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82 Cards in this Set
- Front
- Back
Relevance
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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
Materiality - of consequence to the case Probativeness - some tendency to make proposition more/less likely |
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All relevant evidence is admissible unless
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a. some specific exclusionary rule is applicable or
b. court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations: -danger of unfair prejudice -confusion of the issues -undue delay -misleading the jury -waste of time (not considered in TX) -unduly cumulative |
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Plaintiff's accident history
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Generally, it's inadmissible - shows nothing more than P is accident prone
BUT is admissible if cause of P's damages is in issue |
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Similar Accidents Caused by Same Event or Condition
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Generally, other accidents involving D are inadmissible because they show nothing more than general character for carelessness
BUT other accidents involving the same instrumentality/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 D (only if other accidents occurred before P's) |
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Intent in issue
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person's prior conduct may provide inference of intent on later occasion
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Comparable sales on issue of value
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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
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Habit
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Habit of person/routine of business is admissible as circumstantial evidence of how the person or business acted on the occasion at issue
Habit has 2 defining characteristics: 1. Frequency 2. Particularity of the circumstances Habit = is a repetitive response to a particular set of circumstances Distinguish: character evidence refers to a particular person's general disposition or propensity; usually not admissible to prove conduct on a particular occasion |
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Industrial custom as standard of care
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Evidence as to how others in same trade/industry have acted in recent past may be admitted as some evidence as to how a party in the instant litigation should have acted (appropriate standard of care)
Ex. P injured when blade spins off lawnmower; in action against manufacturer, P may show that 80% of all other lawn mower manufacturers, during relevant time period, had installed devices to prevent blade spin-off |
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Liability insurance
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evidence that person has, or does not have, liability insurance is inadmissible to prove the person's fault or absence of fault (policy: 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 ownership/control of instrumentality/location (if controverted) or for the purpose of impeachment |
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Subsequent Remedial Measure
(post-accident repairs, design changes, policy changes) |
Inadmissible for purpose of proving negligence, culpable conduct, product defect, 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 - proof of ownership/control or feasibility of safer condition (if either is controverted) Texas: 1 exception to fed rule - in a products liability action, evidence of written notification of a product defect sent by manufacturer to purchaser is admissible to prove defect's existence |
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Settlements
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Civil: evidence of a settlement or offer to settle a DISPUTED claim (either as to validity or amount of damages) is inadmissible to prove liability or weakness of a party's case (policy: to encourage settlements)
Statements of fact made in the course of settlement discussions are inadmissible (policy: to encourage free/open discussion) But evidence of settlement may be admissible for purpose of impeachment of a witness on the ground of bias |
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Pleas (criminal)
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Inadmissible:
1. Offer to plead guilty 2. Withdrawn guilty plea 3. Plea of nolo contendere (no contest) 4. 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 under the rule of party admissions |
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Offer to pay hospital or medical expenses
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Evidence that a party has paid or offered to pay an accident victim's hospital or medical bills is inadmissible to prove liability (policy: to encourage charity)
But statements made in connection with the offer are admissible (offer to pay bills and then keep your mouth shut) |
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Character evidence
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person's general propensity or disposition (ex. honesty, fairness, peacefulness, violence)
Potential purposes for admissibility of character evidence: 1. person's character is a material element in the case 2. character evidence to prove conduct in conformity with character at time of the litigated event (character as circumstantial evidence of conduct on particular occasion) 3. witness's bad character for truthfulness to impeach credibility |
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Criminal cases - defendant's character
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Evidence of D's character to prove conduct in conformity is not admissible during prosecution's case-in-chief
But D, during 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 (rebuttal may include asking D's character witness about specific acts of the D that reflect adversely on the particular character trait that D has introduced or calling prosecution's own reputation/opinion witnesses to contradict D's witnesses) |
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Victim's character - self-defense case
