe what counsel anticipates will be admitted (obj. possible).
iii) Safety valve 705 May disclose facts on which opinion is based.
d) Type 3: Outside Sources May be based entirely on inadmissible if RR upon by experts in field.
i) 1 Ecant T to opinion of another. BUT E may be able to form opinion in part based on O of another.
e) FIT Theory must fit facts.
f) Smuggling Party may attempt to use 703 to get inadmissible E in. Use 705 to get basis for opinion.
g) Connection 614 may need expert to stay in trial.
5) Op. on Ultimate Issue ** (704) OT/inference T NOT objectionable because it embraces ult. issue for ToF.
a) Key is the opinion/inference T helpful? If not, reject. Still have to meet 701(lay) or 70203 (ET)
b) Mixed Q of L/F E may offer O on mixed Q IF there is sufficient legal criteria form which to form opinion.
i) E.g. Negligence Explain definition, then ask whether it is met.
c) FED - No expert T on whether D has requisite mental state. BUT TX W cant T on law Result same.
6) TRE 705 Disclosure of Facts or Data Underlying Expert Opinion ***
a) F/D Disclosure. E may give OT or inference T and give reasons without prior disc. of F/D.
i) UNLESS 1) court requires; OR 2) may disclose on direct, or may be REQUIRED to disclose on cross.

b)
c)
d)

e)
f)

g)

ii) Rationale Sometimes it is a waste of time to establish basis. Discovery should provide enough info.
iii) If data otherwise inadmissible 105 limiting instruction if too much disclosure. If written 106 / 107
iv) Land Appraisers More permissive of OT; no pure speculation, but TC has discr. on other land sale HS.
Voir dire. Opponents, on request, in CIVIL MAY, or CRIMINAL SHALL, be given VD opportunity
directed at underlying F/D on which opinion is based, out of the hearing of the jury. (NOT in FRE)
i) If Voir dire shows expert not qualified, cant give opinion.
Admissibility of opinion. If court determines underlying facts/data do not provide SUFFICIENT BASIS
for experts opinion under 702/703 opinion inadmissible. (Not in FRE)
i) Burden on Proponent ONLY when, after VD, opponent makes PF showing of insufficient basis.
Balancing test - If F/D inadmissible exclude 1) IF the danger they will be used for purpose other than
explanation or support for Es O outweighs value as explanation or support; or 2) if unfairly prejudicial.
i) Note Opinion is still admissible, just not facts.
ii) Exclude if prejudicial impact outweighs beneficial value in explaining experts opinion.
iii) Compare with FED Fed= SUBSTANTIALLY outweighs.
Limiting instructions. If otherwise inadmissible shown to jury, 105 instruction.
Process
i) 1. If facts/data insufficient to form basis for OT exclude.
ii) 2. If sufficient basis established does E form basis of the opinion admissible on other ground?
(1) 2a) if independently admissible, 705(d) not implicated.
(2) 2b) If not independently admissible balance prej. of possible misuse against explanatory value.
(a) If misuse outweighs value, dont disclose underlying facts.
(b) BUT opinion may still be admitted. Perhaps 105 to limit impact.
Object to trigger 705(d). Judge need not maintain a record on balancing factors.

Best Evidence
1) Theory Certain types of evidence are inherently more trustworthy use them if available.
a) Does not literally require the most credible or persuasive E to prove/disprove a fact(best evidence principle)
2) Application Only to writing, recordings, and photo that are a material issue at trial.
3) Process
a) Step 1 Proffered evidence meets 1001 def of writing, recording, or photograph AND contents in issue.
b) Step 2a Produce Original 1002 OR Step 2b If no original, produce duplicate per 1003.
c) Step 3 As an alternative, establish exception per 1005, 1006, 1007, or excuse per 1004.
i) Step 3b Produce secondary E (oral T, summary of contents, copy out of compliance with 1003, etc.)
d) OR avoid altogether dont produce to prove contents, but for other purpose.
e) OR avoid altogether get testimony to the same effect.
4) TRE 1001 Definitions **
a) Writings and Recordings. Letters, words, etc. in handwriting, elec. recording, or other data compilation.
b) Photographs. Stills, X-ray films, video tapes, motion pictures. (easy normally only demo E; prints OK).
c) Original. Writing or recording intended to have same effect by person executing or issuing.
i) Photo - negative or any print therefrom. Computer data Any accurate printout = original.
d) Duplicate. Accurately reproduced (copy, etc. or other equiv. techniques) duplicate of orig. (may enlarge)
5) TRE 1002 Requirement of Originals **** - To prove content, the original is required EXCEPT per rules.
a) If you cant get original as required, cant intro other.
b) Generally No dispute on originality. If not issue, may provide T interpreting writing; incomplete copy.
c) Does not apply to:
i) Events BE rule does not apply to T about an event, even if reduced to writing, photo, or recording.
ii) Testimony merely drawing attention to writing (officer testifies about event, mentions a report).
iii) Writing used to refresh recollection under 612.
iv) Supporting opinion testimony under 703
v) Attack W credibility concerning Ws understanding of content of a writing.

6)

7)

8)

9)

10)

