Outline

RULE 102. PURPOSE AND CONSTRUCTION

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay,
and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and
proceedings justly determined.

Organization of the Trial

Page 14 of BB has chart
Pre-trial
o Handle housekeeping matters, can help determine strength of case
o Proponent
Motions in limine
Before trial a proponent of evidence may make a motion in limine
to obtain advance ruling admitting evidence
Often times not a final ruling, but usually means that counsel
approach bench at trial and obtain ruling before introducing
evidence (not a final ruling)
Motions in limine not mentioned in Fed. rules, but vital to trial
practice
Motions in limine are non-appealable rulings- it does not preserve
error in and of itself
Be prepared to respond to objections made by opponent
o Opponent
Motion to suppress
If evidence was seized in violation of Constitution (4th
Amendment), opponent may file motion to suppress
Typically made in criminal cases and typically deal with
Constitution or Code of Criminal Procedure
This is an appealable ruling
Motion in limine
May be filed when there are nonconstitutional or nonstatutory
grounds to exclude (not a final ruling)
Objections to Evidence
Some courts require this before trial, especially federal courts
Trial
o *** Rule 611(a) - RULE 611. MODE AND ORDER OF INTERROGATION AND
PRESENTATION
(a) Control by Court. The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.

611(a) allows judge discretion to control mode and order of trial- order of
evidence, etc.
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Rule has implicit balancing test to balance competing interest when

determining how to conduct trial
Limits must be reasonable, reviewed for abuse of discretion
DIFF: Questioning of Witnesses by Jurors in CRIMINAL Trials
Fed courts-allow judges to exercise discretion in permitting or
prohibiting questioning of witnesses by jurors
TX- cannot allow jury to question witnesses or submit questions of
witnesses suggested by jurors
Questioning of Witnesses by jurors in CIVIL Cases
This is allowed in TX and fed in accordance with proper
procedures
o DIFF: Fed. Rule 614 Calling and Interrogation of Witnesses by Court

Rule 614. Calling and Interrogation of Witnesses by Court

(a) Calling by court.The court may, on its own motion or at the suggestion of
a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court.The court may interrogate witnesses, whether
called by itself or by a party.
(c) Objections.Objections to the calling of witnesses by the court or to
interrogation by it may be made at the time or at the next available opportunity when the
jury is not present.

TX does not have a corresponding rule; so in TX judges cannot question

witnesses??
This most often occurs when the witness may have something critical to
say but neither party wants to be associated with them.
o Selection of Jury (Voir Dire)
Judge introduces attorneys to pool of potential jurors
In TX attorneys do most of the questioning, in fed. court the judges do it
After questioning, the attorneys exercise challenges (2 types)
Challenge for cause-specified by statute or for reasons, such as
bias, that disqualify juror
Preemptory challenge- qualified right to strike the juror and no
reason is given
o Invoking The RuleRule 614(TX) & 615(Fed)
Invoking The Rule refers to the judges ability to invoke the rule sua
sponte to exclude potential witnesses from listening in on trial

***RULE 614. EXCLUSION OF WITNESSES

At the request of a party the court shall order witnesses excluded so that they cannot
hear the testimony of other witnesses, and it may make the order of its own motion. This rule
does not authorize exclusion of:
(1) a party who is a natural person or in civil cases the spouse of such natural person;
(2) an officer or employee of a party in a civil case or a defendant in a criminal case
that is not a natural person designated as its representative by its attorney;

(3) a person whose presence is shown by a party to be essential to the presentation of

the party's cause; or
(4) the victim in a criminal case, unless the victim is to testify and the court
determines that the victim's testimony would be materially affected if the victim hears other
testimony at the trial.
Rule 615. Exclusion of Witnesses
At the request of a party the court shall order witnesses excluded so that they cannot hear
the testimony of other witnesses, and it may make the order of its own motion. This rule does
not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of
a party which is not a natural person designated as its representative by its attorney, or (3) a
person whose presence is shown by a party to be essential to the presentation of the partys
cause, or (4) a person authorized by statute to be present.

DIFF:
Fed. rule does not say spouse in civil cases
Fed. rule does not say victim but generally has the same effect
These rules apply to trial court
The Rule may also be invoked:
by the court (sua sponte)
at the request of a party (court must invoke if party requests)
Discussion in Rule 614 commentary
judge will put the witnesses under oath and admonish them from
discussing with anyone
DIFF b/t civil & crim:
o In civil cases, the excluded are not to discuss with anyone
EXCEPT attorney, and cannot read any testimony
o In criminal cases, the excluded may not even discuss with
attorney (CCP)
In civil and crim, testimony heard or discussions before witness is
sworn do not violate The Rule but court may, in its discretion,
exclude this witnesss testimony
Bailiff cannot testify if he knew he would be called and served as
bailiff anyway
In CIVIL cases, person may be called as rebuttal witness (even
though not excluded) if they did not know they would be needed
until opposing party presented evidence
EXCLUSIONS from the TX Rule:
Party who is a natural person; in CIVIL cases, the spouse of a party
Designated representative of a corporate party (officer/employee)
o Must be designated through partys attorney
o Does NOT authorize the state to designate a witness as a
case agent and thereby be excluded
Essential persons (Ex: expert witnesses)
o May be able to get detective for state in as essential
person because they cannot be designee
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o Showing that person has specific expertise or special

connection with case that they cannot effectively testify
unless they hear other testimony
Will require some balancing by the judge
o Expert may not be exempted for mere expediency and is
not automatically exempt
o Ex of Interplay: court may require under 611(a) that
testimony of essential person come at the beginning of
the trial
o So does an expert have to be excluded to be able to read a
transcript before testifying?
The victim in a CRIMINAL case
o Victims may stay in unless the court determines that their
testimony WILL be MATERIALLY affected
o Rule and CCP Art. 56.02(b) apply only to victims, NOT the
victims parents ??
o CCP 36.03 allows exemption of victim, close relative of a
deceased victim, (parent, adult sibling or adult child) or
guardian of a victim
Exempt witnesses may discuss the case with other exempt
witnesses
o But a nonexempt witness may not discuss with exempt
witness as that is a violation of the rule
Waco COA has said that a language interpreter must be excluded
from the courtroom when witnesses other than those whose
testimony needs translation are testifying
When The Rule is violated the Court can:
Hold in contempt (in both crim and civil)
Disqualify the witness (less common in crim b/c defendant has
constitutional right to attendance of witnesses; must have
compelling reason to excluding spectators)
Some courts the judge will still allow witnesses to testify but will
instruct jury to consider that they heard other testimony (not in TX
b/c it is reversible error to comment on weight of evidence)
Non-Violations
Witnesses can sit in preliminary matters w/o exclusion
Demonstrations by defendant (of speech, physical condition, etc)
are not testimony, therefore no exclusion required
o Opening Statements
P or prosecutor goes first (party with the BOP)
Defense may make opening statement directly following or may defer
until the start of their case-in-chief (to avoid tipping P off about theory)
May not be argumentative or conclusory

Error may occur if attorney alludes to any matter that will not be
supported with admissible evidence
o P or Prosecutors Case-in-Chief
Begins when judge says P may call his first witness
Can present evidence logically relevant to any factual issue on which
THEY have the burden of proof (not anticipated defenses or rebuttal evid)
Forms of evidence
Direct examination of witnesses (cross-exam by defense and redirect exam by P)
o May call hostile or adverse witnesses (witnesses favorable
to defense)
Physical evidence
Documentary evidence
Examining Witnesses (see charts p. 22-25 BB):
Federal:
o judge can call on his own authority (Rule 614) and
question them
Parties can object and cross-examine
o jury cannot call but can request that judge does
TX:
o Judge cannot call witnesses (but may try to persuade a
party to call them)
o Jurors cannot call witnesses
o Judges can question witnesses (very limited, such as
clarification on a time, etc.)
o Jurors may ask questions in civil cases, but NOT in
criminal cases
Oath Rule 603

** RULE 603. OATH OR AFFIRMATION

Before testifying, every witness shall be required to declare that
the witness will testify truthfully, by oath or affirmation administered in a
form calculated to awaken the witness' conscience and impress the witness'
mind with the duty to do so.
o

o Happens before witness goes to stand unless there was a

group oath.
o Cant be required to put hand on bible or equivalent.
o Up to judge to decide whether so help you god is
included
o The witnesss personal beliefs will try to be accommodated
but they cant request a certain oath.
The term affirmation is used b/c some beliefs say
not to swear.
The judge can perform the oath outside the presence
of the jury.
o The 1st amendment is involved b/c the judge tries to
accommodate the religious beliefs b/c of the 1st
amendment.
o General rule: Attorney or pro se party must be under oath
for statements made to court to be considered as evidence
o Child does not have to be sworn as long as they can express
that they understand the duty to be truthful
o Oath does not apply to out-of-court hearsay statement that
is admissible under hearsay rule
Personal Knowledge- Rule 602 and Competency (601)
*** RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of
the matter. Evidence to prove personal knowledge may, but need not,
consist of the testimony of the witness. This rule is subject to the provisions
of Rule 703, relating to opinion testimony by expert witnesses.
o

o Interplay:
Rule 703: The expert may consider as a basis for his
or her opinion facts or data of the type reasonably
relied on by experts in that particular field (w/o
personal knowledge)
See also hearsay rule
See best evidence rule
o Witness can only testify on something they know
personally through one of 5 senses.
o Initially judge determines if witness has personal
knowledge and then jury determines later (Rule 104(b))
o Can use a short voir dire to make sure the witness has
personal knowledge.
You have to object and say she doesnt have
personal knowledge and then request a short voir
dire outside presence of jury (Rule 103(c)) to show
no personal knowledge.
Voir dire has two meanings
Questioning of potential jurors
Opponents ability to question a witness to
determine if witness is competent (601) and
has personal knowledge (602)
o Competence of witness has four elements:
Ability to perceive
Ability to remember what was perceived
Ability to communicate what was perceived and
remembered
Truthfulness
o Generally, personal knowledge will be inferred unless some
showing to the contrary
o Ex of hearsay testimony which can does not constitute
personal knowledge and can be excluded
X testifies about what Y told her
o If witness requires interpreter, interpreter must:
Qualify as a witness (Rule 702)
Take an oath to make truthful translation
Generally
o Proponent must ask non-leading questions on direct
examination (Rule 611) unless the witness is hostile or
identified with opposite party
Scope is any relevant matter
Leading questions are questions that ask for
confirmation. Ex: isnt it true

Exception: leading questions are allowed when

necessary to develop the testimony (ex: name and
address)
Exception: If witness is declared hostile then
leading questions are usually ok.
You can approach the bench to ask this. If
the judge denies then you say you object to
their ruling and it preserves it in case you
cant get the test you need for your case.
Exception: can ask leading questions if the witness
is an adverse party.
Ex: OJ in the civil part of his trial b/c he was
an adverse party but then when his side
questions him they cant use leading
questions.
o Opponent can cross-examine (and possibly impeach
witness)
Opponent CAN use leading questions on crossexamination
Exception: if its your party
o When OJs attorneys question him in
civil they cant use leading even
though technically it would be a
cross examination but the other side
could even though direct b/c he is an
adverse party.
DIFF:
Fed: scope limited to matters raised in direct
exam or matters related to witnesss
credibility
TX: any relevant matter
o Proponent can then attempt to rehabilitate credibility of
witness (re-direct examination)
Scope: can only ask about those matters raised in
cross-examination
These are normally non-leading questions
Rule of Completeness (see charts p. 25 BB)
Fed. Rule and TX Rule 106Rule 106. Remainder of or Related Writings or Recorded Statements

When a writing or recorded statement or part thereof is introduced by a

party, an adverse party may require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
* RULE 106. REMAINDER OF OR RELATED WRITINGS OR
RECORDED STATEMENTS

When a writing or recorded statement or part thereof is introduced by a

party, an adverse party may at that time introduce any other part or any other
writing or recorded statement which ought in fairness to be considered
contemporaneously with it. "Writing or recorded statement" includes
depositions.

Generally allows opponent to introduce remainder of a writing or

recording if it is necessary to insure that jury received a fair picture
of its contents.
Rule of Timing (DIFF):
o Fed rule allows opponent to force proponent to offer the
remainder of the document at the time of its intro into
evidence or allows opponent to offer later.
o TX allows opponent to interrupt the proponent and offer
the remainder when proponent offers their portion or offer
later in trial, but opponent CANNOT force proponent to
offer.
Rule 106 and 107 can trump other rules of evid and admissibility.
o Can allow remainder into evidence to insure fair picture to
the jury even if it may be inadmissible otherwise
o ought in fairness (106) requires that it must be relevant
and necessary for fairness (more than mere relevance for
both 106 and 107)
o Criminal cases indicate that the evidence must be on the
same subject (106 &107)
TX Rule 107-Rule of Optional Completeness
o * RULE 107. RULE OF OPTIONAL COMPLETENESS
When part of an act, declaration, conversation, writing or recorded
statement is given in evidence by one party, the whole on the same subject
may be inquired into by the other, and any other act, declaration, writing or
recorded statement which is necessary to make it fully understood or to
explain the same may also be given in evidence, as when a letter is read, all
letters on the same subject between the same parties may be given. "Writing
or recorded statement" includes depositions.

o DIFF: No federal counterpart!

o Rule of admissibility
o Broader scope than Rule 106:
Provides rule of completeness for evidence of acts,
conversations, writings and recordings
o Opponent cannot force the proponent to introduce the
remainder of the information.
o has to be on same subject or necessary to make it fully
understood
o Defense Motions for Instructed/Directed Verdict or Non-suit
After P rests, the D should always move for directed verdict

Challenges legal sufficiency of the evidence-even if jury believes it all, the

evidence lacks sufficient cumulative probative value to prove all facts for
which P has burden of proof.
Aka motion for nonsuit, judgment of acquittal, finding of not guilty,
directed verdict
Judge must decide if P has sustained the burden of production
If evidence is not strong enough to support even a permissive
inference, the judge will grant the motion and trial ends
Defense Case-In-Chief
Similar to Ps
Plaintiffs Motion for Directed Verdict
In CIVIL case, the P may move for a directed verdict alleging that Ps
evidence is so strong that no rational juror could vote in favor of defense
P or Prosecutor Rebuttal
Normally limited to refuting evidence presented during the defenses casein-chief
Defense Surrebuttal
Very rare & limited
Only allowed when a new ground is covered during Ps rebuttal
Witnesses Called by Judge
Federal cases ONLY!
Witnesses Requested by Jury; Questioned by Jurors
Federal use ONLY!
Directly forbidden in TX criminal cases (not done in any TX cases
though)
Closing Argument or Summation
Opportunity to argue inferences from all of the evidence
P has BOP so they open and close
Several forms of inferences are argued:
Credibility
That law should be applied to the facts of the case in a specific way
Inferences and conclusions argued must be from evidence formally
admitted at trial
DIFF: In TX, closing follows the judges instruction to the jury; opposite
in federal
Judges Instructions to Jurors
Six different categories of Evidentiary Instructions:
Admissibility instructions
o Usually judge decides if admissible and jury assigns weight
o But sometimes jury ultimately decides what is considered
Ex: judge explains test to determine whether certain
evidence is authentic and instructs that it may be
used by jury only if they determine it to authentic
Corroboration Instructions (rare)

o
o
o

o
o

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o Would instruct jury that D cannot be convicted on

testimony alone
Cautionary Instructions
o Direct jury to be careful in evaluating the weight of
particular testimony
o Often used for testimony from accomplices, eyewitnesses,
drug addicts
Limiting Instructions ****
o When an item is admissible for one purpose, but not for
another
Curative Instructions
o Direct the jury to disregard something they have already
seen or heard
o If judge determines that it is highly prejudicial and jury will
not be able to disregard, he can declare mistrial
o To preserve error, opponent will have to move for motion
to strike and to request an instruction to disregard
Sufficiency Instructions
o Jurors are instructed to evaluate the factual sufficiency of
the evidence
o Instruction concerns the allocation and measure of the
burden of proof
o Jury Deliberations
Normally permitted to examine and handle any exhibits formally admitted
into evidence
If they have questions about what witness said, they may have court read
back particular portions of testimony
Normally deliberations is privileged information
o The Verdict
No mention of the importance jury placed on any of the evidence
If counsel discovers jury considered inadmissible evidence or evidence
from outside, they have to overcome Fed. Rule 606(b)

Role of Participants
Introducing A Single Item of Evidence & Preservation of Claims of Error
Rule 103****RULE 103. RULINGS ON EVIDENCE
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike
appears of record, stating the specific ground of objection, if the specific ground was not apparent

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from the context. When the court hears objections to offered evidence out of the presence of the
jury and rules that such evidence be admitted, such objections shall be deemed to apply to such
evidence when it is admitted before the jury without the necessity of repeating those objections.
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was
made known to the court by offer, or was apparent from the context within which questions were
asked.
(b) Record of Offer and Ruling. The offering party shall, as soon as practicable, but before the court's
charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. The court may
add any other or further statement which shows the character of the evidence, the form in which it was
offered, the objection made, and the ruling thereon. (allows the judge to add comments on witness,
evidence, etc.)The court may (sua sponte), or at the request of a party shall, direct the making of an offer in
question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to
prevent inadmissible evidence from being suggested to the jury by any means, such as making statements
or offers of proof or asking questions in the hearing of the jury.
(d) Fundamental Error in Criminal Cases. In a criminal case, nothing in these rules precludes taking
notice of fundamental errors affecting substantial rights although they were not brought to the attention of
the court.

o Counsel should object and make a motion to strike when a question is asked
which does not call for inadmissible evidence, but the answer, or a portion of it, is
inadmissible.
o Four step method for laying foundation on p. 16 BB
o ****Offers of Proof (an unsuccessful proponent makes this)
Show what evidence was and what it would prove
Preserve error (preserving offer or objection)
May convince judge he was wrong
Informal Offer of Proof
Out of presence of jury
Your honor may we approachwould like to make offer of
proof and court reporter comes over so jury cant hear
Make offer of proof as soon as practicable but before jury charge
Formal Offer of Proof
If I ask for question and answer format, judge has to give it or
opponent can request Q&A and judge must give it
Judge can do it sua sponte
The other side does not get to cross-examine on offer of proof
Judge can add comments about the form of the evid
o Ex: that witness was smirking while answering
In context- if it is apparent from context what the evidence
would have shown- not recommended
DIFF: Fed is not required to have Q&A if requested
o Objections
when the other party objects, I want to find out if its a final ruling
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Motion to suppress- yes

Motion in limine- no
o Tries to keep out evidence the other party thinks I will want
to introduce at trial
o Must have order prepared to staple to a granted motion in
limine
o Judges not required to rule on before trial
o If I want to introduce evidence from in limine hearing,, I
need to approach the bench when evidence comes up
Blanket objections Ex: we want to exclude all statements by ms. Smith determine if
this is a final ruling before trial
MUST BE TIMELY
Must object after question but before answer
o Cant gamble on answer/dont want jury to hear
inadmissible evidence
Physical evidence must be objected to when offered into evidence
Some exceptions, especially in a bench trial
May risk waiver
If admissible at the beginning but witnesses start giving
inadmissible answers, request motion to strike and limiting
instruction
Object when it starts of admissible but witnesses go south
Specific
Must be specific enough to put court on notice, but you dont want
to put opponent on notice of what to fix
Too general is treated on appeal as general objection=no objection
o Ex: normally hearsay is enough of an objection
Cannot raise different objection on appeal
Exception: if it is apparent from the context (do not rely on this)
Running Objection (exception to general rule)
Can request
General rule: must object each time question is asked or evidence
is introduced
o If not persistent & consistent, you can waive
Would say object to this entire line of questioning
Some judges hate running objections
Must request to make running objection to (be specific)
Try to do this pre-trial with a blanket objection

o Waiver
****A waiver may occur when counsel specifically:
States that there is no objection
Presents same evidence I objected to myself
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o Curative Doctrine: when introducing similar evidence to

rebut or explain the objected-to inadmissible evidence the
court will usually find that counsel waived the earlier
objection by introducing the same evidence, or that there
was no harm in admitting the first piece of inadmissible
evidence b/c similar evidence was later admitted by counsel
who objected initially
Exception: when the rebuttal or explanatory
evidence is being offered only b/c of the erroneous
admission of the opponents evidence, the
objectors objection should not be waived if they
make clear to the judge that the evidence is only to
rebut objectionable evidence and do this on the
record.
States that the evidence in question is admissible
Agrees to admitting the evidence
Fails to enter a specific and timely objection or
Withdraws an objection previously made
o ***Interplay of Waiver, Forfeiture, Plain and Fundamental Error p.62:
If I do not make an objection is that a waiver or forfeiture?
Waiver- known relinquishment of a known right; explicit; can
waive by introduce the own evidence yourself, failing to renew
your objections
Forfeiture- not intentionally relinquishing right; taking no action
Difference for appellate purposes of forfeiture and waiver:
Fundamental Error- In crim cases, you may able to raise it on
appeal as fundamental error. Very limited. Limited to structural
errors that go to the heart of the process of the whole trial-ex:
jurisdiction. Not hearsay, relevance, etc.
Plain Error- For federal and TX civil cases. Not as strict. If you
have not raised the issue (forfeited) below you may be able to
claim plain error. If you have waived the issue at trial you cannot
argue plain error on appeal; it can be raised for first time on appeal
if you forfeited (1) major mistake and (2) caused substantial harm
What is the difference b/t these two types of error for criminal and
civil cases??
Essentially the same thing, can be used interchangeably. They
wont not look at fundamental error just bc its not objected to
No objection needed for either of these
If the party waives an issue by deliberately foregoing an objection or
clearly states no objection, then the party may not claim error, plain
error, or fundamental error on appeal. But if party neglectfully or
inadvertently says nothing and fails to object at trial, that probably
amounts to a forfeiture and party should be able to claim plain error or
fundamental error on appeal (remember TX courts are more strict)
14

Interplay: If the other party does not object (and you may have expected
them to), it may be because the other party wants the rule of optional
completeness because they want to get the rest of the document in as
evidence.
Bill of Exceptions: used to correct procedural error
Offers of Proof: used in rules of evidence
Rule 105-Limiting Instruction

****RULE 105. LIMITED ADMISSIBILITY

(a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the
evidence to (DIFF:) its proper scope and instruct the jury accordingly; but, in the absence of such request
the court's action in admitting such evidence without limitation shall not be a ground for complaint on
appeal.
(b) Offering Evidence for Limited Purpose. When evidence referred to in paragraph (a) is excluded, such
exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence
for its limited, admissible purpose or limits its offer to the party against whom it is admissible.

o If evidence is admitted the judge will give an instruction to the jury to use the
evidence only for xxx purpose, but it may not be considered for yyy purpose.
o DIFF: In TX, if you do not request limiting instruction, you may not raise it on
appeal.
In Fed. you can still appeal even if you didnt request limiting instruction
o The judge must give a limiting instruction if requested.
o You need to press the court to make a ruling, and if the court fails to make a
ruling, that is error which needs to be preserved.
o **** Timing of Giving Instruction
In TX criminal cases, Judge gives limiting instruction when the evidence
is admitted and judge should repeat again in final jury charge;
In civil cases the instruction can be given when evidence is admitted or
later.
If it is requested to be given at the time limiting instruction is
requested, and judge declines, counsel should object to preserve
error
o 3 big objections with document evidence:
Authenticity
Best evidence Rule
Hearsay
o ****Limiting Instructions on Impeachment Evidence
A document being used to impeach a witness (p.88 Manual), court
concludes that it is hearsay, and proponent only wants to introduce it to
show that there are prior inconsistent statements out of trial. Not being
admitted for truth. Four star way of impeaching a witness.
If the evidence in question could have been considered ONLY as
impeachment evidence, there is no need for limiting instruction.
Judge allows it for impeachment purposes, now opponent must
request limiting instruction to consider evidence for purposes of
credibility of witness only, may not consider for substantive truth.
15

If judge overrules hearsay objection and opponent does not request

limiting instruction, the jury can consider the evidence for any
purpose. On appeal, failure to request instruction will bar claim.
o 105(b)- burden on counsel at trial to show the trial court that a piece of evidence,
which has permissible and impermissible uses, was offered for its limited,
permissible purpose. If counsel does not offer for the specific purpose and the
trial court rejects the evidence, argument that it was error to exclude the evidence
for the limited permissible will have been waived.
Role of Judge and Jury
Role of Judge and Jury see chart 1-10(c):
Question of law (judge) v. question of fact (jury)
o Judge is decider of fact in bench trial
o When mixed questions of law and fact:
Ex: was there a common law marriage-must know elements (law) and the
hear facts to determine
Judge will decide questions of law and jury will decide questions of fact.
**RULE 104. PRELIMINARY QUESTIONS
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a
witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the
provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except
those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition
of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the
fulfillment of the condition.
(c) Hearing of Jury. In a criminal case, a hearing on the admissibility of a confession shall be conducted out of the
hearing of the jury. All other civil or criminal hearings on preliminary matters shall be conducted out of the hearing
of the jury when the interests of justice so require or in a criminal case when an accused is a witness and so requests.
(d) Testimony by Accused Out of the Hearing of the Jury. The accused in a criminal case does not, by testifying
upon a preliminary matter out of the hearing of the jury, become subject to cross-examination as to other issues in
the case.
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence
relevant to weight or credibility.

Judge decides whether witness is qualified, evidence is hearsay, relevancy, hearsay, etc.
Judge has discretion whether to entertain pretrial motions or objections, particularly
motion in limine
o Usually is not a final ruling on admissibility of evidence, but requires proponent
to approach and obtain a ruling on the evidence before offering it in trial
o Adv- reduces risk of mistrial by limiting what the jury hears
Rule 104(a)
The BOP is on the proponent of the evidence to prove admissibility
o Even in criminal trial, judge uses a BOP lesser than beyond a reasonable doubt to
determine the admissibility of evidence-uses preponderance of the evidence.
Judge makes final ruling under 104(a)
Judge do not have to use rules of evidence in preliminarily determining the admissibility
of evidence, EXCEPT with respect to privileges.
o You must claim privileges before ever beginning

16

Trial court decides questions concerning the qualification of a witness to testify in two
situations:
o Judge makes determination about competency of a witness based on moral
capacity and mental capacity to observe, recall, and narrate.
o Judge decides whether a witness qualifies as an expert under 702
Trial judge determines whether a privilege exists
104(a) provides that, subject to 104(b), the court is responsible for finally determining the
admissibility of evidence (relevance, character evidence, and hearsay, etc.)
Rule 104(b)
Types of issues addressed in 104(b):
Personal knowledge
Authenticity of evidence
Whether rule 404(b) act has occurred extraneous offenses of defendant
Ex: Document introduced must be relevant and authentic
Judge decides whether relevant
Judge and jury decide if it is authentic
Judge first determines that its relevant, then must determine if a reasonable jury could
find by a preponderance of the evidence that the document is authentic.
o Judge is an initial screener-preliminary not final ruling- to ensure that proponent
has introduced evidence sufficient to support a [rational] finding of fact.
If jury ultimately finds that the document is not authentic, they can disregard the
evidence.
o Opponent can argue in closing that if jury does not find it authentic they can
decide to give it no consideration.
Jurys role on evidence issues:
o Decides facts of case did party bearing ultimate BOP in the case produce
sufficient evidence to prove alleged offense
o Jury decides what weight, if any, to give to admitted evidence
Includes deciding credibility of witnesses
Court determines qualifications of a witness to testify
o determines relevant conditions of fact which determine whether a piece of
evidence is authentic or whether a witness had personal knowledge
Only the fact issues under 104(b) does the jury decide, after judge makes
initial determination
conditionally relevant facts- they are logically relevant only on the
condition that they are genuine (the fact is that it is authentic or personal
knowledge)
How this relates to Personal knowledge:
Witness must have relevancy (rule 401/402) and personal knowledge (and competency)
o Ex: opponent objects-irrelevant (judge decides under 104(a)), insufficient
personal knowledge (judge and jury decide under 104(b)), competency (judge
decides under 104(a))
o Ex: Objection: hearsay, Judge decides under rule 801/104(a), insufficient
predicate- judge and jury decide rule 901/104(b)
17

Ultimate Question: judges asks whether the proponent has offered enough evidence to convince a
rational juror by a preponderance of the evidence that the offered piece of evidence is what it is
purported to be.
Judicial notice is another way of establishing a fact at trial!
Rule 104(c)
Hearing Issues
Most judges like to do hearings on the Admissibility of evidence outside hearing of jury

Competency of Witnesses
Generally
Hearsay evidence sometimes referred to as incompetent evidence (incompetent has
multiple connotations) (We will preclude evidence bc its unreliable or incompetent)
Rules dealing with competency: 601, 603, 610
Only witnesses who meet the competency requirement can testify as witnesses
Four CL elements of competency:
o Mental capacity to perceive
o Mental capacity to remember/recall
o Mental capacity to narrate
o Moral capacity-truthful (At CL religion was considered to satisfy this element)
o Modern rules dont list these requirements but they serve as underlying principles
for competency rules
o These elements are now often used to attack the credibility of witnesses
**RULE 603. OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or
affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with
the duty to do so.

