Evidence Lectures I + II (June 13 + 14). 124 questions, answered

Q: (I) Relevance - (B) Similar Occurrences: (5) Habit - Key Words

'always' 'invariably' 'automatically' 'instinctively'

(I) Relevance - (B) Similar Occurrences: (1) Plaintiff's Accident History

Generally, P's accident history is inadmissible because it shows nothing more than the fact that the P is accident prone. . . BUT, P's prior accidents are admissible if the cause of P's damages is in issue (causation).

Q-TIP: Always ask yourself--for what purpose is the evidence being offered?

Evidence may be admissible to prove one proposition or for one purpose, but inadmissible to prove another proposition or for another purpose.

(I) Relevance - (B) Similar Occurrences: (2) Similar Accidents Caused by the Same Event or Condition

Generally, other accidents involving D are inadmissible b/c they suggest nothing more than a general character for carelessness. . . But other accidents (1) involving the same instrumentality/condition, and (2) occurring under substantially similar circumstances, may be admitted for 3 purposes: (a) Existence of a dangerous condition; (b) Causation; (c) prior notice to the D.

(I) Relevance - (B) Similar Occurrences: Substantial Similarity Test Also Applies to

Beyond exception (2) [similar accidents caused by the same event/condition], substantial similarity is also the rule governing the admissibility of EXPERIMENTS and TESTS.

Recreating an experiment in the courtroom. Substantial similarity rule applies here. If someone is trying to recreate the accident in the courtroom, he must show that the recreation is being conducted under substantially similar circumstances.

(I) Relevance - (B) Similar Occurrences: (3) Intent in Issue

A person's prior conduct may provide an inference of intent on a later occasion.

M sues Brewski Co. for sex discrimination, alleging that she was qualified for the job but not hired b/c she is a woman. M seeks to show that Brewski hired no women, despite their qualifications, during the past 6 years. This is admissible, b/c here P must prove D's discriminatory intent. Prior treatment of women raises an inference of discriminatory intent.

(I) Relevance - (B) Similar Occurrences: (4) Comparable Sales on Issue of Value

Selling price of other property of a similar type, in same general location, and close in time to period at issue, is some evidence of value of the property at issue.

Looking at comparable sales to determine value of home, etc. Comparable sales are admissible to show the value of the property at issue.

(I) Relevance - (B) Similar Occurrences: (5) Habit - Rule

Habit of a person (or routine of a business organization) is admissible as circumstantial evidence of how the person (or business) acted on the occasion at issue in the litigation.

(I) Relevance - (B) Similar Occurrences: (5) Habit - 2 Defining Characteristics

Habit has two defining characteristics: (1) Frequency of the conduct and (2) particularity of the circumstances. Thus, habit is a repetitive response to a particular set of circumstances.

Distinguish: Character v Habit

Character evidence refers to a particular person's general disposition or propensity. Character is generally not admissible to prove conduct on a particular occasion. E.G., fact that Dis a "careless" driver is inadmissible to suggest that he ran a red light and caused the accident involving P.

(I) Relevance - (B) Similar Occurrences: (5) Habit - Key Words

"always"
"invariably"
"automatically"
"instinctively"

(I) Relevance - (B) Similar Occurrences: (5) Habit - Business Routine Example

Example: To prove that a particular letter was mailed by CEO, evidence that CEO put letter in his out-box on Tuesday, and messenger "routinely" picks up mail in CEO's out-box at 3 p.m. each business day for delivery to mail room.

(I) Relevance - (B) Similar Occurrences: (6) Industrial Custom as [Evidence of] Standard of Care

Evidence as to how others in the same trade/industry have acted in the recent past may be admitted as some evidence as to how a party in the instant litigation should have acted--i.e., as evidence of the appropriate standard of care.

(I) Relevance - (C) Policy-Based Exclusions: 4 total

Liability insurance
Subsequent remedial procedures
Settlements
Offer to pay hospital or medical expenses

(I) Relevance - (C) Policy-Based Exclusions: (1) Liability Insurance

Evidence that a person has--or does not have--liability insurance is inadmissible to prove the person's fault or absence of fault. . . But evidence of insurance may be admissible for some other relevant purpose, such as (a) proof of ownership/control of instrumentality/location, if controverted (disputed) or (b) for the purpose of impeachment for a witness [often via bias: W is insurance claims adjuster). . . Note: Generally not admissible to impeach through prior inconsistent statement or contradiction.

(I) Relevance - (C) Policy-Based Exclusions: (2) Subsequent Remedial Procedures - FRE

Covers post-accident repairs, design/policy changes (aimed at preventing a similar accident from occurring in future. . . Inadmissible for the purpose of proving negligence, culpable conduct, product defect, or need for warning. . . . But such evidence may be admissible for some other relevant purpose, such as proof of (a) ownership/control or (B) feasibility of safer condition, if either is controverted.

(I) Relevance - (C) Policy-Based Exclusions: (2) Subsequent Remedial Procedures - TXRE

Same as federal rule with one exception: Written notifications from manufacturers to purchasers - In a products liability action, evidence of a written notification of a defect sent by a manufacturer to a purchaser is admissible to prove existence of the defect.

(I) Relevance - (C) Policy-Based Exclusions: (3) Settlements: (a) in Civil Cases

In a civil case, evidence of a settlement (compromise) or offer to settle a disputed claim is inadmissible to prove liability or weakness of a party's case. . . Also, statements of fact made in the course of settlement discussions are inadmissible. . . But evidence of settlement may be admissible for purpose of impeachment of a W on the grounds of bias. . . . Note: This exclusionary rule applies only if there is a claim that is disputed (at the time of settlement discussion) either as to the validity of the claim or the amount of damages.