vi) Collateral rule When W/P/R used to supplement Ws T, NOT to prove a controlling issue.
d) When are the contents in issue?
i) 1. Writing itself is crucial element of CoA (K, promissory note, will or lease, etc.)
ii) 2. Proponent seeks to prove a fact or the nonexistence of a fact by use of the writing.
e) Other Hurdles still exist Hearsay, authentication, and relevancy
f) Bypassing rule Call W to testify to overheard oral statement, not the recording/writing/etc.
TRE 1003 ***Admissibility of Duplicates - Duplicate is admissible to the same extent as an original unless
a) (1) a question is raised as to the authenticity of the ORIGINAL or (not what proponent claims, etc.)
b) (2) in the circ it would be unfair to admit the duplicate in lieu of the original (alterations, illegible).
c) Burden Opponent has burden of objecting on either grounds
d) Proponent may still show why these issues dont destroy authenticity.
TRE 1004 Admissibility of other evidence** - Original not required, and E admissible IF:
a) (a) Originals Lost or Destroyed. UNLESS lost or destroyed in BF.
b) (b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
c) (c) Original Outside the State.
d) (d) Original in Possession of Opponent. Other party put on notice, yet not produced.
e) (e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.
TRE 1005 Public Records *- Contents of official record/doc AUTHORIZED to be recorded and ACTUALLY
recorded, IF OTHERWISE ADMISSIBLE, MAY BE PROVED by Copy.
a) Copy may be certified by 902 or testified to by witness who has compared with original.
b) If copy cannot be obtained with R diligence, other E may be given (like oral T).
c) Does not apply to business records.
TRE 1006 Summaries *- May use chart, summary or calculation as substitute for contents of voluminous
records IF they are otherwise admissible and cannot be conveniently examined in court.
a) Must make original available at reasonable time/place. Court may order production.
b) Distinguish summaries (evidence) from props (not evidence).
TRE 1007 Testimony or Written Admission of Party *- May prove content if person against whom offered
admits in writing or testimony without accounting for non-production..

Hearsay
1) Statement made by declarant outside trial or hearing, offered into E to prove TOMA.
2) Rationale (Note Common Mistake just because some elements are here does not make it hearsay.
a) Out of court statement normally not under oath;
b) may be error in transmission of statement
c) FF cant observe declarants demeanor;
d) Inability to cross-examine
3) Formula - S (WOVE/NVC) [801(a)] + OTCD [person 801(b) + location 801(d)] + TOMA (IS/E/I) [801(c)(d)]

Definitions (801(a-d))****
1)

(a) Statement. (1) Oral or written verbal expression OR (2) nonverbal conduct (if intended as sub for VE).
a) FED (assertion) - Statement must be intended as assertion. Q, exclamation, etc. dont count.
i) UNLESS the statement is a functional equivalent of declarative statement.
b) TX (expression). Q or non-declarative utterance might be statements. Implied assertions are within HS.
i) Wright v. Doe Implied assertions of letters was that they were sent to competent person. Hearsay. Out.
c) Type 1a Assertive verbal (oral and written) conduct. E.g. its cold. Hearsay in TX and FED.
i) Functional equivalent response to is it cold? with rhetorical question, etc.
d) Type 1b- Assertive nonverbal conduct intended as sub for verbal assertion. E.g. Nod, gesture, etc.
i) BoP reversed. Burden on opponent to show declarant intended actions as sub for verbal expression.
(1) 104(a) decision by judge. If not intended, NOT hearsay under FRE or TRE
e) Type 2 - Nonassertive VC. E.g. in response to Is it cold? declarant says brr AND temp in issue.

i) TRE May be hearsay if intent was assertion. FRE NOT hearsay.


f) Type 3 - Nonassertive VC offered to infer something other than MA. E.g. Im getting my coat.
i) If proponent offers to prove declarant believed it was cold outside? TX Statement. FRE NO.
ii) Probative value stems from declarants belief.
g) Type 4 - Nonassertive NVC not intended to be substitute for a verbal assertion. E.g. putting on coat.
i) Absent intent NOT hearsay under FRE and TRE.
h) Type 5 - Nonassertive statements and silence Conduct can be action or inaction.
i) Must show person failing to speak intended as sub for verbal expression.
2) (b) Declarant. (Out-of-this-court) PERSON who makes a statement at location other than this trial.
a) Once an OCD, always an out of court declarant. Repeating in court does not make it exception.
b) Machines GR not HS. BUT if machine is means by which person stores/transmits Ss, possibly HS.
i) Distinguish self-generated computer file from something stored by person.
ii) Note There may also be authentication issues.
3) (c) Matter Asserted. Any matter explicitly asserted, AND any matter implied by statement IF probative value
of statement as offered flows from declarants belief as to the matter.
a) KEY QUESTION: Is it offered to prove the contents of that specific statement? If not, no hearsay.
i) Issue: Relevance Manipulate the relevance argument to show it is offered for another purpose.
ii) Alternatives: State of mind; existence of a conversation; OCD was alive; OCD spoke;
iii) Example: Slip & fall case, customer heard announcement. If used to show she was in store, not TOMA.
b) TOMA does not exist where statement offered to prove
i) 1. Information acted upon (e.g. info to police to show that PC existed for search)
ii) 2. Operative fact independent legal significance PC for cops warrant, acceptance of K, threat.
(1) E.g. E&E youre never a trespasser
iii) 3. To show mental state of statements declarant
iv) 4. To show PIS/PCS by defendant.
c) Implied language Specifically included to include Wright. NOT in FRE
i) With Wright type case (where implied assertion suggested what the writers of letter were thinking):
(1) FRE Would say that it was not intent to assert opinions. NOT hearsay.
(2) TRE If the probative value flows from declarants belief as to MA (sanity in Wright) Hearsay.
4) (d) Hearsay. Statement, other than one made by decl. during T at this trial/hearing, offered to prove TOMA.
a) Orthodox rule Prior out-of-court statements are inadmissible, even if available for cross.
b) Non-hearsay uses: (nonexhaustive) relevance, operative facts, impeachment, mental output of witness
(intent, etc.), to show effect on hearer or reader (mental input theory).
c) Limiting instructions If proponent gets it in, get instruction that it is offered only for that purpose.
d) Indirect or backdoor hearsay If only relevance of NVC is to imply acting on verbal statement (offered for
truth) Ws conduct is merely sub for what witness was told.
i) E.g. why did you put on a coat? Because after talking with Louis, I decided I should.
(1) Ss purpose is to imply Louis said it was cold. Object to relevance; force party to show purpose.
e) Out of court affidavits and sworn documents Under oath doesnt help. If offered for truth, inadmissible.
i) Exceptions PIS in judicial proceeding, depo testimony, former testimony of unavailable witness.
f) Self-Serving Statements Parties out of court statements can only be offered against that party.

