Evidence (DONE)

Question 1

Relevance - Basic Principles

Answer 1

Evidence is relevant if it has any tendency to make a fact of consequence more probable or less probable than would be the case without the evidence.

Two elements:

1) Materiality
2) Probativeness

Question 2

Relevance - Materiality

Answer 2

Proposition must be “of consequence”. Need not be an ultimate issue,

Question 3

Relevance - Probativeness

Answer 3

“Any tendency” to make the proposition more or less likely. Just needs to shift probabilities to any degree whatsoever.

Question 4

Relevance - Admissibility of Evidence

Answer 4

All irrelevant evidence is INADMISSIBLE: no exceptions.

All relevant evidence ADMISSIBLE, unless:

1) Some specific exclusionary rule is applicable (hearsay, privilege, etc.) OR
2) The court uses its Rule 403 discretion to keep it out.

Question 5

Relevance/Admissibility Exception - Rule 403

Answer 5

The court may exclude otherwise relevant evidence if it determines that the probative value of the evidence is substantially outweighed by one or more of the following pragmatic considerations:

1) Danger of unfair prejudice.
2) Confusion of the issues (evidence creates a side issue)
3) Misleading the jury (danger of jury giving undue weight to evidence)
4) Undue delay
5) Waste of time (not in Texas)
6) Unduly cumulative

Question 6

Relevance - Prior Similar Occurrences

Answer 6

In general, if evidence involves some other time, event or person OTHER than that involved in the case at hand, the evidence is irrelevant/inadmissible.

Why? The probative value is usually outweighed by pragmatic considerations (e.g., weak relevance, danger of confusion, etc.).

BUT some recurring situations have produced concrete rules that may permit admissibility.

EXCEPTIONS:

1) P’s accident history
2) Similar accidents caused by same event or condition
3) Intent in issue
4) Comparable sales on issue of value
5) Habit
6) Industry custom as standard of care

Question 7

Relevance/Similar Occurrences Exceptions - Plaintiff’s Accident History

Answer 7

Generally, the plaintiff’s accident history is inadmissible because it shows nothing more than the fact that the plaintiff is accident-prone.

BUT, plaintiff’s prior accidents are admissible if cause
of plaintiff’s damages is in issue.

***For what purpose is the evidence being offered?

Question 8

Relevance/Similar Occurrences Exceptions - Similar Accidents Caused by Same Event or Condition

Answer 8

Generally, other accident involved defendant are inadmissible because they suggest nothing more than general character for carelessness. But other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances, may be admitted for 3 potential purposes:

1) Existence of dangerous condition
2) Causation
3) Prior notice to defendant (if other accident occurred before plaintiff’s)

Question 9

Relevance/Similar Occurrences Exceptions - Intent In Issue

Answer 9

Person’s prior conduct may provide inference of intent on later occasion.

Question 10

Relevance/Similar Occurrences Exceptions - Comparable Sales on Issue of Value

Answer 10

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

Question 11

Relevance/Similar Occurrences Exceptions - Habit

Answer 11

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.

Distinguish from character evidence: C.E. refers to a particular person’s general disposition or propensity. Character is usually not admissible to prove conduct on a particular occasion.

Defining characteristics:

1) Frequency of conduct
2) Particularity of circumstances

Question 12

Relevance/Similar Occurrences Exceptions - Industrial Custom as Standard of Care

Answer 12

Evidence as to how others in the same trade or 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.

Question 13

Relevance - Public Policy Exclusions (PPE)

Answer 13

Dealing with evidence that is unquestionably relevant, but is excluded because there’s some public policy consideration that is more important than the jury hearing the evidence.

1) Liability Insurance

Question 14

Relevance/PPE - Liability Insurance

Answer 14

Evidence that a person has, or does not have, liability
insurance is inadmissible to prove the person’s fault
or absence of fault.

Policy: To avoid risk that jury will base decision on
availability of insurance instead of merits of case.

But evidence of insurance may be admissible for
some other relevant purpose, such as:
- Proof of ownership/control of instrumentality or location, if controverted (disputed)
- Impeachment of a witness (usually on the grounds of bias)

LIMITING INSTRUCTION: Given to the jury whenever evidence is admissible for one purpose but not for another. Judge should tell jury to consider the evidence only for the permissible purpose.

Question 15

Relevance/PPE - Subsequent Remedial Measures

Answer 15

Post-accident repairs, design changes, policy changes.

Inadmissible for the purpose of proving negligence,
culpable conduct, product defect, or need for warning.

Policy: To encourage post-accident repairs, etc., to
avoid future accidents.

But such evidence may be admissible for some other
relevant purpose, if controverted, such as:
1) Proof of ownership/control
2) Feasibility of safer condition

Question 16

Relevance/PPE - Subsequent Remedial Measures FOR TEXAS

Answer 16

Same as Federal Rule with one exception: In a products liability action, evidence of written notification of a product defect sent by a manufacturer to a purchaser is admissible to prove existence of the defect.

Question 17

Relevance/PPE - Settlement in Civil Cases

Answer 17

Evidence of a settlement (compromise) or offer to settle a disputed claim is inadmissible to:

1) Prove liability or weakness of a party’s case, or
2) Impeach through prior inconsistent statement or contradiction.

Statements of fact made in the course of settlement discussions are also inadmissible for these purposes.

POLICY: To encourage settlement

BUT, evidence of settlement may be admissible for purposes of impeaching a witness on the grounds of bias.

Question 18

Relevance/PPE/Settlement Offers - Disputed Claim Required

Answer 18

The exclusionary rule only applies if there is a claim

that is disputed (at time of settlement discussion) either as to (1) validity or (2) amount of damages.