(I) Relevance - (C) Policy-Based Exclusions: (3) Settlements: (b) Criminal Cases - What is Inadmissible (4)?

Offer to plead guilty--cannot be used against the D (a) in the pending criminal case or (b) in subsequent civil litigation based on the same facts.
Withdrawn guilty plea--cannot be used against the D (a) in the pending criminal case or (b) in subsequent civil litigation based on the same facts.
Plea of nolo contendre (no contest)--cannot be used against the D (b) in subsequent civil litigation based on the same facts.
Statement of fact made during any of the above plea discussions

(I) Relevance - (C) Policy-Based Exclusions: (4) Offer to Pay Hospital or Medical Expenses

Evidence that a party has paid or offered to pay an accident victim's hospital or medical expenses is inadmissible to prove liability. But: statements of fact made in connection with offers to pay hospital/medical bills are not excluded by this rule.

(I) Relevance - (D) Character Evidence: Defined

Character evidence refers to a person's general propensity or disposition--e.g., honesty, fairness, peacefulness, or violence.

(I) Relevance - (D) Character Evidence: 3 Potential Purposes for Admitting CE

Potential Purposes for the admissibility of character evidence:

Person's character is a material element in the case (rarely comes up)
Character evidence used to prove conduct in conformity with character at the time of the litigated event--AKA character as circumstantial evidence of conduct on a particular occasion.
Witness's bad character for truthfulness to impeach credibility.

(I) Relevance - (D) Character Evidence: (1) Criminal Cases: (a) D's Character

Overview: Evidence of the D's character to prove conduct in conformity is not admissible during the prosecution's case-in-chief. . . However, D--during the defense--may introduce evidence of a relevant character trait (by reputation or opinion testimony of character W) to prove conduct in conformity, thereby opening the door to rebuttal by the prosecution. This character trait must be relevant to the crime charged (i.e., a character trait of peacefulness is relevant to a murder charge)

(I) Relevance - (D) Character Evidence: (1) Criminal Cases: (b) Prosecution's Rebuttal

If D has "opened the door" by calling character Ws, the prosecution may rebut:

(A) By cross-examining D's character W with "have you heard" or "did you know" questions about specific acts of the D that reflect adversely on the particular character trait that D has introduced (prosecution must have good faith basis for the question. Note: Extraneous evidence of specific instances of conduct cannot be used here. [Purpose: to impeach character W's knowledge]; AND/OR
(B) By calling its own reputation or opinion witnesses to contradict D's witnesses.

(I) Relevance - (D) Character Evidence: (1) Criminal Cases: (c) Victim's Character in Self-Defense Case

Criminal D may introduce evidence of V's violent character to prove V's conduct in conformity (i.e., as circumstantial evidence that V was the initial aggressor). Proper method: Character W may testify to V's reputation for violence and also offer opinion testimony.
Prosecution Rebuttal: Evidence of V's good character (with reputation or opinion).
Neither can use: Specific instances of conduct.

(I) Relevance - (D) Character Evidence: (1) Criminal Cases: (c) Victim's Character in Self-Defense Case: Separate Rule of Relevance

If D, at the time of the alleged self-defense, was aware of V's violent reputation or prior specific acts of violence, such awareness may be proven to show D's state of mind--fear--to help prove that D acted reasonably in responding as he did to V's aggression.

(I) Relevance - (D) Character Evidence: (1) Criminal Cases: (d) Victim's Character in Sexual Misconduct Case: FRE General Rule

Under the federal "rape shield law, in both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:

(a) opinion or reputation evidence about the V's sexual propensity; or
(b) evidence about specific sexual behavior of the victim.

(I) Relevance - (D) Character Evidence: (1) Criminal Cases: (d) Victim's Character in Sexual Misconduct Case: FRE Exceptions to General Rule (3)

Specific sexual behavior of V to prove that someone other than D was the source of semen or injury to V;
V's sexual activity with D if the defense of consent is asserted; or
where exclusion would violate D's right of due process.

(I) Relevance - (D) Character Evidence: (1) Criminal Cases: (d) Victim's Character in Sexual Misconduct Case: TXRE

NOTE: TX rape shield law applies only in criminal cases. . . In civil cases, the evidence would be assessed under the 403 balancing test.

(I) Relevance - (D) Character Evidence: (2) Civil Cases - (b) Civil Case based on Criminal Conduct: (ii) TXRE

A civil D accused of conduct involving moral turpitude may introduce evidence of his good character (reputation or opinion testimony). Moral turpitude is a crime involving "grave infringement" of community sentiment--crimes of dishonesty, violence, and sexual misconduct: Prostitution, theft, swindling, false report of a crime.

A civil D accused of assaultive conduct may prove V's character (reputation or opinion testimony) to suggest V was first aggressor.

(I) Relevance - (D) Character Evidence: (2) Civil Cases - (c) Where Character is Essential Element of Claim/Defense

Evidence of a person's character is admissible in a civil case where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts).

Only 2 situations: (1) Negligent hiring, entrustment, or retention (character of person hired, etc); (2) Defamation where truth is a defense.

(I) Relevance - (E) Defendant's Other Crimes for Non-Character Purpose: (1) General Rule

General Rule: Other crimes or specific bad acts of D are not admissible during the prosecution's case-in-chief if the only purpose is to suggest that because of D's bad character he is more likely to have committed the crime currently charged.