Hearsay Exemptions/Exclusions (801(e)) NOT HS


1) (1) Prior statement by witness. ALL require D to T at trial and subject to CX on statement (not affidavit)
a) (A) PIS (Important MAY be used to prove TOMA).
i) 1.inconsistent with declarants testimony, and was
ii) 2. Given under oath subject to the penalty of perjury
iii) 3. in a depo, OR at a trial, hearing, or other proceeding EXCEPT a criminal GJ.
iv) Remember You can get PIS in on credibility under 613(a). Opponent will use 105 instruction.
b) (B) PCS
i) 1. consistent with the declarants testimony and is

ii) 2. There is express or implied charge against decl. of recent fabrication OR improper influence/M.
iii) 3. PCS used for REBUTTAL of that charge.
iv) 4. PCS occurred BEFORE express or implied charge arose.
v) Limitation PCS MUST be same SM or incident about which declarant testified at trial.
vi) Optional Completeness - If opponent elicits a portion of PCS 107 may admit remainder.
vii) Express or implied charge Mere challenge to credibility or memory is not sufficient.
(1) Need only a suggestion that witness consciously altered T.
viii)Oath Not required for the PCS.
c) (C) Identification of a person made after perceiving the person; or
i) Typical Use W testifies at trial (inculpatory or exculpatory) about earlier out-of-court ID.
(1) E.g. Pretrial ID from lineup; report of W after crime that they saw person at a certain time/place.
ii) Rationale Earlier ID was under less suggestive conditions.
iii) Bolstering? - Dont treat as bolstering Testimony is relevant to issue of identification.
iv) Confrontation Clause - Pretrial ID of criminal D is testimonial; 3rd persons testimony on ID violates CC.
2) (2) Admission by party-opponent ****. The statement is offered against (one way only) a party and is:
a) NOTE Party need not take stand to apply.
b) (A) the partys own statement in either an individual or representative capacity;
i) Source Oral, written, nodding, stipulation, depo.
ii) Witness testifying Must have PK of the partys admission.
iii) Admissions binding on co-parties if privity.
c) (B) Party manifests adoption or belief in truth of a statement.
i) Method of adoption Verbal, nonverbal, silence.
ii) Burden BoP on proponent to show adoption by POE standard that party heard/understood/agreed.
iii) Proponent of statement has burden to show party/opponent understood, adopted by POE standard.
iv) TX Silence after arrest inadmissible. Federal Silence after arrest and Miranda inadmissible.
d) (C) a statement by a person authorized by the party to make S concerning the subject; e.g. press sec.
i) Burden Proponent must how independently that statement declarant was agent and had authority.
e) (D) 1) partys agent/servant on 2) matter within scope of agency/emp, 3) made during relationship.
i) Scope SM of statement within job descrtiption AND decl. performing duties when K of SM acquired.
f) (E) a statement 1) by co-conspirator of a party 2) during the course and in furtherance of the conspiracy.
i) Requirements All by POE standard
(1) 1. Conspiracy existed - common plan or enterprise, lawful or unlawful.
(a) 1) object; 2) plan to achieve object; and 3) agreement/understanding between 2 or more persons.
(2) 2. Decl. and D (against whom statements offered) were in conspiracy (or D later participated);
(3) 3. Statements were made in the course of an in furtherance of conspiracy.
(a) Timing of statement - After conspiracy (everything done that was planned) inadmissible.
ii) Boujaily MAY consider hearsay in determining if conspiracy exist, but not only hearsay.
3) (3) Depositions. CIVIL depo taken in SAME PROCEEDING (203.6 defines). UA NOT required. NO FRE.
a) Same proceeding includes proceeding in different court but same SM and parties/reps/successors.
b) No real foundation required.
c) Helps in 804(a)(5) When party absent, but willing to T.
d) Note Depo may be admissible for non-HS purpose (613(a) impeachment; substantive under 801(e)(1)(A)).
4) TRE 802 Hearsay Rule Hearsay inadmissible UNLESS rules allow OR statute allows.
a) Inadmissible hearsay admitted without objection will be accorded probative value.

Hearsay Exceptions No UA (803)


1) If Exception applies: May be used as substantive evidence to prove TOMA. More than 1 may apply.
a) An exception alone may be sufficient to support a criminal conviction.
2) Burden On hearsay proponent. If proper objection and burden not satisfied inadmissible under 802.
3) Present Sense Impression (1) **** Statement describing or explaining an event or condition.
a) 1. Describes or explains condition or event. Compare EU exception relates to