Question 19

Relevance/PPE - Please Discussions in Criminal Cases

Answer 19

The following are inadmissible:
• Offer to plead guilty—cannot be used against the
defendant in the pending criminal case or in subsequent
civil litigation based on the same facts.
• Withdrawn guilty plea—cannot be used against
the defendant in the pending criminal case or in
subsequent civil litigation based on the same facts.
• Plea of nolo contendere (“no contest”)—cannot
be used against the defendant in subsequent civil
litigation based on the same facts.
• Statements of fact made during any of the above
plea discussions.

BUT, a plea of guilty (not withdrawn) is admissible in subsequent litigation based on the same facts udner the rule of party admissions.

Question 20

Relevance/PPE - Offer to Pay Medical or Hospital Expenses

Answer 20

Evidence that a party has paid or offered to pay an
accident victim’s hospital or medical expenses is inadmissible to prove liability.

Policy: To encourage charity.

No need to show disputed claim—trying to reward
generosity.

Question 21

Relevance - Character Evidence

Answer 21

Character evidence refers to a person’s general propensity of disposition (e.g., honesty, fairness, peacefulness, or violence).

Potential purposes for offering:

1) Person’s character is a material element in the case
2) To prove conduct in conformity with character at the time of the litigated event, a.k.a. character as circumstantial evidence of conduct on a particular occasion.
3) Witness’s bad character for truthfulness to impeach credibility.

Question 22

Relevance/Character Evidence - Criminal Cases: Defendant’s Character

Answer 22

Evidence of the defendant’s character to prove conduct in conformity is not admissible during the prosecution’s case-in-chief.

However, defendant, during the defense, may introduce evidence of a relevant character trait (by reputation or opinion testimony of a character witness) to prove conduct in conformity, thereby opening the door to rebuttal by the prosecution.

Question 23

Relevance/CE/Crim: Def’s Character - Prosecution’s Rebuttal

Answer 23

If the defendant has “opened the door” by calling
character witnesses, the prosecution may rebut:

(1) By cross-examining defendant’s character witnesses with “Have you heard” or “Did you know”
questions about specific acts of the defendant that
reflect adversely on the particular character trait that
the defendant has introduced (prosecution must have
good faith basis for the question); purpose: to impeach character witness’s knowledge; and/or

(2) By calling its own reputation or opinion witnesses
to contradict the defendant’s witnesses.

NOTE: If the witness gave reputation testimony, the question on cross should be “Have you heard…” If the witness gave opinion testimony, the question on cross should be “Did you know..”

Question 24

Relevance/CE - Criminal Cases: Victim’s Character in Self-Defense Case

Answer 24

Criminal defendant may introduce evidence of victim’s
violent character to prove victim’s conduct in conformity, i.e., as circumstantial evidence that victim was the first aggressor.

Proper method: Character witness may testify to victim’s reputation for violence and may give opinion.

Question 25

Relevance/CE/Crim: Victim’s Character in Self Defense - Prosecution Rebuttal

Answer 25

Once defendant has introduced evidence of victim’s violent character, prosecution may rebut with opinion or reputation testimony regarding: (1) victim’s good
character for peacefulness, and/or (2) defendant’s
bad character for violence.

IN TEXAS: Under the Texas Rules, rebuttal is limited to evidence of the victim’s good character for peacefulness. Prosecution may not rebut with the defendant’s bad character for violence.

Question 26

Relevance - Character Evidence in Civil Cases

Answer 26

Inadmissible to Show Conformity:
- In civil cases, character evidence is generally inadmissible to prove conduct in conformity.

Admissible When Character Directly In Issue:

• Evidence of a person’s character is admissible in civil actions where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts). Only a few situations:
  1) Negligent hiring or entrustment
  2) Defamation (libel or slander)
  3) Child Custody

Question 27

Relevance/Civ: C.E./Inadmissible to Show Conformity - TEXAS Moral Turpitude exception

Answer 27

TEXAS NOTE: Civil defendant 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.

Examples of moral turpitude: Dishonesty, violence, sex misconduct, prostitution, theft, swindling, false report of a crime.

NOT moral turpitude: DWI, gambling, public intoxication.

Question 28

Relevance/Civ: C.E./Inadmissible to Show Conformity - TEXAS Assaultive Conduct exception

Answer 28

Civil defendant accused of assaultive conduct may prove victim’s violent character (reputation or opinion testimony) to suggest victim was first aggressor.

Question 29

Relevance - Defendant’s Other Crimes or Acts for Non-Character Purpose

Answer 29

Other crimes or specific bad acts of D are not admissible during the P’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.

BUT, if D’s other crimes or bad acts show something specific about the crime charged - something more than just bad character - such evidence may be admissible as evidence bearing on guilt.

MIMIC:

1) Motive
2) Intent
3) Mistake or accident (absence of)
4) Identity
5) Common scheme or plan

Question 30

Relevance/D’s Other Crimes for Non-Character Purposes - Methods of Proof of Independently Relevant Misconduct

Answer 30

(1) By conviction or (2) by other evidence (witnesses,
etc. ) that proves the crime or act occurred.

Conditional relevancy standard—prosecution need
only produce sufficient evidence from which a reasonable juror could conclude that defendant committed the other crime.

Upon defendant’s request, prosecution must give
pretrial notice of intent to introduce MIMIC evidence.

In all cases, court must also weigh probative value vs.
prejudice and give limiting instructions if MIMIC evidence is admitted.

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

EXAM TIP: Court must insure that defendant is actually contesting the issue to which MIMIC crime is addressed (e.g., identity, intent). If a MIMIC category is satisfied, prosecution may use other-crimes evidence as part of its case-in-chief; MIMIC evidence is not dependent on defendant’s introduction of favorable character evidence.

