EVIDENCE OUTLINE

History of Evidence law:

Traditional Sources of Evidence law
1. Exclusionary rules adopted by SCOTUS related to the 4th, 5th and 6th amendments movement in
60s to 70s for codification of the rules; SCOTUS appointed committee to adopt uniform set of
evidence rules
2. Statutes
Congress adopted Federal Rules of Evidence in 1975
Texas permitted courts to promulgate rules of evidence, subject to legislative changes,
and also recognized ability of legislature to independently promulgate rules of evidence
in other non-evidence codes
Texas adopted its rules in 1983 for civil cases and 1985 for criminal cases
o In 1998, the two sets of rules were merged into one unified code
3. Common law judicial decisions
Reasons for the Law of Evidence:
1. Insure only reliable, trustworthy evidence is admitted (Rule 901)
2. Imposes important limits on the scope and duration of trials, which might otherwise be
needlessly extended (Rule 403)
3. Evidence law represents some mistrust of the jurors' ability to disregard untrustworthy evidence
or to place too much weight on certain evidence (Rule 801)
4. Evidence law reflects important extrinsic policies (Rules in Article 5 re privileges)
Flow of a Typical (Federal) Trial:
o
Pretrial Motions
Proponent of an item of evidence:
Motion in limine - to obtain an advance ruling admitting evidence
o A pretrial ruling on the admissibility of evidence can affect the proponent's trial
strategy in offering that evidence
o Not necessarily final (if judge grants motion, usually counsel must approach the
bench and obtain a ruling before introducing the evidence)
Opponent of an item of evidence:
Motion to suppress
o File if law enforcement agents seized evidence in violation of constitutional provisions
o Can file before case is even assigned to a trial judge
o Ruling is usually final
o Rulings is sufficient to preserve error
Motion in limine
o File if there are non-constitutional or non-statutory grounds for excluding the
evidence
o
Selection of Jury
Voir Dire examination of prospective jurors to establish whether they are qualified to sit as
jurors
Challenges
Challenges for cause bases for this type of challenge usually specified by statute and
consist of reasons, such as bias, that disqualify a prospective juror
Peremptory challenges give the attorney a qualified right to strike a prospective juror;
ordinarily no reason is given for exercising a preemptory challenge
Bench trial case tried by trial judge
o
Sequestration of Witnesses
o
Opening Statements - make known to the jury what atty intends to prove; preview of admissible
evidence for jurors
Party w/ burden of proof (usually plaintiff/prosecution) goes first
D atty may present opening statement directly after P or defer until start if Ds case-in-chief
Error may be committed by atty if he/she alludes to any matter that will not be supported by
admissible evidence
o
P's/Prosecutor's Case-in-Chief - present any evidence logically relevant to any factual issue on
which they have the BOP (in some jurisdictions, any evidence logically relevant to any factual issue
in case); may call witnesses as hostile or adverse witnesses and may attempt to obtain stipulations

o
o
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o
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o
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of fact or expected testimony; evidence presented in the form of direct examination of witnesses,
redirect questioning, physical and documentary evidence; at conclusion, P rests
Defense Motions for Instructed or Directed Verdict, or Finding of Not Guilty - when P rests,
D may make a motion to challenge the legal sufficiency of the evidence; D can do this if he thinks
that even if jury believes all the evidence, the evidence lacks sufficient cumulative probative value
to prove all the facts on which P had the burden; to survive the motion, P must show he presented a
prima facie case
Motion may be called motion for a nonsuit, judgment of acquittal, finding of not guilty, or
directed verdict
If judge grants the motion, trial is terminated
If judge overrules the defense motion, trial continues
Judge must decide if P sustained its burden of production
D's Case-in-Chief - includes evidence logically relevant to any fact in issue in the case. Consists of
direct examination, cross examination by P, redirect questioning and introduction of physical or
documentary evidence; D may also call adverse or hostile witnesses
Ps Motion for Directed Verdict
P's/Prosecutor's Rebuttal - P may present rebuttal evidence, which is normally limited to refuting
evidence presented during Ds case-in-chief
Judge may limit P to testimony specifically aimed at rebutting a new matter presented by Ds
case-in-chief
But, judge may, under unusual circumstances, broaden scope to permit P to introduce
evidence mistakenly left out of its case-in-chief
o Appellate court will only reverse if there has been a clear abuse of discretion
Defense Surrebuttal - D has an opportunity to present surrebuttal ONLY when a new ground is
covered during the rebuttal; very rare
Witnesses Called by Judge
In Federal cases, judge may call other witnesses if not satisfied by witnesses called by either
party
In Texas cases, judge may not call witnesses
Witnesses Requested by Jury; Questioning by Jurors
In Federal cases, jury may request the judge call certain witnesses; federal common law
(though not the Federal Rules themselves) permits the jurors to present questions to the
witness
In Texas cases, this practice is absolutely forbidden for criminal cases by case law
Closing Argument or Summation - attys allowed to argue inferences from all evidence at this
point
In Federal practice, closing arguments precede judges instructions to jury
In Texas practice, closing arguments follow the judges instructions to the jury
Judge's Instructions/Jury Charge presiding judge explains the substantive law, mentions any
pertinent evidentiary rules and describes the voting procedures the jury must use
There are six different categories of evidentiary instructions:
1. Admissibility instructions
2. Corroboration instructions
3. Cautionary instructions
4. Limiting instructions
5. Curative instructions
6. Sufficiency instructions
Jury Deliberations
Verdicts

Role of Participants--Examination of a Single Witness

Examination of Witnesses
Sequestration (Exclusion) of Witnesses (***FR 615, ***TR 614)
Invoking the Rule = colloquial term for asking judge to sequester the witnesses
Any witnesses expected to testify
Court must do so if requested by a party or may do so sua sponte
Burden of proof is on party claiming the exception

Exceptions:
Natural person; spouse of natural party in civil cases
Officer or employee of a party (corp.), designated by its attorney
Person whose presence is essential to presentation of the case, could be
expert witness (See also Rule 702)
Person authorized by statute to be present (i.e. victim in a criminal case,
unless that victim is to testify and the testimony would be materially
affected)
Sanctions:
Exclude testimony of a prospective witness who violated the rule
Punishable by contempt
Disqualify the violating witness and exclude his or her testimony
Oaths or Affirmations (**FR 603)
Requirement for all witnesses? Yes
Witness does not get to decide exact form of oath or affirmation
Judge has discretion: deals with people of tender years
Not necessarily reversible error if oath is not given
The Personal Knowledge Requirement (***FR 602) (See also Rule 801, Hearsay)
May be satisfied through witness testimony
Whether witness has requisite personal knowledge remains a determination for the judge,
then the jury (**Rule 104(b))
Use of Interpreters (FR 604)
Interpreter must qualify as expert (see ****702) and take oath or affirmation to make a
truthful translation of what witness says
Form and Order of Questioning: Control by the Court (***FR 611)
In Federal courts, scope of cross-examination is limited to matters raised on direct
examination, or matters touching on the witnesss credibility
In Texas courts, scope of cross-examination is open to any relevant matter in the case
Voir Dire of Witnesses (601, 602, subject to ***611)
Term also applies to opponents ability to question a witness to determine if the witness is
competent (601) and has personal knowledge (602)
B/c it involves an out-of-order questioning of a witness, it is subject to the trial courts
discretion under 611
Questions by the Court and Jurors (FR 614)
Federal rule only; no Texas counterpart
Both parties have right to cross examine witness called by court
Either party may object but the objection should be entered outside presence of jury
Optional Completeness (*Rule 106, *Rule 107)
Direct Examination (***Rule 611)
Governed with non-leading questions
Exceptions:
Adverse/hostile witness
Prime a witness to get them started
Re-Direct Examination:
Scope: only re questions asked in cross-examination
Role of the Participants--Examination of a Single Item of Evidence, & Preservation of Claims of
Error
Role of the Proponent of Evidence
Pretrial Actions
Proponent of an item of evidence may make a motion in limine to obtain an advance ruling
from the trial court on whether a piece of evidence is admissible
Usually done in the judge's chambers before the trial begins
Always prepare and order ready for a judge to sign.
Offers security when proving up an item of evidence that requires a lengthy foundation
Some instances: rules of evidence or procedure may require the proponent to provide
notice to the opponent that certain evidence will be offered at trial. (FR 404(b))

Conducting Direct & Redirect Examination

Direct examination of the witness takes the form of non-leading questions
Scope is limited to evidence or information which is relevant to the case or which lays the
predicate or foundation for another piece of evidence. (See ***FR 611)
After witness is cross-examined, proponent may conduct redirect examination using nonleading questions about issues raised on cross-examination.
Laying the Foundation or Predicate for Evidence ("Prove Up")
Burden is on the proponent to lay the foundation through use of a sponsoring, predicate,
or foundation witness for introducing evidence.
Four-step procedure for "proving up" an item of evidence by "walking and talking" the
exhibit into evidence is as follows: (IMPORTANT****)
Step One: Have the item of evidence marked by reporter and show it to the
opposing counsel and the witness. "Mark and Show"
"We request that this exhibit be marked as State's/P's/D Exhibit ___ for
identification."
Next: Show Judge, Opposing Counsel "Let the record reflect that I am showing
what has been marked by the Reporter as [the exhibit] to [the opponent].
Next: Show witness "I show you what has been marked as P's/S's/D exhibit ___
for identification. Do you recognize it?" "Would you please tell the Court what it
is?" "How is it that you recognize it as?"
Step Two: Law the Foundation or Predicate. The proponent must insure that
each element of the foundation is established through the testimony of the
foundation witness. "Proving up the evidence"
Step Three: Formally Offer the item into evidence
"Your Honor, we offer into evidence what has been marked as State's/P's/D
Exhibit ___ for identification"
Step Four: Show or read the exhibit to the jury.
Referred to as "publishing the exhibit."
Meeting the Opponent's Objections (****Rule 103(a))
The proponent should be prepared to defend the admission of the item of evidence using
the rules of evidence and applicable case law
Think ahead of time on what objections you would likely face
Three common objections:
Hearsay (Art 8)
Authentication (Art 9)
Best evidence (Art 10)
Make an "Offer of Proof" (****FR 103(b))
If the judge agrees with the opponent and excludes the item of evidence, the proponent
should make an offer of proof in order to preserve the issue for appeal. (See ****FR
103(b)).
Should make known to the court the substance of the evidence excluded.
Out of the presence of the jury
First, they provide the trial judge an opportunity to reconsider his or her ruling
Second, they inform the appellate court of the nature of the excluded evidence.
Offers of proof can be formal or informal
In a formal offer of proof (question and answer) the opponent cannot cross-examine
Difference between an offer of proof and a bill of exceptions:
Bills of exceptions are usually filed afterwards and apply to procedural issues
If it is an evidentiary error use the term offer of proof
Role of the Opponent of Evidence
Pretrial Actions
Opponent may file motions in limine or motions to suppress evidence.
Motions to suppress are normally considered final
Motions in limine may not be
Where motions in limine are not final rulings, the opponent will have to object again
at trial when the evidence is offered in order to preserve error.
Taking a Witness on Voir Dire

Opponent may challenge the witness's competency or basis of personal knowledge by

taking the witness on voir dire.
Opponent effectively interrupting the proponent's direct questioning of the witness by
posing questions which go directly to the witness's ability to testify
Most commonly used with regard to expert witnesses
Make Specific and Timely Objections
Failure to do so will normally amount to a waiver
Must object as soon as it is apparent that an objection is in order
Opponent must object after a question is asked but before the answer is given or as soon
as an objectionable piece of physical or documentary evidence is offered.
The objection must also be specific in that the judge and the proponent should be
put on notice of the defect
Objections must be consistent and persistent
Running objections must be specific and cannot be counted on to "run" throughout the
trial.
Must ask for a running objections
General objections do not preserve error and are considered invalid.
New objections or morphed objections cannot be raised in appeal.
Objections that were not raised in trial cannot be raised in appeal
For there to be error, there must be a ruling on the objection
Motion to Strike
If the proponent asks a proper question but obtains an improper answer to inadmissible
evidence, the opponent should promptly move to strike the response and request that the
judge instruct the jury to disregard the answer
Where the question is not objectionable but the answer is
Failure to do so will normally amount to a waiver of the issue
Request Limiting Instruction in Jury Trial
If the item of evidence is admitted which is admissible for one purpose, but not for
another, the opponent should request a limiting instruction. (See ****FR 105).
Explains to the jury the permissible and impermissible uses of the item of evidence.
If the piece of evidence is admissible for purpose 1 but not 2, you need to request a
limiting instruction. If you fail to request the limiting instruction, you waive that error.
Request it as soon as its apparent
Limiting instruction should be given at the time the evidence is given and at the jury
charge
Ex: D's prior bad acts.
Cross-Examine Proponent's Witness
Opponent may cross-examine that witness, normally through use of leading questions.
Idea is to lead the witness to give answers which support the opponent's viewpoint without
being argumentative.
Scope varies:
Federal - limited to issues raised during direct examination (Majority American Rule)
Texas - scope is wide open (Minority English Rule)
After cross-examination, the proponent may conduct redirect examination
Then the opponent may conduct recross examination, asking questions concerning issues
raised in redirect only.
Curative admissibility and waiver
You can waive an issue by later failing to object when the same evidence is offered at a later
time.
You must be consistent
You can waive your objection to if you introduce the piece of evidence yourself
Curative admissibility - continue to maintain that the piece of evidence was inadmissible, but
you offer rebuttal evidence not to waive your rejection but strictly use for rebuttal.