Example: D is charged with robbing bank A. The fact that D robbed bank B six months later would be inadmissible character evidence.

(I) Relevance - (E) Defendant's Other Crimes for Non-Character Purpose: (2) Exception: Non-Character Purpose

If D's other crimes or and acts show something specific about the crime charged--something more than mere bad character--such evidence may be admissible as evidence bearing on guilt. Most common non-character (permissible) purposes: (1) Motive; (2) Intent; (3) Absence of mistake or accident; (4) Identity; (5) Common scheme or plan.

(I) Relevance - (E) Defendant's Other Crimes for Non-Character Purpose: (2) Exception: Non-Character Purpose--Methods of Proof of MIMIC-purpose crimes: 2

(A) by conviction; or
(B) by evidence (Ws, etc) that proves the crime occurred: conditional relevancy standard--prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime.

(I) Relevance - (E) Defendant's Other Crimes for Non-Character Purpose: (2) Exception: Non-Character Purpose--MIMIC Evidence: Notice; balancing test; limiting instructions

Upon D's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence. In all cases, court must also weigh probative value and giving limiting instructions if MIMIC evidence is admitted.

(I) Relevance - (E) Defendant's Other Crimes for Non-Character Purpose: (2) Exception: Non-Character Purpose--MIMIC Evidence in Civil Cases

If relevant, MIMIC evidence can also be sued in civil cases, such as tort actions for fraud or assault.

(I) Relevance - (E) Defendant's Other Crimes for Non-Character Purpose: (2) Exception: Non-Character Purpose--MIMIC Evidence: TIP

The court must insure that D is actually contesting the issue to which MIMIC crime is addressed (e.g., identity, theft). If MIMIC category is satisfied, then the prosecution may use other-crimes evidence as part of its case-in-chief; MIMIC evidence is not dependent on D's introduction of favorable character evidence.

(I) Relevance - (F) Evidence of Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action--FRE

Under FRE only, in a case alleging sexual assault or child molestation, prior specific sexual misconduct of the D is admissible (a) as part of the prosecution's case-in-chief (in a criminal case), or (b) as part of plaintiff's case-in-chief (in a civil case) for any relevant purpose . . . Including D's propensity for sex crimes--i.e., conduct in conformity with character.

(I) Relevance - (F) Evidence of Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action--TX

Note that a TX statute basically gets you to the same result as the FRE rule. This rule is not included in the TXRE.

(IV) Witnesses: 9 major subtopics

Competency
Dead Man's Rule
Leading Qs
Writing in Aid of Oral Testimony
Opinion Testimony
Cross-Examination
Credibility + Impeachment
Impeachment Methods
Rehabilitation

(IV) Witnesses (Ws): (A) Competency of W, in General: (1) Basics

Testimonial qualifications: (1) Personal knowledge (of the events about which they are going to testify; personal knowledge means they perceived with their own senses); AND (2) Oath or affirmation.

(IV) Witnesses (Ws): (A) Competency of W, in General: (1) Basics - Added TX requirement

In additional to personal knowledge and oath/affirmation requirements, a witness is incompetent to testify IF the court finds that W (a) was insane either at the time of the events witnessed or at trial; OR (b) is a child or other person who lacks sufficient intellect to relate the events he witnessed.

(IV) Witnesses (Ws): (A) Competency of W, in General: (2) Juror as Witnesses

A juror may not testify: (a) in same case in which sitting as a juror; or (b) in any other case as to statements made in deliberations or the effect that any thing had on deliberations.

BUT: a juror may testify as to any outside influence and extraneous prejudicial information.

(IV) Ws: (B) Dead Man's Statute: (1) In General (Multistate Rules)

A witness is not ordinarily incompetent merely b/c he has an interest--a direct legal stake--in outcome of the litigation. . . But, under a typical "Dead Man's act," in a civil action, an interested party is incompetent to testify in support of his own interest against the decedent's estate concerning communications or transactions between the interested party and the decedent.

NOTE: FRE does not contain a dead man's rule. Unless MBE Q says otherwise, assume no dead man's rule

(IV) Ws: (B) Dead Man's Statute: (1) In General: MBE?

Under the FRE, there is no dead man's rule. Thus, on MBE, witnesses are ordinarily not incompetent on this ground. But, if question explicitly states that particular jurisdiction has a dead man's statute, apply the general rule.

(IV) Ws: (B) Dead Man's Statute: (2) Texas Dead Mans Rule: General Rule

Interested W incompetent IF: (1) civil action by/against decedent's estate, or by/against decedent's heirs or legal representatives, and (2) either party to action seeks to testify to an oral statement made by the decedent [does not cover what decedent wrote down].

(IV) Ws: (C) Leading Questions - ID

Form of question suggests the answer--e.g., "isn't it a fact that. . ."; unevenly balanced alternatives.

(IV) Ws: (C) Leading Questions - Rule

Generally allowed on cross-examination of W.
Generally not allowed on direct examination of W. BUT allowed: (1) for preliminary/introductory matters; (2) youthful or forgetful W; (3) Hostile W; (4) Adverse Party.

(IV) Ws: (D) Writings in Aid of Oral Testimony: (1) Refreshing Recollection - Basic Rule

W may not read from prepared memorandum; must testify on basis of current recollection. BUT if W's memory fails him, he may be shown a memorandum (or any other tangible item) to jog his memory.

(IV) Ws: (D) Writings in Aid of Oral Testimony: (2) Past Recollection Recorded (Hearsay Exception)

Foundation for admissibility of contents of writing:

Showing writing to W fails to jog memory;
W had personal knowledge at former time;
Writing was either (a) made by W or (b) adopted by W;
Making or adoption occurred when the event was fresh in W's memory; AND
W can vouch for accuracy of writing when made or adopted.

