Flashcards in Rules of Evidence Deck (133)
Motions in Limine
In Fed. CRT they preserve objection
Not in TX Court
Offer of Proof
Texas - question & answer mandatory if requested by party
Fed - question & answer discretionary
Terms used for "error"
TX - "fundamental error"
FED - "plain error"
Request for Limiting Instruction
TX - says must request limiting instruction or waive complaint on appeal
FED - rule doesn't say it, but it's the law anyway
Remainder of or Related Writings or Recorded Statemetns
TX - clarifies, that remainder is permitted to be introduced through adverse party (not just proponent)
FED - not in rule, but in practice mostly
No FED rule, but common law rule in FED court
Same in FED & TEX
a. Judicial Notice of "Adjudicative Facts"
b. No reasonable dispute: generally known; or capable of accurate and ready determination
c. Discretionary - court may without request take notice
d. Shall take notice if supplied necessary information
e. Party is entitled to be heard - if not opportunity before, heard after judicial notice
f. Judicial notice may be taken at anytime
g. Jury MAY accept as conclusive fact
Judicial Notice - Law of Other State or TX City/Cty
Rule 202 & 204
No FED rule
Judicial Notice - Foreign Law
No FED rule of Evidence, but included in FRCP 26.1
Not in FED Crim rules or TX Rules
But TX Penal Code has "Presumption" section
Is relevance the same in Federal court?
Rule 404(a) in FED cases if D offers evidence of pertinent character trait of victim, then the Gov't can offer evidence that D has the same trait
To use other "crimes, wrongs, or other acts" what must the Gov't do?
Use the evidence for motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident
AND prove the act occurred by preponderance of evidence Huddleston
How may character be proved?
reputation or opinion
On cross, you can inquire into specific acts
FRE does not have requirement that: to be qualified to testify at the guilt stage of trial concerning the character of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense
What is the rule number for Texas "Inadmissibility of Pleas, Plead Discussions, and Related Statements"?
What are the exceptions to Rule 410?
Texas: if part of statement is admitted into evidence then other parts should be allowed in fairness to be considered (effectively optional completeness)
Federal: In later perjury or false statement prosecution, statements made under oath, with counsel present, on the record may be used. NOT in TX.
What the Fed. Rule of Crim. Pro. that goes along with FRE 410?
Fed. Rule of Crim. Pro. 11
What is the 5th Cir. test for whether a plea negotiation exists with regard to FRE 410?
1. Whether D exhibited actual subject expectation to negotiate plea at time;
2. Whether accused's expectation was reasonable given totality of circumstances
Does 410 apply to witnesses that are not the accused?
Does TRE 410 provide more or less than TX Code of Crim. Proc.?
More, TCCP 27.02 implies that "nolo contendre" please are not admissible in CIVIL cases, whereas if withdrawn it cannot be used under 410
What are the common situations that FRE 410 have been found not to apply?
1. Statements made for the benefit of someone else (not the D);
2. Gratuitous statements not meant to receive benefit;
3. A person cooperating with law enforcement before charges are filed;
4. Statements made after plea bargain has been made;
5. Grand jury testimony given by D as the result of plea bargain;
6. D who breaches plea bargain, loses benefit;
7. 410(4) - if plea is made and not withdrawn, discussions become admissible
What're the exceptions for TRE 412?
1. necessary to rebut or explain scientific or medical evidence offered by the State;
2. to explain past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
3. it relates to the motive or bias of the alleged victim;
4. is admissible under Rule 609; or
5. it is constitutionally required to be admitted; and
Its probative value outweighs the danger of unfair prejudice.
NOTE: this applies ONLY to specific instances of conduct NOT reputation or opinion
What cases do TRE 412 apply to?
1. Sex assault;
2. Agg. Sex Assault;
3. Attempt to Commit Sex Assault
NOTE: FRE 412 applies in any criminal case
What is the primary procedural difference between TRE 412 and FRE 412?
Federal rule requires filing of intent to use sexual conduct evidence 14 days before trial - serve state, and complainant
Which exception differs in TRE 412 from FRE 412?
"motive or bias" exception - practically, this should be protected by D's 6th Amendment right to cross-examine on such things
What is the Texas rule number for FRE 413-415?
There is no TRE; however, TCCP 38.37 has been amended to allow the same evidence
Which privilege does Texas have that Federal law does not?
What broad exception does Texas have for privilege that FRE law does not?
Privilege does not exist if prosecution is for a minor child victim.
What is considered a child for FRE 414?
younger than 14
How much notice is the Gov't supposed to give before offering extraneous child sex crimes as relevant evidence?