Role of Participants--Judge and Jury

Role of the Judge
Rule on Pretrial Motions

Trial judge has discretion whether to entertain motions in limine.

The advantage of ruling on a pretrial motion is it reduces the risk of a mistrial by limiting
what the jury hears.
In some jurisdictions, a motion in limine is considered a final ruling, not in Texas.
Decide Qualification of Witness
Trial court decides questions concerning the qualification of a witness to testify in two
situations.
First, up to the judge to make a determination about the competency of a witness
based on moral capacity and mental capacity to observe, recall and narrate. (FR
601)
Second, the judge decides whether a witness qualifies as an expert under Rule 702
(**FR104(a), FR 702)
Decide Whether a Privilege Exists
Some types of information are excluded because the exclusion promotes and extrinsic
social policy and not because the information is unreliable.
Ex: Attorney-client relationship
Finally Determines Admissibility of Evidence
Subject to Rule 104(b), the court is responsible for finally determining the admissibility of
evidence. (FR 104(a))
Ex: Relevance, character evidence, and hearsay
Determinations on Relevant Conditions of Fact
Under FR 104(b), the judge acts as a preliminary screener ensuring that the proponent has
introduced "evidence sufficient to support a [rational] finding" of the existence of the fact.
Ex: Conditional Relevance Questions. The preliminary fact of a document's authenticity or
a witness's personal knowledge.
When that issue arises, the judge asks whether the proponent has offered enough
questions to convince a rational juror by a preponderance of the evidence that the
offered piece of evidence is what it is purported to be.
Exception: 404(b)
Take Judicial Notice
The formal introduction of evidence is not the only way of establishing a fact at trial.
Judicial notice is another way; the judge notes the existence of a fact and instructs the jury
that the fact exists. (FR 201).
Speeds up the trial process by dispensing with formal proof of the fact
Slightly different for civil and criminal cases.
Role of the Jury
Three Key Points:
First, the trial judge decides questions of law, the jury decides the facts of the case
Under appropriate instructions from the judge, the jury decides whether the party
bearing the ultimate burden of persuasion in the case
Second, in reaching its decision the jury decides what weight, if any, to give to the admitted
evidence.
Includes deciding the credibility of the witnesses (FR 104(e)).
While the court determines the qualification of a witness to testify, the jury ultimately
decides which witnesses to believe and how much weight, if any to give to their
testimony.
Third, the jury finally determines relevant conditions of fact which determines whether a
piece of evidence is authentic or whether a witness had personal knowledge. (Rules 902,
602)
Jurors resolve only the types of factual issues falling under Rule 104(b)
Judge decides initially only whether the evidence is legally sufficient to support a
finding that the fact exists.
If it is, the evidence is conditionally admitted and the jury actually makes the

finding.
Conditionally relevant - they are logically relevant only the condition that they

are genuine.

Competency of Witnesses--In General

In General
Article VI of the Federal Rules of Evidence regulates witness testimony.
Divided into three categories: rules determining competency, rules governing impeachment,
and miscellaneous provisions.
Rules Determining Competency
In General
Only individuals who meet the competency requirements found in Rules 601-606 may
testify as witnesses.
C/L four factors determined witness competency:
Mental capacity to perceive through one's senses
Mental capacity to remember
Mental capacity to communicate
Moral capacity for truthfulness
These still serve as the underlying principles behind the competency rules.
A State's competency rules will be applied in federal civil proceedings where state law
applies with regard to an element of a claim or defense (i.e., diversity proceedings) (FR
601)
In a federal criminal proceeding, the state rules governing competency would not apply.
Persons Who Lack Mental Capacity
FR 601 presumes that a witness is competent, unless otherwise provided in the rules of
evidence. (FR 601).
Even a person suffering from mental delusions is competent to testify
A judge, could be asked to exclude such testimony on the grounds that the witness lacked
personal knowledge (FR 602), or was confusing (FR 403), or would needlessly consume
time or would embarrass the witness (FR 611(a)),
The court will usually rule that a person's lack of ability to remember, for example, goes to
the issue of credibility not the ability to testify.
TR 601(a)(1) gives the trial court the authority to disqualify witnesses who in the judgment
of the court are insane at the time of trial or were insane at the time they observed the
facts about which they have been called to testify. (FR 104(a)).
Children
FR 601 presumes that a child witness is competent to testify.
TR 601(a)(2) gives the court authority to disqualify children if they seem to lack sufficient
intellect to relate the facts. (FR 601(a)(2), TR 601(a)(2), FR 104(a)).
Competency of Witnesses--Spouses & Dead Persons
Dead Man's Statutes or Rules
Some jurisdictions through statute or court rule, limit the ability of parties in litigation involving
estate from relating statements made by a decedent. (FR 601(b)).
TR 601(b) specifically includes a "dead man's rule" which limits testimony about a decedent's or
ward's oral, uncorroborated, statements in "actions by or against executors, administrator, or
guardians, in which judgment may be entered for or against them as such (TR 601(b)).
Ex: At trial, B is not permitted to testify about A's (decedent) oral statements to B unless they
are (1) corroborated or (2) E calls B to the stand and asks B about the statements. At trial, E is
not permitted to testify about A's (decedent) oral statements unless they are (1) corroborated or
(2) B calls E to the stand and asks B about the statements. Either party could call a
disinterested witness (one who has no stake in the outcome of the trial) to testify about A's oral
statements, whether corroborated or not.
Competency of Witnesses--Judges & Jurors
Judges and Attorneys
Article VI also contains rules which prohibit presiding judges from testifying as witnesses in
cases before them. (FR 605)
Rules of evidence do not address the issue, Codes of Professional Responsibility and Model
Codes of Conduct generally prohibit attorneys from acting both as witnesses and counsel in the
same case.
Jurors

Jurors are not competent to testify as a witness in the case in which they are sitting. (FR
606(a))
Jurors are not permitted to testify about certain aspects of their deliberations, i.e., any matter or
statement which may have had an impact on their deliberations. (FR 606(b)).
Jurors may testify about whether any extraneous prejudicial information or outside influence
was brought to bear upon their deliberations.
Reason: courts are very hesitant to impeach a jury's verdict.
Objection must be made in order to preserve error, outside the jury's presence
Four policy reasons:
Encourage jurors to discuss the evidence
Jurors should be protected from post-trial harassment and tampering
A disgruntled juror should not be given an avenue for vindication by invalidating the verdict.
Need for finality
Tanner v. US
DC ruled that juror testimony on intoxication was inadmissible under FR 606(b) to impeach the
jury's verdict.
Public policy for not allowing juror testimony:
Shielding jury deliberations from public scrutiny
FR 606(b) is grounded in the C/L rule against admission of jury testimony to impeach a verdict
and the exception for juror testimony relating to extraneous influences.
Jurors will not be able to function effectively if their deliberations are to be scrutinized in posttrial litigation.
In the interest of protecting the jury system and the citizens who make it work, rule 606 should
not permit any inquiry into the internal deliberations of the jurors.
Juror intoxication is not an "outside influence" about which jurors may testify to impeach their
verdict.
DC did not err in deciding, based on the admissibility of juror testimony and the clear
insufficiency of the non-juror evidence offered by petitioners, that an additional post-verdict
evidentiary hearing was unnecessary.
Relevancy
In General
Relevancy is the threshold issue--the first evidentiary hurdle encountered when determining the
admissibility of any piece of evidence, whether it be in the form of testimony, a written
document, or the alleged murder weapon.
Is a universal concept and it applies to every piece of evidence sought to be admitted at
trial.
Irrelevant evidence is inadmissible evidence (FR 402).
A 104(a) decision
A piece of evidence must be proved relevant and must be "proved up".
The Concept of Relevancy
Relevancy Defined; Materiality Distinguished
Evidence is relevant when it has any tendency to make the existence of any material fact
more or less probable. (FR 401)
Relevancy is a relatively easy hurdle to cross.
Rule 401 only requires any tendency to prove a material fact.
Tendency need not be strong, unwavering, or absolute.
A material fact may, but need not be the case's ultimate issue.
Generally, material facts will fall into one of three categories: P's or Prosecutor's claims (as
determined by the substantive law) D's defenses (as determined by substantive law), and
the credibility of both parties' witnesses.
C/L: two concepts were distinguished: Materiality meant that the offered evidence had
legal significance to the case at bar. Relevancy, on the other hand, focused on whether the
offered piece of evidence had probative value, i.e., whether logically the offered evidence
tended to prove or disprove a particular point.

The two concepts have been merged into one definition and a simple relevancy objection
should suffice to cover what under the common law would have been materiality objection.
(FR 401)
Key to determining relevancy is knowing the function of the offered evidence.
Why is the evidence being offered?
If the evidence has been offered to prove a material fact and has any tendency to
prove that fact, the evidence is relevant under Rule 401.
Relevant Evidence is Generally Admissible
Rule 402 mandates that all irrelevant evidence is absolutely inadmissible and that all
relevant evidence is generally (but not always) admissible. (FR 402)
Relevant evidence can still be excluded on statutory grounds, constitutional grounds or
reasons codified in the other rules of evidence.
General Grounds for Excluding Relevant Evidence
****Rule 403 provides for the exclusion of relevant evidence where the probative value of
the evidence is outweighed by one or more identified dangers:
Unfair prejudice
Confusing the issues
Misleading the jury
Undue delay
The needless presentation of cumulative evidence, or waste of time.
How strong a logical connection a piece of evidence has toward proving a material issue
determines the evidence's probative value
The opponent who raises a "403" objection has the burden of proving that an identified
prejudicial danger substantially outweighs the probative value of the evidence.
The judge will make this determination under rule 104(a)
Important because it potentially applies to every piece of evidence offered, and also
may serve as an opponent's last chance to exclude a piece of evidence which
otherwise complies with the evidence rules.

Underlying Logical Relevance

Introduction
Authentication is the manner by which the proponent of a piece of evidence proves that the
evidence really is what the proponent says it is.
Proves that X equals X and thereby indirectly proves that X does not equal Y.
Authenticity establishes the underlying logical relevance of a piece of evidence by tying that
evidence in deciding a case
Authentication also serves as a means of ensuring that the fact-finder considers only authentic
reliable evidence in deciding a case
Has a limited scope in that is serves only to establish an item's underlying logical relevance.
That item can still be excluded from evidence on other grounds such as hearsay, best
evidence, or relevancy under Rule 401.
Authenticity does not establish either truth or probative value.
What Must Be Authenticated
Writings, physical evidence, voices, tape recordings, photographs, slides, videotapes, motion
pictures, scientific evidence, charts and diagrams all must be authenticated under Article IX.
Authentication of Writings
Required Foundations
Writings
Authentications of writings is geared toward the identification of the writings' author.
May be done either through identification of the author's handwriting, or circumstantially
proving the author's identity through the writings' content.
A lay witness with sufficient familiarity with the author's handwriting may make the
identification.
Here, the sponsoring witness would have to meet the competency requirements of
Rule 601, and the personal knowledge requirements of Rule 602

A handwriting expert may be used to enter an opinion that a particular document was
written by a particular individual
Requires that the witness be recognized as an expert by the court
Article VII rules regarding expert testimony, and Rule 601's competency requirements
would also apply to the expert witness.
The handwriting expert must have an authentic identified writing to sample to serve
as a basis for comparison.
Business Records
Normally authenticated by a sponsoring witness with personal knowledge (Rule 602) who
can testify that the document in question came directly from the place of business.
Authentication of the document's author usually is not required.
Certain public documents are considered self-authenticating under Rule 902, and thus
require no sponsoring witness.
Authenticating a business record does not make that record immune from the rule against
hearsay.