Question 31

Relevance/CE - Other Sexual Misconduct to Show Propensity in Criminal or Civil Sex-Crime Case

Answer 31

In a case alleging sexual assault or child molestation,
prior specific sexual misconduct of the defendant is
admissible as part of the case-in-chief of the prosecution (in a criminal case) or of the plaintiff (in a civil action) for any relevant purpose, including defendant’s propensity for sex crimes, i.e., conduct in conformity with character.

Question 32

Writings

Answer 32

Whenever a writing appears on the exam, be alert to 3 potential issues (aside from relevance): authentication, best evidence rule, and hearsay.

Question 33

Writings - Authentication

Answer 33

A showing must be made that the writing is authentic, i.e., that is it what it purports to be. This is the process of authentication.

STANDARD: Conditional relevancy standard—document is admissible if court determines there is sufficient evidence from which a reasonable juror could conclude document is genuine.

Question 34

Writings/Authentication - Methods of Authentication

Answer 34

Issue: Whether X is the author of a document

1) Witness’s personal knowledge: WItness observed X sign document

2) Proof of Handwriting
- Lay opinion: Lay witness testifies to opinion
that X wrote document on basis of familiarity
with X’s handwriting as result of experience in
normal course of affairs. (Lay witness cannot become familiar with X’s handwriting for the sole purpose of testifying.)
- Expert comparison opinion: Handwriting expert
testifies to opinion that X wrote document
on basis of comparison between document and
genuine sample (exemplar) of X’s handwriting.
- Jury comparison: Jury compares document with exemplar of X’s handwriting.

3) Ancient Document Rule: authenticity may be inferred if document is:
- at least 20 years old
- facially free of suspicion
- Found in a place of natural custody

4) Solicited reply doctrine: Document can be authenticated by evidence that it was received in
response to a prior communication to the alleged
author.

Question 35

Writings/Authentication - Authentication of Photographs

Answer 35

Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed.

Sponsoring witness does not need to be the original photographer.

Question 36

Writings/Authentication - Self-Authenticating Documents

Answer 36

Presumed authentic - no need for foundation testimony

• Official publications
• Certified copies of public or private records on file
in public office
• Newspapers or periodicals
• Trade inscriptions and labels
• Acknowledged documents
• Commercial paper
• Certified business records (with reasonable written
notice to adverse party)

TEXAS RULE for business records:
• Affidavit or unsworn declaration by custodian or
other person capable of testifying that the record qualifies for the business records hearsay exception.
• Business records hearsay exception is satisfied.
• Original or exact duplicate of the business record
is attached to the affidavit.
• Affidavit and attachment are filed with the court
at least 14 days prior to trial and prompt notice is
given to other parties.

Question 37

Writings - Best Evidence Rule

Answer 37

The name of this rule is misleading. Better described as the “original writings” rule.

RULE: In order to prove the contents of a writing, recording, or photograph, the original must be produced.

Definition: A party who seeks to prove the contents of a writing (includes sound recordings, X-rays, films), must either produce the original writing or provide an acceptable excuse for its absence. If court finds the excuse is acceptable, the party may then use secondary evidence— oral testimony or a copy.

Key inquiries:

• what does it mean to “prove the contents” of a writing?
• to what evidence does the BER apply?
• what is an “original”?
• what are the exceptions to the BER?

Question 38

Writings/BER - When does BER apply?

Answer 38

Two principal situations:

1) The writing is a legally operative document; i.e., the writing itself creates rights and obligations.
2) Witness is testifying to facts that she learned solely from reading about them in a writing.

Question 39

Writings/BER - When does BER NOT apply?

Answer 39

When a witness with personal knowledge testifies to a fact that exists independently of a writing that records the fact.

Question 40

Writings/BER - What qualifies as the “Original” writing?

Answer 40

• The writing itself; any counterpart intended to
have the same effect; any negative of film or print
from the negative; computer print-out.
• Duplicate: any counterpart produced by any mechanical means that accurately reproduced the
original (e.g., photocopy, carbon copy).

RULE ON DUPLICATES: Duplicate is admissible to
same extent as original UNLESS it would be unfair
(e.g., photocopy of fuzzy fax), or genuine question
is raised as to authenticity of original.

Question 41

Writings/BER - Excuses for Non-Production of Original

Answer 41

• Lost or cannot be found with due diligence
• Destroyed without bad faith
• Cannot be obtained with legal process

Court must be persuaded by preponderance of the
evidence that excuse has been established; secondary evidence is then admissible (e.g., testimony based on memory, handwritten copy).

Question 42

Writings/BER - “Escapes” from the BER

Answer 42

Function as exceptions.

• Voluminous records can be presented through a
summary or chart, provided the original records
would be admissible and they are available for
inspection.
• Certified copies of public records.
• Collateral documents.

Question 43

Witnesses

Answer 43

-

Question 44

Witnesses - Competency of Witness, in General

Includes TEXAS NOTE

Answer 44

Testimonial qualifications.

Two basic requirements:

1) Personal knowledge of what they’re testifying about
2) Oath or affirmation

TEXAS NOTE:
In addition to personal knowledge and oath/affirmation, witness incompetent to testify if court finds:
• Insane at time of events witnessed or at trial.
• Child or other person lacks sufficient intellect to
relate events witnessed.

Question 45

Witnesses/Competency - “Dead Man Statute”

Answer 45

In general (FEDERAL/MULTISTATE rules): Witness is not ordinarily incompetent merely because she has an interest—a
direct legal stake—in outcome of the litigation.

But, under a typical state “Dead Man’s Act,” in a civil
action, an interested party is incompetent to testify
in support of her own interest against the estate of a
decedent concerning communications or transactions between the interested party and the decedent.

Question 46

Witnesses/Competency - TEXAS “Dead Man Statute”

ON TBE, ALWAYS APPLY DMS

Answer 46

Texas Dead Man’s Rule:

Interested witness incompetent if:
• Civil action by or against decedent’s estate, or by
or against decedent’s heirs or legal representatives.
• Either party to action seeks to testify to oral statement made by decedent.