(IV) Ws: (D) Writings in Aid of Oral Testimony: (2) Past Recollection Recorded: Safeguards against abuse

Same as for refreshing [present] recollection: Adversary can (1) inspect it; (2) use it on cross; and (3) introduce it into evidence.

(IV) Ws: (E) Opinion Testimony: (1) Lay Witnesses - Rule

A lay opinion is admissible if: (1) rationally based on W's perception (personal knowledge); AND (2) helpful to jury in deciding a fact.

(IV) Ws: (E) Opinion Testimony: (1) Lay Witnesses - Examples

Drunk/sober
Speed of vehicle
Sane/insane
Emotions of another person
Handwriting

(IV) Ws: (E) Opinion Testimony: (2) Expert Ws: (a) Qualifications - General Rule

Education (formal or informal); AND/OR
Experience (or skill, knowledge, training)

(IV) Ws: (E) Opinion Testimony: (2) Expert Ws: (a) Qualifications - TX rule on expert qualifications in cases based on "health care liability claims" (medical malpractice)

Expert W must actually be practicing the same type of health care as that of D, either at time of testimony or at time claim arose ("Practicing" includes teaching at medical school or other relevant institution).

I.e., A plastic surgeon cannot testify against a neurosurgeon

(IV) Ws: (E) Opinion Testimony: (2) Expert Ws: (b) Proper Subject Matter

Scientific, technical, or other specialized knowledge that will be helpful to jury in deciding a fact.

(IV) Ws: (E) Opinion Testimony: (2) Expert Ws: (c) Basis of Opinion

Expert's opinion must be based on "reasonable degree of probability or reasonable certainty." AND 3 permissible data sources

Personal knowledge (e.g., treating physician);
Other evidence in the trial record (testimony by other Ws, exhibits (medical reports, X-rays))--made known to expert by hypothetical question (evidence must support the facts upon which the hypothetical Q is based); OR
Facts outside of the trial record if the facts are of a type reasonably relied upon by experts in the particular field when they form opinions

(IV) Ws: (E) Opinion Testimony: (2) Expert Ws: (d) Reliability - FRE

Daubert. Federal CTs serve as "gatekeeper" and will use 4 principal factors to determine reliability of principles and methodology used by expert (all types) to reach opinion. Factors: TRAP.

(IV) Ws: (E) Opinion Testimony: (2) Expert Ws: (d) Reliability Factors - FRE

TRAP

Testing of principles/methodology.
Rate of error
Acceptance by other experts in same discipline
Peer review and publication.

(IV) Ws: (E) Opinion Testimony: (2) Expert Ws: (e) Learned Treatise in Aid of Expert Testimony (Hearsay Exception)

On direct examination of party's own expert: Relevant portions of treatise/periodical/pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if it is established as reliable authority (by direct examination, judicial notice, etc).
On cross-examination of opponent's expert: A treatise/etc may be read into evidence to impeach and contradict opponent's expert. Comes in as substantive evidence.
BUT: a learned treatise may not be introduced as an exhibit.

(IV) Ws: (E) Opinion Testimony: (3) Ultimate Issues - TXRE

Texas: Expert W may testify in terms of "negligence," "proximate cause," or "lack of testimentary capacity" if the proper legal standard is used.

(IV) Ws: (E) Opinion Testimony: (3) Ultimate Issues - Criminal Cases [FRE Only, not TX]

"Ultimate issue" is a proper objection if the expert seeks to give a direct opinion that D did/did not have relevant mental state (e.g., "D's insanity prevented him from understanding that he was shooting at a human being.") This is prohibited in Fed CT. Allowed in TX, though.

(IV) Ws: (F) Cross-Examination: General Rules

Party has a right to cross-examine any opposing W who testifies at the trial. A significant impairment of this right will result, at minimum, in striking of W's testimony.

Proper subject matter: (1) Matters within the scope of direct examination; AND (2) matters that test the W's credibility.

(IV) Ws: (F) Cross-Examination: TX Distinction

Under TXRE, not limited to matters within scope of direct examination. May question W on anything relevant to the case.

(IV) Ws: (G) Credibility and Impeachment, In General: (1) Bolstering own W - Exception: Prior Identification of a Person

Exception to Bolstering Prohibition: Prior identification of a person (E.g., W testifies that he recognizes D, sitting in court, as the perpetrator. In addition, "I picked D out of a line-up 2 weeks after the robbery").
Might seem like hearsay (out-of-court statement offered to prove truth of statement), but prior identification by trial W is not barred by hearsay rule. It is labeled as "exclusion" from hearsay, and comes in as substantive evidence.
Reliability factors: Identification was closer in time to event, and W on stand can be cross-examined.

(IV) Ws: (G) Credibility and Impeachment, In General: (2) Impeachment of Own Witness

Permitted, without limitation.

(IV) Ws: (H) Impeachment Methods: Overview - 7 Methods total

(1) Prior inconsistent statements
(2) Bias, interest, or motive to misrepresent
(3) Sensory deficiencies
(4) Contradiction
(5)-(7): Bad Character for Truthfulness
(5) Bad reputation or opinion about W's character for truthfulness
(6) Criminal convictions
(7) Baad acts (without conviction) that reflect adversely on W's character for truthfulness*** [FRE only. Not TX]

(IV) Ws: (H) Impeachment Methods: With respect to each impeachment method, consider two procedural issues:

Extrinsic Evidence: Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from other W), or is party bound by W's answers to impeaching Qs?
Confrontation: Assuming extrinsic evidence is permissible, must W first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evidence?