Identification of Physical Evidence

Real & Physical Evidence
Three methods exist to authenticate (identify) actual physical evidence; readily identifiable
evidence; establishing a chain of custody, or offering circumstantial (inferential) proof.
Readily Identifiable Evidence
If a piece of evidence is readily identifiable because of its distinguishing characteristics, a
witness with person knowledge (Rule 602) of those characteristics may identify
(authenticate) a piece of physical evidence.
Determination for the judge and jury under Rule 104(b).
Need to come up with as many distinctive characteristics as possible for the item
Using a Chain of Custody
Normally used to authenticate physical evidence that is not readily identifiable, usually
because the evidence is fungible in nature, for example, drugs.
One gram of cocaine has no distinguishing characteristics to distinguish it from any
other gram of cocaine.
In a drug possession case, the gram of cocaine admitted must be the exact same
gram of cocaine found in D's possession
Unless it is the same cocaine, admitting the drug would have no underlying logical
relevance
Using the chain of custody, the proponent establishes every individual who had possession
of the object and the duration of their custody.
Establishing a chain of custody makes it reasonably certain that no tampering or
substitution of the item has taken place.
That way, the item admitted at trial is the authentic item that was originally seized.
Can also be used for a readily identifiable item where no sponsoring witness exists who
has personal knowledge of the distinguishing characteristics, or for a piece of evidence
whose condition at the time in question is a material issue in the case.
Really hard in Texas to win a case based on chain of custody. You have to account for every
link.
Burden on Defense to defeat the chain of custody
Circumstantial Evidence of Authenticity
Can be used to develop an inference that the piece of evidence in question is authentic.
Requires competent witnesses with personal knowledge to develop the inference of
authenticity.
Circumstantial identification is the weakest form of authentication for physical evidence.
The opponent could, with minimal effort, shoot holes into the prosecutor's inferences.
Demonstrative Evidence
Where a piece of physical evidence is not the actual evidence or a substitute for the actual
evidence, but rather serves as a demonstrative purpose (such as a diagram depicting a car
crash), authentication is established by a sponsoring witness who through personal
knowledge testifies that the demonstrative evidence serves as a fair and adequate
representation of what the demonstrative evidence portrays.

10

In addition to diagrams, demonstrative evidence also includes charts, photographs, x-rays,

slides, videotapes, and motion pictures.
When either the actual evidence, or the demonstrative evidence has been created through
the use of a technological instrument an additional foundation must be laid.
That foundation must establish that the technological instrument was properly
functioning at the time the evidence was created, that the person who created the
evidence had the adequate training to properly operate the instrument, and that the
evidence has not changed since its creation.
If it is not to scale, as the opponent you should point it out.
Demonstrative evidence is not misleading
Similar Objects
Can be admitted as long as jury is instructed that the item is not the actual but merely a
similar object
Can be published if admitted into evidence
Props
Can be misleading and objectionable (Rule 403)

Identification of Speakers, Charts, etc.

Voice Identification
Voices in telephone conversations and on audio or video tapes can be identified by a witness
with sufficient familiarity with a speaker's voice, inferentially by the content of the speaker's
statements, or through the use of presumptions such as the telephone directory doctrine.
Where a witness will serve to identify the voice, the witness must meet the competency and
personal knowledge requirements of Rules 601 and 602.
Telephone Directory Method (901(b)(6))
Look up number in telephone directory and call it, see who answers
ID- Based on Content (901(b)(5))
Lay Opinion - PK (901(b)(5))
Expert - Voiceprints
Using expert witnesses to identify voice prints has met with limited success, and is not
recognized as a sufficient means of identification by most jurisdictions.
Texas has not definitively ruled on voiceprint technology
Scientific Evidence
Scientific evidence must be verified as being reliable.
Proponent must show that a qualified individual performed the scientific procedures, that the
equipment used in the procedure was capable of producing an accurate result, and that the
equipment was in proper working order at the time of the procedure.
Focus is primarily on the reliability of the scientific principles and methodology and whether the
evidence will assist the jury in deciding the case.
Decision is essentially a question for the trial judge under Rule 104(a) and Rule 702.
Authentication of scientific evidence often requires the use of expert testimony.
Recordings (Audio and Video)
Cummings-Edwards Test (7 prong Test)
Not required anymore, but nice to follow
Criminal Cases (C-E not applicable)
Civil Cases (Probably still viable)
Photos
Pictorial Testimony
A witness who can testify that the evidence accurately depicts the scene in question may
authenticate motion pictures and photographic evidence
"True and accurate depiction" "Fair and accurate depiction"
Photographer need not prove it up
Silent Witness
Permits the proponent to show that the picture resulted from a reliable process or system
X-ray machines, automatic camera surveillance systems
Need to prove up that the system was reliable and how the picture was taken
Other

11

Computer Animations
You have to prove up that the system is reliable
E-mails
Relatively straight forward.

Legal Irrelevance--Exclusion of Relevant

General Grounds for Excluding Relevant Evidence
****Rule 403 provides for the exclusion of relevant evidence where the probative value of the
evidence is outweighed by one or more identified dangers: (5 dangers in Texas Rules 6 in
Federal Rules)
Unfair prejudice - appeals to the raw emotions to the jury that will sway a jury's emotions
Cannot keep out evidence just because its prejudicial because almost all evidence to
some extent is prejudicial
Confusing the issues
Misleading the jury
Undue delay
The needless presentation of cumulative evidence, or waste of time (In Federal)
How strong a logical connection a piece of evidence has toward proving a material issue
determines the evidence's probative value
The opponent who raises a "403" objection has the burden of proving that an identified
prejudicial danger substantially outweighs the probative value of the evidence.
(Presumption of admissibility of evidence in this rule)
The judge will make this determination under rule 104(a)
Important because it potentially applies to every piece of evidence offered, and also may
serve as an opponent's last chance to exclude a piece of evidence which otherwise
complies with the evidence rules.
Must make a specific and timely objection
i. Opponent must make an objection
ii. Determine probative value
iii. Identify the prejudicial danger
iv. Balance PV and PD
Limitations on Relevant Evidence --Introduction to Character and Habit Evidence
Specific Rules of Exclusion
Article IV contains a number of rules which specifically exclude certain types of evidence, even if
they are otherwise relevant under the definition of Rule 401.
Character Evidence
Subject of FR 404, 405 and 412-415
The rules generally exclude evidence of a person's character
Although a persons character may serve as a valid predictor on how that person would act
on a particular occasion, the rules generally exclude such evidence, subject to a number of
exceptions
Evidence of Habit
While the rules of evidence restrict the use of character evidence, Rule 406 expressly
authorizes admission of habit (or routine) evidence to prove that a person or business
acted in conformity with the habit or routine on the occasion in question.
Admissible regardless of whether the habit has been corroborated or established through
the use of eyewitnesses.
Habit evidence is probative of propensity and habit may be established through the use of
opinion testimony, reputation testimony, or specific instances of conduct.
Character Evidence; In General
Character evidence is evidence which shows that a person is predisposed to act in a
certain way
Typical character traits include: a person's honesty, law abidingness, carelessness, or
peaceableness, or the opposite of those traits, e.g., dishonesty.
Establishes a person's propensity to do something
Decisions based on : what we have heard about a particular person, our personal opinion of
that person's character, may even take into consideration their specific prior acts

12

Rules of evidence heavily regulate the ability of a party to use character evidence
Doctrine of legal irrelevance: character evidence may only be used under certain
circumstances
Rules reflect the general rule that a person accused of criminal activity should not be found
guilty simply because they have a demonstrated propensity to do that sort of act.
Rule 404(a) states the general rule of exclusion--where a person's character is being used
circumstantially to show that the alleged act was committed.
When Is Character Evidence Admissible?
Circumstantial Use
Rule 404 prohibits the use of character evidence when it is offered circumstantially
to prove that an individual acted in conformity with his or her character
Prevents the jury from making findings of guilt or liability based upon a person's
character.
Character evidence is often counter-intuitive
FR 404 includes specific exceptions to this general rule of exclusion.
404 (a)(1): D may introduce evidence of a pertinent trait of character to prove
that he is not the kind of person who would commit the alleged crime. (Good
character defense)
Once D opens the door to character evidence, the prosecution may respond in
kind.
404(a)(2): character evidence regarding a victim may be admitted
404(a)(3): either side may present character evidence about a witness in the
case
Directs the reader to Rules 607, 608 and 609, which all deal with a witness's
credibility.
Exceptions to the general rule of character evidence is not admissible to prove that a
person acted in conformity with their character.
Character in Issue: Direct Use (405(b))
"Character is in issue": Rule 404 does not address the admissibility of character
evidence when a person's character is an essential element of a claim or defense.
Very rare in criminal cases and is usually only recognized in those cases where D
has asserted that he was entrapped and the applicable substantive law regarding
that defense permits the defense to introduce evidence of D's subjective intent
Might arise in criminal cases where an insanity defense is urged
In civil cases, character may be an essential element in libel or slander cases, child
custody cases, and negligent entrustment cases.
Where character is in issue, the jury may conclude: "P is a violent and nasty person.
Because P is a violent and nasty person, D's newspaper article saying that P is a
violent and nasty person is true and D is not guilty of libel"
If character is in issue in the case, the proponent may prove character by reputation
or opinion testimony or through evidence of specific instances of conduct.
How Character May Be Proved
FR 405: there are three forms of character evidence: (1) opinion testimony, (2)
reputation testimony, and (3) specific instances of conduct (SIC's)
Opinion Testimony: presented through the testimony of a witness who has formed a
personal opinion of another person's character.
Based on the witness's personal knowledge of X and X's particular character trait that
the witness will testify about
During trial, D calls a CW to give opinion testimony, P can cross examine with "Do
you Know" questions
Reputation Testimony: testimony relating to another person's reputation in a particular
community, whether it be in professional or work-related circles or social relationships.
Proponent must show that the reputation witness has personal knowledge of X's
reputation, i.e., witness has heard about X.
Reputation witness may have personal knowledge of X's reputation without having
ever met X.
Also, the reputation must relate to some issue in the case.

13

During trial, D calls a CW to give opinion testimony, P can cross examine with "Have
you Heard" questions
Specific instances of conduct (SICs): particular acts done by an individual
Allow the jury to form an inference regarding the character of an individual: that X
once assaulted his wife allows the jury to infer that X is a violent individual.
Cannot be used in direct examination but can be used in cross-examination
SICs do not open the door to admit extrinsic evidence
SICs are the most probative and convincing of the three types
Where character evidence is admissible under Rule 404, the form the character evidence
may take is determined by Rule 405.
Under Rule 405, reputation and opinion character evidence are almost always admissible.
In comparison in sexual assault prosecutions, reputation or opinion evidence of the
victim's past sexual behavior is not admissible under Rule 412.
Specific rules govern the use of SICs.
The rules regulating the use of SICs assumes the SIC will be used only in the
circumstances authorized under Rule 404 or other rules of evidence.
Ten Character Evidence Rules: Texas and Federal
Summary of the key points in Texas and Federal Rules of Evidence 404 and 405
Rule 1. If character is itself in issue as an essential element of a claim or defense, the proponent
may use opinion testimony, reputation testimony and SICs to prove character. (405(b)). Rarely
encountered. Limitations of Rule 404 are not applicable, Rule 402 is applicable.
Rule 2. Character evidence is not admissible to prove circumstantially a person's conduct on a
particular occasion. (404(a)). Federal Rules are different; FR 413-415
Rule 3. Exceptions to Rule 2 do exist but the proponent is (i) limited to presenting character
evidence in the form of opinion or reputation testimony (405(a)); and (ii) the character
evidence must relate to a "pertinent" character trait. (404(a)).
Rule 4. Although a person's SICs may be admissible for other reasons, see 404(b) and bias
rules, they are not admissible to prove the person's propensity on a particular occasion. May be
inquired into during cross-examination of a character witness in the form of "have you heard"
or "did you know" questions. (405(a)). Cf. 608(b).
Rule 5. Texas Civil Case. Character evidence may be introduced by a person accused of
conduct involving moral turpitude to show that he or she did not commit the act. (404(a)
(1)(B)).
i.
Accused must first open the door by presenting favorable character evidence
ii.
Other side may respond with unfavorable character evidence
iii.
This provision does not exist in the Federal Rules
Rule 6. Texas Criminal Case. Accused may introduce evidence of character, or a pertinent
character trait, to show that he or she did not commit the offense (404(a)(1)(A)).
i.
Accused must first open the door by presenting favorable character evidence
ii.
Prosecution may respond with unfavorable character evidence
iii.
The Federal Rule is similar
Rule 7. Character evidence may be used in both criminal and civil cases to impeach or
rehabilitate a witness (404(a)(3)). Federal Rule is the same
Rule 8. Texas Civil Case. Character evidence regarding a victim of assaultive conduct may be
introduced on the issue of SD to show that the victim had a violent character. May be rebutted
with evidence of peaceable character. (404(a)(2)). There is no Federal Rules counterpart.
Rule 9. Texas Criminal Case. Character evidence of a victim is admissible, subject to Rule 412.
In homicide cases, character evidence of peaceableness is admissible to rebut evidence that the
victim was the first aggressor. The Federal Rule is similar.
Rule 10. Texas Criminal Case. Character evidence of D is admissible on sentencing. There is no
Federal Rules counterpart.
Character Evidence Regarding Victims: Texas and Federal
The Civil Case: (TEXAS not FED)
1. P/Victim alleges that D assaulted him (assault is what will be used on test)
2. D responds that his actions were in SD and presents character evidence
(reputation/opinion) that the P/V has a character for violence. (404(a)(2)). Evidence
would be used, under Rule 404, to show that the P/V had a propensity for
violence/nonpeaceable behavior. Same evidence (including evidence of SICs) might be
admissible to show that D acted reasonably because he had heard of P's propensities.