If someone refuses to take an oath or affirmation, it may cast doubt on moral capacity but
a witness does not have to take the oath to meet the requirement of moral capacity- but
may be an issue.
Judge decides final form of the Oath; if witness has legit first amendment claim, the
judge must consider it and modify the Oath.

**RULE 610. RELIGIOUS BELIEFS OR OPINIONS

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing
that by reason of their nature the witness' credibility is impaired or enhanced.

Do not confuse competency and credibility!!

o Competency is a threshold issue, if judge decides witness is not competent they
do not get to testify.
o Fact finder determines how much weight to give to testimony and therefore
credibility of witness
o See United States v. Nar 446 Fed. Supp. 252 there is authority for the
proposition to exclude testimony because the person is totally unbelievable (this
intrudes on competency issues)

18

This rule deals with credibility.

You may question a witness on religion if someones religious affiliation or association

may lead to bias (Are you a member of the same church as D? Were you at a bible study
during the time of the accident? Etc.)

Cannot ask them about their beliefs or opinions for purposes of impairing or enhancing
credibility

May be able to ask about religious activities if relevant to the case- it is up to judge

If opponent makes an objection, and judge overrules, request a limiting instruction (105)
and judge must give one upon request.

RULE 601. COMPETENCY AND INCOMPETENCY OF WITNESSES

***(a) General Rule. Every person is competent to be a witness except as otherwise provided in these rules. The
following witnesses shall be incompetent to testify in any proceeding subject to these rules:
(1) Insane persons. Insane persons who, in the opinion of the court, are in an insane condition of mind at
the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when
the events happened of which they are called to testify.
(2) Children. Children or other persons who, after being examined by the court, appear not to possess
sufficient intellect to relate transactions with respect to which they are interrogated.

Rule 601(a)
If you believe the witness is not competent you should raise an objection immediately
What would be a challenge to mental capacity to perceive:
o Someone was on drugs at the time of the incident
o If they could not actually see the event, you could argue lack of personal
knowledge
DIFF: This rule is slightly different than federal
o The federal rule does not have the two exceptions for insane persons and children;
instead you would show evidence of incompetence.
o In diversity cause of action in Fed court, fed judge may have to apply TX
competency rules if a state law applies with regard to an element of a claim or
defense in a CIVIL case and attorney brings it up.
State rules governing competency would NOT apply in fed. crim (no
diversisty)
General Rule: Every witness is presumed competent (both fed and TX)
o Could mean that a person suffering from mental delusions is competent to testify
Opponent will argue to exclude on lack of personal knowledge (602),
confusion (403), or needlessly consume time or would embarrass witness
(611(a)). Could also challenge competency through a showing that witness
lacks one of four CL elements of capacity.
o Court will usually rule that lack of ability to remember, for example, goes to
credibility, not ability to testify.
Can prove lack of competency through:
o Expert witness
19

o Otherwise inadmissible evidence (hearsay statement, etc.) see 104(a) says rules
of evidence to not apply in determining competency
601(a) gives court authority to disqualify witness who it determines is insane; it is up to
the opinion of the court under 104(a)! judge
A person of tender years- an adult but has a child like mind
When determining competency of children:
o 601 presumes child witness is competent to testify
o Under 601(a)(2)- court can disqualify if they seem to lack sufficient intellect to
relate the facts (104(a)- largely rests on determination of whether CL elements are
met)
o They must have sufficient intellect after an examination by the court (will depend
on facts of case- Was it raining or Could you tell us if it was a 400mm gun or a
pistol? some questions more difficult than others)
o Often times even very young children can testify about events (sexual abuse, etc.)
Judges dont like excluding for lack of competency and will often tell objecting counsel
that it is an issue of credibility for the fact finder.
RULE 604. INTERPRETERS
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the
administration of an oath or affirmation to make a true translation.

Competency of Witnesses-Spouses and Dead People

RULE 601. COMPETENCY AND INCOMPETENCY OF WITNESSES
*(b) "Dead Man Rule" in Civil Actions. In civil actions by or against executors, administrators, or guardians, in
which judgment may be rendered for or against them as such (only when we have one of these persons being the
suee or the suer is this rule triggered), neither party shall be allowed to testify against the others as to any oral
statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the
witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to
and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such
oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any
transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person
merely because the witness is a party to the action or a person interested in the event thereof. The trial court shall, in
a proper case, where this rule prohibits an interested party or witness from testifying, instruct the jury that such
person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the
oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.

Rule 601(b)
Applies only in civil cases!!
DIFF: no Fed counterpart!
o but Fed rule 601 does recognize that in civil actions, a states competency of
witnesses rule (i.e. dead mans statute) might apply where an element of a claim
or defense rests on state law
An executor, administrator, or guardian must be one of the parties and judgment can
either be rendered for or against them for this rule to be triggered.
o If these people are bringing an action individually, and not in their capacity as
representative, this rule is inapplicable.
Limits testimony about decedent or wards oral, uncorroborated statements
Disinterested persons are not bound by this rule.
This rule only applies to testimony of witnesses who are a party to the action
20

Ex: A & B create construction contract; before K is finished, A orally tells B he cannot
finish contract; A dies, B sues As executor. Can B testify about what A told him?
o If A tells him in writing, B can give it as evidence.
o If A tells B orally, he may be able to testify about As statement if:
If As executor calls B to the stand, B can testify about the oral statement
B can also testify about the oral statement if there is corroborative
evidence
o E cannot testify about As oral statements either unless B calls her or it is
corroborated (same as above)

****RULE 504. HUSBAND-WIFE PRIVILEGES

(b) Privilege not to Testify in Criminal Case.
(1) Rule of privilege. In a criminal case, the spouse of the accused has a privilege not to be called as a
witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even
over objection by the accused. A spouse who testifies on behalf of an accused is subject to crossexamination as provided in rule 611(b).
(2) Failure to call as witness. Failure by an accused to call the accused's spouse as a witness, where other
evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by
counsel.
(3) Who may claim the privilege. The privilege not to testify may be claimed by the person or the person's
guardian or representative but not by that person's spouse.
(4) Exceptions. The privilege of a person's spouse not to be called as a witness for the state does not apply:
(A) Certain criminal proceedings. In any proceeding in which the person is charged with a crime
against the person's spouse, a member of the household of either spouse, or any minor, or in an
offense charged under Section 25.01, Penal Code (Bigamy).
(B) Matters occurring prior to marriage. As to matters occurring prior to the marriage.

Trammel v. United States:

At common law the accuseds spouse (usually wife) was incompetent bc the wife and
husband were single unit and husband could not testify against himself so the wife could
no either. Both were incompetent.
SC holds that accuseds wife may testify if she does so voluntarily and the husband (the
accused) may not claim privilege in which he can prevent her from testifying.
One spouse cannot control the ability of the other spouse to testify.
****Fed Rule We conclude that the existing rule should be modified so that the witnessspouse alone has a privilege to refuse to testify adversely; the witness may be neither
compelled to testify nor foreclosed from testifying.
The general rule above is the same for Texas
Trammel set out the rule for spousal testimonial privileges.
***p.75 evolution of spousal privilege rule
Whether a grant of immunity by the state to the witness-spouse constitutes involuntary
testimony is decided on a case by case basis. is this in Fed only?
2 privileges in Rule 504
504(a)- Confidential Communication Privilege- any communication made privately by a
spouse to the other spouse and is not intended for disclosure is privileged information.
o Communicating spouse has a privilege to prevent the spouse or any third party
from disclosing it.

21

o Privileges are disfavored but marital privileges are designed to support the
harmony of marriage.
504(b)

504(b)
Privilege is held by spouse that is testifying
Applies only in criminal proceedings in TX
o DIFF: Fed rule does not specify limitation of criminal cases
Accused-spouse cannot keep the witness-spouse off the stand, witness-spouse can choose
to testify or not.
This is a privilege problem, but it had its roots in CL competency rules
Before spouse can claim this privilege they must prove a valid marriage
o This is decided by the judge under 104(a) privilege rules still apply under 104(a)
so the judge cannot consider privileged information to determine whether the
privilege applies in this case
o This can apply to common law marriages- just may be harder to prove
Compare: May have a confidential communications privilege (Rule 504a) in a civil casemay be able to prevent witness spouse from testifying about confidential communications
made by accused spouse
If the spouse has relevant info for the accused, and the accused does not call the spouse to
testify, the prosecution can comment on the fact that the spouse was not called to the jury
to draw an inference about why she did not take the stand. (this is an exception to Rule
513-general rule that you cannot comment on someone invoking the privilege)
Exceptions to 504(b):
o Victims exception: If the victim is the spouse, a member of the household of
either spouse or ANY minor.
The member of the household does not have to be related
The privilege applies to any minor
Ex: husband rapes two minors down the street. Wife has no
privilege in this instance.
The minors do not have to be related to either spouse
Policy: Protecting children is utmost priority
The spouse is the victim
This does not have to be physical injury, it could be stealing her
identity for credit cards- she has no privilege so long as she was
the victim of the crime.
If spouse does not testify, the court can hold her in contempt
o Matters prior to marriage: Nothing that occurred before the legal marriage will
provoke a privilege.
If there has been a divorce and at time of trial the spouses are not married,
the spouse cannot claim a 504(b) privilege.
Competency of Witnesses- Judges and Jurors
RULE 606. COMPETENCY OF JUROR AS A WITNESS

22

*(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which
the juror is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to
object out of the presence of the jury.
****(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any
juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or
indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror
would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify:
(1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the
juror was not qualified to serve.

Problem 6-14(a):
1. No under Texas and Fed. Rules
2. No under Fed. Rule, No under Tex. Rule
3. No under both Tex and Fed. Rules
4. ?? Fed Rule: Maybe, if extraneous prejudicial information, probably not; Tex: Generally
this will not be considered an outside influence in Tex. based on a telephone call to a jury
member or a newspaper (would want to say that relative attempted to influence the
outcome of the case, instead of just related info.)
5. No under both rules
6. Yes under both Fed. and Tex. rules someone from outside trying to influence the jury
(p.519- juror can testify that they received a phone call with a death threat, but they may
not testify about the effect of the rule on their decision.)
7. Tex-probably not; Fed.-probably.
Rule 606(a)
Jurors are not competent to testify as a witness in the case in which they are sitting
Rule 606(b)
General Rule: Jurors cannot testify about what happened during deliberations and juror
testimony is not admissible. (i.e. any matter or statement which may have had an impact
on the deliberations)
Two Exceptions Juror testimony or affidavit allowed to impeach a verdict if:
o An outside influence was improperly brought to bear upon any juror; or
o To rebut a claim that the juror was not qualified to serve
Cannot testify to support
Some policy Reasons for 606(b)
o It is a collaborative decision which must be kept private to protect jurors with
unpopular opinions to have candid discussions
o Finality of the judgment
o Prevent harassment of jury by losing party
o Do not want to give jurors who did not get the verdict they wanted an opportunity
for vindication.
Impeaching a verdict-challenging the verdict on some ground and asking court to set
aside the verdict and grant new trial (maybe jury misconduct)
o Do this through a non juror
Jury nullification- jury does whatever they want
Under 606(b) an attorney is allowed to ask the jurors if there was misconduct or about the
trial, but they do not have to answer you
23

Under the Fed. Rule- jurors may testify about whether any extraneous prejudicial info or
outside influence was brought to bear upon their deliberations.
This is a competency rule- this deals with the ability of a juror to testify
Non-jurors may testify about any outside influences in deliberation
o Ex: Bailiff can testify if he heard jury foreman threaten other jurors, but even then
the verdict will likely not be impeached.
o Having jury misconduct in the deliberation room does not mean you cant get a
new trial b/c its during deliberations, it just means that a juror may not testify as
to that conduct.
What are considered outside influences? Life experiences of jurors, radio reports, falling
asleep during trial/deliberations?
o Outside influences in Texas are a very narrow class
TX has said that evidence of the following is not allowed: see p. 518!!!
o Admissible evidence is not likely going to be the juror gathering outside
influences (newspaper, etc.), but instead only when a third party non-juror tries to
change the outcome of the deliberations (ex: death threat against a juror).
Juror may testify that another juror improperly viewed the scene of the
event giving rise to the litigation, but may not report that the offending
juror reported his or her finding to the jury b/c that would not be known
outside of deliberations
o Even if the juror is allowed to testify about an outside influence, the juror may not
testify as to the effect or influence of the source on the juror
DIFF: 3 exceptions to federal rule, 2 exceptions to Texas rule.
o the fed rule also includes permission for the juror to testify on the question
whether extraneous prejudicial info was improperly brought to the jurys attention
(whereas TX does not)
If I want to impeach I want a narrow reading of the rule and broad reading of the
exceptions.

*RULE 605. COMPETENCY OF JUDGE AS A WITNESS

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to
preserve the point.

Does not prohibit judge from testifying in later proceedings about decisions he made
during a trial or such.
And Model Codes generally prohibit attorneys from acting as both the witness and
counsel in the same case (but Rules of Evid does not prohibit)

Relevance
Generally
****RULE 401. DEFINITION OF "RELEVANT EVIDENCE"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence
(material fact) to the determination of the action more probable or less probable than it would be without the
evidence.

Rule 401
What does Rule 602 (personal knowledge) have to do with relevancy? This deals with
underlying logical relevance.
24

Pretty low threshold for relevancy- the tendency does not need to be strong, unwavering,
or absolute
o Relevant if offered to prove material fact and there is any tendency to prove that
fact
Axioms about relevancy:
o Presumption that witness is competent to testify (Rule 601)
o Witness must have personal knowledge (Rule 602)
o Evidence which is not relevant is not admissible
o ****All evidence must be relevant to be admissible!!

Be prepared to answer how each piece of evidence is relevant for Schlueter:

o Why are you introducing this evidence?
o How is this evidence relevant to this case?

****fact that is of consequence to the determination-pretty broad

o This could include background evidence whether or not the point is in dispute
o Eliminates the requirement that evidence relate to a controlling fact issue in
dispute

Question of whether evidence has any facially logical relevance/Does the evidence have
probative value?
o If no probative value, it is not relevant

Materiality (separate than issue of relevancy)

o At CL materiality and relevancy were two separate concepts.

Now, Rule 401 has blended materiality and relevance together. One
objection for relevancy will cover lack of materiality

o Footnote 16 on page 172. This rule is instructive.

The original civil rule defined materiality (any rational relationship of evid
to fact issue in dispute) and relevance (whether evid has probative value
tending to establish presence or absence, truth or falsity, of fact)
separately. It then instructed to first determine if the evidence was
material. If so, and only if so, determine if it was relevant.

25

o Materiality asks if fact of consequence goes to an issue in the case

Could be the ultimate issue

o Generally materiality falls into three catergories:

Ps claim

Ds defense

Credibility of both parties witnesses

Judge alone decides whether evidence is relevant, he decides who is competent, decides
whether evidence is authenticunder 104(a)

Problem 4-8(a):
i.

This is circumstantial evidence; how does temporal proximity play into this? It
was only two days before shooting. Probably relevant for several reasons.

ii.

Probably relevant because prosecutor will want to show that the defendant is
violent and aggressive; want to paint a picture; can also show that behavior
tendencies exist, etc. Probably ultimately wont be admissible for 402 reasons b/c
they dont want jury to convict on past acts, etc. (In real life you would know your
clients background info before hand and file motion in limine to exclude
anything referring to aggressive background) This is 404 evidence.

iii.

This may be more relevant to defense as it would help prove there was enough
light to see to be able to shoot.

iv.

May be more relevant if he had children and he made the beneficiary the children,
may show murder & suicide attempt or something. Could also maybe work for
defense if he had taken out policy with wife as beneficiary.

v.

May be relevant if she is in hospital and is dying and he takes out life insurance
policy on her before he dies. Defense might argue that any spouse whos spouse is
dying would try to insure future for kids, etc. Both iv and v are thin, but may have
any tendency to prove or disprove something.

vi.

This could be used for either defense or prosecution; defense=he has feelings, not
cold-hearted killer; prosecution=guilty conscience.

vii.

Ambiguous but may be relevant

viii.

Would maybe try to link this in with evidence in i;

26

RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE

INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by
other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.

Rule 402
Mandates that all irrelevant evidence is absolutely inadmissible and that all relevant
evidence is generally admissible (but not always)
o Relevant evidence can be excluded on statutory grounds, Const. grounds, or for
reasons codified in other rules of evidence.
Underlying Logical Relevance
***RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness
has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the
testimony of the witness. This rule is subject to the provisions of Rule 703 (what expert may consider as a basis for
his or her opinion-w/o personal knowledge of facts), relating to opinion testimony by expert witnesses.

See also hearsay rules.

Before a witness can testify they must be competent (601) and have personal knowledge
(602)
o Four elements of competency: ability to perceive, ability to remember what was
perceived, ability to communicate to fact finder what was perceived and
remembered, and truthfulness
Purpose of 602- ensure that only reliable evidence is presented to the fact-finder
o The rule requires predicate for Ws testimony is evidence, from the witness or
some other source that the W is testifying from personal observation or
perception. (usually self-evident from preliminary questions or inferred from
circs)
If opponent thinks W does not have personal knowledge, they should ask for hearing
outside presence of jury under 103(c)
Generally, personal knowledge is inferred unless some showing to the contrary.
For hearsay problems: Beware of probs of hearsay within hearsay and whether it is the
Ws personal knowledge or the declarants personal knowledge at issue.
404(b), 602, 901- Schlueter wants us to know this!! Esp. 104(b) vis--vis 602. Personal
knowledge is a 104(b) rule.
o You can introduce other acts/crimes to show motive, opportunity, plan, etc. But
for it to be admissible under 404(b) to show motive, etc. the act has to have
occurred, so its a 104(b) determination in a preliminary hearing for judge to
determine that a judge could find that a jury could find by a preponderance of the
evidence that the act occurred, and then try to prove to the jury that the act
occurred and they will decide. If not enough evidence to show act occurred, the
motive, etc. evidence will not be admissible. (conditioned on fact that the act
occurred)
401/402-facial logical relevance- fact of consequence (this has nothing to do with the
case)
27

601/602- underlying logical relevancy (the witness doesnt know what theyre talking
about.)

Authentication
Rule 901
Star rating???
RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
**(a) General Provision. The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent
claims.
(b) (1)-(9)=**(b) Illustrations. By way of illustration only, and not by way of limitation, the following are
examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based
upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with
specimens which have been found by the court to be genuine.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon hearing the voice at anytime under
circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number
assigned at the time by the telephone company to a particular person or business, if:
(A) in the case of a person, circumstances, including self-identification, show the person
answering to be the one called; or
(B) in the case of a business, the call was made to a place of business and the conversation related
to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in
any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form,
(A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if
authentic, would likely be, and (C) has been in existence twenty years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that
the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by
statute or by other rule prescribed pursuant to statutory authority.

Underlying logical relevancy

o Deals with underlying logical relevancy, unlike 401 which deals with facial
logical relevancy
o Object that the evidence is not authentic.

Proving up a document under 901, 902

901- Is is the real thing?
902 Is it what P says it is? Is it authentic?
Can have a motion in limine objection at trial because even making a motion in limine
pretrial does not by itself preserve error- must object again at trial
28

Who decides its authenticity?

o The judge first decides, then the jury decides -104(b)
Different ways to authenticate a document:
o Someone familiar with handwriting does not have to be an expert opinion, its
done by a lay person
o Someone saw it executed
o Expert comparison
o ancient
o Reply letter doctrine
o Distinguish it by its characteristics
o X testifies
o Y testifies
o Recognize by its context
o Through the chain of custody
o 901(b)(4)- about characteristics or context
Judge determines if its authentic by determining if jury can find that the document is
what it is purported to be by a preponderance of the evidence

Authenticating Writings
o Geared toward identification of writings author
o Can be done through
Identification of authors handwriting
Can be lay witness with sufficient familiarity or expert recognized by
the court
Expert must meet competency and Art. VII requirements and have an
authentic identified writing sample as basis
Circumstantially proving the authors identity through the witnesss content
Sponsoring witness would have to meet competency requirements
under 601 and personal knowledge requirements under 602.
RULE 902. SELF-AUTHENTICATION

29

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the
following:
**(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United
States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal
Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency
thereof, and a signature purporting to be an attestation or execution.
** (4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a
document authorized by law to be recorded or filed and actually recorded or filed in a public office, including
data compilations in any form certified as correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or
other rule prescribed pursuant to statutory authority.
*** (10) Business Records Accompanied by Affidavit.
(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically
reproduced copies of such records, which would be admissible under Rule 803(6) shall be admissible in
evidence in any court in this state upon the affidavit of the person who would otherwise provide the
prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as
required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are
filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are
sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause
commences, and provided the other parties to said cause are given prompt notice by the party filing same of
the filing of such record or records and affidavit, which notice shall identify the name and employer, if any,
of the person making the affidavit and such records shall be made available to the counsel for other parties
to the action or litigation for inspection and copying. The expense for copying shall be borne by the party,
parties or persons who desire copies and not by the party or parties who file the records and serve notice of
said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served
in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial
in said cause.
(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in
paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an
affidavit which substantially complies with the provisions of this rule shall suffice, to-wit:
No ______________
John Doe (Name of Plaintiff)

IN THE __________

v.

COURT IN AND FOR

John Roe (Name of Defendant)

_________ COUNTY, TEXAS

AFFIDAVIT
Before me, the undersigned authority, personally appeared _________, who, being by me duly sworn,
deposed as follows:
My name is _________, I am of sound mind, capable of making this affidavit, and personally acquainted
with the facts herein stated:
I am the custodian of the records of _________. Attached hereto are _____ pages of records from ______.
These said ____ pages of records are kept by ________ in the regular course of business, and it was the regular
course of business of __________ for an employee or representative of ________, with knowledge of the act,
event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be
included in such record; and the record was made at or near the time or reasonably soon thereafter. The records
attached hereto are the original or exact duplicates of the original.
____________________________________
Affiant
SWORN TO AND SUBSCRIBED before me on the _________ day of _________, 19 ____.
Notary Public, State of Texas

30

Notary's printed name:

______________________________________
My commission expires:_______________

These do not need to be authenticated in trial b/c they are self-proving, but you normally
still want to link them to a witness
Business Records
Out of Rule 902 we only need to know 902 (1), (4), & (10)
Often times discovery is used a lot before trial to authenticate documents
On documents there can be a hearsay problem, but there is an exception for business
records in 803(6) but this does not make it immune from hearsay
902(10)(a)- normal way to prove up a business document
o It must be filed with clerk 14 days before first day of trial and must notify
opponent at least 14 days before trial
o Know relationship with 803(6)must have affidavit from person qualified under
803(6).
o If an affidavit is not filed on time, you would have to bring the clerk or someone
into trial to testify as a witness with knowledge.
Ways to authenticate a business record:
o Usually, a sponsoring witness with personal knowledge who can testify that the
doc in question came directly from the place of business.
o Ancient document
o 902(10)- Affidavit
Authentication of the docs author is usually not required
Public Record (domestic document)
902(1) -Will be authenticated if it has a seal and a signature
902(4) document must be certified by authorized custodian, certified complying within
(1), (2), (3)
Generally
Need to include Texas Rule of Civil Procedure 193.7 on authentication which says that
evidence is presumptively authentic
Authentication has limited scope- only establishes items underlying logical relevance
o Does not establish truth or probative value
What must be authenticated?
o Writings (including some computer printouts or other documentary proof),
physical evidence(actual, substitute, and demonstrative), voice, tape recordings,
photos, slides, videotapes, motion pictures, scientific evidence, charts and
diagrams
If you are introducing a document, it must be relevant- facially logical tendency (401).
Judge decides if evidence is relevant according to 104(a).
Laying a foundation (authenticating) is conditional/underlying logical relevancy.
o Judge and jury determine if evidence is authentic (104(b)).
o Judge looks at evidence and asks if the evidence is such that a reasonable juror
could find by a preponderance of the evidence that it is authentic.

31

o Opponent can continue to argue that it is not authentic and that it should have no
weight, even after admission, because jury can still determine if they believe its
authentic and they assign weight to evidence.
Generally, inadmissible evidence cannot be used to prove up evidence for proponent.
Process for authenticating physical evidence:
It must be relevant (401)- facial logical relevancy
o Objection: irrelevant
We must authenticate it/lay a foundation (901)
o Objection: insufficient predicate
o Three terms used interchangeably: authentication, identification, verification
o Also used interchangeably: prove up, foundation, predicate
Three ways to authenticate actual physical evidence: readily identifiable evidence,
establishing a chain of custody, or offering circumstantial proof.
o Readily Identifiable:
Readily identifiable b/c of its distinguishing characteristics
Need someone with personal knowledge of the characteristics who can
identify distinctive characteristics, the more distinctive characteristics the
more likely to be authenticated.
Determination of judge and jury under 104(b)
o Chain of Custody:
Establishes every individual who had possession of the object and the
duration of their custody
Usually includes all of the data about the object and everyone who has had
it
You do not have to call every link to testify in court to prove it up
In criminal law, it is presumptively valid chain of custody if witness
testifies that they took it into chain of custody, logged it in, then logged it
out and brought it to trial.
Often times there will be gaps/breaks in the chain of custody and
opponent will object
MUST KNOW: Gaps in the chain of custody normally go to the
weight of the evidence, not the admissibility.
Links are the people who handle the evidence
Care and control issues deal with the gaps in the chain and normally go to
the weight
Use chain of custody when it is not readily identifiable (drugs, dna, etc.) or
when a piece of evidences condition at the time in question is a material
issue in the case
Authority that chain of custody only needs to run from the time it was
seized until the time it was tested at the laboratory.
There are potential major 6th amendment confrontation clause issues with
chain of custody evidence and laboratory reports
o Circumstantial Evidence of Authenticity

32

Requires competent witnesses with personal knowledge to develop the

inference of authenticity
Ex: could put Ds housekeeper on the stand to testify that the night
of the murder the Ds gun was not on the mantel where he kept it, a
weapons expert to testify that gun at crime scene was rare with
only one copy in the world, etc.

Demonstrative evidence can be props or admissible evidence

Did authentication example, see copies from book with notes.