b) 2. Personally perceived by decl. No conjecture, but rational inference OK (gas gauge empty = no gas AND
c) 3. Made while event/condition occurring or existing OR immediately thereafter.
d) E.g. Cop dictating impressions to tape adversarial prep. Compare cop radioing during chase PSI.
4) Excited Utterance (2) **** S relating to startling E/C made while decl. was under stress caused by E/C.
a) Requirements: The statement MUST (POE standard for all)
i) 1. S is product of startling occurrence/condition that produced nervous excitement (thus spon.)
ii) 2. Excitement still so dominated declarants mind that there was no time/opp to misrepresent.
(1) Timing is critical. Degree person is dominated turns on facts; never includes calm narrative.
iii) 3. Relates to the circumstances of the occurrence or condition that preceded it.
b) Proof of startling event or condition: Would a R person, at the time, have felt alarm, shock, etc.?
i) Statement must have logical nexus with sub. event, BUT event need not cause excitement.
(1) I.e. startling event may trigger EU on earlier incident.
c) PK requirement Must have PK; may establish though circumstantial evidence. 104(a) POE judge decision.
i) Note Declarant lacks PK, but becomes startled when learning of underlying startling event.
d) Children Even if too young to be competent, may admit if reqs met. TCCP allows EU on child abuse.
e) Res Gestae 404(b), TX Code Crim. Proc., 803(13) Dont use it, too many different meanings.
5) Existing Mental, Emotion or Phys. State (3)**** S of declarants THEN EXISTING state of mind/condition
a) Examples intent, plan, motive, design, mnental feeling, pain, bodily health
b) Cant use this memory to prove the remembered fact, only to show what speaker believed.
i) (If not TOMA, may be admissible to prove fact statement was made).
ii) BUT may prove will issues with memory/belief.
c) Hillmon If intent is material, expressed intent = testimony. Here, letters showed intention to leave at time.
i) Admit - jury makes the decision on truth or falsity.
d) If ambiguous on mental condition Inadmissible.
e) Present mental condition May admit S to prove declarants then existing plan, intent, for future conduct.
i) E.g. I hate X Offered as substantive evidence of hatred of X.
f) Compare (1 PSI) No describe req. (2 EU) No stress requirement. (4) Not medical, no past symptoms.
g) Opinions Polls May make it in under this exception.
6) Statements for Purposes of Medical Diagnosis or Treatment (4) ****
a) 1. Statements - For purpose of medical diagnoses or treatment
i) Direct or circumstantial E that D was seeking medical care AND knew S made for that purpose.
ii) Includes statements to non-medical person if intent is to seek care.
b) 2. Describing Med. history, past/present symptoms, pain, or inception or gen. char. of cause or source.
i) IF R pertinent to diagnosis or treatment. Key language Pathologically germane
ii) Must be the type of statement R relied upon by medical professionals.
c) Application Generally exclude statements by medical professionals to patients, or to each other.
i) Note May still include these statements to show state of mind, or 703/705 exception.
d) Application Kids Must understand reason for being honest with health care provider.
e) Application 3rd party Statements May be admissible if they meet 1. And 2. Above.
f) Application ID of defendant Normally not pathologically germane (except child abuse).
7) (5) Recorded Recollection. **** Record on matter where W had PK but has insufficient recollection to T fully.
a) Timing Made or adopted by W when fresh in memory and to reflect knowledge correctly.
b) Trustworthiness Veto If the circumstances of preparation cast doubt on the docs trustworthiness. NO FRE
c) Use If admitted, the record is read into E. Either party may read; only adverse party offers as exhibit
i) Either party may read; only the adverse party may offer as exhibit.
d) Predicate (Declarant must T on 1,3, and 4) 1. Decl. had PK; 2. Original at or near time; 3. Decl lacks
recollection; AND 4. Declarant vouches for accuracy.

i) TX vs. Fed. Texas = PK, Fed = knowledge.


e) If 3rd party made memo may establish accuracy by T of preparer (or review/adoption by decl)
f) Exclusions of 803(8)(B) public records trump 803(5). Inherently adversarial, shouldnt be able to backdoor.
8) (6) Records of Regularly Conducted Activity. **** BUSINESS RECORDS
a) Type Memo, report, and data compilation of acts/events/conditions/opinions/diagnoses.
i) Definition of records is very broad; may include summaries of underlying business records.
ii) Exception Documents on which claims are founded (like Ks) are not hearsay.
iii) Opinions Explicitly included in definition.
b) 1. Made in regular business activity i) BUT both parties need not be part of the same business entity.
(1) BUT cant use records from another business if sponsoring W has no PK on manner prepared.
ii) 3rd party record may be admissible IF (e.g. contractor) if primary record, relied on in NCB, trust.
c) 2. Requirement of Routine Business Practice Non-routine records = suspect reliability. Especially IAOL.
d) 3. Timing Made at or near by person with knowledge
e) 4. Person making record or submitting info had PK of act/event recorded (not just entering).
i) How shown Testimony of custodian or qualified W; affidavit complying with 902(10);
(1) QW includes person preparing or creating, OR person with PK of method or mode of creation.
(2) Note Sponsoring witness needs PK only of record keeping system.
f) Qualification There is a trustworthiness veto lack of foundation, inaccuracy E, etc.
g) Business Duty Requirement Implied
h) Rationale Inherently trustworthy there are incentives to be accurate and transmit/record info correctly.
i) Police records MUST follow 803(8)(b). Cant backdoor.
j) Authentication Must authenticate under 901 (or 902(10)); then establish predicate here. Gen. same W.
i) If two witnesses required 104(b) conditional admission until authenticated and predicate laid.
k) Hearsay within Hearsay Often a BR problem (if person making statement has no business duty).
9) (8) Public Records. **** Records, reports, statements, or data comp in any form, of public office/agency
a) (A) the activities of the office or agency; (e.g. disbursements and receipts from treasury department) Rare.
b) (B) Matters observe where there is legal duty to report, EXCEPT 803(6) police issues.
i) E.g. medical examiners autopsy must be actually observed by public official.
ii) Admissible In Civil cases for all; in criminal for non law-enforcement personnel.
(1) Criminal Inherently adversarial nature of police issues; BUT dont apply to routine/ministerial.
(a) Medical examiners are not included here.
(b) BUT Ex could T on cops statement if contents not revealed. OR could refresh cops memory.
(c) Cole limitation Texas Criminal Cant backdoor via 803(6) as business record.
c) (C1) Investigation use in civil cases If made pursuant to legal authority, any party may use.
d) (C2) Criminal cases ., ONLY defendant may introduce against state.
e) Trustworthiness Veto (but not in FRE).
f) Rationale Indicia of reliability rest on fact that public offices have duty to accurately collect, report, record.
g) No personal knowledge requirement.
10) (16) Statements in Ancient Docs. ** If authenticity established (901(b)(8). 104(a) unless opponent challenges.
11) (18) Learned Treatises.**** To the extent raised on cross/relied upon in direct by EXPERT (required),
statements contained in published treatises, periodicals, established as a reliable authority (predicate).
a) 1. EW on stand, 2. Called to attention, 3. During DX/CX, 4. Establish use in field, 5. Establish as reliability
i) Source for reliability: Testimony/admission of W/judicial notice.
b) If admitted: READ into evidence, but not received as exhibits.
12) (24) Statement Against Interest.**** A statement which was at the time of its making:
a) 1. So far contrary to the declarants pecuniary or proprietary interest,