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Criminal D may introduce evidence of victim's violent character to prove victim's conduct in conformity (as circumstantial evidence that victim was first aggressor) - character witness may testify to victim's reputation for violence and give opinion
Prosecution rebuttal - evidence of victim's good character (reputation or opinion); under FRE, prosecution may prove D's character for violence (not in TX - limited to evidence of victim's good character) If D, at time of alleged self-defense, was aware of victim'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 he acted reasonably in responding as he did to victim's aggression |
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Victim's character - sexual misconduct case
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Under federal "rape shield law," in both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, the following evidence about victim is ordinarily inadmissible:
-opinion or reputation evidence about victim's sexual propensity, or -evidence of specific sexual behavior of victim Exceptions: 1. specific sexual behavior of victim to prove that someone other than D was source of semen or injury to victim 2. victim's sexual activity with D if defense of consent is asserted 3. where exclusion would violate D's right of due process TX rape shield law applies only in criminal cases |
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Civil cases - character evidence
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character evidence is generally inadmissible to prove conduct in conformity (in federal cases)
TX rule: civil defendant accuse of assaultive conduct may prove victim's violent character (reputation or opinion testimony) to suggest victim was first aggressor Evidence of person's character is admissible in civil action where such character is an essential element of a claim/defense (provable by reputation/opinion or specific acts) - only 2 situations: 1. Negligent hiring/entrustment 2. Defamation - truth = defense |
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D's other crimes for non-character purpose
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General rule: other crimes or specific bad acts of D are not admissible during 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 current crime
But if D's other crimes/bad acts show something specific about the crime charged, such evidence may be admissible Most common non-character purposes (MIMIC): M - Motive I - Intent M - Mistake or accident, absence of I - Identify (modus operandi; opportunity) C - Common scheme/plan |
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Method of proof of MIMIC-purpose crimes
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-by conviction or
-by evidence (witnesses, 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) Upon D's request, prosecution must give pretrial notice of intent to introduce MIMIC evidence; court must also weigh probative value vs. prejudice and give limiting instructions |
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Other sexual misconduct to show propensity in sex-crime prosecution or civil action - federal rules only
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Under FRE, in case alleging sexual assault or child molestation, prior specific sexual misconduct of D is admissible as part of the case-in-chief of the prosecution (in a criminal case) or of plaintiff (in civil action) for any relevant purpose, including D's propensity for sex crimes
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Authentication of Writings
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Showing must be made that writing is authentic (genuine)
In the absence of a stipulation as to authenticity, a foundation must be made in order for the document to be admissible |
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Methods of Authentication
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1. Witness's personal knowledge (ex. witness saw X sign document)
2. Proof of Handwriting a. Lay opinion (ex. lay witness testifies to opinion that X wrote document on basis of familiarity with X's handwriting as a result of experience in normal course of affairs - was X's secretary) b. Expert comparison opinion c. Jury comparison (ex. 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, and found in 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 |
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Self-authenticating documents
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Presumed authentic - no need for foundation testimony:
1. Official publications 2. Certified copes of public or private records on file in public office 3. Newspapers or periodicals 4. Trade inscriptions or labels 5. Acknowledged document - notary's signature 6. Commercial paper |
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TX rule of self-authentication for business records
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1. Affidavit by custodian or other person capable of testifying that the record qualifies for the business records hearsay exception
2. Business records hearsay exception is satisfied 3. Original or exact duplicate of the business record is attached to the affidavit 4. Notice to other parties: affidavit and attachment are filed with court at least 14 days prior to trial and prompt notice is given to other parties |
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Authentication of Photos
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Witness may testify on the basis of personal knowledge that photo is a "fair and accurate representation" of the people or objects portrayed
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Best Evidence Rule ("original writings" rule)
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To prove contents of writing/recording/photo, an original must be produced or an acceptable excuse of its absence must be provided; if court finds excuse acceptable, party may use secondary evidence - oral testimony or copy
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When Best Evidence Rule Applies
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When party is seeking to prove contents of a writing
2 Main Situations: 1. Writing is a legally operative document (deed, mortgage, contract) 2. Witness is testifying to facts that she learned solely from reading them in a writing Not applicable when witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact |
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What qualifies as "original writing"
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1. writing itself; any counterpart intended to have the same effect; any negative of film; computer printout
2. duplicate - any counterpart produced by any mechanical means that accurately reproduced the original; duplicate is admissible unless it would be unfair (ex. bad copy) or genuine question is raised as to authenticity of original 3. handwritten copy is neither an original nor duplicate |
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Excuses for non-production of original
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1. lost or cannot be found with due diligence
2. destroyed without bad faith 3. 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 (ex. testimony based on memory, handwritten copy) |
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Escapes - Best Evidence Rule
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1. voluminous records can be presented through a summary/chart, provided the original records would be admissible and they are available for inspection
2. certified copies of public records 3. collateral documents if court, in its discretion, determines writing is collateral, contents may be proven by secondary evidence |
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Competency of Witnesses, in general
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Basics: personal knowledge + oath or affirmation (no magic words; just acknowledge the importance of telling the truth and that there is a penalty for lying)
Juror may not testify: a. in same case in which sitting as juror as to any matter b. in any other case as to statements made in deliberation or effect anything had on deliberations c.but may testify as to any outside influence and extraneous prejudicial info (ex. bailiff) Texas: in addition to personal knowledge and oath/affirmation, witness incompetent to testify if court finds - insane at time of events witnesses or at trial OR child or other person lacks sufficient intellect to relate events witnessed |
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Dad Man's Statute (If MBE says Dead Man's Act exists, use it; otherwise, no Dead Man's Act)
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a. witness is not ordinarily incompetent merely because she has an interest - direct legal stake - in outcome of the litigation
b. 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 decent concerning communications or transactions between the interested party and the decedent TX Dead Man's Rule (applies only to what dead man said; not what he did): Interested witness incompetent if: a. civil action by or against decedent's estate, or by or against decedent's heirs/legal representative b. 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 to testify concerning decedent's oral statement |
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Leading Question
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Form of question suggests the answer
a. generally not allowed on direct examination of witness b. generally allowed on cross-examination of witness c. but allowed on cross exam if: 1. preliminary or introductory matters 2. youthful/forgetful witness 3. hostile witness 4. adverse party and people associated with adverse party |
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Refreshing Recollection
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Basic rule: witness may not read from prepared memo; must testify on basis of current recollection
But if witness's memory fails him, he may be shown a memo (or any other tangible item) to jog his memory Safeguards against abuse - adversary has right: 1. to inspect the memory-refresher 2. to use it on cross-examination 3. to introduce into evidence |
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Past Recollection Recorded (Hearsay Exception)
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Foundation for admissibility of contents of writing:
1. showing writing to witness fails to jog memory 2. witness had personal knowledge at former time 3. writing was either made by witness or adopted by witness 4. making or adoption occurred when event was fresh in witness's memory 5. witness can vouch for accuracy of writing when made/adopted Then, you can read it to jury |
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Opinion Testimony - Lay Witnesses
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Lay opinion admissible if:
1. rationally based on witness's perception (personal knowledge) and 2. helpful to jury in deciding a fact Examples: drunk/sober; speed of vehicle; sane/insane; emotions of another person; handwriting |
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Opinion Testimony - Expert Witnesses
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a. Qualifications (SKEET) - skill, knowledge, education, experience, training
-TX rule on expert qualifications in cases based on "health care liability claims" (medical malpractice): expert must be actually practicing same type of health care as that of D, either at time of testimony or at time claim arose (ex. podiatrist D and podiatrist expert, not oncologist) b. Proper subject matter - scientific, technical or other specialized knowledge that will be helpful to jury in deciding a fact |
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Expert Witnesses - Basis of knowledge
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Experts must have opinion based on "reasonable degree of probability or reasonable certainty"
AND 3 permissible data sources: 1. personal knowledge (ex. treating physician) 2. other evidence in the trial record (testimony by other witnesses, exhibits) - 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 |
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Expert Witnesses - Reliability
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To be admissible expert opinion must be sufficiently reliable
Federal: court serves as "gatekeeper" and will use 4 principal factors to determine reliability of principles and methodology used by expert to reach opinion - TRAP: T - testing or principles/method R - rate of error A - acceptance by other experts P - peer review/publication Texas has 2 more factors - ON: O - objective vs. subjective interpretation of data N - nonjudicial use of principle or methodology |