Similar objects
o If you cannot prove up an object as the real thing, you may be able to submit into
evidence as very similar to the real thing
Use physical evidence as a prop
o Sometimes physical evidence can be used purely as a prop and not formally
submitted into evidence
o Do not have to meet the same requirements to use a prop during trial as evidence
which is admitted
o It is only used for demonstrative purposes
o Judges have the discretion to prevent you from using something as a prop if it is
misleading or extremely prejudicial.
o Demonstrative evidence- physical evidence which is not being admitted as the
actual evidence or a substitute for the actual evidence, but rather serves as a
demonstrative purpose (such as a diagram depicting a car crash).
Authentication established by sponsoring witness who, through personal
knowledge, testifies that the demonstrative evidence serves as a fair and
adequate representation of what the demonstrative evidence portrays.
Can also include charts, photos, x-rays, slides, videotapes, and motion
pictures.
When actual evidence or demonstrative evidence has been created through
the use of a technological instrument (a tape recorder, movie camera, or
scientific equipment) an additional foundation must be laid
Must establish that the tech instrument was properly functioning at
the time evidence was created, that the person who created the
evidence had adequate training to properly operate the instrument,
and that the evidence has not changed since its creation.
Authenticating Photographs
o 2 Ways to Authenticate photographs:
Pictorial testimony
Foundation witness can testify that such evidence accurately
represents the actual scene or event and that it is substantially the
same as the event or scene was at the relevant time.
MUST ask witness if this is a true and accurate representation of
the scene in question.

33

 Photographer does not have to be the witness

silent witness method
When a witness cannot come in to testify as to the accuracy of the
event
Often times automatic photographic systems (surveillance
cameras)
o To prove this up, they have to prove the camera was
working properly at the time, maybe chain of custody of
the photo
Authenticating Voice
o Voices in telephone conversations and on audio and video tapes 2 ways to prove
up someone voice
901 (b)(1)- witness with knowledge of the callers voice
901 (b)(4)- identifying based on the contents of the message
901 (b)(6)- telephone directory method for personal and for business
Recordings
o Cummings- Edwards Test
7 step predicate test for authenticating videotapes
Do not need to memorize the seven steps, because this is no longer
binding, there are other ways to introduce recordings, but this is still a
helpful guideline

Demonstrative evidence can be props or admissible evidence

Did authentication example, see copies from book with notes.

Review:
Assume we are in trial and have three pieces of evidence.
o The document must be relevant to a fact of consequence (Rule 401/402); this
shows facial logical relevance and answers the judges question of why? The
strength of the connection is probative value.
o Then we need to prove it up (underlying logical relevancy- Rule 901)
o Then we need to prove relevancy of witness testimony. Witness must be
competent (601) and have personal knowledge (602).
o The knife must be showed relevant and proven up.
o For each of these points there is an objection that can be made based on the rules
stated.

Legal Irrelevance
RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON SPECIAL GROUNDS
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice1, confusion of the issues2, or misleading the jury3, or by considerations of undue delay4, or needless
presentation of cumulative evidence.

Rule 403

34

403 is so important because it could potentially apply to every piece of evidence.

Relevance (401 & 402) does apply to every piece of evidence.
Rule assumes evidence is relevant (if not relevant, this objection is probably
inappropriate)
****Must know that for this rules balancing test, the standard is substantially
outweighed!!!
403 is often described by commentators as legal relevance doctrine or illegal
relevance
All 403 objections must be timely and must be SPECIFIC
o Objection: prejudicial- not good enough.
o A relevancy objection will not preserve 403 objections
o May even want to use the rule number in your objection
Five prejudicial dangers/objections:
o Unfair prejudice
All evidence is prejudicial, so the question is if it is unfairly prejudicial
o Confusion of the issues
o Misleading the jury
o Considerations of undue delay
o Needless presentation of cumulative evidence
The first three dangers focus on the effect the evidence will have on the jury
The last two dangers focus on the effect on the trial
This is an exhaustive list of dangers- no other 403 objections
Probably want to make 401 objection first because its easier and by making 403
objection you may be admitting that the evidence is relevant
Rule 403 often serves as a safety net for the opponent last chance to exclude evidence
DIFF: Fed rule includes a danger for waste of time
Three Step process judge uses when evaluating a Rule 403 objection:
o (1) The court must identify the probative value of the offered evidence (logical
connection of the fact to the case)
Must assign some weight or value to the evidence. Will vary depending on
whether evidence is direct or circumstantial.
The Courts have given some factors to consider:
The proponents need for the evidence (for example they only have
2 pieces of relevant evidence each of those pieces takes on more
value than if you had 50 pieces of evidence).
o (2) Identify prejudicial dangers
Unfair prejudice:
Appeals to common and emotional feelings
Likely to impress the jury in some irrational but nonetheless
indelible way - when the line is crossed into becoming irrational.
Confusion of the Issues:
This is confusing in of itself
Misleading the Jury
35

Ex: hear expert testimony and decide based solely off of that
testimony by putting too much weight on it and not considering
totality of the evidence
Undue Delay
Evidence which delays the progression of the trial, lots of delay in
trial, but is it UNDUE?
Needlessly Cumulative
Trials have redundancy,
o Ex: if you have six witnesses, Schlueter says always the
rule of three: Call three witnesses.
Needlessly is the key term
o (3) Court must weigh one against the other -balance
The judge balances the evidence
TEST: Is the probative value substantially outweighed by the prejudicial
dangers?
Even if danger outweighs the probative value, it will be admitted!
The probative value must be substantially outweighed.
The test is written in the passive so the burden of proof is on the opponent
Assumption: relevant evidence is admissible, the evidence has
probative value
Problem 4-8(b):
o When determining whether evidence is relevant and should be admitted after 403
objection, the proponent will want to show that the evidence tends to prove:
The manner of the attack, the location of the wounds, corroborate witness
testimony, the severity of the location, the age of the injuries, etc.
Put yourself in a position to help the judge when advocating evidencedont ask him to admit evidence that is likely to cause problems on appeal.
o When making a 403 objection look to factors from Long decision:
Number of exhibits, detail, gruesomeness, whether close-ups, color or not,
size, body is nude or not, alternative means of proof, maybe dependence
on this evidence (the need).
Rule 403
o Whether judge puts reasons when balancing on the record
There is some authority in federal courts that appellate judges like to see
the reasons for balancing on the record.
A lot of Texas judges will not do this, and appellate courts in Texas say
that judges need not put it on the record and that they presume the judge
did it correctly (but this may be rebuttable).
o Legal Relevance
The ability to exclude otherwise relevant evidence Rule 403 does this
Relates to 404, 407, 408, 409, 410, 411, 412, all are general rules of
inadmissible evidence even though probably relevant.

Liability Insurance
36

****RULE 411. LIABILITY INSURANCE

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person
acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against
liability when offered for another issue, such as proof of agency, ownership, or control, if disputed, or bias or
prejudice of a witness.

General Rule: whether a person has liability insurance is inadmissible

o Reasons:
Dont want juries deciding on depth of pockets
The logical relevance of liability insurance is weak may lead the jury to
use this evidence as character evidence to prove carelessness or
carefulness
o Whether a party has liability insurance is not admissible to prove:
Negligence or
Wrongful acts
o Evidence of liability insurance may be offered to prove the following, if disputed:
Agency
Ownership
Control
This is a non-exhaustive list contained in the rule
Counsel may be able to remove from dispute by stipulating to it
o Can also use insurance to impeach a witness by showing bias or prejudice (no
dispute required)
o Key for introducing the evidence is that there must be independent logically
relevant reason
Rule 411 does not cover insurance for property damage, only for liability insurance
o Parties may offer evidence of other types of insurance (so long as relevant)
without running afoul of this rule
Same Hypo as below:
Now the injured party wants to go after the insurance.
o In discovery P can and should ask whether there is insurance
Evidence of insurance can be brought up during voir dire to see if there is prejudice
towards insurance, but not to deliberately make known the existence of insurance
o Traditionally insurance could NEVER be brought up.
Rule 403 applies, so does Rule 105-limiting instructions
May be used in criminal, but very rare.
Minor differences in wording of Fed. and TX rule as TX rule adds the words if
disputed to emphasize a need for a genuine dispute before the exception applies (so in
Fed. a dispute is not necessary)
Subsequent Remedial Measures
****RULE 407. SUBSEQUENT REMEDIAL MEASURES; NOTIFICATION OF DEFECT
(a) Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an event, measures are
taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent
remedial measures is not admissible to prove negligence, culpable conduct, a defect in product, a defect in product's
design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent

37

remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.
(b) Notification of Defect. A written notification by a manufacturer of any defect in a product produced by such
manufacturer to purchasers thereof is admissible against the manufacturer on the issue of existence of the defect to
the extent that it is relevant.

Rule 407(a)
General Rule: evidence of subsequent remedial measures or a manufacturers recall is not
admissible under Rule 407(a) generally (above are some exceptions). Why?
o Public policy- we dont want to discourage people from making needed remedial
changes b/c they are afraid of being popped.
o Logical irrelevance- it does not make me any more or less negligent before the
accident because I fixed it afterwards.
o General rule does apply to products liability cases involving strict liability in Fed
and TX rule
Exceptions: Could be admissible to show ownership, control, and the feasibility of
precautionary measures, responsibility, causation, the condition of the object, and
impeachment and rebuttal, among othersthis is non-exhaustive list
o Proponent can probably get this evidence in if they can find an independent,
logically relevant reason for evidence of a subsequent remedial measure.
o Ex: D denies ownership of the machine causing the injury, P may offer evidence
that after the accident the D took personal responsibility for making sure the
machine was repaired
o Can only use these exceptions if controverted or for impeachment!!!
Opponent can get a 105 limiting instruction (but wont know if jury uses it b/c we cannot
ask jurors about deliberations under Rule 606(b)).
This rule is always subject to Rule 403 balancing test!!!
407 deals with legal irrelevance, the ability to exclude otherwise logically relevant
evidence
o As with all legal irrelevance rules, the evidence is excluded only if it is offered to
prove the material issue codified in the rule
This rule ONLY applies if the remedial action was taken AFTER THE HARM occurred!!
o Not after, for example, a product was made but before the harm occurred this
would be admissible b/c not covered by the rule
This rule can also extend outside of physical repairs to things such as policy changes, etc.
Hypo:
Schlueter has crack in his sidewalk and one of his guest trips over it and breaks their arm.
Is it admissible that 4 people have previously fallen on this crack?
o Yes, its not admissible to show Schlueters characterthat he is a careless
personbut can be introduced for other reasons (ex: knowledge, notice, etc)
o Schlueter can ask for limiting instruction.
Is it admissible that 6 months earlier a contractor came out to check out sidewalk?
o Yes, shows notice and knowledge
Is it admissible that the sidewalk was fixed before the accident?
o Yes, this is not covered by rule 407 b/c its not after the injury.
**Motion in limine does not preserve error
38

Is it admissible that after the injury, Schlueter has a crew come out and fix it (and pictures
of the repair)?
o MAYBE,
General Rule: Not admissible under Rule 407(a) generally (above are
some exceptions).
Exceptions: Could be admissible to show ownership, control, and the
feasibility of precautionary measures, responsibility, and othersthis is
non-exhaustive list (pictures before the fix would be admissible as a true
and accurate depiction of the hazard).
Does this rule apply if Schlueters parents were the ones that signed the contract for
repair?
o NO, the rule does not cover repairs by third parties to either your stuff or their
own and it may be admissibledepending on other rules. See p.306
Rule 407(b)
DIFF: There is no federal counterpart to this rule
In TX, a manufacturers written recall notice is admissible against the manufacturer on
the question of whether a defect existed.
o The key is that the evidence is not being offered to establish negligence.
This rule, 407(b), is especially geared towards products liability cases with the theory of
recovery is strict liability.
Fed. Courts will probably only use Fed rule 407, which is like 407(a), so they probably
wont allow it; will not be able to use recall in product defect notice????
Is Federal rule the same in practice?
How do you reconcile 407(b) with 407(a)
o evidence of the subsequent remedial measures is not admissible to prove negligence, culpable
conduct, a defect in product, a defect in product's design, or a need for a warning or instruction.

o Is it because under 407(b) the manufacturer gives written notice, versus just
taking a remedial measure (such as recalling)?
Compromise Statements in Civil and Criminal Cases
***RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a
valuable consideration in compromising or attempting to compromise a claim which was disputed as to either
validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of
conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the
exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise
negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as
proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution.

General Rule: Rule 408 prevents the admission of statements or conduct made during
settlement negotiations (whether completed or not) to prove either liability or the amount
of a claim.
o Applies ONLY when there is an actual offer or actual acceptance given in return
for a concession
o Prevents admission of any statements or conduct made during negotiations even if
not inextricably intertwined with the agreement
39

But otherwise discoverable facts are not barred simply because they were
mentioned in negotiations
Exception: compromise evidence may be admissible to prove something besides liability,
such as bias or prejudice of a witness
o Could be allowed if defense focuses on the enforcement itself (not the amount or
liability)
o Trial judge should have discretion to determine if proponent has established a
need for the evidence under one of the exceptions
o Key is that there is independent logically relevant reason for the evidence (same
as subsequent remedial measures, liability insurance, and extraneous offenses)
This rule is mostly used in civil cases, but can be used in criminal cases
o BUT Rule 408 does not apply to plea negotiations in a criminal case (see Rule
410) but should include offers to settle related civil suit
Two policy reasons for the general rule of non-admissions:
o Want to encourage settlement w/o fear that the attempts to compromise will be
used against them later if they fail to settle
o The evidence possesses little relevant- an offer to settle may be motivated by
desire to avoid conflict, not a concession that there is a weak claim.
This rule is subject to 403 and 105-limiting instruction
HYPO:
o Driver and Ajax truck get in car accident.
o The Driver sends a demand letter for payment of $250,000. Trucking company
sends a counter offer.
o General rule: The response letter is not admissible to show liability, but there are
exceptions (a non-exhaustive list) for other independent (from liability) logically
relevant purposes.
Exception: it can be admitted if it is otherwise discoverable.
Ex: in the discussions the attorney for truck says that he has three
prior DWIs and plaintiff goes back after talks and looks up driving
record but cant find it. After having secretary spend a month
looking they finally find it. This may be a tough call for the judge
because it could be argued that the priors would not have otherwise
been discovered but for the disclosure in what they thought were
protected agreements.
o The demand letter may be admissible because at the time it was sent it was not
disputed
The counter offer may be inadmissible because now there is a dispute over
amount, liability, etc.
Any future discussions will probably be excluded as disputes
Ultimatums (the demand letter) and offers to pay amounts due in lesser amounts are not
covered by rule 408 so may be admissible
What is said in mediation ceremony cannot be admitted (covered by 408)
o Policy reason: to promote settlement
Ex of exception:

40

o You get in car accident with someone working for USAA and they are also the
carrier of their insurance- possibly admissible to prove bias
o You go to trial after 5 years and opponent tries to say you are dragging feet, you
can show that for four years of that time yall were in good faith settlement
attempts
DIFF: In TX, evidence of compromise offers, acceptances, or negotiations can be used to
prove bias, prejudice or an interest of the witness or party to impeach them
o Fed only allows such evidence to impeach witnesses, as it may be destructive of
policy concerns to allow this evidence to impeach parties
Evidence of settlement negotiations is admissible under the rule to REBUT claims of
undue delay

Good Samaritan Rule

*RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by
an injury is not admissible to prove liability for the injury.

General rule: Offers to pay (or actual payment of) an injured persons medical expenses
to prove the payers liability is not admissible
This rule is also known as Good Samaritan Rule b/c we dont want to discourage
people from trying to help b/c they are afraid of it being used against them
o There are no stated exceptions, but it is implicit that the evidence can be offered
for logically relevant purposes (other than to prove liability)
HYPO:
o Driver and Ajax truck get in car accident.
o Ajax driver sent a get well card (we will come back to this in hearsay) that says
Im sorry this happened/Im sorry/Im sorry, Ill pay your bills.
This info may be relevant but probably not admissible
Sending flowers probably wont be admissible.
o Now the card says Ill pay for your rental car probably not covered b/c 409
only covers medical and similar expenses.
o What if you find on hospital bill that Ajax drivers insurance company paid for
first day in hospital without any request from plaintiff- relevant- is this admissible
since the payer was not the one whos direct liability is trying to be proven???
o What if its defendant who offers to pay the first days bill- relevant but probably
not admissible to prove liability for injury
Ex: admission of workers compensation coverage of medical bills has been held to be
admissible

Pleas, Plea Bargains, and Related Statements

***RULE 410. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS AND RELATED STATEMENTS
Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant
who made the plea or was a participant in the plea discussions:
(1) a plea of guilty that was later withdrawn;
(2) in civil cases, a plea of nolo contendere, and in criminal cases, a plea of nolo contendere that was later
withdrawn;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal
Procedure or comparable state procedure regarding, in a civil case, either a plea of guilty that was later

41

withdrawn or a plea of nolo contendere, or in a criminal case, either a plea of guilty that was later
withdrawn or a plea of nolo contendere that was later withdrawn; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority
that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn,
of guilty or nolo contendere.
However, such a statement is admissible in any proceeding wherein another statement made in the course of the
same plea or plea discussions has been introduced and the statement ought in fairness be considered
contemporaneously with it.

SEE Chart on p. 44 of BB- Compares TX civil and criminal, and Fed plea rules
General Rule: statements made in plea discussions are inadmissible
Exceptions:
o Guilty Pleas
Admissible in TX criminal and civil, and Fed
If the defendant is making statements inconsistent with a guilty
plea, or untruthful, the judge can say that he rejects the plea
If the defendant stands up and pleads guilty, this statement is not
applicable
o Withdrawn Guilty pleas
Inadmissible in TX civil and criminal, and Fed.
o Nolo contendre pleas and withdrawn nolo contendre pleas are not on the test!!
Only need to know that a criminal Ds nolo contendre plea is not
admissible in a civil case (TX and Fed)
Cannot impeach the defendant with evidence of what happened during plea colloque or
negotiation with the prosecutor
o Statements Made During Plea Colloquies- Rule 410(3) excludes not just the
evidence of the pleas mentioned, but also statements regarding the plea
Ex: D pleaded guilty and confessed to murder and court assessed
punishment for 50 years. D withdrew plea and confession and entered plea
of not guilty. The state CANNOT subsequently introduce his confession
at the later trial or prosecute him for perjury
Federal Rule of Criminal Procedure 411 and Fed Rule of Evid 410 both
facially explicitly say that evidence of a defendants participation in a plea
discussion is not admissible against him if the statement was made in the
course of plea discussions with an attorney for the prosecuting authority
which does not result in a plea of guilty.
BUT the SC determined that this, and most exclusionary evidence
rules, can be waived by the Dtherefore allowing the introduction
of such material
Can this and other rules be waived in TX?
o Statements Made During Plea Negotiations- Rule 410(4) excludes statements
made in the course of plea discussions with an attorney for the prosecution
Two Pronged Requirement Plea discussions must involve an attorney and
That attorney must be accountable to the prosecuting authority
Statements or plea bargain to police officer are not protected by this rule
42

Rule only applies to a defendant who took part in the particular discussion
or made that particular plea
i.e. statements made in these discussions can be used against
persons who did not participate in the discussion
This rule permits the judge to give limiting instruction (the evidence may also be
admissible against one party but not others, for some purposes and not for others)
This rule codifies a rule of optional completeness similar to Rule 106
o When one party introduces evidence relating to plea discussion, the other party
may introduce statements which it feels ought to be contemporaneously
considered
o Authorizes admission of otherwise prohibited statements when another statement
from the discussion was allowed into evidence
o Probably cannot introduce otherwise protected statements only to impeach
Ex: opponent probably not to introduce when a witness testifies
inconsistent to statements made during plea discussions unless witness
leaves a false impression with the jury.
Either party may open the door to this evidence
What if the truck driver was driving while intoxicated and receives a citation at the scene
of the accident?
o In later civil case?
o In later criminal case?
o If defendant gets out of truck and says hes drunk?
Admissible- as party admission?
o He gets handcuffed, put in squad car and taken down to the station by an officer.
To make it go away, Defendant makes incriminating statements these
statements are not protected by 410 b/c the rule only covers
communications with an attorney for the prosecuting office.
DIFF: FED RULE- perjury exception: In criminal cases, if defendant enters into plea
colloque, the judge places the defendant under oath and in the presence of counsel, and
the defendant lies to the judge or later changes his mind (perjury or false statement), this
rule does not apply and perjury charges can be brought against him

However, such a statement is admissible (i) in any proceeding wherein another statement made in the
course of the same plea or plea discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the
statement was made by the defendant under oath, on the record and in the presence of counsel.

Character Evidence & Exceptions

**** RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS;
OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's character or character trait is not admissible for the
purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait offered:
(A) by an accused in a criminal case, or by the prosecution to rebut the same (good character
defense), or

43

(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing
party to rebut the same;
(2) Character of victim. In a criminal case and subject to Rule 412 (victims of sexual assault), evidence of a
pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the
same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to
rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence
of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the
assaultive conduct, or evidence of peaceable character to rebut the same;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609
(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in
advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same
transaction.
Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (similar to TX
rule)
(a) Character evidence generally.Evidence of a persons character or a trait of character is not admissible for the
purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused.In a criminal case, evidence of a pertinent trait of character offered by an
accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the
crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the
accused offered by the prosecution;
(2) Character of alleged victim.In a criminal case, and subject to the limitations imposed by Rule 412,
evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the
prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness.Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts.Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.
****RULE 405. METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible,
proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be
qualified to testify at the guilt stage of trial concerning the character or character trait 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. In all cases where testimony is admitted under this rule, on cross-examination inquiry
is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of
a charge, claim or defense, proof may also be made of specific instances of that person's conduct.

Character Evidence GenerallyRule 404(a):

Rules relating to character evidence: 401, 404, 405, 608, 609 403, 412, (413), (414),
(415)
Defined: character evidence establishes a persons propensity to do a certain
act/predisposition to act a certain way
General Rule: evidence of a persons character is generally excluded (subject to many
exceptions)
44

Under doctrine of legal irrelevance, character evidence can only be used under certain
circumstances
o counterintuitive
Three forms of character evidence:
o Reputation testimony-testimony relating to persons reputation in a particular
community
Witness must have personal knowledge of persons reputation
May have knowledge about reputation without ever meeting the person
Reputation must relate to an issue in the case
o Opinion testimony- witness has formed personal opinion of persons character
Must be based on personal knowledge of person and the persons trait
testified about
o SICs-particular acts done by an individual
Where character evidence is admissible under 404, Rule 405 specifies the form that
evidence must take
o Under 405, reputation and opinion testimony is almost always admissible
Exception: in sexual assault prosecutions (Rule 412), reputation or opinion
evidence of victims past sexual behavior is not admissible
o Exceptions to character evidence are found in rules 404, 412-415
See Ten Rules on p. 55-56 of BB
General Rule (Rule 404(a)): where a persons character is being used circumstantially to
show that the alleged act was committed.
o (a) Character Evidence Generally. Evidence of a person's character or character trait is not
admissible for the purpose of proving action in conformity therewith on a particular occasion,

o DIFF: For Fed. sexual assault, evidence of Ds similar cases involving sexual
assault in a particular occasion are admissible to show propensity (any relevant
matter)-Rule 412-415 very broad in allowing SICs of sexual assaults
In Tex., evidence of a sexual assault is not admissible to prove conformity,
Ds sexual assault are only admissible in relation to victim under 412
Three potential uses for character evidence:
o To challenge or support the credibility of a witness (opinion or rep.)
o May be relevant to prove a persons conduct (opinion or rep.)
To show that b/c a person has a particular character trait (i.e. propensity to
act in particular manner), it is more likely that he or she acted in
conformity with that character on the occasion
o May be relevant if it is one of the ultimate issues to be decided by the jury
Reason character evidence is not allowed, even though it is relevant and may have
probative value: weighs too heavily on the jury and leads to confusion of the issues,
unfair surprise, and undue prejudice
Overview of 404(a):
o general rule: no character evidence to prove action in conformity
o Three exceptions
Character of the accused (civil and criminal)
Character of the victim
45

Character of the witness

Exceptions:
Exceptions under Rule 404(a)
o These exceptions are similar in TX and Fed. rules
o These exceptions allow character evidence to be admissible to prove
circumstantially a persons conduct on a particular occasion
SICs not admissible for this purpose
o For these exceptions, character evidence can ONLY be presented:
in the form of Reputation testimony or Opinion testimony
And must relate to a PERTINENT character trait
BUT SICs may be inquired into during cross-examination of a character
witness in the form of did you know or have you heard questions (rule
405(a))
Cross-examiner must have a good-faith basis for asking the
question
It doesnt have to be a conviction, it just has to be an act relevant to
a character issue
Once witness says they are or are not aware of the SIC, the crossexaminer is stuck with the answer.
o Cannot introduce evidence of extrinsic act.
o Evidence of Character of the party- 404(a)(1) (Good Character Defense)
It does not have to be the D testifying about his character
Under Rule 405, in TX during guilt/innocence phase the Ds
character witness must have known him before the alleged crime
Cannot ask for specific instances to demonstrate the trait and it
must be a pertinent trait
o Pertinence relates to relevance
This is very risky, and not preferred b/c it opens the door to cross-exam
and makes D vulnerable where the law tried to protect him
May present the good character evidence through opinion or reputation
evidence
Limited evidence that defense may open the door by raising issue
during opening statements (so prosecution need not wait for a
witness to be called to rebut)
Evidence of Ds own character does not authorize the prosecution to
introduce evidence of the victims character
TX Civil: person accused of conduct involving moral turpitude may
introduce character evidence to show that he or she did not commit the
crime (404(a)(1)(B))
Accused opens the door by presenting favorable character
evidence; opponent may respond with unfavorable character
evidence on cross-exam

46

Note: Rule 609 allows counsel to impeach witness by proof that

witness has been convicted of a felony or of a crime involving
moral turpitude
DIFF: No federal counterpart In Fed. character evidence can only
be presented in criminal cases
Examples of crimes involving moral turpitude: corruption,
deception, swindling checks, public lewdness, theft, bail
jumping (involves deciept and deception), violating protective
order when underlying offense is related to family violence, false
statements in an affidavit, tax evasion, receiving and concealing
stolen property, indecent exposure with intent to arouse offender or
another is moral turpitude (exposing oneself without intent is not),
assault is not moral turpitude generally-but assault by a man on a
woman is moral turpitude (see p. 549 n. 10 for non-moral turpitude
crimes)
TX Criminal: defendant may introduce evidence of pertinent character
trait to show that he or she did not commit the crime (404(a)(1)(A))
Fed is similar
Opens door by presenting favorable character evidence;
prosecution may respond with unfavorable character evidence
Whenever the accused introduces evidence of character, they open the
door for the other side to respond with unfavorable character evidence
This is when they may cross-examine and inquire into SICs of the
accused using have you heard or did you know questions
under Rule 405(a)
o Similarly, if prosecution calls rebuttal witnesses, D can
inquire on cross-exam into the accuseds prior SICs using
have you heard or did you know questions
o Under Rule 404(a)(1)(A), the prosecution may not inquire
into SICs on rebuttal, but can do so under other rules
Just because D is asking jury to infer that b/c of his good character he did
not commit the offense, this does not make it character in issue
o Character of Victim (404(a)(2))
TX Civil: In cases of assaultive conduct, character evidence of the victim
may be shown on the issue of self-defense to show that victim had a
violent character
Self-defense theories essentially the same for civil and crim
Peaceable character evidence of victim may be shown to rebut
NOTE: D cannot show evidence about his own character of
peacefulness b/c 404(a)(1) limits character evidence of accused to
cases involving moral turpitude
o Rule 404(a)(1)(A) allowing accused to show pertinent
character trait is only allowed in CRIMINAL case