14

3. If D opens the door, P/V may respond with character evidence that he has a peaceful
character
4. D is not permitted to introduce evidence about his own character of peacefulness because
Rule 404(a)(1) is limited to acts involving moral turpitude in civil cases
5. There is no comparable Federal Rule governing "victim's character" in civil cases.
The Criminal Case:
1. Non-homicide criminal case. Accused is permitted to "open the door" and introduce
character evidence (reputation/opinion) of a "pertinent" character trait of the victim.
Prosecution is permitted to respond to that evidence. (404(a)(2)). Rule is subject to the
limitations of 412. This evidence would be used under 404, to show the victim's
propensity. But it might also be independently admissible to show that D's actions were in
response to what he had heard about the victim's propensities.
2. Homicide case. Prosecution is free to offer evidence of the peaceable character of the
victim to rebut evidence that the victim was the "first aggressor". Prosecution need not
wait for D to present character evidence on the homicide victim. (404(a)(2)).
3. D in a criminal case may also present favorable character evidence about himself. (404(a)
(1))
4. Federal Rule is similar, except that if the accused in a criminal case offers adverse
character evidence about the victim, the prosecution may respond by presenting
unfavorable character evidence about the accused.
Evidence of Prior Acts (SIC's)
Specific Instances of Conduct (SIC's)
Rules of evidence generally forbid a proponent from introducing a person's SICs.
SICs are often used to describe extraneous offenses, but SICs can be prior acts of a D that may
not necessarily be a crime
In criminal case: use extraneous offense
In civil case: use similar acts of evidence, SICs
In Federal courts: uses uncharged misconduct, extrinsic act evidence
Using SIC's to Show Character
Although "character evidence" may be admissible under Rule 404(a), Rule 405(a)
specifically limits counsel to using only "reputation" or "opinion" evidence to show good or
bad character traits.
1. SICs are generally not admissible to show a person's character (propensities). Rule
404(b)
2. Where character is an essential element of a claim or a defense, SICs are admissible.
Rule 405(b). This is rarely encountered
3. Impeachment of Character Witnesses:
i.
A character witness, like any other witness, may not be impeached in Texas
through questioning about his or her personal SICs which have not resulted in a
conviction. Rule 608(b)
ii.
A character witness may be asked "have you heard" and "did you know"
questions about the target (or principal) witness's SICs. Rule 405(a). But
cross-examiner is stuck with the answer.
Noncharacter Use of SICs (To Show Something Other Than Propensity)
A person SICs may be admitted for some reason other than to show that the person has
the propensity to act in a certain way:
1. Impeachment/Rehabilitation of a Witness:
i.
The general rule is what a witness may not be impeached by showing that the
witness has engaged in "bad" SICs, e.g., lying on a job application. (Texas Rule
608(b)). Nor may a witness be rehabilitated through introduction of "good"
SICs.
ii.
A witness may, however, be impeached with SIC which has resulted in a
conviction (Rule 609)
iii.
In Federal cases, a witness may be impeached with his personal SICs. (Fed
Rule 608(b))
iv.
A witness may be impeached through SICs which show a witness's bias. (Tex
Rule 613; there is no Federal rule of Evidence explicitly covering this topic).
v.
Blanket denial of any wrongdoing may be rebutted with SICs

15

2. The SIC may be admitted under Rule 404(b) for one or more non-character
purposes (MIMIC)
MIMIC - motive, intent, mistake, identity, common plan or preparation
This list is non-exhaustive and nonexclusive
3. Under Federal Rules of Evidence 413-415, the SICs of the D's prior similar crimes
in sexual assault and child molestation cases are admissible on any matter relevant
to the case. (Art 38 &37 Texas Civil Equivalent)
4. In Texas, notwithstanding Rules 404 and 405, evidence of a D's SICs against a child
victim "shall be admitted" for its bearing on relevant matters, including the state of
mind of the D and the child and the previous and subsequent relationship between
the D and the child.
5. Under both Federal and Texas Rules of Evidence 406, SICs may be used to prove
a person or organization's "habit."
Habit is highly probative
Procedures of Offering SICs
Notice
Give reasonable notice of intent to introduce at trial evidence of acts arising other
than in the transaction being tried
Not required to give prior notice of evidence it might use in rebuttal.
Objection/Motion
Types of objections:
Not relevant
If relevant, for wrong reasons
Opponent
should consider requesting a limiting instruction to the jury that clearly

delineates the uses that may be made of the extraneous acts.

Must be specific and timely objection
Reasons
Must state specific reasons
Prosecution must show that the acts are relevant to a material issue in the case.
BOP
In Federal Court: preponderance of the evidence
In Texas Civil: preponderance of the evidence
In Texas Criminal: beyond a reasonable doubt
Balance (Rule 403)
Probative value v. prejudicial danger
Proving the Extrinsic Act (SIC): The Burden of Proof
How much evidence must the proponent present to show the court that the act was
actually committed by the person?
Prosecution must establish that D actually committed the alleged acts
Acts committed by third persons are not considered D's extraneous offenses.
Acts need not result in a conviction or be criminal or amount to misconduct.
Liability Insurance
o
Under Fed Rule 411, whether a party has liability insurance is not admissible to prove either
negligence or wrongful act.
Rule contains a non-exclusive list of purpose for which evidence of insurance may be offered

Ex: evidence of insurance is admissible to prove agency, ownership or control.

Policy reasons for exclusion:

Logical relevance of the existence of liability insurance is weak, if not nonexistent

May cause the jury to make a decision on fault based on its perception of whether the
D can afford to pay.
Likely to lead the jury to decide issues based on information not related to the

case at hand
Subsequent Remedial Measures
o Fed Rule 407 generally excludes evidence of subsequent remedial measures, or a manufacturer's
recall to prove negligence or culpable conduct.

16

o The evidence is excluded only if it is offered to prove the material issue codified in the rule.
o It only is excludes those measures or steps which were taken after the injury or damage occurred.
We want to encourage them to take steps to fix the defect
o Remedial measures taken, for example, after a product was manufactured, but before P was actually
injured, are not excluded under the Rule.
o Rule 407 provides a non-exclusive list of other relevant purposes the evidence may be admitted to
prove such as the issues of ownership or control.
Compromise Statements in Civil and Criminal Cases
Compromise and Offers to Compromise
Fed Rule 408 prevents the admission of statements or conduct made during settlement
negotiations to prove either liability or the amount of a claim.
Rule only applies when there is an actual offer or an actual acceptance given in return for a
concession.
Under Rule 408 compromise evidence may be admissible, however, to prove something
besides liability, such as the bias or prejudice of a witness.
Does not require the exclusion of any evidence otherwise discoverable
Payment of Medical Expenses
Rule 409 forbids the admissibility of an offer to pay (or the actual payment of) an injured
person's medical expenses to prove the payer's liability for the injury.
The Rule does not contain a list of independent purposes which the payment may be offered
to prove
Also called the "Good Samaritan Rule"
Pleas, Plea Discussions and Related Statements
Rule 410 generally excludes evidence of certain withdrawn pleas or plea negotiations.
The Texas versions vary from the Federal model.
Statements made during plea negotiations are protected only if they are made to "an
attorney for the prosecuting authority"
Texas Rule 410 also makes nolo contendere pleas inadmissible in civil cases, whereas it
only prohibits the admissibility of withdrawn nolo contendere pleas in criminal cases.
Both the Texas and Federal rules codify a rule of optional completeness similar to that
codified in Rule 106.
Where one party has introduced evidence relating to a plea discussion, the other
party may out of fairness introduce other statements which it feels ought to be
contemporaneously considered with the previously admitted statement.
The Rule does not contain a list of independent purposes
Federal Rule (but not the Texas Rule) contains a "perjury" exception that permits use of a
Rule 410 statement in a criminal case where D is charged with perjury or false
statement--if the D made the statement under oath, and on the record in the presence of
counsel.
Comparison between Texas Civil, Criminal Cases, and Federal Rule 410
Key differences in the Federal and Texas versions of Rule 410
Texas Civil Case Rule 410 Texas Criminal Case Rule 410 Federal Rule 410
Guilty Plea

Admissible

Admissible

Admissible

Withdrawn Guilty
Plea

Inadmissible

Inadmissible

Inadmissible

Plea Questions

Inadmissible

Inadmissible

Inadmissible

Plea Bargaining

Inadmissible

Inadmissible

Inadmissible

Introduction to Credibility Evidence & Bias

Rules Governing Credibility Evidence
In General
Fed Rule 607-610 and 613 govern impeachment

17

Impeachment serves as the means by which an attorney calls a witness's credibility into
question.
Questions of credibility can be critical in a case.
Undercutting the opposing witness's credibility, while developing, preserving, and
where necessary, rehabilitating your own witness's credibility thus becomes an
invaluable tool for both trial strategy and technique.
The Stages and Types of Credibility Evidence
Three main stages in credibility evidence: (1) bolstering; (2) impeachment; and (3)
rehabilitation.
Stage 1: Bolstering
Bolstering of a witness's credibility when the party calling the witness attempts to
bolster or increase the witness's credibility before it has been attacked by the
opponent.
Because such an attack may never occur, bolstering is generally impermissible
because it may needlessly extend the trial.
Bolstering is a form of premature rehabilitation.
Fed Rule 608(a) reflects the no-bolstering rule, which specifically indicates that
evidence of truthful character evidence regarding a witness may not be introduced
until the witness's character for truthfulness had been impugned.
Forms of bolstering may be permitted under limited circumstances:
Permit the prosecution in a sexual assault case to present evidence that the
victim made a "fresh complaint" about the attack (to show a lack of fabrication)
before the victim's credibility is actually attacked.
Stage 2: Impeachment (Attack)
One brand of impeachment focuses specifically on the witness's testimony in the
case itself.
The other brand of impeachment evidence is that which generally attacks the
witness, as an untruthful person.
A witness may be impeached by one or more of the following methods:
1. Evidence of Bias (613(b))
2. Showing a Prior Inconsistent Statement (613(a))
3. Through Character for Untruthfulness (608)
4. Through proof of a Witness's Specific Acts (608)
5. Proof that a Witness has Been Convicted
6. Evidence which contradicts a Witness's Testimony
7. Proof that the Witness Lacks one of the Common-Law Elements of Competency.
Stage 3: Rehabilitation
Once a witness has been impeached, counsel may attempt to rehabilitate the witness
through one of the following methods:
1. Conducting Redirect Examination
2. Introducing Prior Consistent Statements
3. Corroborate the Witness's Testimony
4. Introduce Evidence of the Witness's Truthful Character
5. Introduce Expert Testimony
Who May Impeach?
Under Fed Rule 607 any party (including the party who called the witness) may impeach
any witness.
Fed Rule 607 abolished the C/L "voucher rule", in which a party calling a witness was
considered to have vouched for the veracity of its own witness.
Impeachment Bias
Fed Rules of Evidence do not specifically address the issue of using bias to impeach a witness
(like Tex Rules do). Does that mean that counsel in federal court is not permitted to use bias to
impeach a witness?
US v. Abel
DC admitted testimony which impeached one of the respondent's witnesses (by showing of
bias).
SC holds that the DC did not err.

18

The evidence showing Mills' and respondent's membership in the prison gang was
sufficiently probative of Mills' possible bias towards respondent to warrant its
admission into evidence.
Thus, it was within the DC's discretion to admit Ehle's testimony, and the Court of
Appeals was wrong in concluding otherwise.
A trial court must allow some cross-examination of a witness to show bias.
This holding was in accord with the overwhelming weight of authority in the state
courts as reflected in Wigmore's classic treatise on the law of evidence
The Confrontation Clause of the 6th Amendment requires a D to have some opportunity to
show bias on the part of a prosecution witness.
A successful showing of bias on the part of a witness would have a tendency to make the
facts to which he testified less probable in the eyes of the jury than it would be without
such testimony.
It is permissible to impeach a witness by showing his bias under Fed Rules of Evidence
as it was permissible to do so before their adoption.
The relationship between a party and a witness which might lead the witness to slant,
unconsciously or otherwise, his testimony in favor of or against a party.
Bias may be induced by a witness's like, dislike, or fear of a party, or by the witness's
self-interest.
Proof of bias is almost always relevant because the jury, as finder of fact and weigher
of credibility, has historically been entitled to assess all evidence which might bear
on the accuracy and truth of a witness's testimony.
There is no rule of evidence which provides that testimony admissible for one purpose and
inadmissible for another purpose is thereby rendered inadmissible.
In Texas, before using extrinsic evidence to expose bias or interest, the opponent during crossexamination must give the witness the circumstances which show the bias, and give the
witness the opportunity to admit or deny the bias/interest. (Laying the foundation)
If witness admits the bias, the witness has been impeached.
If witness denies the bias, you can introduce extrinsic evidence (written or oral)
Rules regarding specific instances of conduct (SICs) (Rules 404, 405, 608, 609) do not
regulate the admissibility of SICs when the SICs are used to show bias or interest.