(IV) Ws: (H) Impeachment Methods: (1) Prior Inconsistent Statements - Rule

General R: Any W may be impeached by showing that on some prior occasion, he made a material statement (orally or in writing) that is inconsistent with his trial testimony. Purpose: Suggest trial testimony is false/mistaken.

But Note: certain prior inconsistent statements may be admitted both for impeachment AND as substantive evidence (to prove the truth of the matter asserted in the prior inconsistent statement): prior inconsistent statement given orally under oath and as part of a formal hearing, proceeding, trial or deposition.

(IV) Ws: (H) Impeachment Methods: (1) Prior Inconsistent Statements - Extrinsic Evidence/ Confrontation Issue: The Q

Where extrinsic evidence of a prior inconsistent statement is allowed (prior inconsistent statement given orally under oath as part of a formal proceeding), must W be confronted with his prior inconsistent statement while still on the stand, or may it be proven later by extrinsic evidence without such confrontation (i.e., at next opportunity for presenting affirmative evidence, call the person to whom W made the statement to the stand (if oral), or (if in writing) lay foundation to introduce writing into evidence)?

Here: Federal v Texas Distinction

(IV) Ws: (H) Impeachment Methods: (1) Prior Inconsistent Statements - Extrinsic Evidence/ Confrontation Issue: Fed Rule

Confrontation time is flexible: Not required to immediately confront W. But, after proof by extrinsic evidence, W must be given opportunity at some point to return to stand and explain/deny the prior inconsistent statement.

(IV) Ws: (H) Impeachment Methods: (1) Prior Inconsistent Statements - Extrinsic Evidence/ Confrontation Issue: Exception (Both TX and Fed)

No confrontation required and no opportunity to explain need be given if W is the opposing party. Such statements will also be admissible as substantive evidence under the "statement of party opponent" exclusion from hearsay.

(IV) Ws: (H) Impeachment Methods: (2) Bias, Interest, Motive to Misrepresent: Issue Spot

Examples:

W is a party, friend, relative or employee of party;
Expert W being paid by party;
Person with grudge against a party;

Purpose: Suggest testimony is false, slanted, or mistaken in party's favor.

(IV) Ws: (H) Impeachment Methods: (2) Bias, Interest, Motive to Misrepresent: Confrontation/Extrinsic Evidence Issue: (a) Must W be confronted with alleged bias while on the stand? TX v Fed Distinction.

Texas - Yes, always required: W must be told of circumstances or statements that allegedly show bias and given immediate opportunity to explain or deny.

Fed - Depend, not always required. In court's discretion.

(IV) Ws: (H) Impeachment Methods: (2) Bias, Interest, Motive to Misrepresent: Confrontation/Extrinsic Evidence Issue: (b) If confrontation prerequisite is met, may bias be proven by extrinsic evidence? TX v Fed Distinction.

Texas - In some cases (narrower). Rule: Bias may be proven by extrinsic evidence if W either (a) denies bias or (B) fails to unequivocally admit bias (does not make clear one way or other).

Fed - In some cases (broader). Rule: Court has discretion to permit extrinsic evidence EVEN IF W admits bias.

(IV) Ws: (H) Impeachment Methods: (3) Sensory Deficiencies

Anything that could affect W's perception or memory. Examples: Bad eyesight, bad hearing, mental retardation, consumption of alcohol or drugs at time of event or while on witness stand.
Purpose: To suggest mistake
Confrontation NOT required
Extrinsic Evidence IS allowed.

(IV) Ws: (H) Impeachment Methods: (4) Contradiction: Concept

Cross-examiner, through confrontation of W, may try to obtain admission that W made a mistake or lied about any fact he testified to during direct examination. If the W admits the mistake/lie, he has been impeached by contradiction. However, if W sticks to his story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.

(IV) Ws: (H) Impeachment Methods: (4) Contradiction: [Extrinsic Evidence] Rule

Extrinsic evidence is not allowed for the purpose of contradiction IF the fact is collateral. . . A fact is collateral if it has no significant relevance to the case or the W's credibility.

(IV) Ws: (H) Impeachment Methods: (5) Bad Reputation or Opinion Testimony re. W's Character for Truthfulness

Any W is subject to impeachment by this method: Opponent calls a character-W to testify that (a) target-W has a bad reputation for truthfulness, or (b) character-W has a low opinion of target-W's character for truthfulness.

Purpose: Suggest that target-W is not telling the truth on stand.
Confrontation NOT required
Extrinsic evidence IS allowed. (opinion and reputation evidence = extrinsic evidence. They are the only means for this method of impeachment. Cannot use specific instances of conduct).

(IV) Ws: (H) Impeachment Methods: (6) Criminal Convictions - Purpose + Relevance, in general

Purpose: To suggest testimony is false.
Relevance: Person who has been convicted of a crime is more likely to lie under oath than a person with an unblemished record.

(IV) Ws: (H) Impeachment Methods: (6) Criminal Convictions: (a) Federal Rule

Conviction of any crime (felony or misdemeanor) involving dishonesty or false statement may be used to impeach any W.
If conviction does not involve dishonesty or false statement, it must be a felony. Court may exclude, in its discretion, if probative value on issue of W credibility is outweighed by danger of unfair prejudice to a party (misuse as evidence of liability or guilt).
Conviction or release from prison--whichever is later--generally must be within 10 years of trial.