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Learned Treatise in Aid of Expert Testimony (Hearsay Exception) - may be read aloud as substantive evidence but may not be introduced as exhibit
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1. on direct examination, 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
2. on cross-exam of opponent's expert: read into evidence to impeach and contradict opponent's expert; comes in as substantive evidence 3. but learned treatise may not be introduced as exhibit |
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Ultimate Issues
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opinion testimony (lay or expert) is permissible even if it addresses an "ultimate issue" in the case BUT
TX Rule: expert witness may testify in terms of negligence, proximate cause, or lack of testamentary capacity if proper legal standard is used Criminal cases (FRE only): ultimate issue is still proper objection if expert seeks to give direct opinion that D did or did not have relevant mental state |
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Cross-Examination
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1. party has right to cross-examine any opposing witness who testifies at trial; significant impairment of this right will result in striking of witness's testimony
2. proper subject matter: a. matters within scope of direct examination and b. matters that test the witness's credibility 3. TX distinction: not limited to scope of direct exam; may question witness on anything relevant to case |
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Impeachment - involving your own witness
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bolstering: generally, not allowed to bolster own witness until after witness's credibility has been attacked
impeachment of your own witness is permitted without limitation |
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Impeachment Methods - Overview
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1. Prior inconsistent statement
2. Bias, interest or motive to misrepresent 3. Sensory deficiencies Bad Character for Truthfulness: 4. Bad reputation or opinion about witness's character for truthfulness 5. Criminal convictions 6. Bad acts (without conviction) that reflect adversely on witness's character for truthfulness 7. Contradiction |
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Impeachment Issues - Procedural Issues
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With respect to each impeachment method, consider 2 procedural issues:
1. 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? 2. Assuming extrinsic evidence is permissible, must witness first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evidence? |
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Prior Inconsistent Statements
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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: suggests trial testimony is false or mistaken)
But certain prior inconsistent statements may be admitted both for impeachment and as substantive evidence: prior inconsistent statement given orally under oath and as part of a formal hearing, proceeding, deposition (policy: reliable because of oath and witness is now subject to cross-ex about statement) |
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Confrontation/Extrinsic Evidence Issue: Must witness be confronted with her prior inconsistent statement while still on the stand, or may it be proven later by extrinsic evidence without such confrontation? (at next opportunity for presenting affirmative evidence, call the person to whom she made the statement (if oral), or (if in writing) lay foundation to introduce writing into evidence
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Texas rule: confrontation on stand 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 immediate opportunity to explain or deny the statement
FRE: confrontation timing is flexible - 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/deny prior inconsistent statement Exception: no confrontation required and no opportunity to explain need be given if witness is the opposing party |
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Bias, Interest, or Motive to Misrepresent
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Examples: witness is party; friend or employee of party; expert being paid by party
Purpose: suggests testimony is false, slanted, or mistaken in party's favor Confrontation: a. TX Rule: witness must be told of circumstances/statements that allegedly show bias and given immediate opportunity to explain or deny b. FRE: court's discretion Extrinsic Evidence: a. TX rule: bias may be proven by extrinsic evidence if witness denies bias or fails to admit bias unequivocally b. FRE: court has discretion to permit extrinsic evidence even if witness admits bias |
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Sensory Deficiencies
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anything that could affect witness's perception or memory (ex. bad eyesight, bad hearing, drunk)
purpose: suggests mistake confrontation not required extrinsic evidence is admissible to show sensory deficiencies |
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Bad Reputation or Opinion about Witness's Character for Truthfulness
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Any witness is subject to impeachment by this method
Confrontation not required; Extrinsic evidence is allowed Call character witness to testify that Target Witness had bad reputation for truthfulness, or that character witness has low opinion of Target Witness's character for truthfulness (purpose: suggests that Target Witness is not telling the truth on the witness stand) |
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Criminal Convictions - FRE
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Federal Rule:
1. Conviction of any crime involving dishonesty or false statement may be used to impeach any witness 2. If conviction does not involve dishonest/false statement, it must be a felony, and court may exclude, in its discretion, if probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party 3. Conviction, or release from prison, whichever is later, generally must be within 10 years of trial 4. Method of proof: ask witness to admit prior conviction or introduce record of conviction (extrinsic); not required to confront witness prior to introduction of record of conviction |
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Criminal Convictions - TX Rule
