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Flashcards in Texas Rules of Evidence Deck (55)
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When do the rules of evidence not apply?

Rules of privilege ALWAYS apply

- preliminary determination of admissibility by court

- proceedings before grand jury

- habeas corpus proceedings in extradition, rendition, or interstate detainer

- a hearing outside presence of jury to determine if there is sufficient evidence of incompetency to determine a jury determination

- proceedings regarding bail (except to deny, revoke, or increase bail)

- hearing on justification for pretrial detention not involving bail

- proceedings for issuance of search or arrest warrant

- proceedings in direct contempt determination


When is an error predicated in the admission or exclusion of evidence?

A substantial right of the party is affected AND

1. An timely objection is made (admission of evidence)

2. An offer of proof is made (exclusion of evidence)


When must an offer of proof be made?

As soon as practicable, but no later than before the court's charge is read to the jury


Are there any restrictions in which the offer of proof must be made?

No. But the court may, or at the request of the other party, direct the making of an offer in question and answer form.


In what manner is a hearing on the admissibility of a confession conducted?

Outside the presence of the jury.


Upon testifying on a preliminary matter outside presence of jury, is a defendant subject to cross-examination?

Yes, but not to other issues in the case.


When may the remainder of related writings or recorded statements be admitted?

An adverse party may introduce any other part or any other writing or recorded statement which ought in fairness be considered contemporaneously with the part introduced by the other party.


Discuss the Rule of Optional Completeness.

When a part of an act, declaration, conversation, writing or recorded statements is given in evidence by one party, the whole on the same subject may be inquired into by the other party AND any other act, declaration, conversation, writing, or recorded statements which is necessary to make it fully understood may be given in evidence.


What kinds of facts may a court take judicial notice?

1. one generally known within the territorial jurisdiction of the trial court; or

2. once capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned


When is it mandatory for a court to take judicial notice?

If requested by a party AND supplied with the necessary information.


When can judicial notice be taken?

At any stage of the proceeding.


Is it required for the jury to be instructed regarding judicial notice?

Yes. The court SHALL instruct the jury it MAY accept as conclusive any fact judicially noticed.


Define "relevant evidence."

Evidence having the tendency to make the existence of a fact of consequence to the action more probable or less probable than it would without the evidence.


When is relevant evidence not admissible?

When provided by Constitution, statute, TRE, or other rules.


When may relevant evidence by excluded on special grounds?

Its probative value is outweighed by danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.


When is character evidence admissible?

1. Evidence of a pertinent character trait offered by the accused or in rebuttal by the prosecution.

2. Subject to TRE 412, evidence of a pertinent character trait of the victim offered by accused or the prosecution to rebut the same OR evidence of the peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence the victim was first aggressor.


When is evidence of other crimes, wrongs, or acts admissible?

It is not admissible to prove character of a person to show action in conformity therewith.

It may be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

If timely request made by defendant prior to trial, State must give intent to offer evidence.


What are the methods of proving character?

1. By testimony of reputation or opinion provided the witness is familiar with it prior to the day of the offense.

2. When a person's character or character trait is an essential element of a charge, claim or defense, proof may be made by specific instances of that person's conduct.


When is evidence of previous sexual conduct admissible?

Reputation or opinion evidence of the past sexual behavior of the victim IS NOT admissible in prosecution of SA or ASA cases.

Specific instances of behavior is also not admissible UNLESS:

1. it is evidence necessary to rebut or explain scientific or medical evidence offered by the State

2. it is past sexual behavior with the accused offered by the accused on issue of consent to the charged offense

3. it relates to motive or bias of the allege victim

4. it is admissible under TRE 609

5. it is constitutionally required to be admitted

6. the probative value outweighs danger of unfair prejudice


What is the procedure for offering evidence under TRE 412?

The defendant must inform the court outside the presence of the jury prior to introducing any evidence or asking any question. The court then conducts an in camera hearing recorded by the court reporter to determine admissibility.

The record of the in camera hearing shall be sealed by the court in the event of an appeal.


When is a communication "confidential?"

If it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.


Discuss attorney-client privilege in a criminal case.

1. The client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services.

2. The client has the privilege to prevent the lawyer or his representative from disclosing any other fact which came to the knowledge of the lawyer by reason of the attorney-client relationship.


Who can claim the attorney-client privilege?

It may be claimed by the client.

Also, the person who was the lawyer at the time of the communication is presumed to have the authority to claim the privilege but only on behalf of the client.


What are the exceptions to the attorney-client privilege?

1. furtherance of crime or fraud.

2. breach of duty by a lawyer or client


Discuss husband-wife privilege in a criminal case.

A communication is confidential if made privately by any person to the person's spouse and it is not intended for disclosure to any other person.

A person has a privilege during or after the marriage to refuse to disclose and to prevent another from disclosing a confidential communication made to the person's spouse while they were married.


Who can claim the husband-wife privilege?

It may be claimed by the person or by the spouse on the person's behalf.


What are the exceptions to the husband-wife privilege?

1. furtherance of crime or fraud.

2. crime against spouse or minor child.


Discuss the privilege of a spouse not to testify against the other spouse in a criminal case.

The spouse of the accused has a privilege not to be called as a witness for the state. The spouse can testify voluntarily for the state, even if the accused objects.


What are the exceptions to the privilege of a spouse not to testify against the other spouse in a criminal case?

1. family violence cases or bigamy cases

2. as to matters that occurred prior to marriage


Discuss the physician-patient privilege in a criminal case.

There is not such a privilege in criminal proceedings.

However, a communication to any person involved in treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.