b) 2. Or so far tended to subject the declarant to civil or criminal liability,


i) A. Was it against Ds penal interest when made AND did declarant realize this when made.
(1) Key Must be at least equally against declarant and defendants penal interests.
(a) Thus if party admits to lesser offense not sufficiently self-inculpatory and reliable.
(b) If it exculpates both lacks trustworthiness.
ii) B. If so, are there corroborating circumstances that clearly indicate statements trustworthiness.
(1) Factors in assessing sufficiency of corroboration (BURDEN ON PROPONENT)
(a) 1. Whether the guilt of declarant is inconsistent with the guilt of the defendant.
(b) 2. Whether the declarant was so situated that he or she might have committed the offense.
(c) 3. When the declarant made the statement and its spontaneity.
(d) 4. Relationship between the declarant and the person to whom the statement was made.
(e) 5. Existence of independent facts that confirm or verify the trustworthiness of S
(2) If balanced, dont admit. Must clearly indicate trustworthiness.
iii) PK requirement W who Ts to decl.s statement must have PK of sS (but TC doesnt look at W cred).
iv) Accomplice statements Out-of-court S against penal interest of accomplice for same offense is not T.
c) 3. Or to render invalid a claim by the declarant against another,
d) 4. Or to make the declarant an object of hatred, ridicule, or disgrace, (NOT included in FRE)
i) Statements against social interest. E.g. minister admits he is gay. BUT not merely embarrassment.
e) Key R person in declarants position would not have made statement unless they believed it true.
f) TX vs. Fed Federal rules require unavailability. Texas does not.
g) TX vs. Fed Fed corroborate criminal AND civil, but only exculp. TX Corr. Ex and inc. crim only.
h) Party admissions Be able to distinguish with chart.
i) Declarant PA = party, SAI = anyone. Who offers PA Party not making, SAI Any party.
ii) Subject PA = Anything adverse to partys interest at trial; SAI = Financial, criminal/personal risk
iii) Admissible against PA = Declarant, coconspirator, declarants employer. SAI = any party
iv) Corroboration PA None / SAI Required in criminal cases exposting OTCD to crim liability.
v) When is it against interest? PA at trial; SAI = when made.

Hearsay Exceptions UA (804)


1) (a) Definition of Unavailability.
a) (1) Declarant is privileged from T on SM of statement (by court ruling).
b) (2) persists in refusing to testify on SM despite an order of the court to do so;
i) After in camera review, judge finds no ground for privilege. Orders witness to testify, then he refuses.
c) (3) testifies to a lack of memory of the subject matter of the declarants statement;
d) (4) of death or then existing physical or mental illness or infirmity; or
e) (5) Absent, and proponent unable to procure the declarants attendance or T by process or other R means.
f) BUT if D causes 1-5 in order to access greater unavailability exceptions W NOT UA.
i) Purpose must be to prevent attendance/testimony. E.g. paid off witness to prevent testimony.
ii) Similar in FRE 804(b)(6) forfeiture by wrongdoing.
g) BURDEN On proponent (must show GF effort to locate).
2) (b) Hearsay Exceptions When Declarant is Unavailable
a) (1) Former testimony. Civil Cases
i) Type - T given as witness in same or different proceeding OR in Depo in another proceeding. OATH.
ii) Requirement Party against whom T offered (or person with similar interest) had OPPORTUNITY
AND SIMILAR MOTIVE to develop T on direct, X or redirect.
(1) TX vs. FRE person with similar interest vs. predecessors in interest.
(2) NOTE if there was no actual opportunity, then cant admit the testimony.
iii) Compare 801(e)(3) No UA; 613 PIS only for impeachment; 801(e)(1)(A) requires inconsistency.
b) (1) Former Testimony Criminal Cases
i) Same Type. Reqs similar, but no Depos, CANNOT be person with similar interest. Only party.
(1) Similar motive fact based. But if opponent doesnt use opportunity, their fault.

ii) Note CCP governs depo admission in unavailability situations.


iii) Grand jury T Cant admit against D under 804 (no opportunity to cross). BUT D may admit.
c) Note: If depo testimony not hearsay because it is offered against D as party admission, dont apply this rule.
d) (2) Dying declarations. Foundation: Made by declarant while believing death was imminent.
i) Must concern the cause or circumstances of what declarant believed to be impending death.
ii) Dont have to specifically state it, but may infer from circumstances, medical opinion, conduct, etc.
(1) Note Witness cant testify to anothers state of mind.
iii) TX vs. FED Texas + crim and civ. Fed= civil, criminal homicide.
iv) Sanity and voluntariness are probably implied requirements.
v) Length of time declarant survives is immaterial. Need not be dead, only UA, at time declaration offered.

Other Hearsay Issues (806, 612, CC, FRE 807, 805)


1) Residual exception FR 807 Texas rejects. Federal courts allow admission of hearsay statements that
a) 1) equal trustworthiness to 803/4 exception; 2) addresses material fact; 3) more probative than other E R
available to proponent; 4) would advnce purposes of rules; AND 5) Advance notice to opponent of use.
2) TRE 805 *** Hearsay within Hearsay is permitted IF each component is admissible under an exception.
a) No requirements that each statement satisfy the same exception.
b) Could also have H within H in oral statement same process.
3) TRE 806. Attacking and supporting credibility of declarant ** - IF HS admitted, cred of OTCD as if reg. W.
a) E of statement or conduct by declarant on impeachment does not require opportunity to deny or explain.
b) Party against whom admitted may call decl as W and examine as if on CX. (i.e. declarant impeachable).
i) May impeach declarants in civil/criminal/civil depo, though predicate would otherwise be required.
ii) May rehabilitate by any normally permissible means, like RT or OT of C for truthfulness under 608(a).
iii) BUT cant use SICs of declarants conduct or prove by EE in violation of 608(b).
4) Confrontation Clause and Hearsay Key Q Is it testimonial?
a) in all criminal prosecutions, the accused shall enjoy the rightto be confronted with the Ws against him
b) Testimonial Hearsay Declarant must 1) testify; or 2) be UA AND previous opportunity to CS.
i) What is testimonial Crawford police interrogations, GJ testimony, preliminary hearing, former trial.
ii) Davis Primary purpose test. If interrogation enables police to meet ongoing emergency NOT T.
iii) Melendez-Diaz Certificates of analysis showing lab results are testimonial.
iv) Bullcoming Results of test introduced by lab tech who didnt perform are testimonial hearsay.
v) Cross is a necessary, not a sufficient, condition for admissibility.
c) Nontestimonial hearsay Application of Confrontation Clause not required.
i) Leave this up to state rules of evidenced to determine hearsay law. Hist. excep. dying declarations, etc.
5) TRE 612 Writing Used to Refresh Memory **** Present recollection refreshed
a) IF W uses writing to refresh memory either (must have had 602 in the past)
b) (1) While testifying (J has no discretion, must allow other party to examine if asked; waives AC privilege).
c) (2) Civil cases before testifying (ONLY if court determines justice requires).
d) (3) Criminal cases before testifying.
e) Result: Ad. party may force prod. of writing, inspection, CX of W on it, and omitted parts relating to T of W.
i) If NOT related to SM of T, court examines in camera and excises as appropriate for delivery to party.
(1) E.g. for glance at long document, dont have unlimited right to inspection.
f) Nonproduction Civil - If not produced court makes orders as justice requires.
i) Criminal - cases when prosecution doesnt comply strike testimony OR mistrial if justice demands.
g) Vs. Past Recollection Recorded 803(5) If 612 doesnt work, go to 803(5) and bring in the writing itself.
i) W vouches from memory, though they may not be able to remember contents.
h) Procedure Proponent shows to opponent, presents to witness, has them read silently, asks if refreshed.
i) MAY NOT read aloud. No requirement that writing be prepared by witness.
ii) May be inadmissible, BUT TC may withhold if they believe W will testify from writing itself.