Using Expert Testimony to Impeach a Witness

o
General rule is that expert testimony may not be offered on the issue of credibility (Rule 702)
o
Reasoning:
The fact-finder should be perfectly capable of determining whether a particular witness is

telling the truth or not

Credibility of witnesses is solely within the province of the jury and to offer any opinion

evidence on that subject would impermissibly invade the jury's domain.

o
Expert testimony which conflicts with another person's testimony or indirectly bolsters the
credibility of a witness is permitted.
o
Expert testimony which is relevant for a substantive issue in the case, for some other reason
other than impeachment, should not be excluded simply because it corroborates other evidence.
o
Admissibility of expert testimony on truthfulness and related topics:
A party may offer evidence during its case-in-chief or during cross-examination, substantive

evidence of guilt which only incidentally addresses credibility

A party may present expert testimony relating to the capacity of a class of persons

generally recognized by society to be impaired, for example, children or mentally retarded

persons.
A party may present, during its case-in-chief or during cross-examination, general testimony

that directly attacks the credibility of a person

A party may present, during its case-in-chief or during cross-examination, general

testimony which directly supports credibility.

In rebuttal, counsel may be permitted to offer specific testimony attacking or supporting

credibility.
Credibility Evidence--Prior Inconsistent Statements, Production of Witness' Prior Statements
Impeachment: Prior Inconsistent Statement

19

FR 613 governs the use of prior inconsistent statements.

A prior inconsistent statement exists when a witness's testimony on the stand contradicts a
statement the witness made prior to trial.
A prior inconsistent statement may be used to impeach a witness's testimony
It is not considered hearsay if it is introduced to show simply that an inconsistent statement
was made.
If it is admitted to show the truth of the matter asserted in the prior statement, the
proponent will have to address the hearsay aspect of the statement
In Texas, before impeaching a witness because of a prior inconsistent statement, the opponent
must inform the witness of the inconsistent statement's contents, when it was made, the place
of the statement, the individual to whom the statement was made, and give the witness the
opportunity to admit or deny the statement.
If the witness admits making the prior inconsistent statement, extrinsic evidence of the
statement cannot be admitted into evidence. (Rule 613(a)).
What is the logical relevance of prior inconsistent statements in a trial?
Shows a W is lying, forgetful, undecided, etc.
Raising doubts about their version of the facts
The Methodology--Texas
In Texas, the formal steps for impeaching a witness through use of a prior inconsistent
statement are as follows:
Step 1: Determine if There is an "Inconsistency"
a. A statement (written or oral) was made by the witness; or
b. The witness was silent at a time when a reasonable person would have been
expected to speak up; or
c. The witness engaged in inconsistent acts (probably not covered by Rule)
Step 2: Confirm the Testimony Given on Direct Examination
Step 3: Lay the Foundation (Rule 613)
The witness must be placed on notice of the upcoming impeachment
If oral, counsel should merely draw attention to the following elements
If written, either use in same way as oral (without having witness read it) or
have witness actually read it silently.
The rule requires counsel to show the written statement to opposing counsel upon
request
a. Contents of Statement;
b. Time and Place of Statements;
c. Person Whom Made; and
d. Opportunity to Explain
Step 4: Determine if Witness is Denying or Admitting Statement
a. If Witness unequivocally admits statement--STOP; Impeachment is complete
b. If Witness denies or is evasive, go to STEP 5
Step 5: Introduce Extrinsic Evidence of Statement if Witness Denies Making the
Statement or is Evasive
a. Offer testimony of another witness who heard statement, or
b. Introduce Writing Including Statement (only pertinent portions?); Some courts may
not let counsel actually introduce writing, but may instead permit counsel to read the
statement to the jury.
Impeachment By Prior Inconsistent Statements Comparison of Federal and Texas Rules
Federal Rule 613
Types of
Statements
Which May be
Used

Foundation
Required?

Explicit Statements;
Admission by Silence; Cf.
Privilege Against Self-Incrimination
Opinions
Probably not Inconsis.
Conduct/acts

No particular foundation required;

drafters rejected Queen's Case

Texas Rule 613

Same as Federal Rule

Witness must be apprised of

particulars of prior statement

20

(contents, time, place, etc.).

Follows Queen's Case
Extrinsic
Evidence of
Statement
Permitted?

Yes. But witness (at some pt.) must be

given opportunity to "deny or explain"
statement and opposing counsel must
be given opportunity to question the
witness UNLESS interests of justice
otherwise require

Yes. But witness must first be

given opportunity to "deny or
explain" statement. If witness
unequivocally admits statement,
no extrinsic evidence is
admissible

Must Witness be No. But must be shown to opposing

Shown Written
counsel on request
Statement?

No. But must be shown to

opposing counsel on request

Does Rule Apply No

to Statements
by PartyOpponent as
Defined in Rule
801?

No

Credibility Evidence--Character for Untruthfulness

Impeachment: Character for Untruthfulness
Fed Rule 608(a), reputation testimony and opinion testimony about a witness's character for
untruthfulness are admissible to impeach a witness.
Usually accomplished by calling a witness who has (1) a personal opinion on the
untruthfulness of another witness, who has already testified or (2) has heard about the
other witness's reputation for untruthfulness.
Focuses on the person, not the person's specific testimony in the case.
Three step process:
Step 1: A "Target Witness" (basically any witness or party in the case) testifies;
Step 2: A "Character Witness" testifies (as opinion or reputation witness) about the
untruthful character of the Target Witness under Rule 608(a); and
Step 3: The counsel who called the Target Witness to the stand, can cross-examine
the CW through "have you heard" or "did you know" questions under Rule 405.
Under that mode of questioning, the cross-examiner can inquire into the prior
"truthful" acts of the Target Witness.
Cross-Examination of Character Witnesses
Rule 405(a) - ("How to")
Cross-examiner can inquire about CW bias, prior inconsistent statements, etc.
SICs are allowed, but you cannot admit extrinsic evidence. You are stuck with the answer.
404(a)(3)
Credibility Evidence--Impeachment by Specific Acts and Prior Convictions
Impeachment: Proof of Specific Incidents of Conduct (SICs)
Federal Rule 608(b), the cross-examiner may ask the W about a prior specific incident of
conduct reflecting on the witness's character, if that act is probative of truthfulness or
untruthfulness.
Questioner is stuck with the answer
He may not prove the act through extrinsic evidence if the act is admissible only for
purposes of attacking the witness's character.
Federal Rule, if the W's SIC is not being used to show the witness's character, then the
limitation in Rule 608(b) does not apply.
Ex: the SIC might be admissible to show W's bias
Texas, the cross-examiner is not permitted to even ask the witness about a "character-SIC."
But, a W's SIC may be inquired into if the SIC resulted in a conviction and is
admissible under Texas Rule 609, if it shows a W's bias under Texas Rule 613, if it

21

is otherwise admissible under Rule 404(b), or if the witness has made a blanket
denial of any prior wrongdoing.
This sort of impeachment evidence focuses on attacking the W, not the W's specific
testimony.
Impeachment: Proof of Conviction
Federal Rule 609 governs the admissibility of a W's prior conviction for purposes of
impeachment.
Logical relevancy of this evidence is that if a person has shown a propensity to ignore social
norms on a prior occasion, the witness is less likely to follow the norms associated with
taking an oath and promising to tell the truth at trial.
This type of impeachment evidence focuses on the person, not necessarily the specific facts
in the case; to that extent it is more like character evidence
Federal Rule 609 v. Texas Rule of Evidence 609
Provision

Federal Rule 609

Texas Rule 609

Crimes Covered (a) Crime punishable by death or

Felony or moral turpitude,
imprisonment for more than one year, under regardless of punishment
law of jurisdiction
(b) Crimen falsi offenses

Notice of Intent Only if conviction is more than 10 years old

to Use

In all cases, upon request by

opponent

Balancing Tests (a)(1) Accused--probative value outweighs

prejudice
Other witnesses--Rule 403
(a)(2) Crimen falsi--no balancing
(b) Old Convictions--probative value
substantially outweighs prejudice

(a) For all witnesses, probative

value outweighs prejudice

Finality of
Conviction

Pending Appeal excludes

Pending Appeal does not exclude

(b) Old convictions--probative

value substantially outweighs
prejudice

Notice gives the opponent an opportunity to assess carefully whether to put a particular witness
on the stand and if so, what tactics to use to soften the potential damage to the W's credibility
It also raises the question of whether a defense counsel is entitled to know before the D
even takes the stand whether the trial judge will permit the prosecution to use a D's prior
conviction.

Credibility Evidence--Attacks on Witness's "Competency Elements"

Impeachment: Contradictory Evidence
Counsel may impeach a witness, not by directly attacking the W's credibility, but by presenting
clearly contradictory (hopefully irrefutable) evidence.
Impeachment: Lack of Element of Competency
Four C/L Factors: Moral capacity; Mental capacity to observe; Mental capacity to recall; and
Mental capacity to narrate.
The list serves as an aid in determining whether the W's weakness in one of those elements
is subject to attack at trial.
Credibility Evidence--Rehabilitation of Witness
Objections against a Witness Taking the Stand
601 - not competent (Judge applies preponderance of evidence)
602 - no personal knowledge (Conditional fact, Judge would determine if enough
evidence for jury to determine)
403 - probative value substantially outweighed (3 stages)
Bolstering
Impeachment
Attack:
PIS

22

609 - Convictions
608 - CW
613 - Bias
C/L Elements of competency
Contradictory Evidence
Rehabilitation
Rehabilitation of Impeached Witness
Once a witness's credibility had been attacked, the counsel who called the witness
normally attempts to rehabilitate the witness, although there is a school of thought that it may
be netter simply to ignore the opponent's attacks as though they did not really hurt.
Rehabilitation: Conducting Redirect Examination
If a witness's credibility has been attacked during cross-examination, counsel may repair
the damage by conducting redirect examination.
During that examination counsel may attempt to ask the witness to explain
inconsistencies or address points raised during the cross-examination.
Rehabilitation: Prior Consistent Statements
A witness's prior consistent statements may be admissible under Fed Rule 801 to rebut
any prior inconsistent statements or implications that the witness recently fabricated his or
her testimony or has been subject to undue influence.
Timing of the prior consistent statement is critical.
Looking for a date certain, a specific time
Tome case:
Must be made before the charged recent fabrication or improper influence
or motive.
Prior inconsistent statements do not necessarily open the door to introducing prior
consistent statements
You have to take the language of the rules and plug it into the prior inconsistent
statements
Rehabilitation: Corroborating Testimony
A witness's credibility may be bolstered or rehabilitated by introducing evidence which
corroborates the witness's testimony.
If the proponent offers too much corroborating, or cumulative, evidence about a witness or
issue in the case, the opponent may be able to successfully block such repetitious
testimony by making a Rule 403 objection.
Rehabilitation: Evidence of Truthful Character
Under Rule 608(a), once a witness's character for truthfulness has been attacked through
character evidence for untruthfulness, in the form of reputation or opinion evidence or
otherwise, the proponent is free to offer evidence of the witness's character for
truthfulness.
Introduce Expert Testimony
Some authority for the proposition that if the credibility of a child-abuse victim has been
attacked, the proponent may offer expert testimony to show that such victim naturally
tend to act in fairly predictable ways after such an attack and that in the expert's opinion,
the child in the case exhibits those same characteristics.
Expert can't answer direct question
Must indirectly bolster credibility by comparing to groups of people (not one
person)
Opinion Testimony--Lay Opinions
Introduction to Opinion Testimony
Article VII governs the admissibility of opinion testimony
Where necessity exists and reliability can be established, opinion testimony will be admissible
provided that the proponent has adequately laid the applicable foundation.
Two types of opinion testimony exist under Article VII--opinion testimony given by lay persons
and opinion testimony given by experts
Lay Opinion Testimony: Rule 701

23

Lay opinion testimony is governed by Federal Rule 701. Rule 701 allows a lay witness to give
opinion testimony that is based on personal knowledge where the opinion will help the jury
either understand the witness's own testimony or help the jury determine the fact issue.
Personal knowledge serves as the foundation for lay opinion testimony, while the "helpfulness"
requirement establishes the lay opinion's relevancy.
Helpfulness does not mean necessary
Testimony on Value: witness must show familiarity on FMV
Be careful on hearsay
Mental Capacity: let offer opinion if it is rationally based
Collective Facts and Skilled Observations
Lay opinion may be offered to prove either a collective fact, or a skilled observation.
Collective facts state a witness's conclusory opinion, rather than the numerous, complex,
or potentially inarticulable facts upon which the opinion is based.
Ex: the speed of a car
The witness simply states her conclusion ("The car was going very fast")
Skilled observations, on the other hand, usually come into play where witnesses, because
of their familiarity with something, can form an opinion regarding its authenticity.
Ex: a husband could offer an opinion as to whether or not a particular document was
written by his wife.
The Scope of Lay Opinion Testimony
The scope of lay opinion testimony is limited by the personal knowledge and relevancy
requirements, and the requirement that the opinion testimony not be based upon
"scientific, technical, or other specialized knowledge within the scope of Rule 702.
Under Rule 704 a lay opinion may even address the case's ultimate issue.