BUT, party may testify to decedent’s oral statement if
either:
• Decedent’s oral statement is corroborated by other
evidence, OR
• Incompetent party is called by adverse party (i.e.,
the estate) to testify concerning decedent’s oral
statement.

Question 47

Witness - Form of Questioning

Answer 47

-

Question 48

Witness/Form of Questioning - Leading Questions

Answer 48

Form of question suggests the answer (e.g., “Isn’t it a
fact that . . . .”; or unevenly balanced alternatives).

Generally allowed on cross-examination of witness.

Generally NOT allowed on direct examination of witness,
unless:
• Preliminary/introductory
• Youthful/forgetful witness
• Hostile witness (non-party, but antagonistic to the position of the client)
• Adverse party

Question 49

Witness/Form of Questioning - Cross Examination

INCLUDES TEXAS NOTE

Answer 49

Party has a right to cross-examine any opposing witness who testifies at the trial. Significant impairment of this right will result, at minimum, in striking of witness’s testimony.

Proper subject matter:
• Matters within the scope of direct examination, and
• Matters that test the witness’s credibility.

TEXAS NOTE: Cross-examination is not limited to scope of direct examination; may question witness on anything relevant to case.

Question 50

Writings in Aid of Oral Testimony

Answer 50

1) Refreshing recollection

2) Recorded recollection

Question 51

Writings in Aid of Oral Testimony - Refreshing Recollection

Answer 51

Basic rule: Witness may not read from prepared memorandum; must testify on basis of current recollection.

But if witness’s memory fails him, he may be shown a
memorandum (or any other tangible item) to jog his
memory.

SAFEGUARDS AGAINST ABUSE:
If witness’s recollection is refreshed during testimony,
adversary has right:
• To inspect the memory-refresher
• To use it on cross-examination
• To introduce into evidence

If refreshing happens before witness testifies, the
adversary is not entitled to these options but the judge has discretion to allow it.

Question 52

Writings in Aid of Oral Testimony - Recorded Recollection

Answer 52

Foundation for Admissibility of Contents of Document:
• Showing document to witness fails to jog memory.
• Witness had personal knowledge at former time.
• Document was either made by witness, or adopted
by witness.
• Making or adoption occurred when event was
fresh in witness’s memory.
• Witness can vouch for accuracy of document
when made or adopted.

Question 53

Witnesses - Opinion Testimony

Answer 53

-

Question 54

Witnesses/Opinion - Lay Witnesses

Answer 54

Admissible if:
• Rationally based on witness’s perception (personal
knowledge).
• Helpful to jury in deciding a fact.
• Not based on scientific, technical, or otherwise
specialized knowledge that would require expert
testimony.

(Lay witness has to have personal knowledge of the facts from which they’re forming their opinion.)

Question 55

Witnesses/Opinion - Experts

WITH TEXAS NOTES

Answer 55

Qualifications
- Education and/or experience

Proper subject matter
- scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact

Basis of Opinion
- Expert must have opinion based on reasonable degree of probability or reasonable certainty, and three permissible data sources:
(1) Personal knowledge (e.g., treating physician).
(2) Other evidence in the trial record (testimony by
other witnesses, exhibits (medical reports, X-rays))—
usually made known to expert by hypothetical question.
(3) Facts outside the record if of a type reasonably
relied upon by experts in the particular field in forming opinions.

Reliability
- To be admissible, expert opinion must be sufficiently
reliable. Court serves as “gatekeeper,” and will use
four principal factors to determine reliability of principles and methodology used by expert (all types) to reach opinion (Daubert)—“TRAP”

Question 56

Witness/Opinions/Expert - Reliability DAUBERT TEST

Answer 56

“TRAP”

Testing of principles or methodology

Rate of Error

Acceptance by experts in the same discipline

Peer review and publication

Question 57

Witness/Opinions/Expert - Reliability DAUBERT TEST (TEXAS ONLY)

Answer 57

If expert opinion is based on SCIENTIFIC methodology, court uses “TRAP ON” factors (Daubert/Robinson)—TRAP plus:

Objective vs. subjective interpretation of data

Non-judicial use of principle or methodology

Example: Toxicologist testifies about chemical cause of injury, based on laboratory studies.

If expert opinion is based on NON-SCIENTIFIC methodology, i.e., the expert relies on personal skill and experience, the test for reliability is less stringent. Court simply seeks to ensure that there is no analytical gap between expert’s methodology and the facts of the case.

Example: Engineer testifies about defect in seat belt,
based on his many years’ experience testing safety of
seat assemblies.

Question 58

Witness/Opinions/Expert - Learned Treatise in Aid of Expert Testimony (Hearsay Exception)

Answer 58

Treatises, periodicals, or pamphlets may be used
during expert testimony as follows.

ON DIRECT EXAMINATION of party’s own expert: Relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence (to prove truth of matter asserted) if established as reliable authority.

ON CROSS-EXAMINATION of opponent’s expert: Read into evidence to impeach and contradict opponent’s expert. Also comes in as substantive evidence.

READ INTO EVIDENCE ONLY: The learned treatise may not be introduced as an exhibit.

ULTIMATE ISSUES
Opinion testimony (lay or expert) is permissible even
if it addresses an “ultimate issue” in the case (e.g.,
“X was drunk,” “insane”, “That’s X’s signature on the
check”).

Question 59

Witness/Opinions/Expert - Ultimate Issue Testimony in Criminal Cases

Answer 59

FRE only: “Ultimate issue” is still proper
objection if expert seeks to give direct opinion that
defendant did or did not have relevant mental state
(e.g., “D’s insanity prevented him from understanding
that he was shooting at a human being”).

