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Flashcards in Texas Evidence Deck (65)
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1

What do the Texas Rules of Evidence (TRE) apply to?

Civil and criminal cases

DOES NOT APPLY TO:

1) Grand jury hearings;

2) Competency hearings;

3) Warrant application hearings;

4) pretrial detention hearings; AND

5) Direct contempt hearings.

UNLIKE FRE, TRE APPLIES TO:

1) Sentencing hearings; AND

2) Preliminary examining trials in felony cases.

2

When determining admissibility of evidence, the judge is bound by the rules of evidence, EXCEPT those relating to ________________.

Privilege

3

In order to make a timely objection, it must be ___________.

TIMELY, SPECIFIC, AND ACCURATE.

4

T/F - If you object to evidence at trial, make case outside hearing of jury, and you are overruled, you DO NOT have to object again in the presence of the jury.

True. (TRE 103).

5

What are motions in limine?

Motions made BEFORE TRIAL asking the court to rule on the admissibility of certain evidence.

6

How is an objection to a pretrial evidence ruling preserved in Texas?

IF an objection to the motion in limine is overruled and the court make a "definitive" ruling that the evidence is admissible, counsel IS REQUIRED TO OBJECT AGAIN, ON THE RECORD, WHEN THE EVIDENCE IS OFFERED AT TRIAL, even though counsel objected before the trial and lost.

7

T/F - When the pretrial ruling excludes evidence, the party who lost must again offer the evidence at trial and get a ruling on the record.

True

8

What is the deal with limited admissibility and limiting instructions?

When evidence is admitted for a limited purpose, the objecting party MUST request a limiting instruction. If the party does not request a limiting instruction, the party has waived its objection.

9

What are the two types of judicial notice in Texas?

1) Generally known facts; AND

2) Encyclopedic facts - not known to everyone, but may be easily obtained from authoritative sources (geographical facts).

10

What instructions may a judge give after making a judicial notice?

1) Jury MUST take fact as conclusively proven; OR

2) Jury MAY take fact as conclusively proven, but is not required to.

CIVIL CASES - a conclusive instruction is appropriate. Once judicial notice is taken in a civil case, a party CANNOT introduce evidence to dispute or disprove that fact.

CRIMINAL CASES - the jury is told they MAY find, but are not required to find, judicially noticed fact proven.

11

What is the difference between FRE and TRE with regard to the scope of cross-examination?

FRE - limited

TRE - anything that is relevant

12

How must questions be formed when presented to a witness?

Counsel shall not lead witnesses on direct examination, EXCEPT when:

1) Witness is an adverse party;

2) Witness is a hostile witness;

3) Witness has limited understanding; OR

4) On preliminary, trivial, uncontested (foundational) matters.

Counsel is PERMITTED TO LEAD witnesses on CROSS-EXAMINATION, UNLESS counsel is examining his own client on cross-examination (i.e., opposing counsel had called his client on direct).

13

What is the "sequestration of witnesses."

On motion, all witnesses are excluded from the trial before testifying, EXCEPT:

1) Natural parties;

2) Entity parties' representatives;

3) Spouses of the PARTIES; And

4) Persons essential to presentation of the case (experts).

Under TEXAS rules, a complaining witness in a CRIMINAL case may be allowed to hear trial testimony if court believes it would not affect the witness's testimony.

14

What is the "burden of proof."

Two types:

1) Burden of production - required to put on some kind of evidence, or else issue is not raised; AND

2) Burden of persuasion - burden to persuade trier of fact on particular issue.

15

What are the two types of presumptions?

1) Rebuttable presumptions; AND

2) Conclusive presumptions

16

What is character evidence, and how is it put on? Is it admissible?

Evidence of a trait or propensity to act in a certain way on a particular occasion. The modes of proof for character are through: REPUTATION, OPINION, AND SPECIFIC INSTANCES.

DEFAULT RULE - Character evidence is NOT ADMISSIBLE TO PROVE that a person acted in CONFORMITY with a character trait, EXCEPT in very specific circumstances.

17

What are the exceptions to the default rule on character evidence?

1) Character of the ACCUSED: Defendants in a CRIMINAL case are allowed to prove good character, but ONLY WITH REPUTATION AND OPINION TESTIMONY (NOT SPECIFIC ACTS). This OPENS THE DOOR for the prosecution to enter evidence of bad character.

TEXAS DISTINCTION - FRE follows the rule above. TRE goes further and allows good character evidence in a CIVIL CASE where the defendant is CHARGED WITH CONDUCT INVOLVING MORAL TERPITUDE.