Privileges (501, 51113)


1) GR Privilege prevents disclosure of relevant/reliable info; generally disfavored. Exceptions based on PP.
2) Testimonial Privileges Prevent certain people from being called as Ws.
3) Communications Privileges Prevent disclosure of certain specified confidential communications.
a) When to apply Civil, criminal, admin (regardless of whether RoE govern).
b) Holder of privilege Rules specify, but normally a communicating party, and normally party to litigation.
c) Who claims privilege? Holder, subsequent holder, holders agent.
i) BoP on claimant of privilege to prove it exists.
(1) If it relates to some or all of communication burden on party claiming to segregate.
(2) If party makes PF showing and gives to judge in camera review
d) Powers under the privilege: 1. Refuse personally to disclose; 2. Prevent 3rd party; 3. Prevent comment
e) What is protected GR Comm where speaker intends to maintain secrecy (also often physical privacy).
i) MUST directly relate to confidential relationship in applicable RoE.
f) Exceptions When they exist, the party trying to pierce privilege has burden to show exception exists.
4) TX v. FED FRE 501 defers to CL. Courts expand or limit privileges as reason/experience dictates (but Erie)
5) TRE 501 **** Unless in 1)Con., 2)by statute, 3)by these rules, or 4) by other statutory rules NO privilege
to:
a) (1) refuse to be a witness; (2) refuse to disclose any matter; (3) refuse to produce any object or writing; or
(4) Prevent another from being a witness or disclosing any matter or producing any object or writing.
b) E.g. Civil procedure privileges WP/no ID protection for potential party or PKRF.
c) Statutory Exceptions e.g. family code only recognizes AC privilege in relation to child abuse.
6) TRE 511 *** Waiver of Privilege by Voluntary Disclosure IF:
a) 1. Voluntary disc. HOLDER voluntarily discloses any significant part (unless disc. itself privileged).
i) Standard Is there an intentional relinquishment of a known right?
ii) Burden Party claiming must prove disclosure of production was not intended to waive.
iii) BUT revealing the nature of the matter disclosing the matter itself. I have cancer vs. I being treated.
iv) Unless such disclosure itself language E.g. clergy member discloses to psychiatrist.
b) 2. Inadvertent disclosure Voluntary but unintentional. 10 day window for snap back provision.
i) Vs. Involuntary Compelled to disclose (but 512). Must use R efforts to prevent disclosure. Reinstate.
ii) Eavesdropping Inadvertent or intentional hearing wont waive.
c) 3. Offensive Use May waive by placing privileged info at issue in a lawsuit. (Republic Insurance v. Davis)
i) When privileged used offensively MUST have all three to be valid.
(1) 1. Party seeks affirmative relief
(2) 2. Privileged info sought is such that, if believed by FF, it will be outcome determinative; AND
(a) NOT mere relevance. Must go to heart of affirmative relief sought.
(3) 3. Disclosure must be only means by which aggrieved party may obtain evidence.
d) 4. Character witness application If A calls B (person to whom privileged communications were made) to
T as to As character, privilege is waived insofar as such communications are relevant to that character.
i) I.e. in TX may waive by calling character W with PK of privileged information.
e) Consent Failure to assert or object = consent to disclosure.
7) 512 **Claim of privilege NOT defeated if disclosure was:
a) (1) compelled erroneously or (E.g. when court requires disclosure believing there is no privilege)
b) (2) Made without opportunity to claim the privilege. E.g. eavesdropper relates overheard communication
c) Derivative Evidence Law uncertain on whether holder of privilege may block disclosure or admissibility of
E derived from unauthorized or inadvertent disclosure of privilege communications. Probably not.
8) TRE 513 *** Comment upon or inference from Claim of Privilege; Instruction
a) (a) GR Comment or inference not permitted (applies to present or prior proceedings).

i) Exception: 504(b)(2) spousal.


ii) Permitting comment on the privilege devalues the privilege.
iii) Criminal Cases Tex only comment on pre-arrest silence. FRE only pre-Miranda silence
iv) Roundabout comments e.g. commenting on failure of def. to produce E which only D could produce.
v) Instruction to disregard may cure error. Court makes discretionary judgment on improper comments.
b) (b) Conduct proceedings to facilitate making claims of privilege without knowledge of jury.
c) (c) DO NOT apply to attempts by a party in a civil case to invoke privilege against self-incrimination.
d) (d) Jury Instruction. Party adversely effected entitled to jury instruction that no inference may be drawn.