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Same as Federal, with 3 distinctions:
1. Types of conviction that can be used to impeach: felonies of any type and crimes of moral turpitude (broader than federal rule) 2. Balancing of impeachment value against potential for prejudice applies to all convictions 3. Cannot use conviction to impeach if an appeal of conviction pending |
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Rehabilitation, Innocence, and Probation
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Conviction is not admissible if:
1. Conviction was subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on rehabilitation, UNLESS a. FRE: subsequently convicted of crime punishable by death or imprisonment in excess of 1 year (felony) b. TX Rule: subsequently convicted of felony or crime of moral turpitude 2. Was subject of pardon, annulment, or other equivalent procedure based on finding of innocence 3. Texas Only: successful completion of probation |
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Inquiry about Bad Acts (without conviction if they reflect adversely on witness's character for truthfulness)
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Federal Rules only
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 |
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Contradiction
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Concept: 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, issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact
Rule: extrinsic evidence 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) |
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Rehabilitation of Witness
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1. Showing witness's good character for truthfulness:
a. When? It has been attacked by bad reputation/opinion testimony, criminal convictions, or inquiry about bad acts b. How? Call favorable character witness about 1st witness's character for truthfulness 2. Prior consistent statement to rebut a charge of recent fabrication - if witness's trial testimony is charged as a recent fabrication, or as a product of improper influence, a prior statement by the witness that is consistent with her testimony will be admissible to rebut the charge if the statement was made before the motive to fabricate arose |
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Attorney-Client Privilege
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Encourages client to speak openly to counsel
Privilege applies to confidential communication between attorney and client (or representative of either) made during professional, legal consultation unless privilege is waived or an exception is applicable |
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Physician-Patient Privilege
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Privilege applies to confidential communication or info acquired by physician from patient for purposes of diagnosis/treatment of medical condition; applicable to therapists
Federal distinction: privilege exists for therapists, but not for usual physician-patient confidences General exception: if patient puts physical/mental condition in issue TX exceptions: no doctor-patient privilege in criminal cases; however a communication to a person who is examining or treating another for drug/alcohol abuse is not admissible in a criminal proceeding; no privilege if any party relies on patient's physical/mental condition as part of party's claim or defense |
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Husband-Wife Privileges
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1. Spousal immunity: in criminal cases only, a spouse cannot be compelled to testify against the defendant spouse; witness-spouse, not D, is holder of privilege
2. Confidential communications between spouses: in any case, spouse is not allowed in the absence of consent by other spouse, to disclose a confidential communication made by one to the other during marriage (both spouses hold this privilege) Exceptions: communications or acts in furtherance of future crime or fraud; communications or acts destructive of family unit (abuse) TX exception: all types of disputes between spouses (breach of K) and incompetency/commitment proceedings |
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Hearsay - definition
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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 Rule: hearsay is inadmissible unless an exception or exclusion applies |
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Principal Categories of Non-hearsay Statements
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1. Verbal act (legally operative words)
2. To show effect on person who heard or read the statement (ex. notice) 3.Circumstantial evidence of speaker's state of mind (ex. insanity) 4. Prior statements of trial witness 5. Party admissions |
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Prior Statements of Trial Witness
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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 or an exclusion applies
3 witness-statement exclusions from hearsay: 1. Witness's prior statement of identification 2. Witness's prior inconsistent statement if prior statement was under oath and made during formal trial, hearing, proceeding, or deposition 3. Prior consistent statement used to rebut charge of recent fabrication or improper motive or influence |
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Party Admissions
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1. Any statement made by a party (P or D) is admissible against the party
2. Called "non-hearsay) 3. Theory: party ought to bear the consequences of what she says (can explain to jury, and cannot complain about inability to cross-examine self) |
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Vicarious Admissions
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Statement by agent/employee is admissible against principal or employer is statement concerns matter within scope of agency or employment and is made during agency/employment
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Hearsay Exceptions (justified by reliability factors or other good reasons sufficient to excuse inability to cross-examine declarant)
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1. Former testimony