47

DIFF: there is no Fed. counterpart governing victims character

in civil cases
TX Criminal: In NON-HOMICIDE case, character evidence of a pertinent
trait of the victim is admissible, subject to Rule 412 (regarding victims of
sexual assault)
**** He will only test us on assault cases (self-defenses)
Can be used to show:
o Propensity of victim
o That Ds actions were in response to what he had heard
about victims propensities
Can only be reputation or opinion evidence on pertinent character
trait of victim
Two types of Self-Defense Theories:
o The defendant was in actual danger from the victim
This type of evidence is governed by 404(a)(2)
Reputation or opinion evidence may be used to
show that victim has character for
violence/propensity for violence (not SICs)
Here, D is alleging that the victim was the first
aggressor
o Defendant reasonable believed that he or she was in danger
of the victim
This type of evidence is not covered by Rule 404
b/c it focuses only on the Ds state of mind, so the
true character of the victim is not at issue
Reputation, opinion and SIC character evidence of
non-peaceful/violent character of victim may be
admissible to show D acted reasonably (as basis for
his state of mind) b/c he heard of victims
propensities.
Key is that the D was aware of the victims prior
acts
Ex: D sees victim coming toward him and feels
victim is a danger (b/c he has heard about him) and
so he fights first
Prosecution can present evidence of pertinent character trait of
victim to rebut
o DIFF: In Fed., once the accused in a criminal case offers
adverse character evidence about a victim, the prosecution
may respond with unfavorable character evidence about the
accused
HOMICIDE: character evidence of peaceableness may be offered
by prosecution to rebut evidence that the victim was the first
aggressor
48

o Prosecution need not wait for D to present character

evidence of homicide victim
Cannot introduce evidence about victims companions or relatives
D in criminal case can also present favorable character evidence
about himself (Rule 404(a)(1)(A))
DIFF: In Fed. if criminal defendant attacks character of victim,
door opens for prosecution to respond with character evidence of
the same trait about the accused
**Rule 412: RULE 412. EVIDENCE OF PREVIOUS SEXUAL
CONDUCT IN CRIMINAL CASES
(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or
aggravated sexual assault, or attempt to commit sexual assault or aggravated
sexual assault, reputation or opinion evidence of the past sexual behavior of an
alleged victim of such crime is not admissible.
(b) Evidence of Specific Instances. In a prosecution for sexual assault or
aggravated sexual assault, or attempt to commit sexual assault or aggravated
sexual assault, evidence of specific instances of an alleged victim's past sexual
behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d)
of this rule;
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical
evidence offered by the State;
(B) of 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;
(C) that relates to the motive or bias of the alleged victim;
(D) is admissible under Rule 609; or
(E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.
o This was not part of CL, but it was created to protect the

o
o
o
o
o

victim bc a lot of times the victims were being put on trial

(as sluts, dressing slutty, etc.)
Applies to criminal cases ONLY!
Aka Rape Shield Rule
DIFF: varies considerably from Fed. Rule 412 (see Fed.
Rules 413-415)
This rule should override conflicting rules of evidence
412(a)
Appears to be absolute (no exceptions)
Reputation or Opinion evidence of Past sexual
behavior evidence of victim is not admissible
D cannot ask reputation or opinion testimony about
the victims morality, sexual habits, or sexual
lifestyle
412(b)
Generally SICs of sexual behavior of victim is not
admissible
49

Exceptions:
412(b)(2)(A)
o SICs must be necessary to rebut or
explain scientific evidence offered by
the state
Ex of not necessary: D already
admitted to sexual act, but is
defending it on consent grounds,
evidence of sexual acts with
other third parties not necessary
(or even relevant)
o Evidence presented to show there were
scratches, bruises, semen, DNA, etc.
o D is allowed to present evidence to rebut
that that scientific evidence (ex: the
victim has a boyfriend, and so those
body samples came from bf)
412(b)(2)(B)
o Can show evidence of past sexual
behavior with the accused (ONLY!)
o Can only be used to show that he
thought it was consensual
o No specific time requirements, must be
logically relevant
412(b)(2)(C)
o Can introduce evidence of motive or bias
to explain why victim is alleging sexual
offense
o Ex: victim has bf, she had sex w/D, but
claims it was not consensual bc she
doesnt want to make bf mad
412(b)(2)(D)
o Victims past sexual conduct allowed if
admissible under 609 impeachment
through conviction of crime (felony or
moral turpitude)
Still subject to balancing test
under either 609 or 412(b)(3)
Ex: judge may still keep out prior
convictions of prostitution if
unfairly prejudicial
412(b)(2)(E)
o Can introduce SICs that are
constitutionally required to be admitted

50

o Probably going to have to be really good

DP arg., difficult
412(b)(3) says that evidence can only be admitted
under one of the exceptions above if its probative
value outweighs the danger of unfair prejudice
Simple balancing test
Burden falls on proponent (the D) to show that
probative value outweighs danger
Must also meet procedural requirements of
section (c) and (d) of the rule (omitted in
outline)
Protects the privacy of the victim
o Character of Witness (404(a)(3))
Character evidence may be used in criminal and civil to impeach or
rehabilitate a witness.
See Rule 608, 607, 609
Fed is the same
Informal Character Evidence
o Rule 404(a) deals with formal character evidence
o Informal character evidence can generally be introduced by counsel on direct
examination of a witness in order to present helpful background info about the
witness or party.
o Ex: where the witness works and lives, whether the witness is married, has
children, etc.
o Can be helpful to jury in assessing the individuals credibility and conduct
o Questions must be facially neutral facts
o Not allowed as informal: questions that go into character of persons employment,
marriage, or driving record (these would be governed by 404)
Character Evidence in Sentencing (Criminal)
o Not expressly mentioned in Rules of Evidence
o CCP expressly permits admission of evidence of extraneous offenses/extrinsic
acts at the punishment phase
DIFF: No Fed counterpart ??
o CCP Art. 37.07 allows evidence of defendants prior criminal record, general
reputation and character, and extraneous crimes or bad acts notwithstanding
Rules 404 and 405 of TX Rules of Criminal Evidence
Limitations in Noncapital cases:
For evidence of SICs, it is admissible only if shown beyond a
reasonable doubt to have been committed by the D
If admitted, judge must give beyond-a-reasonable-doubt
instruction, whether requested or not.
Prosecution must provide notice of its intent to introduce the
extraneous acts evidence
Character in Issue Rule 405(b)
51

(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an
essential element of a charge, claim or defense, proof may also be made of specific instances of
that person's conduct.

Only to be used when character is an essential element of a claim or defense

o Allows the jury to use circumstantial evidence to make conclusion on partys

character and ultimately decide the issue based on that evidence
Ex: P is violent, and b/c P is violent, Ds article saying P is violent is true
so D is not guilty of libel.
o Not covered by rule 404 so not applicable, but 402 is applicable.
o Can be proved by:
Reputation testimony
Opinion testimony
SICs
o Very rare!
o Can be used in CRIMINAL cases for insanity or entrapment
Applicable substantive law regarding the defense permits defense to
introduce evidence of the Ds subjective intent (does not have propensity
to act that way, but was induced by govt to do so)
o Can be used in CIVIL cases for libel or slander, child custody, and negligent
entrustment.
Habit Evidence-Rule 406
** RULE 406. HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or of the routine practice of an organization, whether
corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct
of the person or organization on a particular occasion was in conformity with the habit or routine
practice.
o

o Rule 406 authorizes admission of habit evidence to prove that person or business
acted in conformity with the habit on the occasion in question.
Is probative of propensity
o Habit has not been explicitly defined, its within the discretion of the court to
determine if a habit has been shown
The more regular and precise conduct, the better chance of habit
Up to three times of doing the same thing does not necessarily establish
habit
o May allow evidence which is inadmissible under 404(b) as character evidence to
be shown as habit
o Does not have to corroborated or have eyewitnesses; must be relevant though
o May be established through use of:
Opinion testimony
Reputation testimony
SICs
Character Evidence Review
I. General Rule not admissible (character evidence closet is closed)
52

Defense can open the closet, D opens closet by calling character witnesses
(some authority that D can open door by making opening statement that he
was going to use character evidence, then prosecution used rebuttal character
evidence in case-in-chief)
Prosecution rebuts by calling CWs they use opinion or reputation testimony
SPECIAL CROSS-EXAMINATION RULE: Rule 405 when cross-examining,
it is allowable to inquire into relevant specific instances of conduct of TW.
o Cross-examiner must have a good-faith basis for asking the question
o It doesnt have to be a conviction, it just has to be an act relevant to a
character issue
o In the form of have you heard or did you know
o Once witness says they are or are not aware of the SIC, the crossexaminer is stuck with the answer.
Cannot introduce evidence of extrinsic act.
II. Exceptions
404(a)(1)- exception for character of accused in civil and criminal cases in TX
o In federal civil case there is no exception to introduce any character
evidence
404(a)(2)- exception for character evidence of victim
o Criminal (he will relate it to self-defense case on test)
Non- Homicide: two theories of self-defense
subjective- state of mind of defendant - 404 does not apply
(will probably have to put D on the stand to tell what they
felt)
objective attempting to prove circumstantially that
character was violent 404 does apply (opinion or
reputation, cross-exam according to 405)
homicide prosecution is free to call character evidence (in casein-chief) about peaceful character of victim if there is evidence to
show that the victim was the first aggressor.
o Civil
Evidence of assaultive conduct (applies the same as it does in
criminal law)
Subjective Objective DIFF: Fed rule does not apply to civil rule; there is no exception
for civil cases to introduce evidence of character of victim.
Rule 406- Habit
o The person repeats the same act many times which demonstrates a habit
(ex: Schlueter gets to class 10 mins early everyday)
o Going to have to convince court of how many times they had done it to get
it in.
o Habit is more dependable than character trait, and that is why its
admissible
53

o How to prove habit:

Opinion evidence
Reputation evidence
SICS!!
Evidence of SICs:
General Rule: A persons SICs may not be introduced, especially when used to show
character (404(b)) (Cf. Art 38.37 CCP- below)
But exceptions: 404(b), 405(b), 608(b), 613(b) - SICs maybe
ExceptionsUsing SICs to show character:
o When SICs are an essential element of claim or defense Character in Issue
under Rule 405(b)
o Impeachment of Character Witness:
In TX, a CW cannot be impeached through questioning about his or her
personal SICs unless they resulted in a conviction-Rule 608(b). But see
Fed. 608(b)
A CW may be asked have you heard or did you know questions about
the target witnesss SICs- Rule 405(a)
Cross-examiner is stuck with the answer
Does accused/party in civil case have to testify to be target
witness?
o No he is target witness when he offers evid through a CW
about himself
Can organizations have character? maybe but usually showing something
else (see 404(b))
Exceptions-Using SICs for non-character purposes:
o A persons SICs may be admitted for some reason other than to show that the
person has a propensity to act a certain way
o Impeachment/Rehabilitation of a Witness
General rule: witness may not be impeached by showing that the witness
has engaged in bad SICs (ex: lying on a job application) Rule 608(b).
Witness also may not be rehabilitated through introduction of good
SICs.
Can impeach through opin and rep questions about character for
truthfulness or untruthfulness
Exceptions:
Witness may be impeached with a SIC which has resulted in a
conviction (Rule 609)
o DIFF: In Fed., witness may be impeached with his personal
SICs, even if not a conviction if probative value of
truthfulness or untruthfulness (Fed. 608(b))-its judges
discretion not to allow it

54

Witness may be impeached through SICs which show the witnesss

bias (Rule 613; no Fed. rule but it is generally allowed in Fed
courts)
Blanket denial of any wrongdoing may be rebutted with SICs
o SICs may be admitted under Rule 404(b) for non-character purposes
*****(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is
not admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident (non-exhaustive list), provided that upon timely request by the accused in a
criminal case, reasonable notice is given in advance of trial of intent to introduce in the
State's case-in-chief such evidence other than that arising in the same transaction.

Rule 404(b) deals with uncharged SICs can it also be charged crimes?
Yes, but investigate more the interplay with 609
Terminology: SIC evidence, extrinsic act evidence, uncharged
misconduct, and extraneous offenses (TX uses this)
The SICs do not even have to be uncharged crimes, can just be
bad acts, or any legal acts
Extraneous offenses are those which are outside of which the party
is on trial for
o Not 404(b) if inextricably intertwined with the charged
offense
Rule 404(b) covers acts committed before AND after the alleged
offense party is on trial for
Permissible/ Impermissible Uses of SICs:
Impermissible: may not be used to show conformity therewith
o Inchoate thoughts normally do not amount to conduct under
404(b)
o Acts committed by third persons are not extraneous
offenses of the D, but could be subject to 404(b) depending
on the proponents use
o 404(b) does not create hearsay exception
Ex: prosecution attempted to use hearsay testimony
to show the Ds motive to kill- not allowed under
404(b), its still hearsay
Permissible uses of SICs for non-character purposes is not limited
by the list in the rule
o Must be admissible for relevant, non-character reason
(independent logically relevant reason) and the purpose
must be specifically articulated by proponent
o That list is non-exhaustive (reason for such as)
o as long as it is not used to show the accuseds character,
there is a limiting instruction given, and it is relevant, pretty
much any evidence will be allowed

55

always try to convince judge the SIC is admissible

for non-character purpose
Permissible Uses Listed in Rule:
o Notice Requiremnet: Evidence of SICs may be admissible
for these purposes provided that upon timely request by the
accused in a criminal case, reasonable notice is given in
advance of trial of intent to introduce in the States case-incheif
o Motive use prior acts to show why they committed crime
Ex: history with drug abuse, D robs store, it is used
to show motive for why he robs store- needs drug
money. If allowed, a 105 limiting instruction should
be given.
This example includes 103, 401/402, 403, 404(b),
105
First relevancy objection (401), then 404(b)
objection- trying to get in character evidence, then
403 objection- too prejudicial, then if ultimately
allowed, ask for limiting instruction (105)
o Opportunity
Access to the scene of the crime or particular skill
or talent
o Intent/State of Mind
Two key points:
Intent must be in issue
o If intent can be inferred from the act
or other evidence clearly shows the
charged offense was intentional,
404(b) evidence probably not
admissible
For intent, courts may not require the
prosecution to show that there is a high
degree of similarity between charged offense
and extraneous act (as is needed with many
other purposes)
Doctrine of Chances
Rest on proposition that there is instinctive
recognition that the more often an act has
occurred with similar results, the less likely
that the act is an accident
May be able to argue that evidence is
admissible under this doctrine
o Preparation or Plan
A design or scheme

56

Permits introduction of steps taken by the D to

commit the charged crime
Not repetition of the same act
Must show relevance between the plan and an
elemental fact in the case ex: letting a bunch of
little girls ride your horses, then molesting them is
not allowed b/c no link b/t plan and intent
o Knowledge/Consciousness of Guilt
Ex: knew they were receiving stolen property
Like intent, evidence will not be admitted if it can
be inferred from other evidence
o Identity
Identity must be in issue to admit evidence
In issue if the D specifically denies
committing the offense
Extraneous offenses should have some
distinctly common characteristics
o Absence of mistake or accident
Can use extraneous acts to rebut claim of accident
or mistake
Doctrine of Chances
Other uses recognized by Texas courts:
o Evidence to prove the context, background or Res Gestae
of the offense
Prosecution does not have to give notice of intent to
introduce same transactions SICs, even at request of
D under 404(b)
Courts have given prosecution wide berth in
introducing extraneous offenses that occurred prior
to, during, and after the charged offense
Limitation: it must be relevant and tightly
linked to charged offense
Evidence describing contraband found at arrest and
defendants actions at arrest
Same transaction contextual evidence ok
Must be necessary to the jurors
understanding to be admitted
Ex: uncharged resisting arrest at the time of
the arrest
Background contextual evidence- ok
Generally admissible unless it impugns Ds
character

57

Ex: in prosecution for robbery, police officer

provided background info about the use of
surveillance cameras in convenience stores
Res gestae this term is not favored because it can
be used in many ways (for context evidence,
hearsay exceptions, relevant evidence, spontaneous
unwarned statements by a D)
Ask prosescutor to clarify if they say it is
admissible as res gestae
o Rebuttal or Impeachment
(see notes on credibility)-608(b)
Note: courts more lenient to allow SICs to show
bias under 613(b) than to impeach credibility under
608(b)
We introduce evidence not to show bad character,
but to rebut the Ds defense
Door can be opened by D during opening
statement or cross-exam of Ps witnesses
Ex: evidence can be admitted to rebut claim
of self-defense, consent, alibi, etc.
Or to rebut a statement made by the D that leaves a
false impression with the jury
Ex: commonly used when D makes
sweeping, general denial of having ever
been in trouble with the law
Door can be opened by defense questions or
portrayal of D as good person, but not
generally by prosecution obtaining a general
denial during cross-exam
o Sex Offenses
When consent is in issue, usually can admit prior
acts to rebut consent defense by showing prior acts
with other who also did not consent under 404(b)
See rule 412 for prior acts by victim
See CCP 38.37 below also-generally SICs
admissible to any relevant matter
SIC evidence can be used in civil cases as well, although used mostly in
criminal cases
General rule: D cannot introduce evidence that P routinely
breaches contracts (example)
o Shows propensity
Ex: medical malpractice-D could not show evidence that he was a
good doctor, but could show prior SICs to show lack of accident
or mistake or that he had a method for performing the procdure
58

Ex: P in civil suit alleging assault by D may introduce Ds prior

SICs to rebut defense of self-defense by showing Ds intent or
motive.
Ex: negligent entrustment and negligent hiring- present prior acts
of negligence or misconduct to show owner or employer is liable
for allowing driver access to the vehicle with knowledge of
accidents, tickets, etc. in drivers past. Ex: your car explodes while
driving, then you find that 10 other cars have also had this
problem, cannot introduce it that the manufacturer was careless,
but can introduce it as knowledge
o but in these cases character is in issue so character evidence
is allowed (405(b))
Ex: BUT courts tend to not allow evidence of a partys previous
filing of many frivolous claims unless they involved fraud
TX courts generally do not allow admission of criminal
convictions for the same act that is being litigated in a subsequent
civil action, unless conviction was based on guilty plea which
would constitute an admission
Also comes into play in negligent entrustment cases, but in those
cases character is in issue so character evidence is allowed (405b)
404(b), 405(b), 608(b), 613(b) - SICs maybe
Res inter alios acta-evidence of other acts or transactions with third
parties
SIC evidence in Criminal cases:
When used in criminal cases, it is almost always the prosecution
presenting SICs of D, but some evidence of D presenting SICs of
govt agent to prove entrapment
Notice Requirement in Criminal Cases:
o D needs to request SIC evidence and prosecution must
notify within reasonable time its intent to introduce SIC
evidence in case-in-chief
Rule has no guidance on whats timely or
reasonable
But state providing the defense with open file
access does not satisfy notice; may not satisfy even
to say that Ds record is subject to introduction.
Neither party should wait until the night before trial
to request/comply
Test is often substantial compliance
o Technically the prosecution doesnt have to give notice of
intent to use SIC evidence in rebuttal
Defense may guard against this by requesting
through a motion in limine, that the court enter an
order requiring the prosecution to approach the
59

bench and obtain a ruling before offering any

evidence of 404(b) acts
o Similar to notice requirement in federal rule and to notice
requirement in 609(f) regarding impeachment by prior
conviction
o It is error to admit 404(b) evidence if state does not comply
with notice provision
But on appeal harm will be measured
Foundation for admitting SICs in criminal cases:
o Assuming there is 404(b) objection, prosecution must show
that the acts are relevant to a material issue in the case
Establishing that evidence is being offered for
reason other than to show propensity- if not relevant
for some other reason, not admissible
o If the trial court decides that 404(b) evidence is relevant
and otherwise admissible (see BOP below), if opponent
makes 403 objection, trial court must determine if danger
of undue prejudice substantially outweighs probative value
of the evidence
o If admitted, opponent should request limiting instruction
The proponent of evidence of other transactions or conduct must show that
the extrinsic act was in some way committed or performed by the person
in question.
DIFF: Burden of Proof for admitting an uncharged extraneous act (v. prior
conviction):
BOP- proponent has BOP to show that the act occurred
o Fed (all) and TX civil prove preponderance of the
evidence
o TX crim- prove it happened beyond a reasonable doubt
Deciding whether to admit the evidence in TX:
o Judge decides under 104(b)
104(b) involves personal knowledge, authentication,
and 404(b)
Even though 104(a) does not require court to make
a preliminary finding of the proof of the acts, 104(b)
does.
o Harrell case: Judge initially decides if enough evidence has
been presented to allow a reasonable juror to find
preponderance of evidence (civil)/beyond reasonable doubt
(criminal) that the act occurred
Prosecution, in order to introduce into evidence, is
going to have to call witnesses/present documents
to prove it happened
Deciding whether to admit in Fed. (Huddleston):
60

o In 404(b) context, the judge must determine under 104(a) if

similar act evidence is relevant and it can only be relevant
if the judge determines that the jury can reasonably
conclude that the act occurred and that the D was the actor
Rejected preponderance of the evidence standard
for civil and criminal cases
o Court must consider all evidence presented to the jury-one
thing may be insufficient, but okay if sufficient
cumulatively
o If later in the trial the judge determines that evidence
offered to jury is insufficient, the court must give
instruction to disregard
Court must give jury instruction that they are not to consider the
alleged act unless it finds, by a POE/BRD, that the D committed
the act (TX)
On cross-examination, SICs do not have to be proved by a
preponderance/beyond reasonable doubt like they do when
introduced independently under 404(b).
SICs also subject to Rule 403
Can defense remove need for evidence of extraneous offense if
the D offers to stipulate to the issue for which evidence is offered?
o What is TX rule? prosecution does not have to stipulate
Ask judge to put on record out of presence of jury
If it appears to be character evidence, consult rules 404 & 405
If the SIC is admissible for one purpose but not another, request a limiting
instruction (Rule 105) when the question is asked
Appellate courts have said that if the opponent fails to request a
limiting instruction about considerations of the jury, they cannot
complain on appeal about the consideration of the evidence by the
jury
Ask the judge to make the prosecution specifically state the
reasons for introducing the evidence, make them commit to a
specific reason and this should be the purpose in the limiting
instruction
Should include that the jury must first conclude BRD/by POE that
the D committed the extraneous offense
A limiting instruction is NOT needed when it is context, res
gestae, or background evidence or if there has only been an
indirect hint of the extraneous offense
Opponent should file motion in limine to get it excluded, or at least to
make proponent approach the bench and get a ruling before presenting the
evidence
When objecting to Rule 404(b) evidence, the objection must be timely and
SPECIFIC!
61

Need to specifically state that the evidence of the acts being

offered is not within the scope of 404(b) and is being offered to
prove the D is a criminal
o Demands a relevancy analysis and there must be a fact in
consequence-an elemental fact
Failure to object usually=waiver
Procedural Summary
In criminal cases, the prosecution must give reasonable notice of
SICs (after D requests)
o Some courts say open file policy is not good enough
o If they dont give notice you may be able to exclude
D makes specific 404(b) objection
BOP- proponent has BOP to show that the act occurred
o Fed (all) and TX civil prove preponderance of the
evidence
o TX- prove it happened beyond a reasonable doubt
Who decides whether to admit the evidence
o Judge decides under 104(b)
o Judge initially decides if enough evidence has been
presented to allow a reasonable juror to find preponderance
of evidence/beyond reasonable doubt that the act occurred
Assuming its admissible under 404(b), opponent does 403
objection, then judge should conduct 403 balancing test
Assuming judge strikes the balance and allows, ask for 105
limiting instruction what they can and cannot use evidence for
Relation to other rules
404(b)-SICs
405(b)- character in issue
608(b)- CW credibility
613(b)- bias
412(b)- sexual assault
o See art. 38.37 of Code of Criminal Procedure (children
under 17, acts against the same victim, could maybe argue
propensity big exception)
o Under TX Rule 412, in a sexual assault case, SICs are admissible to show victims
past sexual behavior if (see above for details):
Necessary to rebut or explain scientific or medical evidence offered by
state
Past sexual behavior with the accused led him to believe it was consensual
It relates to motive or bias of the alleged victim in bringing the charge
Admissible under 609
Constitutionally required to be admitted

62

o Under Fed. Rules 413-415, SICs of the Ds prior similar crimes in sexual assault
and child molestation cases are admissible on any matter relevant to the case.
**Fed. Rule 413 & 414
Fed. crim- They can show Ds prior sex acts as long as relevant
In a criminal case in which the defendant is accused of an offense of (sexual
assault/child molestation), evidence of the defendants commission of another
offense or offenses of (sexual assault/child molestation) is admissible, and may
be considered for its bearing on any matter to which it is relevant.

Fed Rule 415

Fed civil case, Ds prior SICs admissible to prove propensity (same
as above)
Fed rule 412 applies in both civil and criminal
DIFF: In TX, Rule 412 only applies to criminal cases
Rule 412. Sex Offense Cases; Relevance of Alleged Victims Past
Sexual Behavior or Alleged Sexual Predisposition
(a) Evidence Generally Inadmissible.The following evidence is not admissible in any
civil or criminal proceeding involving alleged sexual misconduct except as provided in
subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual
behavior.
(2) Evidence offered to prove any alleged victims sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise
admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged
victim offered to prove that a person other than the accused was the
source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged
victim with respect to the person accused of the sexual misconduct
offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional
rights of the defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual
predisposition of any alleged victim is admissible if it is otherwise admissible
under these rules and its probative value substantially outweighs the danger of
harm to any victim and of unfair prejudice to any party. Evidence of an alleged
victims reputation is admissible only if it has been placed in controversy by the
alleged victim.

o In TX under Art. 38.37 of CCP, notwithstanding 404 and 405, Ds SICs against a
child victim shall be admitted for its bearing on relevant matters, including:
the state of mind of the D and the child; and
The previous and subsequent relationship between the D and the child
Applies to offenses against a child under the age of 17
Includes a notice provision similar to 404(b)
Legislature used the word shall to take out much of the discretion of trial
judges in admitting this evidence
But it is still subject to a rule 403 balancing test
Review of Character Evidence and SICs
I. Overview
63

 D ???-get from Ellee/Val

II. Character in Issue- offer character evidence to prove directly that person has a character and
that that character is an essential element of a claim or defense. (Rare)
Crim- only seen in entrapment and insanity
Civil- negligent entrustment, child issues, etc.
No mention of this in 404
This is mentioned in 405(b)- if character is in issue, the evidence can be introduced by
SICs, reputation, opinion evidence
III. Character offer evidence to circumstantially prove a propensity to act in conformity with
that trait.
General Rule: cannot use character evidence to prove circumstantially that they acted in
conformity
Exceptions (Know diffs between TX criminal, TX civil, and Fed.):
o Know the difference between TX homicide cases, TX non-homicide cases, Fed.
homicide cases, Fed non-homicide cases, TX civil and TX crim
o Parties
Crim 404(a)(1)(A)/405(a)
Defense opens door by calling a CW in opinion or reputation
testimony
Then prosecution can cross examine and inquire about the
DEFENDANTs SICs (must have good faith basis for asking the
question). Can also cross-examine about other things about the
case.
Same in criminal federal cases
We call this the good character defense
o Establishing circumstantially through testimony that person
is not the kind of person to do the act
Civil 404(a)(1)(B)/405(a)
TX and Fed rules different there is no provision in the fed rule
for character evidence of the accused in civil cases
TX civil- any party in a civil case (whoever is being accused of)
who is accused of an act involving moral turpitude may introduce
evidence of character.
Art. 38.37 Code of Criminal Procedure
Relates to sexual assault
Without the defense opening the door, the prosecution can
introduce prior SICs of the D with the same victim (child under 17)
Fed. R. 413-415
In sexual assault cases, the prosecution can call CWs without the
defense opening the door.
o Victims 404(a)(2)/405(a)
o Witnesses 404(a)(3)/405(a)
o Special Cross-examination
64

 have you heard & do you know are reserved for character witnesses
o Sentencing
Character evidence is admissible during sentencing in a fed and TX case
o SIC Evidence
General Rule
Evidence of SICs is inadmissible to prove someones propensity
and therefore to show that on a particular occasion they acted in
conformity with those acts.
Exceptions:
Character in issue (405(b)) (child custody, libel, slander, negligent
entrustment, insanity, entrapment, etc.
Character used circumstantially 404(b)
Using SICs for Non-propensity purposes
o See 404(b) motive, intent, opportunity, etc.
o Outside of 404(b)- Non-propensity purposes: conviction,
bias & interest, habit, context of offense (when background
came out of same transaction-res gestae)
o Rebuttal (see class on impeachment)
If witness takes stand and says they have never
done something, on cross-examination opponent
can bring up SICs to prove that act has been done
and documentation can be admitted as evidence
Bias- 613(b) (see class on impeachment)
o SICs may be evidence of bias
Contradiction (see class on impeachment)
Habit
o SICs can be introduced to show a habit
o Pattern has been repeated often enough to convince the
judge that its a habit
SICs maybe- 404(b), 405(b), 608(b), 613(b), 412(b)
All have different tests for admissibility

Credibility Evidence
RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the party calling the witness.
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by
evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into
on cross-examination of the witness nor proved by extrinsic evidence.