Spousal (504) Husband Wife ****


1) (a) Confidential Communication Privilege Marital communications are presumptively confidential.
a) (1) Definition. Made privately to spouse AND not intended for disclosure.
i) Oral/written/signals intended communicate, etc.
ii) Presence of 3rd party destroys confidentiality. BUT eavesdroppers, probably not.
b) (2) Rule. Person has privilege during marriage and afterwards to 1) refuse to disclose AND 2) prevent
another from disclosing confidential comm. to spouse during marriage.
i) Rests on existence of valid marriage. Legal separation = marriage. NOT significant others.
ii) Burden rests on party claiming privilege. Law of J where married controls definition of marriage.
c) (3) Who claims? 1. The person; 2. The persons guardian/rep; 3. Spouse on behalf (authority presumed).
i) Really only held by the spouse making the confidential comm (other S on behalf with implicit perm.)
ii) Waiver - Failure to claim privilege waives.
d) (4) Exceptions. There is no confidential communication privilege:
i) (A) CF If comm made (in W/P) to enable or aid anyone to commit or plan to commit C/F.
ii) (B) 1. Civil proceeding b/n spouses; 2) proceeding between SS and person claiming through dead S.
iii) (C) Crime against spouse/minor/household/bigamy.
(1) Household broad definition unit composed of persons living together, whether or not related).
iv) (D) In Commitment or similar proc. (placing person/prop/both under anothers control b/c of M/Phys).
v) (E) In proceeding to establish competence (brought by/on behalf of either spouse.)
2) (b) Testimonial Privilege - not to testify in CRIMINAL CASE. Follows Trammel.
a) (1) Rule. Spouse of accused has privilege not to be called as W. BUT they may do so voluntarily.
i) If spouse testifies on behalf of accused, cross per 611(b).
b) (2) Spouse fails to T on relevant matters? Prosecution MAY comment.
i) BUT shouldnt be able to call spouse and let jury hear the privilege claim (hoping for neg. inferences).
ii) Prosecution may explain how the law prohibits forced T of spouse, shouldnt be held against them.
c) (3) Who may claim Person or persons guardian or representative (NOT persons spouse)
d) (4) Exceptions. Crime against
(1) the persons spouse, OR a member of the household of either spouse, or ANY minor,
(2) Or in an offense charged under Section 25.01, Penal Code (Bigamy).
(3) Also, ANY matters prior to marriage (thus cant marry to get protection for T).
e) Trammel What is left to preserve if spouses would T against each other? Spouse may T, but need not.
3) Marriage Requirement (b) Relevant time is TIME OF TRIAL. (a) TIME OF COMMUNICATION
4) NOT mentioned Criminal activity - In joint enterprise Can you force spouse to testify?
a) Federal Courts split on join-participant exception.

Legal Privileges (50203)


1) TRE 502 * Required Reports Privileged by Statute (Required Records Doctrine) Boyd v. US
a) ANY entity making a report required by law to be made has a privilege to refuse disclosure and prevent
any other person from disclosing, if the law requiring it to be made so provides.
i) BUT no privilege if actions involve perjury, fraud, failure to comply with the law in question, etc.
b) Privilege belongs to- Person providing report AND agency receiving report.
c) Rationale: Push for full disclosure, though information might be personal or incriminating.

d) DOES NOT preclude E or T of the existence of event or fact. Just using the report.
2) TRE 503 **** Lawyer-Client Privilege
a) Client Person who is rendered legal services by lawyer (or potential clients).
b) Representative of the client
i) (i) Person authorized to get legal advice and act on it, on behalf of client (family, guardian, etc.)
ii) (ii) Any other person who, 1) for the purpose of effectuating legal representation for the client, makes or
receives a 2) confidential communication while acting in the 3) scope of employment for the client.
(1) Thus under 1) no privilege if employee asks company lawyer for legal advice.
(2) Confidentiality not broadcast, spread through organization, etc.
(3) With AC and legal entities, the relationship may not survive termination of the legal entity.
c) Lawyer - Authorized (OR reasonable believed to be) to engage in practice of law. Acting in capacity.
i) Protects client (e.g. if lawyer was disciplined and cant practice)
d) Representative of the lawyer is: 1) assists in legal services; or 2) accountant R necessary for LS.
e) Confidential communication - if not intended to be disclosed to 3rd persons OTHER THAN those to whom
disclosure is made in furtherance of rendition of LS to client (or those R necessary to transmit comm.
i) Public communication waives. In front of third party? Some exceptions (e.g. family/bus associates).
f) (b)(1) RULE - CLIENT has privilege on any confidential comm. made for purpose of pro. legal services.
i) Client to lawyer, and reps, between common clients and reps, between lawyer and their reps, etc.
ii) Note Though list nonexhaustive, it wont cover communications between parties.
g) (b)(2) Criminal CLIENT may prevent L or reps from disclosing ANY other fact known through AC rel.
h) (c) Who May Claim the Privilege?
i) Client/Cs guardian/personal rep of deceased C.
ii) Successor, trustee, or similar of corporation or org, whether or not in existence.
iii) Lawyer PRESUMED to have authority to claim, but ONLY on behalf of client (cant unilaterally waive).
i) (d) Exceptions. There is no privilege under this rule:
i) (1) C/F If services sought/obtained to further what client knew OR R should have known as C/F.
(1) Reasonably knowing protects client who rely on erroneous advice.
(2) Burden of establishing CF party seeking disclosure.
ii) (2) Claimants through same deceased client. If 2 or more parties claim through same deceased C,
relevant communication by the client is not privileged as to the others.
iii) (3) Breach of duty by a lawyer or client. Comm relevant to breach (didnt pay bill, etc.).
iv) (4) Document attested by a lawyer.
v) (5) Joint clients.
j) Procedure:
i) If privilege asserted, TC determines (in camera on docs) if privilege exists. EE permissible.
ii) Burden On party claiming privilege to request inspection or support claim. Or party claiming excep.
iii) Waiver If privilege is not claimed. Also if disclosed to 3 rd parties.
iv) Privilege may be established through testimony or affidavits.