(IV) Ws: (H) Impeachment Methods: (6) Criminal Convictions: (a) FRE: "crimes involving dishonesty or false statement"

Means a crime involving speaking/writing a false statement.

Income tax fraud

(IV) Ws: (H) Impeachment Methods: (6) Criminal Convictions: (b) Texas Rule

Same as FRE, with 3 distinctions:

Types of convictions that can be used to impeach: (1) felonies of any type and (2) crimes of moral turpitude (crimes of dishonesty, violence, or sexual misconduct). [CF FRE: felonies of all types + misdemeanors involving dishonesty/false statement].
The balancing test (impeachment value v potential for prejudice) applies to ALL convictions. [CF FRE: balancing test only applies to felonies not involving dishonestly].
Cannot use a conviction to impeach if an appeal of the conviction is pending. [CF FRE: Pendency of appeal does not affect admissibility]

(IV) Ws: (H) Impeachment Methods: (6) Criminal Convictions: (c) Methods of Proof

Ask W to admit prior conviction, OR
Introduce record of conviction (extrinsic). Not required to confront W prior to introduction of record of conviction.

(IV) Ws: (H) Impeachment Methods: (6) Criminal Convictions: (d) Rehabilitation--FRE v TX

Conviction is not admissible if . . . conviction was subject of pardon, annulment, certificate of rehabilitation, or "other equivalent procedure" based on finding of rehabilitation, UNLESS [a subsequent conviction revives the conviction sought to be admitted for impeachment purposes]:

FRE: Subsequently convicted of a crime punishable by death or imprisonment in excess of 1 year (AKA felony)
TX: Subsequently convicted of crime or felony of moral turpitude

(IV) Ws: (H) Impeachment Methods: (6) Criminal Convictions: (d) Probation (TX Only)

Texas Only: Conviction is not admissible where successful completion of probation.

(IV) Ws: (H) Impeachment Methods: (7) Inquiry about Bad Acts (without conviction) if they reflect adversely on W's character for truthfulness.

This impeachment method is available only under FRE, not in TX.
R: Confrontation on cross-examination is the only permissible means. No extrinsic evidence permitted. Cross-examiner must have good-faith basis, and ability to inquire lies in court's discretion: Look for prior bad acts of deceit/falsehood.
Note: Cannot ask about fact of arrest itself, only about the act. Cannot use words like "arrested, charged, or indictment" with this form of impeachment.

(IV) Ws: (G) Rehabilitation: Two types

Rehabilitation by showing W's good character for truthfulness.
Rehabilitation via showing a prior inconsistent statement to rebut a charge of recent fabrication.

(IV) Ws: (G) Rehabilitation: (1) Showing W's good character for truthfulness

WHEN: Once W's credibility has been attacked using impeachment methods 5, 6, or 7 (impeachment with bad character for truthfulness).

HOW: Call a character-W, who testifies that target-W has good character for truthfulness w/ opinion/reputation testimony.

(VI) Hearsay: 6 major subtopics

Two-part definition
Non-hearsay statements
Principal categories of non-hearsay purposes
Prior Statements of Trial Witness
Statements of Opposing Party
Hearsay Exceptions

(VI) Hearsay: (A) Two-part definition: (1) "out-of-court statement of a person."

"Out-of-court statement." Any statement not made by a W on the stand during trial.

"Of a person." Machine generated outputs are not hearsay; neither is a drug-dog barking at luggage at an airport.

(VI) Hearsay: (A) Two-part definition: (2) "Offered to prove the truth of the matter asserted"

Ask two Qs: (1) What is the proposition that this statement is offered to prove? (2) What is the fact/belief asserted in the statement? If (1) and (2) match, then it is "offered to prove the truth of the matter asserted" = hearsay

(VI) Hearsay: (B) Non-Hearsay Statements

Some out-of-court statements may look like hearsay at first glance, but are not hearsay if they are not offered to prove the truth of the matter asserted in the statement. An out-of-court statement may be relevant to some issue simply because it was spoken (or written). If offered for some other purpose, credibility of the declarant is irrelevant. On the issue of whether the statement was spoken, the witness on the stand can be cross-examined; or, if the statement was in writing, it can be examined as an exhibit.

(VI) Hearsay: (C) Principal Categories of Non-Hearsay Purposes: 3

Non-hearsay purposes: Evidence is offered for some purpose other than to prove the truth of the matter asserted therein. 3 primary:

Verbal act (legally operative words)
To show effect on the person who heard/read the statement
Circumstantial evidence of speaker's state of mind.

(VI) Hearsay: (C) Principal Categories of Non-Hearsay Purposes: (1) Verbal Act (Legally. Operative Words)

P sued D for breach of an oral K. W takes the stand and proposes to testify: "I heard D say to P: 'I accept your offer to sell Microsoft.'" This is not hearsay. Acceptance is a legally operative word.

Similar: Contract offer or cancellation, making gift, bribe, perjury, fraud, defamation, and words accompanying ambiguous acts (e.g., D is charged with theft of P's car; D testifies, "As P handed me the keys, he said I could have the car for the weekend.").

(VI) Hearsay: (C) Principal Categories of Non-Hearsay Purposes: (2) To Show Effect on Person Who Heard or Read the Statement

D is charged with the murder of her husband, H. To prove motive, prosecutor seeks to introduce an anonymous note to D that was found in her possession at the time of her arrest. The note stated, "H is having an affair with Q."

NOT inadmissible hearsay. The fact that the statement was spoken to D gives her a motive to kill, even if it is not true. The note is offered as evidence to show the effect on the person who read the statement, not to prove the truth of the matter asserted therein.