65

RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been
convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the
crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the
probative value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that
conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative
value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible
under this rule if:
(1) based on the finding of the rehabilitation of the person convicted, the conviction has been the subject of a
pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and that person has not been
convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of
punishment;
(2) probation has been satisfactorily completed for the crime for which the person was convicted, and that person
has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude,
regardless of punishment; or
(3) based on a finding of innocence, the conviction has been the subject of a pardon, annulment, or other equivalent
procedure.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is not admissible, except for proceedings conducted
pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by
the Constitution of the United States or Texas.
(e) Pendency of Appeal. Pendency of an appeal renders evidence of a conviction inadmissible.
(f) Notice. Evidence of a conviction is not admissible if after timely written request by the adverse party specifying
the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to
use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
RULE 610. RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing
that by reason of their nature the witness' credibility is impaired or enhanced.
****RULE 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND SUPPORT
(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior
inconsistent statement made by the witness, whether oral or written, and before further cross-examination
concerning, or extrinsic evidence of such statement may be allowed, the witness must be told the contents of such
statement and the time and place and the person to whom it was made, and must be afforded an opportunity to
explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request
the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement,
extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as
defined in Rule 801(e)(2).
(b) Examining Witness Concerning Bias or Interest. In impeaching a witness by proof of circumstances or
statements showing bias or interest on the part of such witness, and before further cross-examination concerning, or
extrinsic evidence of, such bias or interest may be allowed, the circumstances supporting such claim or the details of
such statement, including the contents and where, when and to whom made, must be made known to the witness,
and the witness must be given an opportunity to explain or to deny such circumstances or statement. If written, the
writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If
the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted. A party
shall be permitted to present evidence rebutting any evidence impeaching one of said party's witnesses on grounds
of bias or interest.
(c) Prior Consistent Statements of Witnesses. A prior statement of a witness which is consistent with the
testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).

Generally
Rules relating to credibility: 607-610, 613
66

See chart on p. 69 of BB for relationship of character evidence to credibility

Impeachment is a means for an attorney to call a witnesss credibility into question, in
hopes of swaying the jury not to believe that witnesss testimony.
o You can also rehabilitate your own witnesss credibility after cross-examination
NO bolstering prior to cross-examination
o This is an attack on the witnesss credibility, not the proponent party!
Three main stages/types of credibility evidence
o Bolstering
o Impeachment
o Rehabilitation
Witnesses statements must be relevant, must have personal knowledge, competency
Have possibility of 403 objection- legal irrelevance
Credibility is always an issue b/c the jury will receive an instruction to decide their
credibility and the weight
The judge decides admissibility of the statements but jury can ultimately reject.
Credibility, veracity, believability (used interchangeably, technically different)
Ad hominum attack- when you attack the person, not what they are saying (attacking
their credibility)

Bolstering Rule 608(a)

****RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.

Definition- When the party calling the witness attempts to increase witnesss credibility
before it has been attacked by the opponent
o Premature rehabilitation
o Not allowed!
BUT SEE Rule 702- proving up qualifications of experts
Rationale for not allowing- an attack may never occur, and then it needlessly extends trial
and may confuse jury
There may be an exception and allow bolstering when prosecution is allowed to present
evidence that the victim made a fresh complain about the attack (to show lack of
fabrication) before victims credibility is attacked

Impeachment
Rules 607-610, 613 cover impeachment
Two broad types of impeachment:
o Focus specifically on the witnesss testimony in the case itself
o Generally attacking witness as an untruthful person
Rule 607 allows any party (including the party who called the witness) to impeach any
witness
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o **RULE 607. WHO MAY IMPEACH: The credibility of a witness may be attacked by any
party, including the party calling the witness.

o This was a rejection of the common law voucher rule which held that you
vouched for the credibility of the witness by calling them, so only the opposing
party impeached
Could only impeach if witness was hostile and hostility was a surprise
o If a party knows that its witness will testify unfavorably and the party offers
ostensible impeachment evidence for the primary purpose of presenting otherwise
inadmissible evidence, the evidence may be excluded under 403
o Does not restrict a party to any particular method of impeachment
o Rule 607 does not apply to evidence/inquiries not related to the credibility or
impeachment of a witness.
Rule 607 does not permit the proponent of a document to attack the
truthfulness of facts within the document
o Interplay with hearsay:
Prior inconsistent statements made under oath in judicial proceeding or
deposition may be non-hearsay under 801(e)(1)(A) or 801(e)(3) and may
then be admitted for purposes of impeachment and for substance.
But even if the statement was not given under oath in a judicial proceeding
or deposition, it may still be admissible but only for impeachment.
May impeach through several common techniques:
o Through evidence of bias
o Showing a prior inconsistent statement
o Showing character for untruthfulness
o Proof of a witnesss specific acts (SICs)
o Proof that a witness has been convicted (609-conviction time)
o Evidence which contradicts a witnesss testimony
o Proof that the witness lacks one of the common-law elements of competency
o Experts
o Omission/Silence (513?)
Bias
**** RULE 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND SUPPORT
(b) Examining Witness Concerning Bias or Interest. In impeaching a witness by proof of circumstances
or statements showing bias or interest on the part of such witness, and before further cross-examination
concerning, or extrinsic evidence of, such bias or interest may be allowed, the circumstances supporting
such claim or the details of such statement, including the contents and where, when and to whom made,
must be made known to the witness, and the witness must be given an opportunity to explain or to deny
such circumstances or statement. If written, the writing need not be shown to the witness at that time, but
on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or
interest, extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence
rebutting any evidence impeaching one of said party's witnesses on grounds of bias or interest.

o TX Rule 613(b)-deals with bias and SICs maybe

DIFF- Fed. Rules do not specifically address bias as a method of
impeachment, but SC said that it is allowed in Fed. Courts

68

o
o
o
o

A criminal Ds right to cross-examine a witness about that

witnesss bias may actually override other rules which would
exclude the evidence
But see 404(b)
To impeach for bias you must cross-examine the witness who has the potential
bias or interest
Cannot impeach through cross-exam of another witness.
Ws bias or interest is never collateral
Proponent must show nexus between Ws testimony and potential bias
Examples of bias:
Relationship to a party, past relationships, personal or financial stake in
the outcome of a case
Foundation for impeachment using bias or prior inconsistent statements:
In TX, before using extrinsic evidence to expose bias or interest, the
opponent during cross-examination must tell the witness about the
circumstances or statements which show the bias and give the witness the
opportunity to admit/deny/explain the bias/interest- Rule 613(b)
Parallel to Rule 613(a) for prior inconsistent statements-TX has
adopted requirement of CL Queens case
Must tell (Queens case):
Contents of statement
Where, when and to whom made
This essentially functions as notice
Fed. rejected Queens case for prior inconsistent statements so does that
mean that they also do not have a specific foundational requirement for
showing bias??
Using SICs to prove bias:
** The rules regarding SICs (rules 404, 405, 608, 609) do not regulate the
admissibility of SICs when the SICs are used to show bias or interest!!
Distinction b/t 608(b) and 613(b)- 608(b) deals with general
character for untruthfulness so SICs not allowed to impeach;
613(b) deals with witnesss credibility in particular case because
of some bias or interest so SICs admissible.
o 613(b) is not an exception to 608(b)- different
If witness unequivocally admits such bias or interest, extrinsic evidence of
same shall NOT be admitted
But if they waver at all, you can introduce extrinsic evidence to prove bias
Cannot call a witness to the stand that you know is going to make
inconsistent statement, bias, etc. just to impeach them and introduce their
SICs
Bias not normally considered ad hominum attack, but could be in very specific
case?

69

o Experts may be impeached by cross-examining them in regard to the number of

times they have testified, pymts they have received for testifying, and their
positions on subjects that they may have a professional interest in maintaining.
o Ex: Can I cross-examine you about the fights you got in with the defendant?
404(b) says no, but 613(b) may allow if it is being introduced to show bias
instead of character.
For 613(b) it would be for non-character, non-propensity purpose
Prior Inconsistent Statements- Rule 613(a), Rule 615
****RULE 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND SUPPORT
(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a
prior inconsistent statement made by the witness, whether oral or written, and before further crossexamination concerning, or extrinsic evidence of such statement may be allowed, the witness must be told
the contents of such statement and the time and place and the person to whom it was made, and must be
afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the
witness at that time, but on request the same shall be shown to opposing counsel. If the witness
unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This
provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).

o Rule 613(a)- How does this rule relate to bias?

They are almost identical.
But see hearsay rules esp. 801
o TX: You have to lay the same foundation by putting witness on notice and giving
them an opportunity to explain or deny first
DIFF: Fed. rejected the Queens case so there is no particular foundational
requirement
BUT SEE Rule 801(e)(2)- foundation requirements for use of a prior
inconsistent statement do not apply to admissions of a party-opponent as
defined in 801(e)(2).
o When a prior inconsistent statement is admissible into evidence, it does not matter
if it (or the one being said now) is true-only using it to show inconsistency
Not admissible if the probative value is to show that the prior statement
was untrue v. showing inconsistency
o TX: If they unequivocally admit/say an inconsistent statement, you have
impeached the witness and you MUST stop. You are stuck with what they say.
You cannot introduce extrinsic evidence of the statement
This is why a lot of times attorneys refresh their witnesss memories with
their prior depositions before trial.
DIFF: Witness must be given an opportunity to explain or deny the
statement (at some point) and opposing counsel must be given opportunity
to question the witness UNLESS the interests of justice otherwise require
May be able to introduce the evidence before the witness has an
opportunity to explain or deny?? But they must, at some point,
have the opportunity?
If witness denies the statement, you can introduce extrinsic evidence and
call other witnesses to prove up the document
Must authenticate the statement under 901(a) as being the witness

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If the witness does not admit the statement, many attorneys and judges in
the state will not allow the witness to read the document aloud to the court
unless it has been introduced into evidence.
In state court you probably dont ask witness to read it aloud, you
paraphrase it. In federal court you may be able to have them read it
aloud
If cross-exam party introduces only part of inconsistent statement, the
opposing party may introduce the rest under optional completeness rule as
allowed by 106 & 107
When cross-exam party opens the door about a particular subject,
opposing party can offer otherwise inadmissible evidence to
correct a false impression
A prior inconsistent statement is not considered hearsay if introduced to show
only that an inconsistent statement was made and not for TOMA
Opponent should request limiting instruction that it cannot be considered
for its truth
Unless it is a nonparty witness who made a prior inconsistent
statement under oath subject to penalty of perjury at trial, hearing
or other proceeding (except grand jury hearing in crim case) or in a
deposition and W now testifies at trial or hearing and is subject to
cross-exam concerning the statement this is covered by 801(e)(1)
(A) and is not hearsay so it can be considered for TOMA
Also an admission by a party-opponent is not hearsay if offered
against that party no limiting instruction b/c it can be considered
for TOMA and impeachment
Under 801(e)(3) a PIS made in a deposition in the same case is
admissible for both impeachment and TOMA
Under 804(b)(1) a former statement of the W is admissible for both
purposes
When used for impeachment, a statement by an OTCD does not violate
criminal Ds right of confrontation when impeachment is conducted
pursuant to 806
For 806, a hearsay declarant (whether in court or not) may be
impeached with that declarants PIS without the foundation
requirement, but the impeaching party must show that the prior
statement is inconsistent.
If there is an inconsistent statement in writing, the witness does not have to be
shown the statement but the opposing counsel does have to be shown if they
request.
See BB p.11617 lists steps for impeaching witness through use of prior
inconsistent statement and p. 118 for chart of differences
Prior Inconsistent Statement may be in the form of:
An explicit statement, an opinion, or maybe admission by silence (but see
privilege agst self-incrimination in crim cases).

o
o
o

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Ex of omission or silence: Ws pretrial statement says A and B

attended the meeting. In direct exam W says A, B, and C attended
the meeting
Inconsistent acts or conduct will probably not be covered by this rule
Note: just b/c 613(a) does not authorize the use of prior
inconsistent conduct, does not mean that it prohitbits impeachment
by cross-examination concerning such conduct. Only means that
613(a) will not be the basis for it. (self-contradiction, not 613)
BUT if Ws prior conduct was communicative in nature, such as a
nod or gesture intended to be a substitute for a verbal statement,
the conduct should be considered a statement (801(a)(2)) and
should be admissible for impeachment under 613(a)
o If it does not fit definition of statement in 801(a)(2),
evidence of the conduct should be admissible under general
rules of relevance to contradict. When being offered to
impeach by contradiction (rather than impeachment) the
evidence is admissible as substantive.
Rule 608(b) does not apply because it relates to a witnesss
general character for truthfulness, and impeaching by showing
prior inconsistent conduct relates only to the witnesss truthfulness
in that particular case.
o Criminal: For criminal defendants, there is a right against self-incrimination
applied to the states through the 14th amendment
**Can cross-exam and impeach defendant with extrinsic evidence of PIS
made either prior to or after defendants arrest
Can you impeach them with the inconsistency of their silence?
In TX the D has a right to remain silent after ARREST
o So any silence after arrest probably cannot be used to
impeach; can impeach by silence pre-arrest
DIFF: In Fed the Ds right to remain silence is triggered by the
Miranda warnings.
o Silence after Miranda rights cannot be used to impeach but
there may time after arrest, but before Miranda rights which
can be used against them
o Counsel should not be allowed to ask about the prior inconsistent statements
without a good-faith belief in the factual basis for the question
i.e. should not be allowed to impeach by innuendo, of to make jury aware
of inadmissible hearsay, or elicit testimony which probative value is
substantially outweighed by prejudicial effect
o Collateral Fact Rule
Prohibits you from cross-examining and impeaching witness with a prior
inconsistent statement when that prior statement is only collateral to the
case (in an attempt to make them look bad), irrelevant matters
Ex: a W gives irrelevant testimony, the irrelevant testimony cannot
be impeached and extrinsic evidence cannot be introduced
72

Ex: only statements relating to this case, do not ask about prior
inconsistent statement made two years ago on an issue totally
unrelated to this case
o Rule 615 (a), (b) & (e)*RULE 615. PRODUCTION OF STATEMENTS OF WITNESSES IN CRIMINAL CASES
(a) Motion for Production. After a witness other than the defendant has testified on direct
examination, the court, on motion of a party who did not call the witness, shall order the attorney
for the state or the defendant and defendant's attorney, as the case may be, to produce, for the
examination and use of the moving party, any statement of the witness that is in their possession
and that relates to the subject matter concerning which the witness has testified.
(b) Production of Entire Statement. If the entire contents of the statement relate to the subject
matter concerning which the witness has testified, the court shall order that the statement be
delivered to the moving party.
(c) Production of Excised Statement. If the other party claims that the statement contains matter
that does not relate to the subject matter concerning which the witness has testified, the court shall
order that it be delivered to the court in camera. Upon inspection, the court shall excise the
portions of the statement that do not relate to the subject matter concerning which the witness has
testified, and shall order that the statement, with such material excised, be delivered to the moving
party. Any portion withheld over objection shall be preserved and made available to the appellate
court in the event of appeal.
(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party,
the court, upon application of that party, shall recess proceedings in the trial for a reasonable
examination of such statement and for preparation for its use in the trial.
(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an
order to deliver a statement to the moving party, the court shall order that the testimony of the
witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state
who elects not to comply, shall declare a mistrial if required by the interest of justice.
(f) Definition. As used in this rule, a "statement" of a witness means:
(1) a written statement made by the witness that is signed or otherwise adopted or
approved by the witness;
(2) a substantially verbatim recital of an oral statement made by the witness that is
recorded contemporaneously with the making of the oral statement and that is contained in a
stenographic, mechanical, electrical, or other recording or a transcription thereof; or
(3) a statement, however taken or recorded, or a transcription thereof, made by the
witness to a grand jury.

o TX Rule 615 applies to both sides (not just defendant), we are not bound by the
Jenks Act
o Applies only in criminal cases (is a discovery rule)!!!
o Requires production, on motion of the party who did not call the witness,
of any statement of the witness in possession of the calling party if it
relates to the testimony of the witness.
Witness must have testified (both TX and Fed.)
Production may be required of the statement of any witness in a
criminal trial except the defendant
o Distinguish b/t 612 612 applies to writings used to refresh recollection, regardless of
who prepared it; 615 applies to statements by those who are
witnesses at trial regardless of whether they are used to refresh
612 use before the jury rule applies only when the writing is
used at trial; 615 applies to any statements whether or not brought
before the jury
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612 it does not matter who prepared the writing; 615 applies only
to statements prepared by the witness
o DIFF: Fed- Under Jenks Act (equivalent to TX Rule 615), as a criminal
defendant in federal court, once government witness takes stand and
testifies, the defense is entitled to request any prior statements made by
that witness
o 615(e)- if statements are not turned over, the judge can strike the testimony and if
its the prosecution refusing to turn it over, it can result in mistrial
o Big picture: In a criminal trial, you must presume the other side will get all prior
statements of your witness
Impeachment Through Expert Testimony Rule 702
o Topics not Appropriate for Expert Testimony
General Rule: ANY witness (lay or expert) may not directly offer
testimony as to whether another witness is being truthful or not
Expert may not act as a human lie detector (Ex: In my opinion the
witness is not telling the truth)
Why not?
o It is invading the province of the jury
The key word is directly (See Schutz case); Court of Crim. Appeals has
allowed it indirectly
Probably want to wait until witness has been impeached, then call
expert to set out symptoms or characteristics of members of that
class (children victims of abuse, etc) and then ask whether in his
opinion he believes the witness to be a member of that class (In
your opinion is the witness a victim of child abuse?)
Can introduce psychiatric evidence/testimony of persons mental
condition and ask expert if he believes the witness exhibits that
condition
Okay form of impeachment for experts opinion to conflict with
another persons testimony or statements
o Ex: medical examiner who performs autopsy says that in
his opinion the Ds testimony about the cause of death was
inconsistent with his findings
Expert testimony which indirectly bolsters the credibility of a
witness may also be permitted
o Expert testimony which is relevant for a substantive issue
for some reason other than impeachment should not be
excluded simply b/c it corroborates other evidence
BUT: A party may present, during its case-in-chief or cross-exam, general
testimony that directly attacks the credibility of a person
Ex: gen testimony that W has a general character for fantasizing or
is susceptible to manipulation
Ex: Testimony that W or victim exhibits common symptoms
associated with manipulation or fantasy

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Character for Untruthfulness Rules 404(a), 405, 608

****RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or
supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may
not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT;
EXCEPTIONS; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's character or character trait is not admissible for
the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait offered:
(A) by an accused in a criminal case, or by the prosecution to rebut the same, or
(B) by a party accused in a civil case of conduct involving moral turpitude, or by the
accusing party to rebut the same;
(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent
character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the
same, or evidence of peaceable character of the victim offered by the prosecution in a homicide
case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of
character for violence of the alleged victim of assaultive conduct offered on the issue of selfdefense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut
the same;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and
609.
RULE 405. METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is
admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In
a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait
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. In all cases where testimony is
admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of
conduct.
(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential
element of a charge, claim or defense, proof may also be made of specific instances of that person's
conduct.
o Using character evidence to attack the character/credibility of another party or
o
o

witness
When impeaching a witness with a character for untruthfulness, we use a CW to
attack the character of another party or witness that has testified on the stand
Under 608(a), reputation or opinion testimony about a witnesss character for
untruthfulness is admissible to impeach a witness.
This form of impeachment focuses on the person, not the persons
testimony in the case
Three Step Process for Impeachment
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A target witness (TW) testifies (any witness or party in the case) about
anything
You can impeach this one by other means without needing another
witness (CW), such as prior conviction isnt it true questions
A character witness (CW) testifies (opinion or reputation evidence) as to
the untruthful character of the TW under 608(a).
Ask them about character of TW with opinion or reputation
questions- 608(a), 405(a)
Recall: In crim case, the CW must be aware familiar with the
reputation or opinion prior to the offense
Generally if a character witness is called to testify to the reputation
of another witness, he may not also testify to his opinion of that
witness (does this work vice versa?)
The CW can be impeached just like any other witness
The CW can do double duty and act as fact witness and character
witness.
Counsel who called the target witness can cross-exam the character
witness through have you heard or did you know questions under
405(a). Under that mode of questioning the cross-examiner can inquire
into the prior truthful acts of the TW.
How can you attack CW?
o Bias-613
o Prior inconsistent statement-613
o Prior convictions- 609
o Specific contradiction
o CAN inquire about the TWs SICs
You are stuck with answer
Must have good faith basis and be able to tell judge
that 404(a)(3) directs you to other rules: 607, 608,
609
You are not only calling into question the CW credibility but you
are rehabilitating the TW
608- this is a witness rule and a credibility rule
Opinion or reputation testimony on TWs character for
truthfulness or untruthfulness (only these two traits)
Limit: Can only introduce evidence of truthfulness AFTER the
character of the TW has been attacked by opinion or reputation
testimony

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o Example/hypo:
Lets assume the TW was called by the P- this is step 1. Then they rest
their case.
Next, the D can call a CW to testify about lots of things, but lets assume
they are only being called for the character of the TW/attacking the
credibility of the TW through character testimony- this is step 2.
You can use their opinion and ask things like how long have you
known TW and would you believe TW on the stand when they
are testifying; but you cannot ask them to give examples of
instances of why or when the CW wouldnt believe them b/c this
would violate the SIC part of the rule. You can also use reputation
questions have you heard question witness according to
405(a).
Then P can cross-exam the Ds character witness in step 2. This is step 3.
They can do this through showing bias, or prior inconsistent statements,
prior convictions, and through SICs under 405(a)-the last sentence. This
is where you can ask did you know-for opinion and have you heard
for reputation. This is SIC cross-exam and the SIC is of the TW, not the
witness that is now testifying!!! You are trying to rehabilitate you TW
and discredit the CW by asking CW about times when the TW told the
truth-these are good SICs of the TW. (good example would be when the
TW told the truth even though he knew he would get in trouble)
Also, remember you are stuck with the answer and you have to
have a good faith basis for asking about the SIC of the TW.
Rule 404(a)(3) which is one of the big exceptions to no
circumstantial evidence for character- you can use circumstantial
evidence for a character witness. points to the rules to be used
****Rule 608- can impeach only for truthfulness or untruthfulness,
in the above example we are using untruthfulness. 608(a) is only
opinion and reputations. 608(a)(2) is a bandaid rule but we didnt
really talk about that.
Know 404(a)(3), 405(a), 608(a)
o Recap Can attack TW through PIS, bias or whatever you want when you crossexam them, but when attacking character for truthfulness you must call a
CW to do the attack.
So there must be 2 witnesses- CW and TW
In step 2 the character witness can only use opinion and reputation when
testifying solely as a CW, but if they testify about several other things as
well, they can use PIS, bias, etc.
Impeachment by Specific Acts (SICs)-Rule 608(b)
****RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may
not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

o Use 608(b) for SICs that are not qualifying convictions

77

o General Rule: SIC of witness, for purpose of attacking or supporting credibility

(other than 609), may not be inquired into on cross-exam NOR may it be proved
by extrinsic evidence
Credibility here is like character
Rule does not want opponent to be able to inquire into SICs of
witness to attack or support the witnesss character for truthfulness
Fed rule says character instead of credibility
TX rule 608(b) was really designed to attack a character attack on
the witness.
Exception: you can cross-examine them about SICs when they make false
impressions (for example, if they say they have never lied)
o General Rule: In TX, cross-examiner is not permitted to even ask the W about a
character-SIC
BUT, Ws SIC may be inquired about if it resulted in conviction under
609, shows a Ws bias under 613, if it is otherwise admissible under
404(b), or if W makes a blanked denial of any prior wrongdoing.
Cannot impeach through Ws use of alcohol or drugs unless used
to show bias, correct a misrepresentation, or demonstrate lack of
capacity
o If lack of capacity-must show that Ws perceptual capacity
was physically impaired by substances at the time of the
observation of events. (impeaches one of CL elements of
competency)
DIFF: Under Fed. 608(b), cross-examiner may ask the W about a prior
SIC reflecting on the witnesss character if judge determines that act is
probative (relevant) of truthfulness or untruthfulness.
Stuck with answer, even if it is a lie (may not introduce extrinsic
evidence if the act is admissible only for purposes of attacking Ws
character-when might he be able to introduce? Ex: bias)
o Limitation of 608(b) does not apply if not being used to
show Ws character
o Exceptions: Rule does not recognize exceptions, but caselaw does
Exception: If witness testimony (usually accuseds) creates a false
impression (blanket statements, etc.)
BUT the false impression must be created by direct testimony or
voluntary statement on cross-exam, prosecution may not nudge
door open by drawing it out of them and then taking advantage of
it by presenting SICs.
Exception: Bias, Interest, or Motive
May be able to introduce it under 613(b)
The difference between 608(b) and 613(b) is that 608(b) does not
allow witnesss general character for truthfulness whereas 613(b)
addresses a witnesss trustworthiness in the particular case

78

o Under 613(b) a party can also introduce SICs to support

Ws character for truthfulness if W has been attacked on
grounds of bias or interest
Exception: Rule 609 Conviction Time
o Rule 608(b) must be read in conjunction with 404(a)(3), 608(a), and second
sentence of 405(a).
404(a)(3) says that evidence of the character of a witness is admissible
pursuant to 608.
608(a) says that opinion or reputation evidence is admissible to attack or
support character of a witness for truthfulness or untruthfulness (also
404(b))
Last sentence of 405(a) says that a character witness who has given
opinion or reputation evidence may be cross-examined about SICs
But 608(b) prohibits cross-examining witness about SICs of the witness
for purposes of attacking or supporting his credibility.
Thus, the effect of 608(b) is to permit cross-exam of a CW concerning
SICs of TW, but not of the CW concerning his or her personal conduct as a
means of attacking CWs credibility, unless the conduct resulted in a
conviction under 609.
608(b) does NOT prohibit cross-exam of SICs of relevant conduct to rebut
testimony of a Ds or states W, or the testimony of a party that creates a
false impression
Door is opened to SICs when witness (including D) testifies to his:
o Specific acts of good conduct
o Makes blanket statements about his exemplary behavior
Must be more than a statement that he abides by the
law
o Makes blanket denials of committing the type of conduct
with which he is charged
SICs can be unadjudicated conduct
Counsel must be able to show court that such evidence is necessary
to correct false impression
This applies to false impressions made on collateral or irrelevant
matters
False impression must have been created on direct exam, or
voluntarily on cross-exam to prevent cross-examiner from nudging
door open with their questions then taking advantage of it
Rebuttal evidence of SICs cannot exceed the scope of the question
on direct exam and Ws answer
Generally, rebutting party can only question about the SICs, but
may not introduce extrinsic evidence
Evidence of SICs may be admissible under 404(b) and 405(b) if
relevant to purpose specified in those rules

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Evidence of SICs not admissible under 608(b) may be admissible under

doctrine of optional completeness if on same subject and could help
explain
o Rule 608(b) prohibits evidence of SICs only when offered to attack or support
witnesss character for truthfulness
Does not exclude extrinsic rebuttal evidence of SICs offered to show that a
statement made by D on direct exam was false- not attacking character;
its proving his testimony is untrue.
o Like character evidence, this sort of impeachment focuses on witness, not Ws
specific testimony.
o TX is in the minority of jurisdictions that says you may not question a witness on
the stand about prior SICs
o See problem 6-14(c) and answers in notes
o p. 538- Discusses relationship to other rules dealing with SICs
o These rules do not prohibit the introduction of SICs for non-propensity purposes
o Lie detectors are said by TX courts to be unreliable per se
Impeachment by Contradiction
o Ex: 3 witnesses say that it was raining that day, I introduce evidence for the day or
witnesses who say it wasnt that day
Impeachment by Omission or Silence
o Show them statement and show that they signed saying they knew the importance
of the statement to police; and then say what you just testified to is not at all in
your statement with the police
Impeachment by Prior Conviction-Rule 609

****RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME

(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has
been convicted of a crime shall be admitted if elicited from the witness or established by public record but
only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court
determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten
years has elapsed since the date of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect.
(e) Pendency of Appeal. Pendency of an appeal renders evidence of a conviction inadmissible.
(f) Notice. Evidence of a conviction is not admissible if after timely written request by the adverse party
specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance
written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest
the use of such evidence.
Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General rule.For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted,
subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year
under the law under which the witness was convicted, and evidence that an accused has been
convicted of such a crime shall be admitted if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the
punishment, if it readily can be determined that establishing the elements of the crime required
proof or admission of an act of dishonesty or false statement by the witness.