Opinion Testimony--Expert Testimony

Expert Opinions
Federal Rules of Evidence 702-706 govern the admissibility of expert testimony.
Rule 702, expert testimony may be solicited when scientific, technical or specialized knowledge
would help the jury understand the evidence or determine a fact issue
Helpfulness serves as the initial threshold to admissibility
It is what establishes the testimony's relevance
Expert opinion is still subject to Rule 403
Laying the Foundation--Qualifying The Witness as an Expert
Before soliciting an expert opinion from a witness, the proponent must first lay the
foundation by qualifying the witness as an expert.
Rule 702, the proponent must show that the witness has the knowledge, skill, experience,
training or education to testify as an expert.
Also implicit in this foundation is that the witness meets the competency
requirements of Rule 601.
The proponent may then offer the witness as an expert to the court
Before entering an objection, the opponent may voir dire the witness regarding the
witness's qualifications to serve as an expert.
Expert must be of the same school as the testimony provided
Opinion Testimony--Three Elements
Expert opinion testimony is comprised of three elements: theory, underlying data, and
the conclusion.
Theory is the framework which supplies the guiding principles the expert will use to
develop the opinion.
Data are the facts the expert examines and uses as the basis for the opinion
The opinion is the experts conclusion.
The conclusion is what the expert believes the facts establish.
Forming an expert opinion is similar to the way a law student develops an answer to a final
exam question.
The Underlying Theory
Nothing in the rules of evidence mandate that the expert lay out the guiding
principles which he applied in forming the opinion

24

Having the expert state his theory gives greater credibility to the expert's opinion
testimony.
The question arises as to who should decide if the underlying theory is valid.
This is particularly problematic where there is a new or novel scientific theory,
which has not yet been tested by the scientific community.
Most courts, until recently applied what was commonly known as the Frye test:
The thing from which the deduction is made must be sufficiently
established to have gained general acceptance in the particular field in
which it belongs.
**Daubert: (Federal)
Trial judge's general, "gatekeeping" obligation applies to testimony based
on "scientific knowledge"
Four non-exclusive factors to aid trial judges in determining whether
scientific evidence is relevant and reliable and thus admissible under
Federal Rule 702:
1. Whether a theory or technique can be and has been tested
(falsifiability)
2. Whether the theory or technique has been subjected to peer review
and publication
3. The technique's known or potential rate of error
4. The general acceptance of the theory or technique by the relevant
scientific community
Kelly: (Texas Criminal)
Factors affecting the trial court's determination of reliability include:
1. General acceptance of the theory and technique by the relevant
scientific community
2. Expert's qualifications
3. Existence of literature supporting or rejecting the theory
4. Technique's potential rate of error
5. Availability of other experts to test and evaluate the technique
6. Clarity with which the theory or technique can be explained to the
trial court; and
7. Experience and skill of the person who applied the technique on the
occasion in question.
Must be "clear and convincing" evidence
Robinson: (Texas Civil)
Rule 702 contains three requirements for the admission of expert
testimony:
1. Witness must be qualified;
2. Proposed testimony must be "scientificknowledge"; and
3. Testimony must "assist the trier of fact to understand the evidence or
to determine a fact in issue"
Factors that a trial court may consider in making the threshold
determination of admissibility under Rule 702. They include but are not
limited to:
1. Extent to which the theory has been tested
2. Extent to which the technique relies upon the subjective
interpretation of the expert
3. Whether the theory has been subjected to peer review and/or
publication
4. Technique's potential rate of error
5. Whether the underlying theory or technique had been generally
accepted as valid by the relevant scientific community; and
6. Non-judicial uses which have been made of theory or technique
Kumho: (Federal)
Daubert's holding--setting forth the trial judge's general "gatekeeping"
obligation--applies not only to testimony based on "scientific knowledge,

25

but also to testimony based on "technical" or "other specialized

knowledge".
Trial court may consider one or more of the specific factors that Daubery
mentioned when doing so will help determine that testimony's reliability.
The test of reliability is "flexible" and the factors are not exclusive
Problems in Applying Tests:
Analytical gaps
Anecdotal evidence
Improper extrapolation of analysis
Insufficient foundation for expert testimony
Ipse Dixit opinions
Failure to exclude other possible causes or reasons
Temporal proximity
Expert Opinion Testimony (Class Notes)
Intro--Roles of Expert
Advisor, Teacher, Fed Witness, Evaluator
Foundations & Procedures
a. "Gate-keeping" Hearing - 104(a) - Out of the presence of the jury, judge decides
if witness is an expert and if the expert testimony is admissible
Federal - Daubert "Gatekeeping"
Texas Criminal - Kelly "Gatekeeping"
Texas Civil - Robinson
a. Qualification of Witness - 702
Voir Dire
Bolstering?
Tender? - asking for a ruling "Your honor P tenders ____ as an expert"
In Fed they may require you to tender
In Texas you dont formally tender
Stipulate? b. Principles & Theories - 702 (Daubert, Robinson, Kelly)
c. Factual Basis
Rule 703
Personal Knowledge - expert may offer an opinion based upon his or her
personal knowledge
Trial Data - presentation of the necessary data or facts to the expert during
the trial itself. Usually in the form of hypothetical questions
Outside Sources - expert can rely on facts or data presented to him or
made known to him, or reviewed by him, outside the court
Inadmissible evidence - inadmissible facts or data may be relied upon
by the expert in forming an opinion if they are of the type reasonably
relied upon by other experts to make opinions or draw inferences.
May be based on "hearsay" if it is of the type reasonably relied upon
Statement of Opinion
Qualifications of Witness + Reliable Principles + Facts + Relevance = Admissible Expert
Opinion
Reliable Principles + Facts ="FIT"
CHAPTER TEN. THE BEST EVIDENCE RULE
Evidence ("Original Document") Rule
Introduction to the Best Evidence Rule
Evidentiary rules regarding "best evidence" rest on a presumption that certain types of evidence
are inherently more trustworthy than others to prove certain disputed issues.
As a more reliable source, the use of these types of evidence should be promoted
Should not be confused with strategic concept of using the "best evidence principle," such
as which eye witness would provide better testimony at trial, to prove a fact in issue.

26

 Rule applies only to writings, recordings and photographs whose contents are a
material issue at trial.
The proponent must produce either the original document, or account for the
original's unavailability.
Reduces the risk of inaccurate or intentionally fraudulent testimony.
Works more like a preferential rule rather than a rule of exclusion
Where the proponent can account for the unavailability of the original document, secondary
sources at trial can be used to prove the contents of the original.
When a party violates the rule of best evidence no secondary evidentiary sources may be
introduced by that party.
Proper use of the best evidence rule rests on counsel's ability to know:
1. What constitutes a "document" under the best evidence rule.
The definition is broader than one might expect, and includes photographs, X-rays,
and video tapes under both Tex and Fed Rules.
2. When the document terms are in issue so that the best evidence rule applies
3. How the terms "original" and "duplicate" are defined under the rules.
4. What are the acceptable excuses for non-production of the original document; and
5. What types of evidence are admissible as secondary evidence, once an acceptable excuse
for non-production of the original document has been made
Federal Rules 1001-1008 address these five significant areas.
Tex and Fed Rules follow the original C/L best evidence principles, although their
codification prevents judges from judicially expanding the acceptable excuses for the nonproduction of original documents.
Best evidence rule does not work in isolation from the other rules of evidence.
Simply because a piece of evidence may be admissible under the best evidence rule does
not mean it is immune from other evidence rules, such as hearsay objections under Article
VII or from the authentication requirements of Article IX.
"Best Evidence" Chart
(1) If proffered evidence is a "writing, recording, or photograph" (Rule 1001); AND
(2) Its contents are in issue;
THEN THE PROPONENT:
(3) Must Produce Original (Rules 1002; 1001(c)); or
(4) Produce Duplicate (Rule 1003); or
(5) Establish Exception (Rules 1005, 1006, 1007); or
(6) Establish Excuse for Nonproduction of Original (Rule 1004); AND
(7) Produce Secondary Evidence (No degrees)
When the Original Must Be Produced
The mere fact that testimony draws attention to a writing does not necessarily involve "proving
the content."
Where there is not dispute concerning the content of a writing, testimony concerning the
interpretation and construction of a provision of the writing does not violate Rule 1002
The Rule is inapplicable also to testimony concerning an event even though the event has been
reduced to writing, photographed or recorded.
The Rule does not apply when a writing is used to refresh recollection under Rule 612, to
support opinion testimony under Rule 703 or to attack a witness's credibility concerning the
witness's understanding of the content of a writing.
Introduction to Hearsay
The Hearsay Rule
Hearsay rule operates as a rule of exclusion
With certain express exemptions and exceptions, the hearsay rule, stated in Fed Rule 802,
when invoked by a specific hearsay objection, will prevent certain types of testimony from being
admitted at trial.
Testimony by a witness is preferred because certain evidentiary safeguards (such as the oath
requirement, the personal knowledge requirement, and the opponent's opportunity to crossexamine) help insure and promote the reliability of the witness's testimony.
Evidence which either has not been, or cannot be held subject to these safeguards may not be
as trustworthy, and thus may be excluded by the hearsay rule.

27

The Reasons for the Hearsay Rule

Four reasons for supporting the rule excluding hearsay:
First, out-of-court statements are normally not under oath.
A person's willingness to subject himself to charges of perjury or false statement
generally reflects a willingness to tell the truth.
Second, there may be error in the transmission of the statement.
Person making the statement may misspeak or the hearer may err in hearing,
remembering, or repeating the statement.
Third, the fact finder was not able to observe the declarant's demeanor at the time
of the statement.
In assessing a person's credibility it is sometimes important to watch their body
language and eye contact.
That is all missing if the jury only hears, or reads, the statement made be the

declarant
Final reason, most important--the inability to cross-examine or confront the declarant at
the time the statement was made
Grounded on the assumption that a good cross-examiner could determine if the
declarant was sincere, mistaken, lying or truthful.
So important that one sees a convergence of the hearsay rule and the constitutional
right to confrontation.
Even though a statement may qualify under one of the many hearsay exceptions, it
may still be challenged on constitutional grounds.
Hearsay Defined
Fed Rule 801(c) defines hearsay as, "a statement, other than one made by the declarant
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
For a piece of testimony to be hearsay, it must be:
1. A STATEMENT (written or oral verbal assertion or nonverbal conduct intended to be an
assertions) (WOVA/NVC);
2. Made be an OUT-OF-THIS COURT DECLARANT (OTCD; and
3. Is offered to prove the TRUTH OF THE MATTER ASSERTED (TOMA) in the statement (IS)
Reduced to an equation, the Federal Rule looks like this:
S(WOVA/NVC) + OTCD + TOMA(IS) = H
Each of these three elements must exist for a piece of evidence to qualify as hearsay.
Should one of these elements be lacking, the testimony is not hearsay.
Texas version varies slightly.
Texas version uses the word "expression" rather than assertion.
The TOMA element may be either express or implied by the declarant's statement
S(WOVE/NVC) + OTCD + TOMA (IS)(E/I) = H
Backdoor hearsay - where there has been a conversation between the OCD and the W, and
the proponent wants to avoid any of the statements the OCD made.
The Hearsay Elements Analyzed
Statement: Assertions & Expressions
A statement may be verbal (i.e., oral, written) or a non-verbal act if it is intended by the
declarant as a substitute for a verbal statement. Ex: a person's silent hand motion in
response to a questions, "Which way did they go?" would constitute a statement under
Rule 801.
Under the Federal Rules, a statement does not qualify under the definition unless the
declarant intended it to be an "assertion."
Thus, a non-declarative statement such as a question, command, or exclamation will
normally not qualify as a statement under the Federal Rule because that rule uses
the word "assertion" in defining statement.
Federal courts have concluded that such statements might fall within the hearsay
definition if they are the functional equivalent of a declarative statement.
Texas Rule uses the term "expression" and questions and other non-declarative
utterances might be considered statements.
This raises the issue of whether an implied assertion by a declarant should be
covered by the definition of hearsay

28

One of the concerns about admitting hearsay statements is the declarant may have
been under a mistaken belief at the time of making the statement.
Drafters of the Texas Rule expanded the definitions of "Truth of the Matter Asserted"
to include not only matters explicitly asserted, but also matters implied by the
declarant's statement, if the probative value of the statement (i.e., the reason it is
relevant to the case) flows from the belief of the declarant. ("Implied assertions")
Declarant says one thing, but it is the declarant's belief which the proponent
wants the jury to believe as being true.
Out-of-Court Declarant
Two criteria must be met to satisfy this element:
First, under both Federal and Texas Rules, the declarant must be a person
If a person created a document using a machine, for example a computer
record, the out-of-court declarant requirement would be met for the computer
record.
The out-of-court declarant requirement would not be met, however, where a
machine or instrument created the record itself, such as an ATM receipt.
Second, the declarant must have made the statement out-of-court, i.e., at a time and
place other than while testifying in the case at bar.
"Once an out-of-court declarant, always an out-of-court declarant"
An exemption to this concept exists under Texas Rule 801(e)(1) and
Federal Rule 801(d)(1)
Truth of the Matter Asserted
In General
A statement by an out-of-court declarant can only be excluded on hearsay grounds if
the statement is offered to prove the truth of the matter asserted (TOMA) and not
some other relevant issue.
Key to whether TOMA exists, determine what the testimony has been offered to
prove.
Why has the proponent solicited this particular testimony?
For TOMA to exist, the statement must have been made to prove the truth of
the statement's contents.
If the proponent is not asking the jury to believe that the statement is true,
it is not hearsay.
Examples of Non-hearsay Use (Non-TOMA Statements)
TOMA does not exist where a statement is offered to prove:
1. Information acted upon, e.g., information provided to a police officer to show
that probable cause existed to search the D's apartment
2. An operative fact, e.g., a whole host of legal documents (wills, search warrants,
notice, etc.)
3. To show the mental state of the statement's declarant, e.g., what the declarant
was thinking.
4. To show a prior inconsistent statement by the declarant.
Definitional Analysis of Hearsay Under Federal and Texas Rules
Federal Rule 801 Texas Rule 801
OTCD says "It is cold outside"
(Assertive Verbal Conduct)