(VI) Hearsay: (C) Principal Categories of Non-Hearsay Purposes: (3) Circumstantial Evidence of Speaker's State of Mind

D is prosecuted for murder. Defense: Insanity. W for D proposes to testify: "Two days before the killing, D said 'I am Elvis Presley. It's good to be back.'"

This is not hearsay. Not offered to prove truth of matter asserted: not trying to prove that D is Elvis. This is circumstantial evidence of D's state of mind, offered to prove D's insanity.

(VI) Hearsay: (D) Prior Testimony of Trial Witness - General Rule

A W's own prior statement, if offered to prove the truth of the matter asserted in the statement, is hearsay and is inadmissible unless an exception or exclusion applies.

I.E.: D testifies "I didn't do it, and I told the cops when they arrested me that I didn't do it." Italicized language is inadmissible hearsay. Reference to the out-of-court statement offered to prove the truth of the matter asserted (that D didn't do it).

(VI) Hearsay: (D) Prior Testimony of Trial Witness: 3 Witness-Statement Exclusions from Hearsay ("non-hearsay")

W's prior statement of identification.
W's prior inconsistent statement IF prior statement was made under oath and during formal trial, hearing, proceeding, or deposition.
Prior consistent statement used to rebut charge of rent fabrication or improper motive or influence.

(VI) Hearsay: (E) Statements of an Opposing Party [Hearsay Exclusion]: General Rule

Rule: Any statement made by any party (P or D) is admissible AGAINST that party.
Statement does not have to be damaging when made.
Any statement of a party is admissible against that party, but a party cannot offer his own statements under this exclusion.
Called "non-hearsay"
Theory: Party ought to bear the consequences of what he says. Can explain to jury, and cannot complain about inability to cross-examine himself.

(VI) Hearsay: (E) Statements of an Opposing Party [Hearsay Exclusion]: Vicarious Statements of Opposing Party

A statement by an agent/employee is admissible against the principal/employer if the statement concerns a matter with the scope of the agency/employment and is made during the agency/employment.

(VI) Hearsay: (F) Hearsay Exceptions: Overview - 13 total

These are justified by reliability factors or other good reasons sufficient to excuse inability to cross-examine declarant:

Former testimony
Statement against interest
Dying declaration
Excited utterance
Present sense impression
Present state of mind
Declaration of intent
Present physical condition
Statement for purpose of medical treatment or diagnosis
Business records
Public Records
(Past recollection recorded - discussed in (IV) Witnesses: (d) Writings in aid of oral testimony)
(Learned treatises - discussed in (IV) Witnesses:(e) Opinion Testimony: (2) Expert Ws).

(VI) Hearsay: (F) Hearsay Exceptions: Criminal D's Right of Confrontation: General Rule

Regardless of whether a hearsay exception applies, the 6th Am. right of confrontation prohibits the use of "testimonial" hearsay statements against a criminal D IF (1) the declarant is unavailable and (2) D has had no opportunity to cross examination.

(VI) Hearsay: (F) Hearsay Exceptions: Criminal D's Right of Confrontation: "Testimonial Statements"

"Testimonial" statements include (1) sworn testimony at (a) a grand jury, (b) prior trial, or (c) preliminary hearing; AND (2) responses made during police questioning, whether sworn or unsworn.

EX: Police interrogate D's accomplice at the station house and elicit incriminating statements. At D's trial, the accomplice refuses to testify. The accomplice's statement to police, even if it falls in a hearsay exception (statement against interest), cannot be used against the D because it is testimonial and there has been no cross-examaintion.

(VI) Hearsay: (F) Hearsay Exceptions: Criminal D's Right of Confrontation: Exception--"Declarant unavailable due to wrongdoing"

Any type of hearsay statements are admissible against a D who engaged/acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the W as a trial witness.

Theory: D forfeits the 6th Am. objection by making the W unavailable through his own wrongdoing. D cannot procure the unavailability of a W.

(VI) Hearsay: (F) Hearsay Exceptions: (1) Former Testimony; (2) Statements against interest; (3) Dying Declaration - Grounds of Unavailability

Note. Same grounds of unavailability apply to all exceptions where unavailability is required: (1) Former Testimony; (2) Statements against interest; (3) Dying Declaration.

Death or serious illness
Absence from the jurisdiction
Privilege (5th Am.; spousal immunity
Stubborn refusal to testify
Lack of memory.

(VI) Hearsay: (F) Hearsay Exceptions: (1) Former Testimony: TEXAS distinction

In civil actions, a DEPOSITION of W taken is the same proceeding is admissible without showing that W has become unavailable.

(VI) Hearsay: (F) Hearsay Exceptions: (2) Statement Against Interest: (a) General Rule + Theory

RULE: An unavailable declarant's statement against his pecuniary (financial), proprietary (might subject him to civil liability), or penal (might subject him to criminal liability) interest.

Theory: Not likely to lie when making a personally damaging statement.

(VI) Hearsay: (F) Hearsay Exceptions: (2) Statement Against Interest: (b) Distinguish from "statements of opposing party" [hearsay exclusion]

A statement against interest differs from a statement of an opposing party, in that:

(1) the statement must have been against interest when made (for statement against interest);
(2) any person--not merely a party--can make a statement against interest;
(3) Personal knowledge is required (for statement against interest);
(4) Declarant must be unavailable (for statement against interest). NOTE: Not required under TXRE.