80

(b) Time limit.Evidence of a conviction under this rule is not admissible if a period of more than ten
years has elapsed since the date of the conviction or of the release of the witness from the confinement
imposed for that conviction, whichever is the later date, unless the court determines, in the interests of
justice, that the probative value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as
calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance
written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest
the use of such evidence.
(e) Pendency of appeal.The pendency of an appeal therefrom does not render evidence of a conviction
inadmissible. Evidence of the pendency of an appeal is admissible.

o See prob 6-14(b) and answers in notes

o Deals with prior convictions of the witness, not the D (unless he is the W)
What if D is TW under 404(a) but did not testify??
o Logical relevance: if the person has shown propensity to ignore social norms on
prior occasion, W is less likely to follow the norms associated with taking an oath
or promising to tell the truth at trial.
o Focuses on person, not necessarily specific facts in the case
o See BB p. 120 for DIFFs in Fed and TX rules
o If the SIC resulted in a conviction and D takes the stand and says he was never
convicted, the impeaching party is NOT stuck with the answer.
Impeaching party is not bound by Ws answer and offer independent
extrinsic evidence of the conviction whether or not the witness admits it.
o Rule 609 applies only to convictions offered for the purpose of impeachment.
Convictions (even those not qualified under 609(a)) may be admissible
under other rules:
404(b) as bad acts
613(b) to show bias or interest
For enhancement in criminal punishment phase
Used to correct a false impression
o Public records used to prove conviction still must pass authentication, hearsay and
best evidence
o Unless evidence of a prior conviction is admissible under another rule, a limiting
instruction should be requested as this material is only used to impeach
o Rule 609 v. Rule 403 Rule 609 does NOT use a Rule 403 balancing test!!! Rule 403 test
determines if it substantially outweighs, and rule 609 just asks if it
outweighs (unless its been over 10 years). In Rule 403 there is also a
presumption of admissibility, Rule 609 presumes inadmissibility (BOP on
proponent).
Note: We now have three balancing test:
Rule 403: substantially outweighs
Rule 609(a): outweighs
Rule 609(b): substantially outweighs
o Rule 609(a)-TX: simple balancing test
Fed- two balancing test
Regular witness- apply 403 balancing test
81

Accused- simple balancing test (probative value outweighs

prejudicial effect)
609(a)(2)-It must be readily determined that the crime involves
false statements or dishonesty, and then no balancing test will be
conducted, it is automatically admissible.

o Rule 609(b) If the conviction is more than 10 years old, it will generally be
inadmissible, unless its in the interests of justice to admit and judge will
do balancing test to see if probative value substantially outweighs the
prejudicial effect.
DIFF: Fed- pretty much the same as TX rule except that Fed. rule has
notice requirement for 609(b) and not 609(a)- TX has notice for boht
o TX rule allows impeachment through prior conviction only if it was a felony or
involved moral turpitude
See p. 549 n.12 for examples of offenses involving moral terpitude
DIFF: Fed Rule allows if W was convicted of a crime that was punishable
(not punished) by death or imprisonment of more than one year under the
law of the jurisdiction where witness was convicted
o See 609(c) about probation- if they have completed probation it may be
inadmissible
o Rule 609(f)-Notice requirement
Like 404(b)
TX: Evidence of prior conviction is only admissible if the proponent gives
opposing party notice of intent to introduce convictions after timely
request which specifies the witness.
DIFF: No notice requirement in 609(a) of Fed rule
o For convictions over 10 years old, the proponent must give
adverse party sufficient notice in writing of intent to use
o If conviction does not fit within 609, it could be admissible under 404(b), 608(b),
and 613(b).
o In both Federal and TX the defendant is not entitled to a pre-trial ruling, and the
defendant must actually testify to obtain ruling before prosecution tries to
impeach them on cross-exam (clarify this)
o Rule 609(e):
In TX SICs of prior conviction that have a pending appeal are NOT
admissible
DIFF: fed rule pendency of appeal does not render this evidence
inadmissible, but evidence of the pending appeal is admissible.
Impeachment by Attacking CL Competency Element
o CL applied 4 factors to determine whether witness was competent to testify:
Moral capacity
610-cannot use religious beliefs or opinions to impeach or bolster
witness

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o BUT you may be able to use religious affiliation to show

bias or motive
o **RULE 610. RELIGIOUS BELIEFS OR OPINIONS- Evidence of
the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature the
witness' credibility is impaired or enhanced.

Rule 603-Oaths
Mental capacity to observe
Mental capacity to recall
Can cross-examine about how much the witness has been coached
by the opposing counsel
Mental capacity to narrate
Ex: Cant testify because drunk
o The last three are all part of the credibility analysis
o You can ask leading questions on cross-exam
Rehabilitation
Once a witness has been impeached, counsel may attempt to rehabilitate the witness
through one of the following methods:
o Conducting redirect examination
o Introducing prior consistent statements -(limited) Rule 801(e)(1)(B)
o Corroborate the witnesss testimony
o Introduce evidence of the witnesss truthful character
good character evidence Rule 608(a)(2) you call character witness
and can only ask through opinion or reputation, then they cross-exam your
CW they can ask about SICs of target witness under 405(a) but cannot ask
about the CWs SICs under 608(b), unless under 609 or 613(b)
AFTER they have been attacked!!
o Introduce expert testimony
Rehabilitation v. bolstering
o Bolstering is before the witness is attacked, rehabilitation is after
Ways to rehabilitate
o Redirect exam
Explain inconsistencies of statements during cross-exam
Note: could kill sting of SICs by introducing them in your direct exam
before the opponent can cross-exam
For SICs, judge has some discretion in allowing facts of conviction to
show that it wasnt that bad, or how it changed their life, etc.
o Character witness Rule 608(a)(2)
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may
be attacked or supported by evidence in the form of opinion or reputation, but subject to
these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness;
and (2) evidence of truthful character is admissible only after the character of

83

the witness for truthfulness has been attacked by opinion or reputation evidence
or otherwise.

Most obvious attack on my witnesss character is when opponent calls

witness to attack my witnesss character
One way to rehabilitate my witness would be to attack the
credibility of the opponents character witness
OR I can call witnesses to support my witnesss character (because
door has been opened by opponent by attacking my witness)
608(a)(2)
What are examples of otherwise?
Impeachment by prior conviction (conviction evidence looks like
character evidence ad hominum attack)
To rehabilitate witness you are going to have to convince judge
that your witnesss character has been attacked
Slashing cross-exam: cross-exam goes for such a long period of
time and so detailed that it becomes an attack of your witness
Under 608(a)(2) impeached witness may be rehabilitated only by opinion
or reputation evidence
Character Attack does NOT occur when (does not open door under this
rule):
Prior inconsistent statements are used-attack on accuracy of Ws
testimony
opponent merely presents evidence that contradicts the Ws
testimony
opponent presents evidence of Ws inability to observe the matter
about which he or she testified
presents evidence of a Ws motive for testifying agst a party
presents evidence that W committed a crime in order to show that
Ws testimony is inaccurate.
Relation/reconcile to 608(b) - general rule: cannot ask this witness about
his personal SICs, unless I can show bias or something.
You have target witness, opponent calls character witness to
impeach target witness, now you can ask about SICs of target
witness under Rule 405(a), but cannot introduce SICs of character
witness under 608(b)
Cannot rehabilitate with character evidence unless their character has been
attacked
Expert may not testify that a particular witness or class of persons to
which a witness belongs is truthful (or untruthful)
o When deciding how to rehabilitate witness determine if they were impeached by
bias, character evid., etc.
o Prior Consistent Statements -Rule 613(c) and 801(e)(1)(B)

****RULE 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND

SUPPORT

84

(c) Prior Consistent Statements of Witnesses. A prior statement of a witness which is consistent
with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).
RULE 801. DEFINITIONS
The following definitions apply under this article:
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is:
(B) consistent with the declarant's testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive;

Prior consistent out-of-court statements of witness/declarant are

inadmissible unless provided by 801(e)(1)(B)
Relevance: statement has been consistent throughout and any
alleged bias has not affected their statement
o Show that prior to the time the act creating bias occurred
the statement was consistent
These statements are allowed to rebut express or implied charge
against declarant of recent fabrication or improper influence or
motive
o Timing is critical: PCS must have been made before the
alleged fabrication or improper influence or motive arose.
4 Elements for PCS under 801(e)(1)(B):
Declarant of PCS testifies at trial or hearing and is subject to crossexam
There is express or implied charge of recent fabrication or
improper influence or motive by opponent
o This can be a subtle implication through content, tone,
tenor of cross-exam (can also look to voir dire and opening
statement)
Proponent offers PCS of the declarant in rebuttal
o can take many forms: redirect testimony, rebuttal witness to
whom impeached W made PCS, Ws prior written
confession, written, tape-recorded, or videotaped statement,
prior pleadings, affidavit, letter written by W
o need to satisfy reqs of personal knowledge, authenticity
(for written statements), and best evidence
PCS was made prior to time that asserted improper motive to
falsify arose
o Not required that it was made prior to all motives to
fabricate arose- only the specific one alleged at trial
o Judge decides under 104(a) if motive to fabricate existed
when statement was made
801(e)(1)(B) does not prohibit other witnesses from testifying to the same
event consistently with Ws testimony (corroborating testimony)

85

PCS must relate to same subject or incident about which declarant testified
at trial, but prior statement not inadmissible simply because of
discrepancies in details
You must convince judge that opponent has opened the door for you to
rebut with prior consistent statements
Impeachment through prior inconsistent statement does not
necessarily open the door ??- has to be an PIS with accusation of
fabrication?
Look to overall tenor of cross-exam
My notes say that PCSs may be admissible to rebut prior
inconsistent statements or implications that the witness recently
fabricated his or her testimony or has been subject to undue
influence.
We get the double whammy:
We get to introduce the prior statement to rebut and rehabilitate
credibility
And we get to show the truth of the substance
o Statements in 801(e) are exemptions and therefore are
not hearsay and can be introduced for TOMA
613(c) states the converse of 801(e)(1)(B)- PCS not admissible as
substantive or rehabilitative evidence unless they qualify under 801
That means that PCS not allowed after Ws credibility or memory
has been attacked
Possible exception may exist when opponent elicits portion of
prior consistent statement the rest may be introduced under
optional completeness
DIFF: no Fed. counterpart, but Fed. Rule 801(d)(1)(B) is consistent
with TX rule 801(e)(1)(B)
o Corroborating Testimony
Just like opponent may impeach with contradictory evidence, proponent
may rehabilitate with evidence which corroborates Ws testimony
This can be subject to 403 objection if too much or repetitive evidence to
corroborate
Unlike other methods of rehab, no impeachment is necessary on crossexam to be able to admit corroborating evidence on re-direct
o Expert Testimony
Expert cannot be used as human lie detector i.e. cannot testify that in his
or her opinion the witness is telling the truth cannot testify directly
Some authority that if credibility of child-abuse victim has been attacked,
proponent may offer expert testimony to show that child abuse victims
tend to act in a certain way after such abuse and that in his opinion the
child is exhibiting those characteristics.

86

In regard to witness with diminished mental capacity, expert can testify

about ability of that class of persons to distinguish reality from fantasy,
accurately perceive, remember and relate kind of events in issue.
Must be an evaluation of the class
Is it only for child abuse victims?? what about 702 that says
experts can make general conclusions like this?
Expert is used to rehabilitate-not related to PCSs; does not just
apply to child abuse victims that is just where the caselaw is

Opinion Testimony-Lay Opinions & Expert Opinions

Courts have expressed strong preference for in-court testimony relayed by witnesses with
personal knowledge so rules governing admissibility of opinion testimony, like the rules
governing hearsay and best evidence, generally operate as rules of preference.
Opinion testimony will be admitted when:
o Necessity exists
o Reliability can be established and
o Proponent has adequately laid applicable foundation
Lay Opinions Rule 701
****RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a
clear understanding of the witness' testimony or the determination of a fact in issue.

701 allows lay witness to give opinion testimony based on personal knowledge where the
opinion will help jury either understand witnesss own testimony or help jury determine a
fact issue.
o Personal knowledge=foundation for lay opinion testimony
Rationally based on witnesss perception- personal knowledge
Must show that they had ability to perceive
Must also show that the witnesss testimony is rationally related to
the perception
Cannot be based on what someone else said
o Helpfulness requirement establishes relevancy
Helpful to understanding witnesss testimony or a fact in issue
helpfulness does not mean necessity for lay opinions
o There are certain areas where expert testimony is necessary
(malpractice cases)
Cannot be speculative
If testimony is only slightly helpful, that should go to the weight of the
testimony, not the admissibility. (is it any benefit to the fact-finding
process)
Court will decide if helpful on a case-by-case basis under 104(a)
When facts are straightforward and easy, accompanying lay testimony will
usually be rejected
87

If the witnesses is an interested party or has some bias, the testimony should still be
allowed if it meets requirements of 701. Opposing counsel will want to impeach and that
will go to weight, not admissibility
o But remember lay testimony is subject to 403
Collective Facts and Skilled Observations
o Lay opinion testimony may be offered to prove:
(1) collective fact or
State Ws conclusory opinion rather than numerous complex,
inarticulable facts opinion is based on
Ex: the car was going fast instead of wheels were spinning
super fast, reached the end of the street in the blink of an eye, etc.
o Cannot give a specific speed, ex: 40 mph
Ex: witness looked disheveled- this is a conclusory opinion but
there is no need to explain the reasons why you came to that
opinion (wrinkled clothes, messy hair, looks messy, etc.)
(2) skilled observation
W, because of familiarity with something, can form opinion
regarding its authenticity.
Ex: husband offers opinion on whether something was written by
his wife
o DIFF: Fed Rule specifically states that the opinion testimony cannot be based on
scientific, technical, or other specialized knowledge within the scope of 702
May be able to convince a TX court that this should apply in your case
even though this is not in the TX rules
Sometimes in TX, courts will allow lay opinion testimony of a skilled
observer who may not quite be an expert, but he is not merely a lay
witness
This way they dont have to overcome hurdles of 702 to introduce
as expert
In Fed court if you can convince the court that it is expert
testimony you can get it excluded because you have no notice,
because the rule includes a notice component for experts or those
with specialized knowledge
Opinion could be incorrect but that does not make it inadmissible
Scope of Lay Testimony
o Limited by:
Personal knowledge
Relevancy requirements and
Requirement that opinion testimony not be based on scientific, technical,
or other specialized knowledge within scope of 702 (Fed. Rule)
o Lay opinion may address cases ultimate issue (704)
If you can convince judge that your witness is relaying facts then you dont even need to
mess with rule 701
The law prefers facts over opinions
88

o 701 is a preferential rule b/c the law prefers facts but will accept opinions under
701s testimony
Establish basis for witnesss testimony by asking questions and then ask for their opinion
A witness may qualify to give testimony under both 701 and 702
o Counsel could introduce the witness as not-expert under 701 (as long as qualifiedi.e. first hand knowledge) and avoid gatekeeping function of 702
See p. 652 for common examples of lay testimony
o Cannot give specific example of speed, for example, cannot say they were going
40 mph, but you could say they were driving fast, like a bat outta hell, etc.
o How do you describe someones emotion- you can just say they were angry or
upset, etc. without going into all of the facts that made you reach that conclusion
o Property Owners Rule- Value (p.654)- this is admissible as long as there is a basis
in market value (most courts will allow)
Cannot be based on sentimental value
Does not extend to value of a third persons property
Can be justified because people should know about their property
Opponent will make hearsay objection and best evidence objection saying
that the opinion is based off of bluebook value so it is hearsay, and it
would be best evidence to have bluebook sheet
o Mental State:
Court will NOT allow opinion on defendants specific intent or motive
(the persons actual mental state)- lack of personal knowledge
Lay witnesses can offer testimony about a persons mental capacity (but,
in civil, for example, cannot testify that person has requisite legal capacity
when drafting will)
In crim, LW can testify about whether someone is sane or insane

Expert Opinions-Rule 702

****RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably to the facts of the case.

Can be based on hearsay and can go to ultimate issue

Pretrial: Upon request, each party is required to supply a list of experts (crim and civ)
Fed Rules 702-706 govern admissibility of expert testimony.
o Under 702, expert testimony may be solicited when scientific, technical, or
specialized knowledge would help the jury understand the evidence or determine
a fact issue.
Helpfulness serves as initial threshold for admissibility, b/c like lay
opinions, it establishes relevance
89

Before soliciting opinion from an expert, the proponent must first lay the foundation
qualifying the witness as an expert (702); proponent must show:
o Witness has knowledge, skill, experience, training, or education to testify as an
expert (not generalized knowledge)
There are no bright-line rules on who may be an expert
Whether a person is an expert in a particular case will depend on what
they are testifying about.
Academic training should not take precedence over experience;
occupational status alone is not enough; license or certification not
required though
o Implicit in foundation is that witness meets competency requirements of 601
o Proponent may then offer witness as an expert to the court
Foundation/Procedures
o Gate-keeping hearingout-of-court
Gate-keeping hearing will often be called a Daubert/Kelly/Robinson
hearing decided under 104(a)
Judge may consider otherwise inadmissible evidence in determining, for
example, whether expert is qualified
Daubert-Court rejected the Frye test
Kelly-CCA rejected the Frye test, predates Daubert
Robinson-TX SC rejected the Frye test also, after Daubert
****Recurring Problems Analytical Gaps
Even if expert is relying on reliable principles, testimony may be
inadmissible if proponent has not established the fit between
those principles and the facts of the case
Must be sufficiently tied to facts of case to assist the jury
o Ex: expert not aware of critical facts that may affect
testimony; opinion based on hypo facts; facts relied on are
at odds with other evidence
Problems arise when testimony is based on anecdotal evidence such as
case studies or interviews not sufficiently supported
****Recurring Problem-Ipse Dixit Opinion
Expert may not base opinion solely on subjective evaluation or
assessments (should be objective)
o b/c I said so testimony
Recurring Problem- expert fails to consider other possible causes or
reasons for the event or condition
Recurring problem- experts testimony may not rely solely on temporal
proximity of an event or condition to support a particular opinion
Ex: A was healthy, A took drugs, then A got sick. Cannot say drugs
made her sick just because it happened close together.
Courts accept expert opinion on profile of a person and syndrome
evidence (ex: Battered women syndrome)
Counsel must object before trial or when the opinion evidence is offered
90

 This is done out of the presence of the jury

Gate-keeping is used to keep out inadmissible evidence
Judge which does this hearing is not always the judge over the actual case
o Determining Expert Qualifications (voir dire, bolstering, tender, stipulate)
Judge determines this in gate-keeping hearing out of the presence of the
jury under 104(a)
Voir Dire
You can do a short voir dire to determine the qualifications of the
expert out of the presence of the jury
o Attempting to undermine qualifications of this expert
Voir dire and establishing credentials can be done in the presence
of the jury also
o Purpose of voir dire is to challenge the experts
qualifications
Bolstering
If the proponent goes too far in establishing the credentials of his
expert, opponent can object- may be considered bolstering
o Only object to bolstering when the examination of the
expert is in front of the jury
Stipulate
Opponent agrees that they wont object to your expert and that the
expert has the qualifications instead of continuing to establish the
credentials
o The proponent may not want to stipulate b/c they may want
to continue to establish the qualifications of their expert
Tender
Word of art to say that we offer the witness as an expert
In TX, if we tender the witness as an expert, the judge will respond
because it may be considered commenting
o Find out before trial if judge accepts formal tender
In Fed., some judges permit you to formally tender the witness b/c
it is a signal to make an objection or conduct voir dire
After laying qualifications for expert, keep going; get into facts of this
case
This will signal when to object
o Principles +Theories
DIFF: Fed rule 702 the testimony is the product of reliable principles
and methods
Current Standard: This was an effort to codify the ruling in
Daubert as the decision in that case was to focus on the reliability
of the principles/methods
Daubert, Kelly, Robinson-questions of novel evidence. Is it junk
evidence?
o They got rid of Fryes test
91

Old Standard: In 1920s the Court came up with the Frye test
o Proponent had to show that principles and methods relied
upon were generally accepted in the relevant scientific
community.
o Some states still use the Frye test, but not Fed. and not TX
New standard is a more flexible standard, opens the door for more
evidence
Factors SC said in Daubert/Kelly/Robinson to consider if whether the
evidence is reliable (p.174 in BB)
Key to all of these is RELIABILITY
Fed (Daubert):
o Factors (TPEG):
Has theory been tested
Peer review?
Rate of error?
Is it generally accepted in scientific community?
o BOP: POE
o SC rule inn Kumho that Daubert applies to ALL expert
testimony! (so would have to do this for psychologist, etc.
also-non scientific testimony)
All factors may not fit, but apply reasonably
o Court noted that some scientific principles are so widely
accepted that a court may judicially notice them.
TX Civil Case (Robinson):
o Must determine its relevant and reliable
o Factors
Extent of testing
Degree of subject application
Peer review
Rate of error
Generally accepted
Nonjudicial uses of theory
o BOP: POE
o Applies to ALL forms of expert testimony
TX Criminal Case (Kelly):
o Factors
Degree of acceptance
Qualification of expert
Existence of literature
Error rate
Peer review
Clarity of explanation
Skill/experience of person applying?
92

o BOP: clear and convincing evidence that the theory is valid

and reliable
Criminal courts approach this evidence skeptically
o Do not need to know the test, but for criminal the court
uses a 3 part test from Nenno to determine if testimony is
allowed-test applies to scientific and non-scientific
testimony
The four Daubert factors are embedded in both Kelly and
Robinson always looking for reliability
Legislature can mandate that some scientific techniques are
reliable: ex: breath tests
(**For course, Also need to know embedding of business record)
Prohibited Topics of Expert Testimony
o Generally, expert opinions may not be offered on the issue of credibility (a
persons truthfulness)
Experts opinion can be contradictory to another persons testimony
though
Also okay for expert testimony to indirectly bolster credibility of another
witness (as long as relevant for a substantive issue also)
Court of Crim Appeals in Schultz said:
A party may offer during its case-in-chief or during cross-exam,
substantive evidence of guilt which only incidentally addresses
credibility
Party may present testimony relating to the capacity of a class of
persons generally recognized by society to be impaired.
Party may present, during case-in-chief or during cross-exam,
general testimony that directly attacks credibility of a person.
o Ex: can say that child has a general character for making
dishonest statements
A party may present, during case in chief or cross-exam, general
testimony which directly supports credibility
In rebuttal, counsel may be permitted to offer specific testimony
attacking or supporting credibility which would include: (1)
testimony about SICs where witness has lied or told the truth (2)
testimony that witnesss testimony was the result of manipulation
or fantasy or was not the result of such, (3) testimony that witness
did not actually perceive or recall the events in question because of
a mental or physical impairment
o Experts cannot testify on domestic law/questions of law
May offer opinion on mixed questions of fact and law
Test for admitting qualified expert testimony is whether specialized knowledge will assist
trier of fact
o Must tie pertinent facts to his principles/opinion

93

Before entering objection, opponent may voir dire the witness regarding the Ws
qualifications
Court could consider an experts resume to prove up his competence, even though it may
be hearsay
Expert Opinion Testimony potentially comprised of three elements:
o The theory
The framework which supplies guiding principles expert uses to develop
opinion
Nothing in rule requires expert to lay out principles of theory, but doing it
gives greater credibility to experts opinion testimony
If expert does give theory, who should decide whether underlying theory is
valid?
Especially problematic when novel scientific theory
Until recently, courts used Frye test which allowed expert
testimony on theories which had gained general acceptance in the
particular field to which it belongs
o The underlying data
Facts expert examines and uses as basis for opinion
Facts of basis are of three types:
Facts derived from personal knowledge
o 602 satisfied
o Not a condition precedent for all types of expert testimony
Facts derived from trial data and
o Must be admissible, need not be admitted into evidence
though (proponent can choose to)
Facts derived from outside sources
o Only if facts could reasonably be relied on by other experts
o Not hearsay b/c not used for TOMA, but only as basis for
experts opinion
Ex: medical expert can base his opinion on (1) his own physical
exam, (2) his in-court review of Ps medical file and (3) his inoffice review of another doctors examination of the P.
Expert does not have to solicit facts upon which he bases his opinion, but
opponent has right to solicit them during cross-exam. Court may also
require under 705.
o The conclusion
This is the opinion
Scope of expert opinion testimony
o May only testify when scientific, technical, or specialized knowledge is required
to help the jury understand evidence or decide an issue
o Generally, experts opinion may address any matter, even the ultimate issue, so
long as relevancy of the opinion can be established.
There are certain express exceptions to this??
94

o Not limited to testifying about matters which he has personal knowledge (unlike
lay W)
o Expert may NEVER enter opinion testimony about the law or mental condition
(mental state) of a criminal defendant.
See chart on p. 174 comparing admissibility standards of fed and TX civ and crim
Must show that person is an expert in the field for which they are testifying
Rule 703:
***RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular case upon which an expert bases an opinion or inference may be those
perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.