Question 60

Witnesses - Impeachment

Answer 60

-

Question 61

Witness/Impeachment - Bolstering

Answer 61

In general, not allowed until after witness’s credibility has been attacked.

EXCEPTION: Prior Identification of a Person:
- Might seem like hearsay (out-of-court statement offered to prove truth of statement), but prior identification by trial witness 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 witness on stand can be cross-examined. This can come is as substantive evidence.

Question 62

Witness/Impeachment - Impeaching Own Witness

Answer 62

Permitted, without limitation. Usually when the witness starts saying things you weren’t expecting them to say.

Question 63

Witness/Impeachment - Impeachment Methods ***

Answer 63

Overview:

(1) Prior inconsistent statements
(2) Bias, interest, or motive to misrepresent
(3) Sensory deficiencies
(4) Contradiction

Methods showing general bad character for truthfulness:
(5) Bad reputation or opinion about witness’s character
for truthfulness
(6) Criminal convictions
(7) Bad acts (without conviction) that reflect adversely
on witness’s character for truthfulness (ONLY FEDERAL - NOT PERMITTED IN TEXAS)

FOR EACH METHOD, CONSIDER:
• Can impeaching fact be proven by extrinsic evidence (documentary evidence or testimony from
other witnesses), or is party bound by witness’s
answers to impeaching questions?
• Assuming extrinsic evidence is permissible, must
witness first be confronted with impeaching fact
as a prerequisite to introduction of extrinsic evidence?

Question 64

Witness/Impeachment Methods - Prior Inconsistent Statement

Answer 64

Any witness may be impeached by showing that on
some prior occasion, she made a material statement
(orally or in writing) that is inconsistent with her trial
testimony.

Purpose: To suggest trial testimony is false or mistaken.

PIS ARE HEARSAY if offered to prove the truth of the matter asserted. NOT HEARSAY if offered to show inconsistency between the testimony and the prior statement.

Question 65

Witness/Impeachment Methods/PIS - When Prior Inconsistent Statements are Admissible as Substantive Evidence

Answer 65

Prior inconsistent statements made under oath and as part of a formal hearing, proceeding, trial, or deposition may be admitted both for impeachment and as substantive evidence—to prove the truth of the matter asserted in the prior inconsistent statement.

Question 66

Witness/Impeachment Methods - Confrontation/Extrinsic Evidence Issue

(WITH TEXAS NOTE)

Answer 66

Confrontation timing is flexible under Federal Rules.
Not required to immediately confront witness. But after proof by extrinsic evidence, witness must be given an opportunity at some point to return to stand to explain or deny the prior inconsistent statement, but not necessarily before proof with extrinsic evidence.

EXCEPTION to confrontation requirement: No confrontation required and no opportunity to explain need be given if witness is opposing party. (TEXAS AND FEDERAL)

TEXAS NOTE: Confrontation on stand is usually required: Witness must be told the contents of the prior inconsistent statement, time and place, and person to whom made; and must be given an opportunity at some point to explain or deny the
statement before proof with extrinsic evidence.

Question 67

Witness/Impeachment Methods - Bias, Interest, or Motive to Misrepresent

Answer 67

Purpose: To suggest testimony is false, slanted, or mistaken in party’s favor.

CONFRONTATION/EXTRINSIC EVIDENCE ISSUE:
- Must witness be confronted with alleged bias while on the stand? Within the court’s discretion.

TEXAS: Witness must be told of circumstances or statements that allegedly show bias and given immediate opportunity to explain or deny.

• If confrontation requirement is met, may bias be
  proven by extrinsic evidence? Yes, court has discretion to permit extrinsic evidence
  even if witness admits the bias.

TEXAS: Extrinsic evidence is allowed only if witness denies the bias or fails to admit the bias unequivocally.

Question 68

Witness/Impeachment Methods - Sensory Deficiencies

Answer 68

Anything that could affect witness’s perception or
memory.

Confrontation Required? No

Extrinsic Evidence allowed? YES

Question 69

Witness/Impeachment Methods - Contradiction

Answer 69

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

RULE: Extrinsic evidence is not allowed for the purpose of contradiction if the fact at issue is collateral. A fact is collateral if it has no significant relevance to the case or to the witness’s credibility.

Question 70

Witness/Impeachment Methods - Bad Reputation or Opinion About Witness’s Character for Truthfulness

Answer 70

Call a character witness to testify that target witness
has bad reputation for truthfulness, or that character
witness has low opinion of target witness’s character
for truthfulness.

Purpose: To suggest that target witness is not telling
the truth on the witness stand.

Confrontation Required? NO

Extrinsic Evidence allowed? YES

Question 71

Witness/Impeachment Methods - Criminal Convictions (Truthfulness)

Answer 71

Purpose: To suggest testimony is false.

Rationale: Person who has been convicted of a crime is more likely to lie under oath than is a person with an unblemished record.

Types of crimes and court’s discretion:
• Any crime (felony or misdemeanor) involving
dishonesty or false statement may be used to
impeach, and the court has NO DISCRETION to
exclude such convictions.
• If a conviction does not involve dishonesty or
false statement, it must be a felony, and the court
has discretion to exclude (generally Rule 403
balancing test—probative value not substantially
outweighed by unfair prejudice; stricter balancing
test when witness is criminal defendant—probative
value must outweigh unfair prejudice).

Must not be TOO REMOTE: Generally the conviction or release from prison (whichever is later) must be within 10 years of the witness’s testimony.

Method of proof:
(1) As witness to admit prior conviction, OR
(2) introduce record of conviction (extrinsic).
Not required to confront witness prior to introduction
of record of conviction.