(VI) Hearsay: (F) Hearsay Exceptions: (2) Statement Against Interest: (c) Qualification [Limitation] in Criminal Cases

Statement against penal interest (exposes declarant to criminal liability), when offered to EXCULPATE D, must be corroborated. I.E., where some unavailable declarant takes blame for crime, or shifts blame away from D, there must be corroboration.

(VI) Hearsay: (F) Hearsay Exceptions: (3) Dying Declarations: (a) General Rule and (b) Theory

(a) General Rule: Statement (1) made under a belief of impending and certain death (2) by a now-unavailable declarant (3) concerning the cause or surrounding circumstances of declarant's death = hearsay exception.

Note that unavailability does not have to be due to death. Actual death not required.

(b) Theory: No one wants to die with a lie on his lips.

(VI) Hearsay: (F) Hearsay Exceptions: (3) Dying Declarations: (c) FRE v TXRE

(1) FEDERAL (narrower exception).

Criminal cases: Homicide only (Under FRE, dying declaration only applies in homicide prosecutions).
Civil cases: All types

(2) Texas (broader exception, exception applies in more types of criminal cases).

Criminal and Civil Cases: All types

(VI) Hearsay: (F) Hearsay Exceptions: (4) Excited Utterance

Statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.

Note. Must be observe startling event and be under stress caused by it. Look for !s Also, look to the nature of the vent (must be startling) and the passage of time between the event and the statement, which typically must be short (still under stress)
Theory: Excitement suspends one's capacity to fabricate.

(VI) Hearsay: (F) Hearsay Exceptions: (5) Present Sense Impression

Description of event made while the event is occurring or immediately thereafter.

Note: Does not require that declarant be excited/startled.
Theory: Declarant has no time to fabricate.

(VI) Hearsay: (F) Hearsay Exceptions: (6) Present State of Mind

Contemporaneous statement concerning declarant's present state of mind, feelings, emotions.

The statement must concern a state of mind then-existing, not about how he felt in the past.
Theory: Contemporaneous statement about matter as tow which declarant has unique knowledge.

(VI) Hearsay: (F) Hearsay Exceptions: (7) Declaration of Intent

Statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person (in the future).

Can speak to intent to do something in the future.
Theory: Contemporaneous statement about matter as to which declarant has unique knowledge.

(VI) Hearsay: (F) Hearsay Exceptions: (9) Statement for purpose of medical treatment or diagnosis

Statement made to anyone (usually involves medical personnel) concerning past or present symptoms or general cause of condition made for the purpose of medical diagnosis or treatment.

Note: "medical diagnosis" includes diagnosis for the purpose of giving an expert opinion. These statements are admissible even if declarant was speaking to a physician who was retained solely for purpose of testifying as expert W.
Theory: Motive to be honest and accurate to get good medical assessment

(VI) Hearsay: (F) Hearsay Exceptions: (10) Business Records - (a) Elements

Records of any type of business
made in the regular course of business (germane to business)
the business regularly keeps such records
the records were made at or about the time of the event recorded
Contents consist of--(a) information observed by employees of the business, or (b) a statement that falls within an independent hearsay exception.

(VI) Hearsay: (F) Hearsay Exceptions: (10) Business Records - (b) Theory

Businesses depend on accurate, up-to-date record-keeping, and accuracy is likely when employees are under a business duty to make such records. Useful as substitute for in-court testimony of employees.

(VI) Hearsay: (F) Hearsay Exceptions: (10) Business Records - (c) Proving Foundation for Business Records

Call sponsoring W to testify to the 5 elements of business records hearsay exception; W need not be author of reports--can be records custodian or any other knowledgeable person with the business; OR
Written certification under oath attesting to elements of business records hearsay exception.
TEXAS: call sponsoring witness or use "self-authentication" affidavit procedure

(VI) Hearsay: (F) Hearsay Exceptions: (11) Public Records: General Rule + Exception

General Rule: Records of a public office/agency setting forth: (a) the activities of the office/agency (e.g., payroll records); (b) matters observed pursuant to a duty imposed by law (e.g., Weather Bureau records of temperature); OR (c) findings of fact or opinion resulting from an investigation authorized by law (e.g, FAA report on cause of plane crash).

Exception: Police reports and investigatory findings are not admissible against the D in a criminal case. Nor is the prosecution in such cases allowed to introduce a police report against the D under the alternative business records theory.

(VI) Hearsay: (F) Hearsay Exceptions: (12) Impeachment of Hearsay Declarants

Opponents may use any of the impeachment methods to attack the credibility of a hearsay declarant (IE: prior inconsistent statements).

Here, do not worry about confronting the declarant or giving an opportunity to explain.

Privileges Against Self Incrimination and Civil Proceedings

5A to the US Constitution provides that a witness cannot be compelled to testify against himself.
Pursuant to this privilege, a W may refuse to answer any question if its answer might tend to incriminate him.
Testimony is incriminating if it ties a W to the commission of a crime or would furnish a lead to evidence tying the W to a crime.
The privilege against compelled self-incrimination can be asserted in any proceeding, whether civil or criminal, at which the W's appearance and testimony are compelled.

Witness Competency and Personal Knowledge

To be a competent W, the W must (1) have personal knowledge of the matter and (2) be willing to testify truthfully. The first requirement is satisfied if the W observed the matter and has a present recollection of his observation.

Best Evidence Rule does not apply where

The fact to be proved exists independent of the recording and the W's knowledge of the fact was not derived from the recording.

Evidence Lectures I + II (June 13 + 14)

124 important questions on Evidence Lectures I + II (June 13 + 14)