Problem can arise when proponent tries to smuggle in inadmissible evidence by telling
the court that it needs to be heard as the basis of the experts opinion
Must show a factual basis for the experts opinion (Rule 703)
o Examining the subject yourself personal knowledge
o Doing the testing
o Checking the wells, the brakes, etc.
What Info can serve as factual basis?
o Personal knowledge
o Trial Data
Can get the basis during trial
Experts may sit in the courtroom (an exception) if they can prove
that it is necessary to hear the Ps case Rule 614
o Other witnesses will have to leave during trial
They can get factual basis from a hypothetical
It is a hypo of the evidence that is admitted or likely to be admitted
o Ex: Soil composition was full of calichi, been raining a lot,
poor drainage in this area
For hypothetical facts I am assuming that the facts have been
established in the trial; must include all relevant facts
if opinion is based on evidence not admitted at trial, it is the
opinion of the expert, not the data relied on that is the evidence
o jury must weigh info and make determination based on
experts credentials
Experts can base opinion on facts or data reviewed by the expert or
made known to him-this can be otherwise inadmissible data or facts as
long as they are type reasonably relied on by other experts
So hypos do not need to include only facts in evidence
o Outside Sources
Expert can rely on facts or data presented to him or made known to him or
reviewed by him outside of court
95

 This allows opinions based entirely on inadmissible data if data is

the type reasonably relied on by other experts in the field
o Thus, opinion may be based on hearsay outside source
should be reliable
o But should be inadmissible hearsay if expert is just
testifying to opinion of another (must make his own
opinion)
What if proponent tries to smuggle in inadmissible hearsay as the foundation?
o Okay, if it reasonably relied by other experts
Ex: medical records, etc
o Danger: they may try to smuggle in some of that otherwise inadmissible data into
the trial for the jury to hear
Opponent would object under 705 Step 1: judge must determine, on balance, if these facts could be
used for another purpose other than establishing witnesss
testimony
o Simple balancing test if it outweighs
If the facts are admitted before the jury, a limiting instruction shall
be given upon request
DIFF: Fed Rule puts the balancing test in Rule 703 instead of 705
o Fed Rule says that it substantially outweighs
Reverse 403 b/c proponent has to show that the
purpose of explaining underlying facts substantially
outweighs the value
Should have asked the expert to state his basis for his reliance at the gatekeeping hearing
Rule 705
***RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the
expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires
otherwise. The expert may in any event disclose on direct examination, or be required to disclose on crossexamination, the underlying facts or data.
(b) Voir dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a
party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be
permitted to conduct a voir dire examination directed to the underlying facts or data upon which the
opinion is based. This examination shall be conducted out of the hearing of the jury.
(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a
sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.
(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in
evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a
purpose other than as explanation or support for the expert's opinion outweighs their value as explanation

96

or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a
limiting instruction by the court shall be given upon request.

o 705(a) allows expert to offer opinion evidence without first disclosing the basis of
that opinion, unless the court requires otherwise.
Expert may be required on cross-exam to disclose underlying basis
This rule eliminates need for hypo questions
o 705(b) This rule allows for voir dire of expert about basis facts before testifying
In civil cases, voir dire is discretionary with judge
In criminal cases, voir dire must be allowed if requested
o 705(c) If opponent, after voir dire, makes prima facie showing of insufficient
basis for the opinion, the proponent must show that a sufficient basis exist (or the
OPINION is inadmissible)
o 705(d) If a sufficient basis exists, and otherwise inadmissible evidence or data
provides the basis of an experts opinion, it may be excluded if the prejudicial
impact of the evidence outweighs its beneficial value in explaining experts
opinion (or the underlying facts will not be admitted)
Judge will have to listen to arguments from both sides and determine if it
will be considered for inappropriate purposes
Conducts balancing testnot a 403 balancing test
Need limiting instruction
If evidence is independently admissible, this rule does not apply
Opinion is still admissible, just not the basis
Rule 704
**RULE 704. OPINION ON ULTIMATE ISSUE
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.

o Expert (702)+opinion (Daubert-reliable methods- 702, caselaw)gapfacts,

basis (703, 705)+Relevant=Opinion on what happened
o The expert must show how they got to their final opinion
See p. 90-96 for common problems with connecting it all. (do not need to
memorize entire list, but know analytical gaps)
****Analytical gaps-where the fit between the principles and the
facts arent tied in enough
Ipse dixit opinions-because I said so
Failure to exclude other causes or reasons
Stating only general principles
Anecdotal evidence
Improper extrapolation of analysis
Insufficient foundation
Temporal proximity
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o Courts allow an expert to offer an opinion of an ultimate issue in the case if the
expert was given sufficient legal criteria on which to form an opinion on a mixed
question of law and fact.
General rule: legal experts may not offer opinion on an ultimate issue on
the law
Exception: when its being offered for foreign law or when law is a
complex, confusing area of law (ex: patent law, military law, etc.)

Best Evidence Rules

These rules rest on a presumption that certain types of evidence are inherently more
trustworthy than others to prove certain disputed issues.
o This is a preferential rule b/c its a more reliable source
Best evidence rule v. best evidence principle
o Best evidence principle is a strategic concept
Ex: which witness will prove better testimony at trial
Best evidence principle-as a litigator you want to offer the most persuasive
evidence, which is the original most of the time
o But legally do not have to offer the best evidence for all types, only need to
comply with the best evidence rule
Best evidence rule applies only to (1) writings, recordings, and photos (2) whose contents
are a material issue at trial
o Proponent must produce either the original document or account for the originals
unavailability
Where proponent can account for unavailability, secondary sources can be
used at trial to prove contents of the original
No secondary sources allowed when proponent violates best evidence rule
Codification of the best evidence rules prevents judges from judicially expanding the
acceptable excuses for non-production of original documents (as they could at CL)
Just b/c a piece of evidence is admissible under best evidence rule does not make it
immune from other evidence rules
See chart on p. 240 of BB
Rule 1001
**RULE 1001. DEFINITIONS
For purposes of this article the following definitions are applicable:
(a) Writings and Recordings. "Writings" and "recordings" consist of letters, words, or numbers
or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing,
magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(b) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion
pictures.
(c) Original. An "original" of a writing or recording is the writing or recording itself or any
counterpart intended to have the same effect by a person executing or issuing it. An "original" of a
photograph includes the negative or any print therefrom. If data are stored in a computer or similar
device, any printout or other output readable by sight, shown to reflect the data accurately, is an
"original."
(d) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or
from the same matrix, or by means of photography, including enlargements and miniatures, or by

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mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent

techniques which accurately reproduce the original.

Best evidence rule is a misnomer because the rules do not always make you present the
best and most persuasive evidence available-especially since the rule only covers
writings, recordings, and photographs
o The rule does not cover demonstrative evidence (ex: the gun) but I probably want
to use that over testimony because its more persuasive
o Writings and recordings: pretty much includes every method of reproducing
letters, numbers and words.
Courts do have discretion in admitting an object which writings are
inscribed on
A transcript made from a recording or re-recording is not an original or a
duplicate b/c made by human, so susceptible to error?
o Photographs: includes still photos and motion pictures, X-rays, and video tapes.
Includes negatives or any print therefrom
Must the motion pictures and video tapes be silent??
No they dont have to be silent categorically,
We call it best evidence rule b/c its familiar from common law
A computer generated record or a computer generated display is an original if readable
by sight and if shown to reflect the data accurately
o Parallel authentication requirements under 901(b)(9)
How do we distinguish between the original and the copy?
o The intent for the document to be the original
o You can have multiple originals as long as they are intended to be originals
Duplicates can be originals if the creator intended for them to be originals
Duplicate
o A re-recording is a duplicate if reproduced in an accurate manner
o If its not an original, its a duplicate
o The key is that it accurately reproduced the original, means of duplication not
important
Ex: Andy witnessed a car accident, then went to his office and wrote a two page report
about what happened.
o While this may be the most persuasive evidence, it does not violate the best
evidence rule for him to testify instead of the report
o What if he recorded the scene of the wreck?
It should not violate the best evidence rule for him to testify instead of
using the recording
o What may trigger the best evidence rule is if the contents of the report or the
recording are in issue, if there are questions of authenticity, if the report or
recordings are copies.
o If trying to prove the accident through the contents of the report, the best evidence
rule applies and you have to produce the original report (generally)
A witness simply relating the event they saw does not trigger the best evidence rule
Policy for best evidence rule is to prevent fraud
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Rule 1002
****RULE 1002. REQUIREMENT OF ORIGINALS
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is
required except as otherwise provided in these rules or by law.

The original is required when content is trying to be proved and contents are in issue
o Content does not mean the event spoken of in the report or merely that testimony
draws attention to the writing, but when actually trying to prove the contents of
what is written in the report about the event.
When a witness is testifying, if he testifies about the report and we are introducing the
report into evidence then it must meet the best evidence rule
o But when testimony is used, best evidence rule may not always be invoked-it
depends on whether contents are in issue
o Where there is no dispute concerning the content, the interpretation and
construction of a provision of the writing does not violate this rule
Can admit incomplete copy, etc.
o Cannot apply to testimony that an event did not occur
o Does not apply to a writing used to refresh recollection under 612, to support
opinion testimony under 703, or to attack Ws credibility concerning the
understanding of the content of a writing
Rule 1003
***RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the
original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

General rule: A duplicate is admissible to the same extent as an original, unless the
opponent shows either that the original is in doubt or that it would be unfair to admit the
duplicate.
o That does not mean that its an original
o Whether it is an original or a duplicate will depend on intent
o If duplicate is admissible, proponent does not have to account for original
o Rule of optional completeness applies if proponent offers only a portion of the
duplicate
General Rule: rule 1002-must introduce the original
o Exception-Rule 1003: can introduce a clean copy (a duplicate) to the same extent
as an original unless there are questions of authenticity.
If no original or exception to the Best evidence rule, then secondary evidence may be
allowed and will include a sloppy copy, a partial copy, or oral testimony.
Rule 1004
RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
The original is not required, and other evidence of the contents of a writing, recording, or photograph is
admissible if:
(a) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith;
(b) Original Not Obtainable. No original can be obtained by any available judicial process or
procedure;
(c) Original Outside the State. No original is located in Texas;
(d) Original in Possession of Opponent. At a time when an original was under the control of the
party against whom offered, that party was put on notice, by the pleadings or otherwise, that the

100

content would be a subject of proof at the hearing, and that party does not produce the original at
the hearing; or
(e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling
issue.

All we need to know about 1004 is in the actual rule-what are the reasons you can use
other evidence
Rule 1005
RULE 1005. PUBLIC RECORDS
The contents of an official record or of a document authorized to be recorded or filed and actually recorded
or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified
as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the
original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable
diligence, then other evidence of the contents may be given.

This would allow you to use a document that is certified/authenticated, may even trump
1003
Would want the person working there who let you make a copy of the record to
authenticate that they saw you and they compared it to the real one and it was the same
o They could come testify at trial
Rule 1006
RULE 1006. SUMMARIES
The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot
conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The
originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a
reasonable time and place. The court may order that they be produced in court.

When there are lots of documents, you can use a summary of the writings
BUT all of the contents being summarized must be otherwise admissible
RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party
against whom offered or by that party's written admission, without accounting for the nonproduction of the
original.

Hearsay
Generally
Hearsay rule operates as rule of exclusion
Two objections to hearsay that always apply:
o Irrelevant
If the only or primary relevance of the out of court statement is its truth, it
is hearsay, even if offered only to prove a statement was made
o hearsay
Preferential rule- law of evidence prefers most reliable and trustworthy testimonial
o So in-court testimony is preferred over hearsay b/c there are evidentiary
safeguards:
Oath requirement
Personal knowledge requirement
Opponents opportunity to cross-exam
Reasons for the Hearsay Rule:
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o Out-of-court statements are not under oath

This is important b/c people are more likely to testify truthfully when
under penalty of perjury, etc.
o Possible error in transmission
May be misunderstanding or misinterpretation of what was said or
misspeak
o Fact finder is not able to observe the declarants demeanor at the time of the
statement
This helps to assess credibility
o Inability to cross-examine or confront the declarant at the time the statement was
made
Many believe this is the most important reason for the rule
Esp important in criminal cases with right of confrontation may be
acceptable under hearsay exemptions or exceptions but not under
confrontation clause
o These are not components of the definition of hearsay. Just b/c someone meets
one of these, that does not mean it is not hearsay
Ex: affidavit taken under oath-still hearsay
Hearsay objection is directed to threshold issue of admissibility, not weight of evidence
o Three Questions:
Is the evidence/statement hearsay? -801
If so, is there an exemption? (non-hearsay)- 801/statute
If not, is there an exception to the hearsay rule? -803/804
o If it is admissible under any of these methods, it can be considered for its truth
When objecting to hearsay, you need to object after the question is asked but before the
answer is given
Rule 801(a)-(d)Hearsay Defined
****RULE 801. DEFINITIONS
The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written verbal expression or (2) nonverbal conduct of a
person, if it is intended by the person as a substitute for verbal expression.
(b) Declarant. A "declarant" is a person who makes a statement
DIFF: (c) Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and any matter
implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to
the matter. (see 401?)
(d) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.
Rule 801. Definitions
The following definitions apply under this article:
(a) Statement.A statement is (1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by the person as an assertion.
(b) Declarant.A declarant is a person who makes a statement.
(c) Hearsay.Hearsay is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.

TX version formula for hearsay: S (WOVE/NVC) + OTCD + TOMA (IS)(E/I) = H

o For it to be hearsay, you must have all three components
o Many people first assume it is hearsay, and instead just try to find an exception
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What you should do is first determine whether it is truly hearsay!!

Then you are not stuck with the stigma of hearsay, even if its
admitted under an exemption
Also, you wont have to lay the predicate foundation needed for
exceptions
o S=statement; WOVE=written or oral verbal expression; NVC= nonverbal conduct
intended by the person as a substitute for a verbal expression
DIFF: Fed rule uses the word assertion instead of expression
golly gee whiz may be an expression in TX courts, but would
NOT be considered an assertion under Fed courts
o TX might allow questions and other non-declarative
utterances if intended to assert something
In Fed courts, a question, command, or exclamation will normally
not qualify as a statement b/c not an assertion
o But they may fall within hearsay if the equivalent of a
declarative statement
Ex: A asks B Are you tired and B says do bears
live in the woods = yes, Im tired
NVC
There must be an action + intent for that action to substitute an
expression
o Ex: someone asks which direction they went, and the
OTCD points
For NVC intended as substitute, the burden of proof is on the party
that is claiming that it is hearsay (the objector) to prove that it was
intended to be assertive in nature
o Burden shifts back to proponent to show an exemption or
exception if court finds that the conduct is a substitute
Judge determines intent under 104(a)
Non-assertive conduct is not hearsay
o Ex: someone putting on heavy coat is not a substitute for
verbal communication that its cold outside unless it can be
shown that that was intended as substitute
See p. 755-56 of Manual
Silence
See adoptive admission by silence -801(e)(2)(B)
Otherwise, silence should not constitute hearsay b/c nonassertive,
unless it can be shown that the person intended his silence to be a
substitute for verbal expression or the relevance of the persons
silence is to imply the person made a nonverbal assertion
o OTCD=out of this court declarant
When someone out of this court makes a statement or letter, and a witness
at trial testifies as to the contents of that expression-may be hearsay
Maxim: once an out-of-court declarant, always an out-of-court declarant

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Key: ask where the declarant was at the time the statement was made?
Even if the OTCD comes and testifies at trial about what he told another
W, that is still hearsay because at the time the statement was made they
were out of court
They dont lose their OTCD status just because they take the stand
There was no opportunity to cross-examine at the time the
statement was made
Must be a person: machines, bloodhounds, computers, etc. are not persons
Info that these machines say are not hearsay even if person reads
them during trial
o Where machine makes the record itself
Ex: ATM machine
o But if person used a machine to make the document
(human intervention) then it is OTCD
Ex: a person inputs the data-then it may be hearsay
o TOMA=truth of the matter asserted; (E/I)=express or implied
It all depends on the matter asserted
Statement by OTCD is hearsay only if it is offered to prove TOMA
Ex: T, an eyewitness, testifies that I heard the manager tell the
clerk that the grape was on the floor in aisle 36
o TOMA if offered to prove the grape was on the floor
o Not TOMA if offered to prove that manager knew that the
grape was on the floor
TOMA does not exist (therefore these statements are NOT hearsay)
if offered to prove:
o Information acted on (ex: info given to police officer to
show probable cause to search)
Aka mental input theory
Statements that show that a person had notice or
knowledge; or that person lacked notice or
knowledge, existence of probable cause, etc.
But this is limited to generalized information
received; detail of the info are hearsay, unless
reasonableness of officers conduct is challenged
This rule applies equally to statements made by a
citizen to show why they called the police
o An operative fact (wills, search warrants, notice, etc)
Generally, statements that have independent legal
significance are not considered hearsay
These are verbal conduct to which the law attaches
duties and liabilities
False statements, fraudulent statements,
threats.

104

o To show mental state of the statements declarant (showing

the declarants state of mind)
Ex: a persons fear, mental anguish, intent, motive,
state of mind, or attitude
Different from 803(3) hearsay exception when
state-of-mind is offered to prove the truth of what
the declarant said about his then existing state of
mind.
o ****to show prior inconsistent statement by declarant
Shows witness is blowing hot and cold
Relevant to show mental output of declarantwitness
But see exemptions under 801(e)(1)(A) and 801(e)
(3) where proponent can use for TOMA and
impeachment
o Opponent should request limiting instruction if these
statements are admitted
o This list is not exhaustive
TX allows TOMA to include matters explicitly asserted and matters
impliedly asserted by declarants statement
DIFF: Fed. rejected Wright by making a statement depend on
whether the statement was intended to be an assertion (oral,
written, or conduct)
Implied assertions occur when the declarant says one thing, but it
is the declarants belief that the proponent is trying to prove
Key is the relevancy- does relevancy of this statement flow from
belief of a fact by the declarant
o Wright v. Tatum
Letters were written to the testator and Wright
wanted to introduce them to infer that the testator
was competent b/c the letters would not be written
to testator if the writers did not think the testator
was competent to understand them.
The letters were being offered to imply the writers
beliefs that the testator was competent.
Opponent should first object to relevancy of the
letters (no relevance=no probative value)not
relevant if not offered to imply the truth of Ds
belief and if offered for that purpose, it is hearsay.
TX-will be okay
Fed-inadmissible
KEY: Why am I offering this statement??
As long as I am not offering it to prove the truth of the matter
asserted, it is not hearsay
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o Ex of Non-TOMA: may be able to offer it to prove it was

said, the time of the statement, to show a prior inconsistent
statement by the declarant, probable cause for a police
officer, etc. (p. 183-184 BB)
The key is relevance!!
See chart on p. 184 of BB
Indirect or Backdoor Hearsay
o Proponent cannot circumvent a hearsay objection by simply avoiding asking the
witness to repeat what was told to her by instead showing evidence that the
witness engaged/or refrained from engaging in conduct acted on a verbal
statement made by another to imply the conduct of the statement for its truth
Ex: proponent asks witness why she wore her heavy coat and she says b/c
I decided I should after talking to L. This implies that L told her to wear
her coat b/c its cold outside.
Affidavits as Hearsay
o General Rule: if out of court statement was made in an affidavit it is hearsay if
offered to prove TOMA
o Documents not admissible under business records or public records exception
offered to prove TOMA of facts within are hearsay (includes report of expert)
Some exceptions to out of court rule may exist for sworn statements:
801(e)(1)(A)-inconsistent testimony of W given under oath in
judicial-type proceeding
801(3)-deposition testimony in civil cases
804(b)(1)-former testimony of unavailable W
See probs on p. 222-25 and answers in class notes (do Hearsay Problems III)
Examples:
o A testifies that OTCD said I am cold on the day in question. Want to prove that
it was cold that day. What are we trying to offer this for?
To show that the declarant was cold
NOT to show that it was cold outside
o A testifies that OTCD says Lets do a deal. We want to offer it to prove that the
OTCD believes the person hes offering to make the deal with is a sane person.
Under TX 401 it will be hearsay if we offer it for the probative value of
what the OTCD believes about the persons sanity.
DIFF: Fed=this would not be hearsay.

Hearsay Exemptions Rule 801(e)

****RULE 801. DEFINITIONS
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is:
(A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding (except a grand jury proceeding in a criminal case),
or in a deposition;
(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive;

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(C) one of identification of a person made after perceiving the person; or

(D) taken and offered in a criminal case in accordance with Code of Criminal Procedure article
38.071.
(2) Admission by party-opponent. The statement is offered against a party and is:
(A) the party's own statement in either an individual or representative capacity;
(B) a statement of which the party has manifested an adoption or belief in its truth;
(C) a statement by a person authorized by the party to make a statement concerning the subject;
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency
or employment, made during the existence of the relationship; or
(E) a statement by a co-conspirator of a party during the course and in furtherance of the
conspiracy.
(3) Depositions. In a civil case, it is a deposition taken in the same proceeding, as same proceeding is
defined in Rule of Civil Procedure 207. Unavailability of deponent is not a requirement for admissibility.
(DIFF)
Rule 801. Definitions
(d) Statements which are not hearsay.A statement is not hearsay if
(1) Prior statement by witness.The declarant testifies at the trial or hearing and is subject to cross
examination concerning the statement, and the statement is
(A) inconsistent with the declarants testimony, and was given under oath subject to the penalty of
perjury at a trial, hearing, or other proceeding, or in a deposition, or (DIFF)
(B) consistent with the declarants testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive, or
(C) one of identification of a person made after perceiving the person; or
(2) Admission by party-opponent.The statement is offered against a party and is
(A) the partys own statement, in either an individual or a representative capacity or
(B) a statement of which the party has manifested an adoption or belief in its truth, or
(C) a statement by a person authorized by the party to make a statement concerning the subject, or
(D) a statement by the partys agent or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship, or
(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority
under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the
existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is
offered under subdivision (E). (DIFF)

Once a piece of evidence qualifies as hearsay, determine if an exemption or exception

applies
o Exemption makes it non-hearsay-double whammy
o Exceptions are admissible hearsay
Need to understand interplay between 613 and 801(e)
All of these hearsay decisions will be made by judge under 104(a)
There are also statutory exemptions to hearsay (do we need to know these?)
Rule 801(e)(1) or (Fed. 801(d)(1))
Certain prior out of court statements by a W now on the stand and subject to cross-exam
about the statement are nonhearsay.
o Applies to testifying Ws prior inconsistent statements, prior consistent
statements, a statement identifying a person, and statements taken and offered in
crim cases in accordance with CCP.
DIFF: Fed. Rule does not include the statements in criminal cases
Rule 801(e)(1)(A)
o Witness makes statement S1 out of this court and during direct exam in another
proceeding, and then makes statement S2 on the stand in this case
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Can impeach the witness through prior inconsistent statement under

801(e)(1)(A) because made under oath, and it can be offered for TOMA
This is a double whammy b/c:
o You are impeaching the witness; and
o You are able to offer it for TOMA and it is non-hearsay so
you dont get stuck with the hearsay stigma
o Unlike under 613 when you can use prior inconsistent statements to impeach but
cannot use it to prove the truth-must have limiting instruction (if requested)
o Foundation:
the witness must have been under oath, on the stand and subject to crossexamination (foundation is within the rule) does not include foundation
of 613
o If the opponent requests a limiting instruction under this rule, it should be denied
b/c under the exemption it is allowed for TOMA
BUT they may be able to get it thrown out under a Rule 403 balancing test
o Arg that in fed court you can introduce a prior inconsistent statement without
laying the foundation under 801 but you are stuck with the answer???
o Crim cases in TX: Excludes prior inconsistent statements before a grand jury but
includes filmed or videotaped testimony of child victims in criminal cases (DIFF
than federal)
So in TX, statements before a grand jury in a civil case are not hearsay
Rule 801(e)(1)(B)
o The prior consistent statement must have occurred before the charged motive or
improper influence for it to be allowed
o Foundation for this rule:
Declarant must testify at trial and Must be subject to cross-examination
There is a charge of recent fabrication or improper influence or motive
There need only be a suggestion of altered testimony
Can be subtly implied through content, tenor, and demeanor of
cross-exam
In rebuttal, Proponent offers a prior statement of the declarant that is
consistent with the declarants challenged testimony
To be admissible any time a witnesss credibility or memory is
attacked
Prior consistent statement was made prior to the time that the asserted
improper motive occurred
Previous consistent statement does not need to be under oath
o Double Whammy effect:
Rehabilitate credibility
The statement can be admitted for TOMA- can argue to the jury that its
true and that it should be given great weight
o This rule does not preclude other witnesses from testifying to the same event
consistently with the witnesss testimony

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o SEE 613(c) prior consistent statements inadmissible except as provided by Rule

801(e)(1)(B) so in effect this is the only way prior consistent statements are
admissible
Rule 801(e)(1)(C)
o All we need to know is that there is an exemption for identification of the person
When a W testifies at trial about an earlier, out of court identification of another
person
Do not need to know Rule 801(e)(1)(D)
Rule 801(e)(2) or (Fed. 801(d)(2))
Exemption applies to statements made by one of the parties to the case and offered
against that party by the opposing party.
o It must be an admission by the opponent party (or some others) and must be
offered against a party (see below)
Extends to a partys spokesperson or someone in employment of party who made the
statement about a matter within the scope of employment, and to statements by coconspirators
o Ex: statement made by crim D (even if meant to be exculpatory) offered agst him
by prosecution.
In criminal case, the defendants party-opponent is the state, not the complaining witness
801(e)(2)(A)- made by the party or a representative
o Can be oral or written statement, conduct, answers to interrogatories, testimony in
prior proceeding, etc.
o Can be consistent or inconsistent with partys testimony at trial
o *Different than a statement against interest (hearsay exception) b/c it is
admissible as admission even if it was not against the partys interest when it was
made and the statement is not corroborated
801(e)(2)(B)- adoptive admission
o Statement made by a third person may be treated as a statement of a party if the
party adopts the statement
Can be shown by express verbal or nonverbal declaration of agreement
with the statement; by partys silence in response to statement; by partys
conduct with reference to statemetn
o Ex: You wrote a memo for your boss- can this be used as his admission?
Yes if he manifested an intention to adopt the statement as his own
801(e)(2)(C)-admission by someone authorized to make statement
o Ex: PR person, spokesman, etc.
o Not hearsay, can argue its truth
o Foundation:
Must prove authorization to make statements
And must show the statement was within their scope of duties (must be
authorized to make a statement concerning that subject)
o So a spokesperson could say that they were not authorized to make the statement
so then the opponent must prove they were authorized
801(e)(2)(D)-admission by agent or servant
109

o Agent-principal relationship
o Statements of employee/agent, even though they had no authority to speak for
party if:
Statement was made during employment relationship
Concerns a matter within the scope of the employment
It was shown that declarant was employee of the party-opponent at the
time the statement was made
o Ex: truck driver says My brakes failed after accident and I want to use against
truck driver and truck company
Can be personal admission agst truck driver
Can be an admission by an agent agst the company
What if the truck driver said my brakes failed and Ill pay your medical
bills
This would not be allowed (or some allowed, we arent sure) under
earlier rule
801(e)(2)(E)-statement by co-conspirator
o The conspirators statements can be used against you if in furtherance of
conspiracy, and the conspiracy needs to be proved by a preponderance of the
evidence (can use the statement in determining whether the conspiracy exists by a
preponderance of the evidence)
When admitting statements made by a co-conspirator:
Bourjaily: There must be evidence that there was a conspiracy
involving the declarant and the nonoffering party, and that the
statement was made during the course of and in furtherance of the
conspiracy
o Judge is to determine this under 104(a)
o Individual pieces of evidence, insufficient in themselves,
may in cumulation prove it so judge can (and should)
consider the content of the statements itself offered as well
as other evidence in the case, i.e. the statement does not
have to be independently reliable
o The judge must consider some independent evidence; the
conspiracy may not be proved solely by the statement of
the declarant
But this can be proved by circumstantial or direct
evidence; and can be proved by all hearsay
statements, meaning that it may be proved by
inadmissible extrinsic evidence
BOP: In Fed and TX, the proponent must prove by a POE (1) the
existence of a conspiracy (common plan or scheme) (2) both declarant and
the defendant against whom the statements are offered were members of
the conspiracy, or defendant later participate in conspiracy, and (3) the
statements were made during the course of and in furtherance of the
conspiracy
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DIFF: note the difference b/t the fed and TX standards of proof on
issue of admissibility, not issue of decision??
I will not be stuck with a limiting instruction against him and can assert it for TOMA
****Rule 801(e)(3)
Can offer contents of the depositions for the TOMA in civil cases when the deposition
was taken in the same proceeding as defined in Rule in Civil Procedure 207
o Even if the deponent is in court and available to testify
If not admissible under this rule, deposition testimony is admissible under:
o All of the rules that deal with statements made in depositions for nonhearsay
purposes (which would apply to criminal cases as well):
613-PIS -impeachment
801-PIS for TOMA of
801-PCS
804(b)(1)- for TOMA if the deponent is unavailable

Hearsay Exceptions-****Rule 803

If it is an EXCEPTION, it is still hearsay!