Hearsay

Hearsay

When asked if its cold outside,

Person makes shivering motions
(Assertive Nonverbal Conduct)

Hearsay

Hearsay

Person walks to closet and puts

on extra heavy coat before going
outside
(Nonassertive, Nonverbal
Conduct)

Not Hearsay

Not Hearsay

29

OTCD tells friend "Wear your

heavy coat today"
(Nonassertive Verbal Conduct)

Not Hearsay

OTCD says "I am going to wear my Not Hearsay

heavy coat this morning"
(Assertive Verbal Conduct, for
other purposes)

Hearsay
(Implied Assertion if Probative
Value Flows from Belief OCD)
Hearsay
(Implied Assertion if Probative
Value Flows from Belief of OCD)

Hearsay Exemptions
Exemptions to Hearsay Rule
Hearsay rule is not absolute
Federal Rule 801(e) lists the exemptions to the hearsay rule.
These exemptions do not constitute hearsay under the rules of evidence.
BOP: preponderance of the evidence
Federal Rules 803-804 catalogue certain exceptions to the hearsay rule.
These statements do technically qualify as hearsay, but necessity requires their
admissibility.
Methodology
Is the S hearsay (definition)?
If yes, is there an "exemption"?
If an exemption applies, the statement is not even considered to be hearsay, even if
it is offered for the truth of the matter asserted
If the statement is hearsay and does not qualify as a hearsay exemption, it may still
be considered admissible hearsay under one of the number of exceptions to the
hearsay rule.
If no, is there an "exception"?
Prior Statements by Witness Now on Stand
Federal Rule 801(e)(1) indicates that certain prior out-of-court statements by a witness
now on the stand will be considered non-hearsay.
Extends to a testifying witness's prior inconsistent statements, prior consistent
statements, and a statement identifying a person.
Prior Inconsistent Statements: When offered solely to impeach rather than
to prove the truth of the matter asserted, they are not hearsay. See also Rule
613. Under 801, PIS are allowed to impeach and prove the TOMA
Prior Consistent Statements: With PCS you can rehab the witness and you
can show that the PCS was TOMA.
Statement Identifying the person: e.g., pre-trial lineup.
Party-Opponent Admissions
Rule 801(e)(2) extends hearsay exemptions to those statements which were made by
one of the parties to the case and are offered against that party by the opposing
party. But See 803(24)
Extends to statements made by a party's spokesperson or one in the employment of
the party who made the statement about a matter within the scope of that
employment and to statements made by co-conspirators.
Ex: statement (even if intended to be exculpatory) made by a criminal
defendant and offered into evidence against the D by the prosecution.
Should not be confused with the exception admitting a person's "statement against
interest"
Depositions Rule 801(e)(3)
Depositions taken and offered in accordance with the Texas Rules of Civil Procedure, as
non-hearsay. Applies only to civil cases. There is no federal counterpart
Hearsay Exceptions
Hearsay Exceptions: Unavailability of Declarant Not Required
If a statement constitutes hearsay and there is no available hearsay exemption, the proponent
may find an applicable hearsay exception in either Federal Rule of Evidence 803 or 804.

30

Basic difference between 803 and 804:

803, the proponent need not show that the declarant is unavailable.
804, the unavailability of the declarant is an indispensable requirement
Hearsay exceptions codify to a great extent C/L recognition that certain out-of-court statements
have indicia of reliability.
Rule 803(2) covers excited utterances.
The law recognizes that a declarant's excited utterance about a startling event is
more likely to be free from deception.
Each exception has its own set of foundation elements, which the proponent must be prepared
to establish.
Present Sense Impression
Rule 803(1) indicates that a declarant's statement which describes what is currently
taking place is admissible as a hearsay exception.
Key element: the statement is being made contemporaneously with observing or
otherwise sensing the event.
If the declarant waits too long to make the statement, it will normally not be
admissible under this exception.
Excited Utterance
Under Rule 803(2) the indicia of reliability is the spontaneity of the declarant's statement.
The statement may be in response to a question, but the proponent should be
prepared to show that a particular starling event took place, the declarant
observed it, and the statement, caused by the stress or excitement of that
observation, relates to that startling event.
What startles one may need not startle another
If its too startling, you can argue that it's not really reliable
Existing Mental, Emotional or Physical State
Rule 803(3) covers the declarant's existing condition
Ex: the declarant says "I am angry" or "I am hurt".
Exception does not extend to past conditions, which might be covered in Rule
803(4)
The exception would include a statement evidencing an intent or plan to do
something
Can the declarant's statement of an intent to do something be admissible to show
subsequent conduct? YES
Statements for Purposes of Medical Diagnosis
Under Rule 803(4), the proponent may avoid the hearsay rule by showing that the offered
statements were made in the court of obtaining a medical diagnosis or treatment.
This exception would cover a declarant's "medical history" statements which reflect
past feelings or conditions.
Can use to show cause, but not fault

Hearsay Exceptions--Business and Official Records

Business Records
Familiar business records exception to the hearsay rule is located in Rule 803(6)
Basis for treating business records as an exception rests on the assumption that the businesses
have a duty to accurately and routinely record data pertinent to their activity; failure to do so
may have an adverse impact on their ability to function.
One of the key elements to this exception is that the written record is recorded in the regular
course of business.
Before laying the foundation, it must first be established that there is a "business".
Laying the Foundation for Business Records
Requires evidence that:
1. The record was made and kept in the course of a regularly conducted business
activity
2. It was the regular practice of that business activity to make the record
3. The record was made at or near the time of the act, event or condition recorded,
and

31

4. The person making the record or submitting the information had personal
knowledge of the act, event or condition recording.
Implied requirements:
There must be a business duty

When a business record contains a statement of a person who has no

business duty Rule 805 is implicated (Hearsay within hearsay) and the
statement is not admissible
But, the rule of optional completeness can trump the hearsay

rule and the statement may still be admitted.

Business records must be trustworthy (Trustworthiness Veto)

Can be excluded if the source of the information, or the method or

circumstances of its preparation indicate a lack of trustworthiness.

Public Records
Fed Rule 803(8)(A) covers another well-established exception to the hearsay rule--an
exception for public records and reports.
The indicia of reliability in this exception rests in large on the fact that public offices have a duty
to accurately collect, report and record certain data.
The exception covers a wide range of public documents.
Subdivisions (B) and (C) place limitations on the ability of the government to introduce its own
reports.
Subdivision (C) indicates that if the report or record contains factual conclusions resulting
from an investigation, it may only be introduced during a civil case or during a criminal
case, if offered by the defense against the government.
Subdivision (B) indicates that matters observed pursuant to a duty to do so may be
admitted under the exception, unless the evidence is being offered during a criminal case
and the matters were observed by the police officers and other law enforcement
personnel.
No such limitation exists in Rule 803(6)
Minority position that if the offered police report was not admissible under Rule
803(8), it was not admissible under Rule 803(6).
The prosecution could not introduce the report through the backdoor of the business
records exception.
Cole v. State, the Texas Court of Criminal Appeals extended the Oates rationale to
Texas criminal cases.
Aguilar v. State, an expert witness could rely upon a lab report, which would be otherwise
inadmissible under Cole, to form the basis for his opinion that the substance tested was
contraband.
In Cole, the hearsay exception in Rules 803(6) and (8) may be linked where the public agency
completing the report may also be considered a business.
Chart: Comparison of Texas Rules 803(6) and 803(8)
Rule 803(6)

Rule 803(8)

Record, Data or Writing?

Yes

Yes

Timing Requirement?

Yes
(At or near time of event)

No

Regularity of
Preparation?

Yes

No

Duty?

Yes
(Business Duty Implied)

Yes
(explicitly stated)

Personal Knowledge?

Yes
(of informant or entrant)

Yes
(Implicit in Rule)

Limitations?

Yes
(Cole limitation in criminal cases)

Yes
(Matters observed by police)
(Government investigations)

32

Authentication?

Rule 902(10)(self-auth)
Rule 901

Rule 902
Rule 901

Trustworthiness Veto?

Yes

Yes

Hearsay Exceptions--Learned Treatise, Statements Against Interest & Misc. Exceptions

o
If the proponent wishes to use one of the few exceptions in Rule 804, he or she will have to first
establish that the person who made the offered statement is not available to testify at trial.
o
Rule 804(a) lists the reasons for unavailability, e.g., refusal to testify, death, or incapacity to
testify.
o
Assuming that the judge concludes that he declarant is not available, the proponent must next
establish the foundation for the exception relied upon.
Statements Against Interest
Under Federal Rule 804(b)(3), a declarant's statement may be admitted if the proponent can
show that the statement was against the declarant's financial, criminal or civil interest at the
time the statement was made.
The Texas counterpart to this rule is Rule 803(24), where unavailability of the declarant is not
required.
Differences between statements against interest and party admissions:
Party Admissions (Tx Rule 801) v. Statements Against Interest (Tx Rule
803(24))

Identity of "OTCD"

Party Admissions
(801(e))

Statements Against Interest

(803(24))

A Party in the Case (Personal,

Adoptive, or Vicarious)

Any person--including a Party.

When is Statement At time it is offered at trial

Against Interest?

When it is made by OTCD

Who May offer it

Into Evidence?

Party who did not make

statement

Any Party

Must Declarant be
Unavailable?

No

No Cf. FR 804

Type of "Interest"
Implicated in
Statement

Not critical as long as the

statement is being offered
against the opposing party

Rule specifies interests:

(1) Financial
(2) Civil/Crim. Liability
(3) Social Stigma

Requirement of
Corroboration?

Not required

Required in criminal cases where

statement tends to expose OTCD to
criminal liability

Hearsay Exceptions--Former Testimony and Dying Declarations

Former Testimony
Common exception in Rule 804 is the "former testimony exception"
It is intended to cover those situations where the declarant gave sworn testimony at a prior
proceeding and was subject to examination or cross-examination by the party against
whom the statement is now being offered.
The prior proceeding may have been a trial, deposition, or other proceeding.
Prior proceeding need not even be related to the present case.
The following chart demonstrates how the exception might work under the Texas counterpart to
the Federal Rule:
Comparison Chart: Rule 804(b)(1)--Former Testimony
Texas Civil Case
Rule 804(b)(1)

Texas Criminal
Case

Federal Rule 804(b)(1)

33

Rule 804(b)(1)
OTCD?

"Witness at prior
"Witness at prior
"Witness at prior hearing,
hearing, etc., who is
hearing, etc., who is etc., who is now
now "unavailable" as a now "unavailable" as "unavailable" as a witness.
witness.
a witness.

Statement?

"Testimony" at another
hearing of same or
different proceeding, or
in deposition in another
proceeding (See also
801)

"Testimony" at
another hearing of
same or different
proceeding

"Testimony" at another
hearing of same or different
proceeding, or in deposition
taken in compliance with law
in same or another
proceeding

Against
Whom
Offered?

Party or person with a

similar interest

Same Party

Civil: Party or Predecessor in

Interest
Crim: Same Party

*Opportunity
to Challenge
or Present
"Former
Testimony"?

Party or person against Party against whom Party or person against

whom offered had
offered had similar
whom offered had similar
similar opportunity &
opportunity & motive opportunity & motive to
motive to direct, cross-x to direct, cross-x or direct, cross-x or redirect
or redirect OTCD at prior redirect OTCD at prior OTCD at prior hearing
hearing
hearing

Dying Declarations
Fed Rule 804(b)(2) provides that a statement made under the belief of impending
death may be treated as a hearsay exception
Belief does not have to be reasonable
The person who makes the declaration does not actually have to die.
Although the exception may be used in any civil proceeding, its use in federal criminal cases is
limited to homicide cases.
Depositions & Hearsay
Non-TOMA
PIS (non-TOMA613)
PIS (801)
"Same Case" exemption (801)
PCS (801)
Former Testimony (804(b)(1)
Present Memory Refreshed (612)
Hearsay Exceptions, cont. Hearsay Issues & Federal Residual Hearsay Exception
The Federal Residual Hearsay Exception
Federal Rules of evidence contains a residual or as it is sometimes referred to as a "catch all"
hearsay exception.
There is no Texas counterpart
Originally, Fed Rules 803(24) and 804(b)(5) contained separate residual hearsay
exceptions--the former applied where the availability of the declarant was not important and the
latter when the declarant's unavailability was required.
The two exceptions were blended into a new Fed Rule 807. That rule provides:
Rule 807. Residual Exception
A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if
the court determines that (A)the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other
evidence which the proponent can procure through
This exception is viewed as an exception of the last resort.
Controversial and some federal courts are reluctant to admit a statement offered under this
exception.
Proponent must establish five specific foundational elements:

34

offered statement must have circumstantial guarantees of trustworthiness that equal

those exceptions in Rules 803 and 804
The proffered statement must address a material fact
The statement must be more probative on the issue than other evidence that is
reasonably available to the proponent.
Admitting the statement would promote the general purposes of the rules and the
interests of justice.
The proponent is required to give advance notice to the opponent of an intent to
rely upon the exception.