2. Statement against interest 3. Dying declaration 4. Excited utterance 5. Present sense impression 6. Present state of mind 7. Declaration of intent 8. Present physical condition 9. Statement for purpose of medical treatment 10. Business records 11. Public records |
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Criminal D's Right of Confrontation - Testimonial Statements
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Regardless of whether a hearsay exception is satisfied, 6th A right of confrontation prohibits the use of "testimonial" hearsay statements against a criminal D if the declarant is unavailable and D has had no opportunity for cross-examination
"Testimonial" statements include sworn testimony: 1. at grand jury 2. prior trial 3. preliminary hearing 4. responses made during police questioning, whether sworn or unsworn |
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Former Testimony
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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 |
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Grounds of Unavailability
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1. Death or serious illness
2. Absence from jurisdiction 3. Privilege 4. Stubborn refusal to testify 5. Lack of memory Note: same grounds of unavailability apply to all exceptions where unavailability is a requirement - former testimony, statement against interest, dying declaration TX distinction: in civil actions, deposition of witness taken in same proceeding is admissible without need to show that witness has become unavailable (non-hearsay under TX rules of evidence) |
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Statement against Interest
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a. An unavailable declarant's statement against his or her pecuniary (financial), proprietary (civil liability), or penal (criminal) interest - theory: not likely to lie when making a personally damaging statement
b. Statement against interest differs from party admission: must be against interest when made; any person can make statement against interest; personal knowledge is required; declarant must be unavailable |
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Statements Against Interest - Qualifications and Distinctions
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Qualification in criminal cases: statement against penal interest, when offered to exculpate defendant, must be corroborated
TX distinctions for statement against interest: 1. unavailability not required 2. self-damaging statement includes one that makes declarant an object of hatred, ridicule or disgrace (ex. against social interest) |
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Dying Declaration
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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 (no one wants to die with a lie on his lips)
Federal: criminal - homicide only; civil - all types TX: criminal and civil - all cases |
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Excited Utterance
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a. statement concerning a startling event and made while declarant is still under stress of excitement caused by the event
b. theory: excitement suspends one's capacity to fabricate |
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Present Sense Impression
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a. description of an event made while the event is occurring or immediately thereafter
b. theory: declarant has no time to fabricate |
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Present State of Mind
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a. contemporaneous statement concerning declarant's present state of mind, feelings, emotions
b. theory: contemporaneous statement about matter as to which declarant has unique knowledge |
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Declaration of Intent (Hearsay Exception)
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a. statement of declarant's intent to do something in the future, including the intent to engage in conduct with another person
b. theory: contemporaneous statement about matter as to which declarant has unique knowledge |
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Present Physical Condition
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a. statement made to anyone about declarant's current physical condition
b. theory: contemporaneous statement about matter as to which declarant has unique knowledge |
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Statement for Purpose of Medical Treatment or Diagnosis
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a. 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
b. theory: motive to be honest and accurate to get good medical assessment |
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Business Record
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Elements:
1. records of any type of business 2. made in the regular course of the business 3. business regularly keeps such records 4. made at or about the time of the event recorded 5. contests consist of - info observed by employees of the business, or - a statement that falls within an independent hearsay exception Theory: businesses depend on accurate record-keeping |
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Proving Business Records Foundation
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1. Call sponsoring witness to testify to the 5 elements of business records hearsay exception; witness need not be author of report - can be records custodian or nay other knowledge person within business or
2. written certification under oath attesting to elements of business records hearsay exception 3. Texas: call sponsoring witness or use "self-authentication" affidavit procedure |
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Public Records
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a. records of a public office or agency setting forth:
1. the activities of the office or agency or 2. matters observed pursuant to a duty imposed by law or 3. findings of fact or opinion resulting from an investigation authorized by law b. exception: police reports and investigatory findings are not admissible against the D in a criminal case |
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Impeachment of Hearsay Declarants
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Opponent may use any of the impeachment methods to attack the credibility of a hearsay declarant
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