Medical Privileges (50910)


1) TRE 509 Physician-Patient Privilege - ***
a) Patient Any person who consults or is seen by physician for medical care.
b) Physician Licensed to practice med. (anywhere) or RB by patient to be so. (Prob. Not dentists, psych??)
c) Confidential Communication Not intended to be disclosed to 3rd parties EXCEPT: 1) those present to
further patient interest; or 2) R necessary for communicating; or 3) those participating(family)
d) (b) CRIMINAL NO physician-patient privilege in criminal proceedings.
i) Exception communication to any person involved in drug/alcohol abuse by person treated voluntarily.
(1) In civil cases, 510 would probably cover alcohol situation.
(2) Any person interpret broadly any non-professional, statements to doctor in effort for treatment.
(3) No reasonably believes exception. If person isnt involved in treatment, no privilege.

(4) Note 502 may be mandatory reporting requirements and privilege under that rule as well.
ii) Note: Possible to protect if physician is hired by attorney (thus it would really be A/C privilege).
e) (c) CIVIL Cannot disclose communications between physician/patient or related records.
f) (d) Patient/Rep/Physician (on behalf of patient, authority presumed) holds privilege.
i) Burden on privilege seeking to show privilege or exception to privilege to produce E to support claim.
g) (e) Exceptions in a Civil Proceeding. (Virtually swallows the rule).
i) Malpractice Patient actions against doc AND license revoc. where patient is complaining W. (mal +)
ii) Written consent - when patient or their agent submits to written consent per (f)
iii) Proceeding where ANY party is relying upon physical, mental, or emotion condition as part of C/D.
(1) Most frequently encountered. E.g. when P alleges injury.
iv) Dr. disciplinary actions, involuntary commitment, abuse of institutionalized persons, doctor $ collection.
v) 509/510 DO NOT implicate offensive use doctrine.
h) (f) Consent. In writing & signed by patient/ rep. Include info covered, reasons released, person released to.
i) May withdraw to release of information, but this does not affect info disclosed before withdrawal notice.
ii) If consented disclosure, disclose only as consistent with the purposes for which authorization obtained.
2) TRE 510 Confidentiality of Mental health information in CIVIL cases - ***
a) Professional Authorized to practice, licensed by TX in treatment of mental/emotional disorder, involved in
treatment/exam of drug abusers; OR RBd (GF) by patient to be in any of the above three categories.
i) Note licensed is not tied to any particular notion of medicine (just needs state approval) Psych, etc.
b) Patient consults or interviewed for treatment OR treated/examined voluntarily in drug abuse treatment.
c) Representative of the patient person with written consent/minor/guardian/personal rep.
d) (b) GR Patient/prof. communication privileged in CIVIL cases (records too). Applies retroactively.
e) (c) Who May Claim the Privilege? 1) Patient; 2) patients rep; 3) Prof. (on behalf of P, authority presumed).
f) (d) Exceptions.
i) Malpractice exception as above.
ii) When patient or their agent submits to written consent (unlike 509, where (f) must be followed).
iii) When it is part of claim/defense.
iv) Involuntary commitment, court ordered exams ONLY about condition, fee collection.

Clergy (505) **
1) Member of Clergy priest/rabbi or similar functionary of religious organization or RBd so by person consulting.
2) Confidential Communications made privately and not intended for further disclosure.
a) Except to other persons present in furtherance of the purposes of the communication.
3) Rule May refuse to disclose and prevent others from disclosing comment to clergy in professional capacity.
a) Holder = communicant. Clergy must be acting in professional capacity as spiritual advisor.
4) Who Claims? 1) Person; 2) guar./cons./personal rep of deceased; 3) clergy (on behalf; authority presumed).
5) Unlike other privilege rules, no exceptions (BUT neglect of children, or 511 CW may get around it).

Informer ID (508) **
1) (a) GR. G entity has privilege to refuse disclosure of ID of person furnishing info in on law violation.
a) Holder - Government entity (holder of privilege) may block disclosure of ID of informer.
b) Protects ONLY identity. Communications only privileged if disclosure would effectively ID the informer.
2) (b) Who May Claim? Appropriate representative of public entity to which information furnished.
a) EXCEPTION Not allowed in criminal cases if the state objects.
i) If US attorney says they dont want to disclose, and DA objects privilege doesnt work.
3) (c) Exceptions.
a) (1) If informer or holder voluntarily discloses ID OR informer appears as witness for public entity.
i) Other side may not avoid privilege by calling suspected informers to see if they are in fact informers.
b) (2) If it R probability testimony on merits will aid fair determination of material issue
i) Civil cases If found and G entity decides not to disclose court makes any order justice requires.

ii) Criminal Cases If necessary to fair determination on issues of guilt.


(1) Must on motion, or may sua sponte, dismiss charges if G entity doesnt disclose.
iii) Burden D must make plausible showing informant could give desired T. Low threshold.
c) (3) Legality of obtaining E. If informer is means for establishing legality of E, court may require disc.
i) By motion or sua sponte. May perform in camera?
(1) Key for court did the tip come from informer reasonably believed to be reliable or credible.

Judicial Notice of Adjudicative Facts (201)


1) Adjudicative facts Actually involved in the litigation (normally be considered and decided by jury).
a) The who, what, when, where, with what intent or motive this fact finding is adjudicative function.
b) Vs. Legislative facts Court may JN at will the facts which relate to lawmaking and policy decisions.
i) E.g. weight of cocaine for a certain definition, etc.
ii) May notice Court Records, but cannot notice prior testimony.
c) Vs. PK of judges and jurors Cannot be noticed.
2) (b) Kinds of Facts. JN fact must not be subject to reasonable dispute in that it is either
a) (1) generally known within the territorial jurisdiction of the trial court or
b) (2) Capable of accurate & ready determination in sources whose accuracy cannot R be questioned.
3) (c) When Discretionary. A court may take judicial notice sua sponte.
4) (d) When Mandatory. If requested by party and given necessary info (NI is Q of L for TC; AoD). Meet (b).
5) (e) Opportunity to Be Heard. Party may be heard after timely request on propriety of JN (or after if necessary).
6) (f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding. COA usually wont
7) (g) Instructing Jury. Civil Instruct fact is conclusively established. Criminal Jury may, but need not, accept.
8) Stipulations: to fact parties cant contradict; to E foundation stipulating to authenticity waiver of other obj.
a) To expected T Does not concede it is truthful; can contradict with rebuttal E