Question 72

Witness/Impeachment Methods - Criminal Convictions (Truthfulness)

(TEXAS)

Answer 72

Texas has the following distinctions:
Types of crimes that can be used to impeach:
• Felonies of any type
• Crimes of moral turpitude (dishonesty, violence,
and sex misconduct)

Court’s discretion: Probative value must outweigh prejudicial effect. All convictions are subject to this balancing test.

Pending appeal: Cannot use conviction to impeach if an appeal of the conviction is pending (no such limit under FRE, but pendency of the appeal is admissible).

Under Texas Rule, a conviction is not admissible to impeach under any of these circumstances:
• Pardon, annulment, etc., that was based on rehabilitation and the person was not subsequently
convicted of a felony or crime involving moral
turpitude.
• Probation has been satisfactorily completed and
the person was not subsequently convicted of a
felony or a crime involving moral turpitude.
• Pardon, annulment, etc., that was based on innocence (irrespective of any subsequent convictions).

Question 73

Witness/Impeachment Methods - Criminal Convictions (Truthfulness)

EFFECT OF A PARDON

Answer 73

Effect of pardon: Conviction is not admissible if the
conviction was subject to a pardon, annulment, or other equivalent procedure, and:
• The pardon was based on a finding of rehabilitation
and witness has not been convicted of a
subsequent felony, or
• The pardon was based on a finding of innocence
(irrespective of any subsequent convictions).

Question 74

Witness/Impeachment Methods - Prior Bad Acts Involving Untruthfulness

Answer 74

FEDERAL ONLY, NOT ALLOWED IN TEXAS

Confrontation on cross-examination is the only permissible means. No extrinsic evidence is permitted. Cross-examiner must have good-faith basis, and ability to inquire lies in court’s discretion.

IN TEXAS: In Texas, only prior bad acts that lead to a conviction are admissible to attack a witness’s untruthful character.

Question 75

Witness/Impeachment Methods - Impeachment of Hearsay Declarant

Answer 75

Opponent may use any of the impeachment methods

to attack the credibility of a hearsay declarant.

Question 76

Witness/Impeachment Methods - Rehabilitation

Answer 76

SHOWING W’s GOOD CHARACTER FOR TRUTHFULNESS
- When allowed: Opponent used methods of attacking
witness’s general bad character (bad reputation or
opinion; convictions; bad acts).
- How: Character witness provides reputation or opinion testimony about witness’s good character for truthfulness.

PRIOR CONSISTENT STATEMENTS
- When allowed:
• Witness is charged with fabrication based on a
recent motive or improper influence, and the statement
was made before the motive arose; OR
• The statement rehabilitates a witness impeached
on another ground, such as prior inconsistent
statement or faulty memory.

IN TEXAS, a Prior Consistent Statement is only allowed in the first situation above (to rebut charge of fabrication on recent motive). The prior consistent statement must have been made BEFORE the motive to fabricate was established.

Bonus: Prior consistent statements admissible to rehabilitate are also admissible as substantive evidence; i.e., for truth of matter asserted (hearsay exclusion).

Question 77

Hearsay ***

Answer 77

TWO-PART DEFINITION

1) out-of-court statement of a person (oral or written), AND
2) offered to prove the truth of the matter asserted in the statement.

HEARSAY RULE
Hearsay is inadmissible unless an exception applies.

Rationale: So what’s wrong with hearsay? Inability of
the opponent to cross-examine the declarant (out-of court speaker or author) at the time the statement was
made. Declarant’s credibility is at issue (perception,
memory and sincerity).

HEARSAY WITHIN HEARSAY
Multiple hearsay is admissible if each statement meets
some hearsay exception.

Question 78

Hearsay - Not Hearsay/Not Offered For Truth of the Matter Asserted

Answer 78

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.

Question 79

Hearsay/Not Hearsay - Verbal Act (Legally Operative Facts)

Answer 79

Other verbal acts: Contract offer or cancellation,
making gift, bribe, perjury, fraud, defamation, words
accompanying ambiguous acts (e.g., D is charged with theft of X’s car; D testifies, “As X handed me the keys,
he said I could have the car for the weekend.”).

Question 80

Hearsay/Not Hearsay - Effect on Listener or Reader

Answer 80

If a statement is offered to prove that the listener or reader had notice, or that they had a certain effect from hearing or reading the statement. then it’s not hearsay.

Question 81

Hearsay/Not Hearsay - Circumstantial Evidence of Declarant’s State of Mind

Answer 81

If a statement is offered to show circumstantially a declarant’s state of mind, rather than for the truth of the matter asserted, then it’s not hearsay.

Question 82

Hearsay - Hearsay, But Excluded, So Not Hearsay

Answer 82

Certain out-of-court statements are specifically excluded from the definition of hearsay. Thus, even if offered for their truth, they are admissible nonhearsay. They are not admissible as a hearsay “exception”; they are simply not hearsay at all.

1) Prior Statements of Testifying Witnesses
2) Opposing Party’s Statements

Question 83

Hearsay/Exclusions - Prior Statements of Testifying Witnesses

Answer 83

General rule: A witness’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 applies.

However, the following prior statements of a testifying witness are excluded from the definition of hearsay:
• Witness’s prior statement of identification.
• Witness’s prior inconsistent statement, IF made
under oath and during a formal trial, hearing, proceeding, or deposition.
• Witness’s prior consistent statement offered to rehabilitate the witness (see Impeachment module for admissibility of prior consistent statements).

Question 84

Hearsay/Exclusions - Opposing Party Statements

Answer 84

Any statement made by a party (plaintiff or defendant)
is admissible against that party. Traditionally called
“admissions.”

Theory: Party ought to bear the consequences of what she says. Can explain to jury, and cannot complain about inability to cross-examine self.

ADOPTIVE STATEMENTS: Party may adopt the statement of someone else (for example, by remaining silent in the face of an accusation that a reasonable person would deny).