The Right to Confrontation and Hearsay

The Hearsay Rule and the Right to Confrontation
6th Amendment to the US Constitution provides a criminal D with the right to confront his or
her accusers.
When the prosecution introduces a person's hearsay statement against the D, the Right to
Confrontation may be implicated.
Historical Applications:
If the hearsay exception was considered to be "firmly rooted" (the courts had identified a
number of them as being as such) then no confrontation problem was present.
If the prosecution was relying upon an exception that was not firmly rooted, then the
prosecution had to first establish that the hearsay declarant was unavailable and that the
statement was otherwise trustworthy, or "reliable" (Roberts Test)
In the recent landmark decision, Crawford v. Washington, the Court signaled that the foregoing
formula would no longer apply in those criminal cases where the prosecution was relying on
"testimonial" hearsay.
In those cases, the prosecution must establish that the hearsay declarant is unavailable to
testify and that the D had an opportunity to cross-examine the declarant at the time of the
statement.
Statements to police officers during an interrogation are considered to be
testimonial in nature.
For non-testimonial hearsay (such as a business record), the formula (which distinguishes
firmly rooted hearsay exceptions) will continue to apply.
If a statement is "testimonial"-- the prosecution must either:
Produce the declarant as a witness, or
First show that the declarant is unavailable as a witness and second, the accused was
provided an opportunity to cross-examine the declarant--even hearsay statements
formerly satisfying Roberts might be excluded under the Crawford test.
If the statement is non-testimonial , there is authority for the view that the defense counsel
may object that the statement still violates the Confrontation Clause under the "reliability" test
of Ohio v. Roberts:
Is proponent offering statement of declarant under "firmly rooted" hearsay exception?
If so, Confrontation Clause concerns are satisfied
If not, Confrontation Clause issues remain and proponent must either call hearsay declarant
to stand and be subject to cross-examination, or establish (1) unavailability of declarant
and (2) particularized showing of trustworthiness of statement being offered.
Hearsay Exception--Past Recollection Recorded
Recorded Recollection
Fed Rule 803(5) addresses the admissibility of a writing which reflects a past event recorded
by the witness now on the stand.
It is used where the witness cannot currently recall the event but is able to establish that he
or she once did recall the details of the event and recorded it in writing
This exception relates to, but is distinct from attempts by counsel to refresh the recollection of
the witness.
That topic is covered in Fed Rule 612 (writing used to refresh memory)
The typical progression is for counsel to attempt to revive the witness's memory and if it
fails lay the foundation for the writing which reflects the recorded recollection of the
witness.

35

Following chart demonstrates the relationship of the two rules, in both the Federal and Texas
versions.
Present Memory Refreshed
(Rule 612)

Past Recollection
Recorded
(Rule 803(5))

Writing Use As--

Used as "jogger" of memory

Is the Evidence itself

Trigger?

Temporary Loss of Memory

Insufficient "Recollection"

Personal
Knowledge

Implicit

Required by Rule

Introduced as an
Exhibit By--

Opponent, if at all

Read into evidence by

Proponent & Introduced As
Exhibit by Opponent, if at all

Production of
Writing for
Examination By
Opponent

Civil Case
o
During testimony (right to
examine)
o
Before testifying (discretionary)
Criminal Case
o
Right to examine

N/A

If Proponent of
Witness Fails to
Produce Writing

Civil Case
o
Any order justice requires
Criminal Case
o
Any order justice requires;
o
If Gov. refuses, strike testimony
or declare mistrial

N/A

Foundation or predicate for present memory/recollection refreshed (Rule 612):

Witness states he cannot recall a fact or event
Witness states that a certain writing or object could help refresh his or her memory.
Proponent tenders the writing or object to the witness
Proponent tenders the writing or object to the witness
Proponent asks the witness to read the writing silently or to study the object
Witness states that viewing the document or object refreshers his or her memory.
Witness then testifies from revived memory.
Foundation or predicate for past recollection recorded (Rule 803(5)):
1. Declarant must have had personal knowledge of the event recorded,
2. The memo must be an original made at or near the time of the event while the
declarant had a clear and accurate memory of the event,
3. The declarant must lack a present recollection of the event, and
4. The declarant must vouch for the accuracy of the memo.
Subject to personal knowledge, authentications and best evidence issues.

Privileges
Introduction to Privileges
Evidentiary privileges may prevent disclosure of otherwise relevant and reliable information.
They are generally disfavored
Privileges exist because public policy deems that certain relationships should be protected
or furthered; that interest will be accomplished if confidential communications in those
relationships are protected.
Two types of privileges exist; testimonial privileges and confidential communications privileges.
Testimonial Privileges - prevent certain individuals from being called as witnesses. (TR
504(b))
Communications Privileges - prevent the disclosure of certain specified confidential
communications. (TR 503(b))
TR 508 - identity of informant, but not communications, is privileged

36

Important distinction exists between the laws governing privileges in Texas and the laws
governing privileges in Federal courts.
TR 501 - the law of privileges encompasses constitutional privileges (such as the 5th
Amendment's right against self-incrimination, statutory privileges (such as the attorney
work product provision found in TR of CP 192), and the privileges found in the Rules of
Evidence. Texas courts are exclusively limited to these sources when interpreting the
law of privileges.
FR 501 also recognizes constitutional and statutory privileges. But the Federal Rules contain
no specific privileges rules. Federal Rule 501 mandates that the law of privileges be
governed by the C/L, as interpreted and applied in the Federal Courts. Federal courts have
the power to expand and limit privileges as their reason or experience dictates.
Exception: Federal Diversity Cases ("Erie" Problems) where state law (such as the
TR) would govern.
Privilege issues often arise during pretrial discovery where one party has requested the other
side to produce documents or provide testimony in a deposition which involves privileged
information.
Testimonial Privileges
C/L recognized a testimonial privilege for spouses.
A criminal D could prevent his or her spouse from testifying for the prosecution.
Over the years that privilege has generally disappeared.
Communications Privileges
Most evidentiary privileges are "communications privileges"
The law indicates that certain confidential communications are protected and may not be
disclosed without the consent of one or more persons.
What factors may be applied by a federal court in deciding whether to adopt a new
communications privileges:
Should be determined on a case-by-case basis
Must also serve public ends
Confidential communications between a licensed psychotherapist and her patients in the
course of diagnosis or treatment are protected from compelled disclosure under FR 501.
In General: Common Elements of Confidential Communications Privileges
Working with communications privileges requires understanding:
What types of proceedings do privileges apply
Who holds the privilege
Who may claim the privilege
What is the nature of the privilege
What type of information is privileged from disclosure
The effect, if any, of claiming the privilege
Whether an exception to the privilege exists
Whether a waiver of the privilege has occurred
The Proceedings: When Do Privileges Apply?
Privileges apply to civil, criminal, and administrative proceedings, regardless of whether
the Rules of Evidence govern the proceeding.
Who is the Holder of the Privilege?
The privilege rule specifies who holds the particular privilege.
For communications privileges, the holder normally is the communicating party (i.e.
the speaker).
A holder may be, but is not always, a party to the litigation
Who May Claim the Privilege?
Holder of the privilege may always claim a privilege to prevent disclosure of the
information sought
Subsequent holders (i.e. guardians or executors) and the holder's agents (individuals
authorized by the holder to invoke the privilege from him/her in the holder's absence or
otherwise) may also prevent disclosure by claiming a privilege.
Certain rules presume an agent's authority to invoke a privilege on behalf of the holder
(TR 509)

37

The person claiming the privilege had the burden of proving (using extrinsic
evidence if necessary), that a privilege claimed does in fact exist.
Decision for the trial judge under 104(a)
What is The Nature of the Privilege?
If a communications privilege exists, the holder may
Refuse personally or disclose the privileged information
Prevent a third party from making an unauthorized disclosure of the privileged
information, and
Prevent, with some exceptions, an adverse on the invocation of the privilege.
What Information is Privileged?
Communications privileges only prevent the disclosure of confidential communications
Confidentiality only attaches to those communications where the speaker intends to
maintain secrecy.
That intent normally is evidenced by physical privacy and the intent to maintain
secrecy in the future.
The information must directly relate to the confidential relationship specified in the
applicable rule of evidence
Ex: for a client's communication to the attorney to fall within the scope of the
lawyer/client privilege (TR 503), the client must be speaking to the lawyer as a
lawyer and not as a best friend.
If the intent to keep the communication confidential exists, the communications to
the lawyer, as well as the lawyer's response to the client, will be privileged
information.
The communication may be oral, written, or non-verbal (with communicative intent).
No privilege will attach to preexisting documents created independent of the confidential
relationship.
Ex: a person cannot give three-year-old incriminating letter to a recently hired
attorney in an attempt to claim that it is a confidential communication between a
client and an attorney.
TR 503(b)(2) - a client has a privilege to prevent the lawyerfrom disclosing any
other fact which came to the knowledge of the lawyerby reason of the attorneyclient relationship.
Effect of Claiming a Privilege?
Will prevent compelled disclosure of privileged information
Not only will the holder not have to come forward with the information, but the holder
can also preclude other individuals from disclosing the confidential communication.
In judicial proceedings, this prevents the court from sanctioning nondisclosure with
contempt proceedings.
Neither the court not opposing counsel may comment on, or draw inferences from, the
invocation of a privilege.
Ex: self-incrimination (TR 513(c))
Exceptions to the Privileges?
Where an exception exists, privileged information must be disclosed.
Usually exceptions exist because a countervailing social policy (such as preventing fraud
or criminal activity)
Exceptions are rare and may exist for interpretive reasons and out of fairness.
Ex: In a will contest the attorney who drafted the will may break the attorney client
privilege and clarify his deceased client's intent.
Party trying to pierce a privilege had the burden of proving that an exception does exist.
Determination under Rule 104(a)
Has Waiver Occurred?
Voluntary Waiver
With one exception, once waiver has occurred, the communication permanently loses
its privileged status and the holder may not prevent further disclosure.
Waiver will occur where a holder voluntarily discloses the privileged communication
either publicly or potentially through a more intimate disclosure (such as telling a
group of friends).

38

Difference between involuntary and inadvertent disclosure:

Involuntary disclosure exists where disclosure has been erroneously
compelled.
Inadvertent disclosure exists where the disclosure was voluntary but
unintentional
Ex: not removing privileged documents from records turned over to
opposing counsel during discovery.
When an involuntary disclosure had occurred, TR 512 will reinstate the
privilege to prevent further disclosure.
Where inadvertent disclosure has occurred, waiver of the privilege may also
occur.
In Texas if a holder of the privilege calls a character witness whose personal
knowledge includes relevant privileged information voluntary waiver will occur. (TR
511)
The party claiming the waiver has the burden of proving that waiver has in fact
occurred.
Consent
Where a holder fails to either assert the privilege or object to questioning which asks
for privileged information, the holder has consented to disclosure.
Waiver Through Offensive Use
When an affirmative act, such as filing a law suit, places privileged information
directly in issue, the courts may conclude that the party filing the lawsuit has
affirmatively waived the privilege.
This concept is also called offensive use, and it applies to all privileges--even those
not codified in the rules of evidence.
Issue of offensive use and when it constitutes waiver in the context of the attorney
client privilege, was addressed by the Texas SC in Republic Insurance Co. v. Davis:
Determine whether a party's need for information can ever outweigh the
benefits associated with the attorney-client privilege.
In an instance in which the privilege is being used as a sword rather than a
shield, the privilege may be waived.
Factors that guide the trial court in determining whether a waiver has
occurred:
First, the party asserting the privilege must seek affirmative relief.
Second, the privileged information sought must be such that, if believed
by the fact finder, in all probability it would be outcome determinative of
the cause of action asserted.
Third, disclosure of the confidential communication must be the only
means by which the aggrieved party may obtain the evidence
If any of these requirements is lacking, the trial court must uphold the privilege.
Eavesdropping
Inadvertent or intentional hearing of a confidential communication will not waive a
privilege
Courts normally will prevent the eavesdropper from coming forward to disclose the
privileged information.
Privileges--Spousal
Privileges--Legal Privileges
o
See Rule 503
o
Control Group tests have been rejected
o
Client is the holder of the privilege
Privilege survives the death of the client

Privileges--Medical
Privileges--Clergy & Informants
Judicial Notice

39

40