2) Character of the VICTIM - Evidence of the VICTIM'S BAD CHARACTER may be offered in some cases and must be done so with OPINION OR REPUTATION (NOT SPECIFIC ACTS). Once attacked, prosecution can rebut with good character evidence

TEXAS DISTINCTION - FRE allows the prosecution to rebut with GOOD character of the victim AND BAD CHARACTER OF THE DEFENDANT. TRE ONLY ALLOWS PROSECUTION TO REBUT WITH GOOD CHARACTER EVIDENCE OF THE VICTIM.

18

T/F - Character evidence will be admissible when character is an essential, required element of ANY claim.

True.

19

Can evidence of prior bad acts be introduced?

Prior uncharged misconduct (extraneous offenses) CAN BE USED for purposes other than to show propensity. EXAMPLES INCLUDE (KIPPOMMIA):

1) Knowledge;

2) Intent;

3) Preparation;

4) Plan;

5) Opportunity;

6) Motive;

7) Lack of Mistake;

8) Identity; AND

9) Lack of Accident.

20

Is evidence of habit admissible?

Habit evidence IS GENERALLY ADMISSIBLE to show that a person ACTED IN CONFORMITY WITH THAT HABIT on a specific occasion. To be admissible, the following THREE ELEMENTS ARE REQUIRED:

1) Frequently - must happen often (not once or twice);

2) Semi-Automatic Conduct - not carefully planned out, just something that happens;

3) Similar Circumstances - under similar circumstances, acts the same way.

21

What makes a witness competent to testify?

The witness MUST:

1) Have FIRST-HAND PERSONAL KNOWLEDGE of a relevant matter (except for expert witnesses);

2) Have ability to understand and understand facts;

3) Take an OATH OR AFFIRM that they will tell the truth and be subject to penalties of perjury.

Specific Competency Rules:

1) Insane - presumed not to be competent (rebuttable). An INSANE PERSON MAY TESTIFY.

2) Jurors - generally MAY NOT TESTIFY as to what went on during DELIBERATIONS, EXCEPT: about outside influences AND to rebut a challenge to their qualifications.

3) No minimum age requirement as long as they have the mental ability to have perceived, determine the difference between facts and fancy, remember facts, and relate them intelligently at trial.

22

Does Texas have a Dead Man's Statute?

Yes. Where a deceased or incompetent person's representatives are suing or being sued in their representative capacities, ORAL statements of the deceased or incompetent person ARE NOT ADMISSIBLE, UNLESS:

1) Independently corroborated; OR

2) The witness is called by an opposing party.

23

Can specific instances be used to impeach a witness's credibility?

NO, only opinion and reputation evidence.

24

Can a party in Texas ask a witness on cross-examination about prior specific instances of untruthful conduct to impeach their credibility?

NOT IN TEXAS.

YES IN FEDERAL COURT

25

In Texas, can previous convictions be used to impeach a witness?

YES but only with TWO TYPES:

1) Felony convictions; AND

2) Any crime, including misdemeanors, if the crime involved: (FRE) false statements or deceit; (TRE) MORAL TERPITUDE (broader than FRE)(anything vile, depraved and against morals, as well as dishonest and deceitful conduct).

26

T/F - When conviction is being appealed, the conviction itself may be introduced into evidence in Texas, while you cannot in FRE.

False. Opposite.

27

What is the key distinction between FRE and TRE with regard to prior inconsistent statements?

Under TRE, before impeaching witnesses with a prior inconsistent statement, the witness MUST BE CONFRONTED WITH THE STATEMENT INCLUDING THE FOLLOWING:

1) Content of the statement;

2) Time made;

3) Where made; AND

4) To whom made.

The witness must be fully comprised of the allegation and given opportunity to either deny, explain, or admit it.

If the witness ADMITS THE STATEMENT, then the inconsistent statement is NO LONGER ADMISSIBLE.

28

In Texas, can extrinsic evidence of witness's bias be admitted?

Yes. BUT first they must be confronted with the evidence and given a chance to explain or deny.

29

Can religious beliefs be used to impeach a witness?

NOT IN TEXAS.

30

What is the Texas distinction with regard to Refreshing Recollection?

If, before testifying in a CRIMINAL TRIAL, a witness has used a document to refresh his or her recollection, the other side has an ABSOLUTE RIGHT TO SEE AND EXAMINE THE WITNESS REGARDING THE DOCUMENT.

FRE - do not permit this absolute right.

NOTE: Remember that even IRRELEVANT things can be used to refresh recollection.