VICARIOUS OPPOSING PARTY STATEMENTS: Certain statements by some other person are admissible against a party because of the relationship between them.
These include:
• Statement by agent/employee admissible against
principal/employer if statement concerns matter
within scope of agency/employment and is made
during the agency/employment.
• Statement of co-conspirator admissible against
party if made during and in furtherance of the
conspiracy.

Question 85

Hearsay - Exceptions

Answer 85

Exceptions that require the declarant to be unavailable

1) Death or illness
2) Absence from jurisdiction
3) Privilege
4) Stubborn refusal
5) Lack of memory

Former Testimony

Question 86

Hearsay/Exceptions - Former Testimony

Answer 86

The former testimony of a now-unavailable witness,
if given at a former proceeding or in a deposition, is
admissible against a party who, on the prior occasion,
had an opportunity and motive to cross-examine or
develop the testimony of the witness. Issue in both
proceedings must be essentially the same.

Theory: Reliability assured by cross-examination on
prior occasion; however, we prefer live testimony, so
witness must now be unavailable.

IN TEXAS: In civil actions, the deposition of a witness taken in the same proceeding is admissible without a need to show that witness has become unavailable.

Question 87

Hearsay/Exceptions - Statements Against Interest (FEDERAL)

Answer 87

An unavailable declarant’s statement against his:
• Pecuniary interest (money)
• Proprietary interest (property)
• Penal interest (exposure to criminal liability)

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

Distinguished from opposing party statements:
• Must be against interest when made.
• Any person (not merely party) can make statement
against interest.
• Personal knowledge is required.
• Declarant must be unavailable. (NOT REQUIRED IN TEXAS)

LIMITATION IN CRIMINAL CASES
In criminal cases, statements against penal interest
must be corroborated.

Question 88

Hearsay/Exceptions - Statements Against Interest (TEXAS)

Answer 88

Differences in the Texas exception for statements against interest:
• Unavailability not required.
• Statements against social interest are also covered
(i.e., statements that make declarant an object of
hatred, ridicule, or disgrace).

Question 89

Hearsay/Exceptions - Dying Declarations

Answer 89

Statement made under a belief of impending and certain death by a now-unavailable declarant concerning the cause or surrounding circumstances of the declarant’s death.

Theory: No one wants to die with a lie on her lips.

Type of case:
• Criminal: Homicide only.
• Civil: All types.

TEXAS: The Texas dying declaration exception applies in all types of criminal and civil cases.

Question 90

Hearsay/Exceptions - Rule 803 Exceptions

Answer 90

Rule 803 exceptions are sufficiently reliable, and do

NOT require unavailability.

Question 91

Hearsay/803 Exceptions - Excited Utterance

Answer 91

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

Theory: Excitement suspends one’s capacity to fabricate.

Question 92

Hearsay/803 Exceptions - Present Sense Impression

Answer 92

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

Theory: Declarant has no time to fabricate.

Question 93

Hearsay/803 Exceptions - Then-Existing Mental or Physical Condition (Present State of Mind)

Answer 93

Contemporaneous statement concerning declarant’s
own present state of mind, feelings, emotions, or physical condition.

Theory: Contemporaneous statement about matter as
to which declarant has unique knowledge

INCLUDES DECLARATIONS OF INTENT: “State of mind” includes declarant’s intent to do something in the future, including the intent to engage in conduct with another person.

INCLUDES PRESENT PHYSICAL CONDITION: Statement made to anyone about declarant’s current physical condition.

Question 94

Hearsay/803 Exceptions - Statement for Purposes of Medical Diagnosis or Treatment

Answer 94

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

Theory: Motive to be honest and accurate to get good
medical assessment.

Question 95

Hearsay/803 Exceptions - Business Records (Records of Regularly Conducted Activity)

Answer 95

Elements:
• Records of any type of business or organization
(can be nonprofit)
• Made in the regular course of business (germane
to business)
• The business regularly keeps such records
• Made at or near the time of the event recorded
• Contents consist of information observed by employees of the business (must have business duty
to report)
• A statement by an outsider is only admissible
if it falls within an independent hearsay exception
(otherwise, it’s inadmissible hearsay within hearsay)

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.

Proving business records foundation:
• Call sponsoring witness to testify to the elements
of business records hearsay exception; witness
need not be author of report—can be records custodian or any other knowledgeable person within
the business; OR
• Affidavit or unsworn declaration attesting to elements of business records hearsay exception.

Question 96

Hearsay/803 Exceptions - Public Records

Answer 96

Records of a public office or agency setting forth:
• The activities of the office or agency.
• Matters observed pursuant to a duty imposed by
law.
• Findings of fact or opinion resulting from an investigation authorized by law.

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

Question 97

Hearsay - Confrontation Clause / What is “testimonial”?

Answer 97

Regardless of whether a hearsay exception is satisfied, the Sixth Amendment right of confrontation
prohibits the use of “testimonial” hearsay statements
against a criminal defendant if the declarant is unavailable and the defendant has had no opportunity for cross-examination.

Defining “Testimonial”: Includes sworn testimony
(e.g., grand jury, prior trial, preliminary hearing). But
also includes statements to police officers (sworn or
unsworn) and certain documents, as discussed below.

Question 98

Hearsay/Confrontation Clause - Statements to Law Enforcement—Determine Primary Purpose

Answer 98

• Providing information to aid police in ongoing
emergency = nontestimonial.

• Providing information to help police gather
information for eventual prosecution = testimonial.

Question 99

Hearsay/Confrontation Clause - Forensic Analysis Reports

Answer 99

Report that has the effect of accusing a targeted person of criminal conduct (e.g., blood alcohol results) is testimonial. If analyst who drafted the report is unavailable to testify, there may be a Confrontation violation.

Question 100

Privilege - Federal Procedure Issue in Multistate Exam

Answer 100

Federal Procedure Issue on Multistate Exam
If bar examiners specifically indicate the action is
pending in federal court, apply the following procedural rules:
• In federal-court action arising under federal substantive law (all civil cases arising under Constitution or federal statutes, and all criminal cases), privileges are governed by federal common law. For the most part, these are the basic rules on privileges
as covered in lecture.
• In federal-court action based on diversity jurisdiction,
where state substantive law applies to parties’
claims and defenses (Erie situation), the federal
court must apply privilege law of the state whose substantive law is applicable.

Note: In diversity actions, federal courts also apply
state law on competency (e.g., Dead Man’s Statutes),
burdens of proof, and presumptions. Aside
from these exceptions (privileges, competency,
burdens of proof, presumptions), FRE apply in all
federal-court actions, including diversity cases.

Question 101

Privilege - Attorney-Client Privilege

Answer 101

Oldest common law privilege. Rationale: To encourage
client to speak openly to counsel.

Elements
Privilege applies to:
• Confidential communications
• Between attorney and client (or representative of
either)
• Made during professional, legal consultation
• Unless privilege is waived or an exception is applicable

Question 102

Privilege/AC - Confidentiality

Answer 102

“Confidential Communications”
Client must intend confidentiality (e.g., no privilege if
client knows that third party is listening in; or if client
asks attorney to disclose the communication to a third
party).

Joint client rule: If two or more clients with common
interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.

“Communication”: Privilege does not apply to underlying information, pre-existing documents, or physical evidence.

Question 103

Privilege/AC - Exception

Answer 103

Future crime or fraud

Clients puts legal advice in issue

Attorney-client dispute

Question 104

Privilege - Physician/Patient Privilege

Answer 104

Usually created by state statute. Rationale: To encourage candor by patient and to protect privacy.

Elements
Privilege applies to:
• Confidential communication or information acquired
by physician from patient
• For purpose of diagnosis or treatment of medical
condition

Also applicable to psychotherapists (M.D. or other
professional certified to diagnose or treat mental/emotional illness).

Question 105

Privilege/Physician-Patient - Federal Distinction

Answer 105

In federal-court actions based solely on federal law,
privilege exists for psychotherapists, but not for
usual physician-patient confidences (e.g., gallbladder
treatment).

Question 106

Privilege/Physician-Patient - Exception

Answer 106

Privilege does not apply if patient expressly or impliedly puts physical or mental condition in issue.

Question 107

Privilege/Physician-Patient - TEXAS Exceptions

Answer 107

Texas exceptions:
• No doctor-patient privilege in criminal cases. However, a communication to a person who is examining
or treating another for drug or alcohol abuse is
not admissible in a criminal proceeding.
• No privilege if any party relies on patient’s physical
or mental condition as part of party’s claim or
defense.

Question 108

Privilege - Related to Marriage

Answer 108

Spousal Immunity:
In criminal cases only, a spouse cannot be compelled
to testify against the defendant-spouse.

Rationale: To protect harmony of existing marriage at
time of trial.

Witness-spouse holds privilege: Witness-spouse, not
defendant, is holder of privilege (i.e., witness-spouse
may voluntarily testify against the defendant spouse if
she chooses).

Question 109

Privilege/Marriage - Confidential Communications Between Spouses

Answer 109

In any type of case, a spouse is not required, and is
not allowed in the absence of consent by the other
spouse, to disclose a confidential communication
made by one to the other during the marriage (privilege survives divorce). Both spouses hold this privilege.

Rationale: To encourage candor between husbands
and wives during the marriage? Privacy?

Question 110

Privilege/Marriage - Exceptions

Answer 110

• Communications or acts in furtherance of future
crime or fraud
• Communications or acts destructive of family unit
(e.g., spousal or child abuse)

Question 111

Privilege/Marriage - TEXAS Exceptions

Answer 111

Additional Texas civil exceptions:
• All types of disputes between spouses (e.g.,
breach of contract)
• Incompetency/commitment proceedings

Question 112

Procedural Issues - Admissibility

Answer 112

The judge decides:
• Is a witness competent to testify
• Existence of privilege
• Admissibility of evidence

In doing so, the judge is not bound by the rules of
evidence—except privilege.

Question 113

Procedural Issues - Judicial Notice

Answer 113

Judicial notice is the recognition of a fact as true without formal presentation of evidence.

What Facts May Be Judicially Noticed
A court may judicially notice a fact that is not subject
to reasonable dispute because:
• The fact is generally known within the trial court’s
jurisdiction (e.g., New York City is located in the
State of New York), or
• The fact can be accurately and readily determined
from sources whose accuracy cannot reasonably
be questioned (e.g., October 10, 2017, was
a Tuesday).

Conclusiveness
In a civil case, the court must instruct the jury to accept the judicially noticed fact as conclusive.

In a criminal case, the court must instruct the jury that
it may (but is not required to) accept the judicially
noticed fact as conclusive.

Question 114

Procedural Issues - Presumption

Answer 114

A presumption is a rule that requires a particular inference to be drawn from an ascertained set of facts.

Destroying Presumptions in Civil Cases:
A presumption is destroyed when the adversary produces evidence to rebut the presumption.

Destroying Presumptions in Criminal Cases:
A defendant in a criminal case does not need to produce evidence to rebut a presumption (i.e., there are no mandatory presumptions against criminal defendants)

Question 115

Procedural Issues - Doctrine of Limited Admissibility

Answer 115

The doctrine of limited admissibility allows the court
to admit evidence to be used for one purpose but not another (e.g., for impeachment but not as substantive
evidence), or against one party but not another. If the
court admits evidence for a limited purpose, the court
must, on timely request, issue a limiting instruction.