If the proponent of hearsay cannot show that it is admissible under an exception, a proper
objection hearsay would be made and it would be inadmissible under 802
o Should objection be made to 802
**** More than one exception can often apply
Under Rule 803, Doesnt matter if declarant is available to testify or not
This is acceptable hearsay
o Can use it for TOMA
o Do not need to get stuck with limiting instruction
o Although opponent can use hearsay as stigma
These are allowed because they are more reliable and trustworthy
o But the opponent will want to convince the court that the declarant had time to
reflect on them
Need to know foundations and policies for the exceptions and key elements if there are
any
o Ex: 803(1)-must be contemporaneous
Significant difference under 803 and 804:
o 803- declarant may be able to testify, may be in court room, etc. We are relating
through one of the witnesses what the declarant said, even though they are there
Not a foundational requirement to show that OTCD is unavailable
o 804-those exceptions can only be used after it is shown that OTCD is unavailable
DIFF: Most signifigant difference b/t TX and Fed. exceptions is the treatment of
statements against interests
o In Fed. they are in Rule 804 which requires unavailability of declarant
Rule 803(1)- Present Sense Impression
****RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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(1) Present Sense Impression. A statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition, or immediately thereafter.

KEY element: the statement is being made contemporaneously with observing or

otherwise sensing the event.
o If made too long afterwards, it will not be admissible for this exception
Foundation:
o Statement must describe or explain an event or condition (v. relate to in 803(2))
o The event or condition must have been personally perceived by the declarant
Can be an inference from objective facts observed
Ive run out of gas admissible when based on perception that gas
gauge is on empty
Can be experienced through any of declarants senses
o Statement must be made while the event or condition was occurring or existing, or
immediately after (usually a few minutes at most)
Unlike 803(2)- timing is only a factor
Should not be a product of memory
Cannot have time to reflect and calculate
This exception can apply to a contemporaneous statement made by a bystander
This exception should not include opinions, but can include statements of collective
facts (conclusory of observation)
A cops factual observations of a DWI suspect are not admissible under this exception b.c
they are calculated and in an adversarial setting
o Could have radioed recording by cop in hot pursuit of a fleeing suspect that
described suspects conduct during pursuit
This is not testimonial in crim case
Present sense is usually in the present tense (the statement will use present tense word)
Policy: We have this exception which shows that the person doesnt have enough time to
make something up
Opponent will want to show that the time the OTCD had before the statement but after
the event was enough for the OTCD to reflect
Ex: Im cold
o This is a present statement made while OTCD was perceiving this condition
(being cold is a condition)
Rule 803(2)
****RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.

KEY element: spontaneity

Rationale: made under circs that eliminate the possibility of fabrication, etc. and that
therefore the circs provide sufficient assurance that statement is trustworthy and crossexam would be superfluous.
o When excited, people lose capacity to reflect and speak the truth
Ex: Im cold dammit!
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o This may be an excited utterance, may also fit under 803(1) & 803(2) or possibly
803(4)
We need to know the context of the statement
o We need a startling event or condition
Ex: the event/condition can be as simple as hearing bad news
Ex: the triggering event may not be the surgery, but instead what
somebody said about the surgery
It can be in response to a question
Proponent should be prepared to showo A particular startling event took place
o Declarant observed it
o Statement was caused by the stress or excitement of that observation and that it
relates to the startling event
Foundation: Proponents have the burden of proof to show by a preponderance of the
evidence:
o The statement was the product of a startling occurrence or condition that produced
a state of nervous excitement in the declarant and rendered the statement
spontaneous and unreflecting
Should feel fright, alert, shock, etc. (not just that person is excited)
Condition could be pain, fear, mental anguish
o The state of excitement still so dominated the declarants mind that there was no
time or opportunity to contrive or misrepresent
The statement must be made before the declarants excitement caused by
the startling event has abated
No specific time requirement
o The statement relates to the circumstances of the occurrence or condition that
preceded it
In civil cases in TX, there must be independent-proof of the event, cannot
only use the statement itself to determine sufficiency of the occurrence or
condition
This can be satisfied by circumstantial evidence
In TX crim and Fed. the statement itself is sufficient to show the
occurrence or event
For relation, the statements only need to generally pertain to a startling
event or condition, does not have to describe or explain
Declarant need not be a participant in the startling event, can be a bystander
The event which the excited utterance is about does not have to be the same event that
caused the declarants excitement.
o Ex: A tickles B, B finds this offensive, and states that the defendant had tickled
and hurt her (previously)
What may be a startling event to you or I, may not be a startling event to anyone else
o So to show excited utterance, we have to show that to THAT PERSON it was a
startling event or condition
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Ex: some people get shot at and utter excited utterances and others would
not (soldiers, police, etc)
Declarant must have personal knowledge of the startling event
o Did not have to personal knowledge of underlying event if they have personal
knowledge of events that surrounded the underlying startling event that are
logically related to it
Rule 803(3)

****RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing
state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling,
pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Covers the declarants existing condition

o Ex: Im hungry
o Does NOT extend to past conditions (may be covered in 803(4))
o It would include a statement evidencing intent or plan to do something
Can declarants statement of intent to do something be admissible to show
subsequent conduct? Yes.
***Hillman: When the intention to be proved is important only to
show subsequent act, its connection with that act must be shown,
and then the declaration of intention is admissible
Rationale for this exception
o Must be made contemporaneously with the condition
o This rule excludes statements on remembered mental, emotional or physical
condition or that the declarant held a belief are not allowed (if offered for TOMA)
Excep: declarant can testify as to a remembered or believed state of mind
if it relates to execution, terms, etc. of will
Allows statements of the present mental condition to prove declarants then existing state
of mind, emotion, sensation or mental feeling (fear, anger, motive, belief, etc.)
o If it only implies the state of mind it is not admissible under this exception
Allows statements of present mental condition to prove declarants then existing intent,
plan, or design to do something in the future for the purpose of proving that the declarant
subsequently acted in accordance with his or her expressed state of mind.
Allows statements of a present physical condition (does not have to describe or explain,
or be made under excitement, or relate to medical diagnosis and cannot be of past
symtoms)
Difference b/t this exception and state of mind for non hearsay purposes: Offer statement
I hate X to show that declarant hates X (TOMA) v. offering it to show that declarants
state of mind at the time was I hate X, whether or not that was true.
Rule 803(4)
****RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis
or treatment.

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Rational for this exception

o They are made to the doctor, and people want effective treatment so they are
going to give truthful statements
Must be:
o Made for medical treatment (purpose)
o Can be made to people other than a doctor
Hypo: a mom speaks to doctor for her young daughter b/c she cannot speak for herself
(cannot be an OTCD if the person is not able to make a statement)
o This will be allowed under 803(4)- when someone is speaking for you when its
reasonably pertinent to diagnosis or treatment
Normally dont need to know the cause of the injury?
o Exception for child abuse cases b/c kids may be traumatized and the doctor needs
to know what happened for purposes of treatment
Ex: I remember being sick
o Maybe 801(4), but not 801(1)-(3)
o For 801(4), it could also say I was sick
Can use past tense statements for 804 as long as pathologically germane
Rule 803(1)-(4) Cont.
We do not need to know the exception number for the rule
Hypo: I am cold
o 803(1), 803(3), not 803(2) (weather is usually never an excited utterance), could
be 803(4) if statement is made to someone working in the medical profession
803(4)
o Statement to a doctor-can be nurse, physicians assistant, to parent who then
relates it to doctor
o Exception does not cover statements made by the doctor (exception does not work
both ways)
o Statements from doctor to doctor?
o Pathologically germane-the statement must relate to the symptom, the condition,
etc.
Ex: I was hit by a 2x4 by Chuck who was really mad at me
The path. Germane part is I was hit by a 2x4 not the part with the
identity
Exception: child abuse cases, the identity of abuser can be path
germane
Hypo: I had the same thing last year
o This statement is pathologically germane under 803(4)
o May be a backdoor way to get in SICs when it comes to sexual abuse, etc.
***Hillmon case:
o I am going to see the D- it is an exception to hearsay to allow statements that
show intent under 803(3) and that person carried out intent
o This case is all dicta b/c it was reversed on procedural issues, but still constantly
cited
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****RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had
personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown
to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that
knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If
admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless
offered by an adverse party.
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a
matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with
the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind
of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources
of information or other circumstances indicate lack of trustworthiness.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation,
in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data
compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a
certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report
statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry,
relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept
record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public
official, or other person authorized by the rules or practices of a religious organization or by law to perform the act
certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles,
genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones,
or the like.
(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or
affect an interest in property, as proof of the content of the original recorded document and its execution and
delivery by each person by whom it purports to have been executed, if the record is a record of a public office and
an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting
to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless
dealings with the property since the document was made have been inconsistent with the truth of the statement or the
purport of the document.
(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the
authenticity of which is established.
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other
published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied
upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a
subject of history, medicine, or other science or art established as a reliable authority by the testimony or admission
of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into
evidence but may not be received as exhibits.
(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by
blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth,
adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other
similar fact of personal or family history.
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the
controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general
history important to the community or state or nation in which located.

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(21) Reputation as to Character. Reputation of a person's character among associates or in the community.
(22) Judgment of Previous Conviction. In civil cases, evidence of a judgment, entered after a trial or upon a plea
of guilty (but not upon a plea of nolo contendere), judging a person guilty of a felony, to prove any fact essential to
sustain the judgment of conviction. In criminal cases, evidence of a judgment, entered after a trial or upon a plea of
guilty or nolo contendere, adjudging a person guilty of a criminal offense, to prove any fact essential to sustain the
judgment of conviction, but not including, when offered by the state for purposes other than impeachment,
judgments against persons other than the accused. In all cases, the pendency of an appeal renders such evidence
inadmissible.
(23) Judgment as to Personal, Family, or General History, or Boundaries. Judgments as proof of matters of
personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by
evidence of reputation.
(24) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's
pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace,
that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In
criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.

Rule 803(6), 803(8), & 805

803(6)
****(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any
form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information
transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as
shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10),
unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
"Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted
for profit or not.

MUST know four prong predicate for business records:

o The record was made and kept in the course of a regularly conducted business
activity
o It was the regular practice of that business activity to make the record
o The record was made at or near the time of the act, event or condition recorded
and
o The person making the record or submitting the info had personal knowledge of
the act, event or condition recorded
Title of the rule is records of regularly conducted activities not business records
o The exception is very broad and applies to non-profits and many other types of
activities where records are kept
Records/data compilations can be in any form
o Lab report, autopsy photo, etc.
The record can include opinions and facts-for this rule we do not distinguish between fact
and opinion
o Not limited to statements of fact- can admit medical examiners opinion
Hypo:
o A company named Acme has two divisions and the warehouse manager is A,
nephew of the owner. A keeps the inventory. At the end of everyday at 4:45 A
counts the widgets and then sends the information to B, who is preparing the
record.
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o We now want to introduce this report into evidence in court.

o Element #1 of the predicate- yes this is probably a record made and kept in the
course of a regularly conducted business activity
Would still be regularly conducted if only for 30 days a year as long as the
business does it every year
o Element #2- probably okay, this was a routine practice of that business activity to
make the record b/c everyday he makes this record and transmits it
When looking at this exception we are looking for a business that is run
really tight, anal about making reports
Hoffman case- the report was made in preparation for litigation, making
such reports was not a normal activity for the business not excepted
under this exception
o Element #3-the record was made at or near the time of the act, event or condition
recorded
This goes to reliability and the closer to the time, the more trustworthy the
document
Always have the trustworthiness veto- even if all of the predicate has
been established, the record may be thrown out if the judge finds that it is
untrustworthy
o Element #4- person making the record or submitting the information had personal
knowledge of the act, event or condition recorded
In our case, B, the person recording the widget count had no personal
knowledge of the widget count; but A has personal knowledge and it is
okay to satisfy this element if the person submitting the information has
personal knowledge
Both dont have to have personal knowledge, it only has to be one
of them
Rationale for this exception: assumption that business is going to keep truthful and honest
records and that they have incentives to keep accurate records; business records are
meant to be reliable
o Fraud does occur-cooking the books but its a crime so there is incentive not to do
it
Lutz case- there is implied element that the person in element 4 who has personal
knowledge also has a business duty
o Here police officer filled out report based on what a third party bystander said
about the accident (officer did not have personal knowledge); we cannot use the
bystanders statements b/c that person had no business duty (805)
In the hypo above, what if a bystander called and said that there was another widget
outside of the building so B records another widget.
o In court, only the part of the record that is from As report is admissible under this
exception. The bystander who called in had no business duty, also hearsay within
hearsay
In hypo above, now we have another business Ajax who reports their widgets to Acme
and B incorporates their count into Acmes record.
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o This is okay, Ajax has personal knowledge and has a business duty internally and
among Acme (via a contract or something)
o Info from others businesses is allowed so long as there is a duty
We have an implied business duty requirement
o Consider bystanders and other businesses
We will have to call a sponsoring witness in court to authenticate the record-901
o Could be custodian or a qualified witness
o Qualified witness only has to have personal knowledge about the preparation of
the records, not actually of the info in the record
Or we can prove up through self-authentication under 902(10), have to give the opponent
14 days notice prior to trial that we will be using a self-proving affidavit ad timely filed
o The authentication can also be stipulated by opponent
Summaries of business records may be business records themselves apart from 1006
Two burdens of proponent:
o Establish that it is what it appear to be -901
o Prove up predicate for hearsay exception above
Does not allow opponent to voir dire of an expert whose observations, diagnoses, or
opinions are offered as part of a self-authenticated business record.
These records do not violate the confrontation clause generally
Rule 803(8)
****(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public
offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report,
excluding in criminal cases matters observed by police officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from
an investigation made pursuant to authority granted by law; unless the sources of information or other
circumstances indicate lack of trustworthiness.

The only requirement for the type of activity is that it is public (can get sticky with govt
contractors, etc)
Hypo:
o We have state agency which has a record that is now trying to be submitted in
court
o We can prove it up through example under 902(4) ?? see manual about
authentication
Can also be authenticated under 901
Once a public record has been properly authenticated no formal laying of a
foundation is required under 803(8)(C)
803(A)- exs: disbursements and receipts of the Treasury department; county tax
assessment offered to prove property value
803(B)- TX is in the minority of jurisdictions (Cole case) which does not allow lab
reports and such to be admitted in CRIMINAL cases under this exception b/c lab is
considered law enforcement personnel & if it is not admissible under 803(8)(B) it is not
admissible under 803(6)

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o They get around this by using an expert who relies on it to form opinion, or calls
witness to a stand who uses the report to refresh their memory and then testifies to
what the report says
o 2nd circuit is the only circuit which agrees-Oates case
o Statements contained in a public record or report made by persons under no
official duty to report the matters addressed in their statements are not admissible
under 803(8)(B)
o Exs of what would be okay: driving record, child support payment summary,
medical examiners observation of a body during an autopsy (actually observed)
803(C)- there are cracks on bridge, state agency comes and checks them out, agency does
report and says the bridge should have been fixed 20 years ago, accident happens the next
day
o In civil, either party can show the report
o In Criminal, only the D can use the report against the state

11/10/10
Review of 803(6)
The entire record is hearsay if I am trying to prove the contents of the record.
o It is still hearsay even if it is a foreign language or something a lay person
wouldnt understand
o To admit the entire record under 803(6), all of the statements must have been
made by people with a business duty
If there are any bystander statements included within the record we have a
hearsay within hearsay problem
Hearsay within hearsay can be in any exception, but most often seen in
803(6)
See p. 209 comparison of 803(6) and 803(8)
803(11)
Ex: you go to church and find records about family history
But not automatically admissible, Schlueter believes that the trustworthiness veto can be
invoked for any exception
803(16)
We assume that sufficient time has past that if there were any irregularities they would be
realized by now
See also auth rule 901(b)(8)
Rule 803(18) - Learned Treatises
The entire treatise is hearsay if introduced for the TOMA
To get the treatise in (foundation):
o I must call an expert (Rule 702)
This rule does not work with lay witnesses!

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o After I prove the expert up, I ask him to tell us if it is reliable and ask him
questions to prove the reliability (who publishes it, how many doctors use it, etc.)
o It must be published
o It must be on the subject of history, medicine or other science or art
When admitting this, you can read it into evidence, but CANNOT actually introduce it
For cross-examination:
o The opponent can ask the expert to read other sections that support them
o What if the expert, on direct examination, says something different than the
treatise
How will the opponent prove that a treatise is reliable if expert proponent
called says its not true?
Call their own witness
Also will impeach the other partys expert by having them read a
statement out of the treatise
Other forms of treatises:
o Instructional videos
o Textbooks (could be)
o Not any practice manual will be a treatise for this exception but a lot can be as
long as reliable

803(24)-Statement Against Interest

Hypo: OTCD made a statement to W I did it
o What if the declarant is the D on trial
This is not hearsay, it is a party admission!! non hearsay under 801
No limiting instruction in this case b/c its not hearsay and can be
offered for its truth
o Now the OTCD is not the D, but is the defense witness
W testifying in favor of D and says that D was there with 2 friends and the
friend told W that he did it himself
Is the OTCD statement potential hearsay- yes if offered for TOMA
Could be excited utterance, or if he said Im glad I did it- could be
803(3)
To introduce under 803(24) we must prove that it was against his
interest at the time he made it
o It is against his penal interest
o Rationale for this exception: most people wouldnt say
things against their interest b/c they could face harm
o b/c this is a criminal case it must be corroborated (TX)
we have this because in real life there could be
coercion/threats that force this W to make a false
statement
there are factors we look at to determine if the
circumstances corroborate what the W is saying
(look at these)
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need to corroborate also so both arent exculpated

DIFF: the analogous rule of 803(24) is fed rule 804(b)(3)
o See the differences
o TX has social interest and federal does not
o Fed rule you have to show unavailability of D
o (3) Statement against interest.A statement which was at the time of
its making so far contrary to the declarants pecuniary or proprietary
interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another,
that a reasonable person in the declarants position would not have
made the statement unless believing it to be true. A statement tending to
expose the declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.

o For Fed, if it is subjecting declarant to criminal liability, it

has to be corroborated in both criminal and civil cases
Difference between party admissions and Statements against Interest
o Need to know!!
o See chart on p. 211 BB
o The identity of the declarant is critical under these circumstances
For a statement against interest the OTCD can be any person,
INCLUDING the D.
Ex: D says Im sorry before they realized they would be facing
charges and stuff ??
Where the D is introducing his own statement against himself (so
not 801)
o Ex: his alibi is against his interest b/c he says he was with
another woman at the time of the crime so he couldnt have
committed it, and he is a minister or something in the
community.

RULE 805. HEARSAY WITHIN HEARSAY

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule provided in these rules.

Rule 805
We have a multiple page document for Acme with 3 paragraphs. The first paragraph was
written by the CEO, 2nd contains statements of the bystander and the third was the VP of
Finances info
o For the bystanders statement we need to find another exception or exemption for
bystanders part or introduce it non-TOMA, or just take that section out (black it
out).
Hearsay within hearsay- the record itself is level one and then the bystanders statement
is the hearsay within hearsay
For any statements that are redacted as hearsay within hearsay, they may be introduced
by other party under rule of optional completeness
RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE

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(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject
matter of the declarant's statement;
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order
of the court to do so;
(3) testifies to a lack of memory of the subject matter of the declarant's statement;
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental
illness or infirmity; or
(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the
declarant's attendance or testimony by process or other reasonable means. A declarant is not unavailable as
a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the
procurement or wrong-doing of the proponent of the declarant's statement for the purpose of preventing the
witness from attending or testifying.
(b) Hearsay Exceptions. The following are not excluded if the declarant is unavailable as a witness:
(1) Former testimony. In civil cases, testimony given as a witness at another hearing of the same or a
different proceeding, or in a deposition taken in the course of another proceeding, if the party against
whom the testimony is now offered, (or a person with a similar interest), had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony
given as a witness at another hearing of the same or a different proceeding, if the party against whom the
testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross,
or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of
Criminal Procedure.
(2) Dying declarations. A statement made by a declarant while believing that the declarant's death was
imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement of personal or family history.
(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy,
relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history
even though declarant had no means of acquiring personal knowledge of the matter stated; or
(B) A statement concerning the foregoing matters, and death also, of another person, if the
declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the
other's family as to be likely to have accurate information concerning the matter declared.
(a) Definition of unavailability.Unavailability as a witness includes situations in which the declarant
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject
matter of the declarants statement; or
(2) persists in refusing to testify concerning the subject matter of the declarants statement despite an order
of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarants statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental
illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarants
attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarants
attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or
absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.
(b) Hearsay exceptions.The following are not excluded by the hearsay rule if the declarant is unavailable as a
witness:
(1) Former testimony.Testimony given as a witness at another hearing of the same or a different
proceeding, or in a deposition taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a
predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or
redirect examination.

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(2) Statement under belief of impending death.In a prosecution for homicide or in a civil action or
proceeding, a statement made by a declarant while believing that the declarants death was imminent,
concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement against interest.A statement which was at the time of its making so far contrary to the
declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal
liability, or to render invalid a claim by the declarant against another, that a reasonable person in the
declarants position would not have made the statement unless believing it to be true. A statement tending
to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the statement.

****Rule 804(a)-(b)(2)
Key foundational element of this rule is the witnesss unavailability to testify
o That does not mean that they have to be physically absent; they could be in the
court room, they could take the stand (but not as a witness)
o Judge decides under 104(a) whether the OTCD is unavailable under 804(a) and he
can consider outside evidence
o The rule uses the words includes which suggests that it might be a nonexhaustive list, but it probably is-no cases where judges used other reasons
Proponent has the BOP to show unavailability
Reasons for Unavailability
o Sometimes court will hold a mini-hearing on any of these grounds
o (1) exempted by privilege
o (2) refusal to testify
Cannot just say Im not going to satisfy
He must continue to refuse even under threat of contempt
Probably have to call the person to the stand and let court threaten
them
o (3) lack of memory on the subject matter
o (4) death or physical or mental illness
Temporary condition is not enough
Probably need to present some expert testimony or documentation
Could get an affidavit from doctor
This is hearsay, but judge can consider otherwise inadmissible
hearsay evidence under 104(a)
o (5) unavailable and proponent has been unable to procure
Must be a reasonable effort
Its a flexible standard, but must be enough to convince the judge that I put
in a reasonable effort
Tell judge the list of things you did to try to get ahold of the OTCD
When I do more, I am building more credibility with the court
o General Rule: The proponent cannot use these exceptions if the declarant is
unavailable b/c of the proponents wrongdoing
124

Hearsay Exceptions
o Cannot use these exceptions and proponent will not be able the statement if the
declarant is unavailable by the proponents own wrongdoing
o 804(b)(2)- person thought they were dying or was dying, it was imminent
Irving Younger was a well known, very effective judge/professor/attorneyhearsay professor
He said Dying men do not die with a lie on their lips not always
true but we can generally count on it
So rationale for this exception is that people imminently dying do not lie
Must be some nexus b/t the statement and the cause of death
The statement must concern the circumstances or cause of death
How do we prove the person believed they were on the verge of death
The declarant does not have to say I think Im dying, the
circumstances can show that he was scared to die
Ex: his leg is gushing blood but the EMT is telling him hell be
okay
o D then says it was chuck who shot me
o This is admissible under this exception as long as he was
still unavailable (even though he lived), and you have to
show that he really believed he was dying and the thing the
statement was about concerns is the circumstances of death
o If D said That property is still mine
It probably isnt admissible b/c it doesnt concern
the circumstances of his death
Maybe if it was in conjunction with chuck shot me
b/c we had a dispute over the property we may
also be able to show motive, but will be a close call
if admissible under this exception b/c it may seem
contrived
The declarant does not actually have to die, but to get out of
testifying, they still must be unavailable for another reason
Statement doesnt have to be a spontaneous statement (like an excited
utterance), it can be brought out after questioning, for example, by an
EMT
DIFF: In Fed. rule you can only use this exception in criminal homicide
cases and civil cases
Does this require that the declarant was dead? NO. It doesnt say
that the declaration has to be made by the victim.
Ex: person accused of homicide shot 2 police officers, one died,
the other one didnt- the other one can testify
(2) Statement under belief of impending death.In a prosecution for homicide
or in a civil action or proceeding, a statement made by a declarant while
believing that the declarants death was imminent, concerning the cause or
circumstances of what the declarant believed to be impending death.

o 804(b)(1)- Former Testimony

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See problems on p. 228 of BB

Same or similar parties, same or similar type of issue in both proceedings
The person its being used against only needed to have the opportunity to
develop testimony
He did not have to, he could have waived it, he only needed to
have the opportunity
The previous party or instance of opportunity could have been a
waiver of examination or ineffective of examination and that could
still be used against that party or a party with a similar interest later
The person its being used against needed to have a similar motive when
developing the testimony in the prior proceeding as they would have now.
Civil: It doesnt have to be the same party against whom it is now offered,
but if not the same party, it needs to be someone with a similar interest as
the person it was offered against previously
Had C been in the previous trial, would his motives been similar of
developing trial as Bs
Are the issues close enough and what did the witness say (that
would lead to the same motive on cross-exam) would that lead to
the person its now being used against having had the same motive
as back them
Experts examination can also be used later under this rule
Relation to other rules: 801(e)(3) (depo in same TX case) 801(e)(1)(A),
613 (assumes declarant is not on the stand) all deal with prior testimony

804(b)(1)
Not many cases on this, most of the time when dealing with depositions we will rely on
801(e)(3)
804(b)(1) is used more when in a totally different case, but usually the identity of the
parties is the same and so the rule is satisfied, but even if there are different parties in a
different case, it is theoretically possible that this can be used.
Ex: Prior proceeding in which OTCD gave testimony against B. Now in another trial, A
offers into evidence a transcript of the OTCDs testimony against B. This is the same
case.
o 801(e)(3) makes an exemption for depositions in the same case so not hearsay, but
there is no exemption for testimony in the same case but a different hearing
o So this testimony is hearsay, so under 804(b)(1) we must show that the OTCD
will be unavailable for this trial and
o Focus first on the identity of the party against whom its being offered- was B
given an opportunity at prior hearing to cross-exam? Same party-yes, was there a
similar motive in the original proceeding?-probably, but not necessarily, for
example, if the issue was different and very narrow
o Judge decides if admissible under 104(a)
o Now B has assigned her rights to C so C is in the second hearing instead of B,
does C have similar interests and a similar motive to B at the time (not identical
interests or identical motive)
o DIFF: Fed. rule asks if B was a predecessor in interest to C.
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Rule 803(5) & ****612

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
****(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had
personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown
to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that
knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If
admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless
offered by an adverse party.

See problem 8-9(d).

Only the adverse party may introduce the document into evidence; the proponent may
only have the party read from the document allowed.
Does the opponent have a right to see the document the witness is shown?
o Civil: The opponent may be entitled to see a document that was shown to the
witness before trial (at judges discretion), but opponent can always see the
document if the witness is shown it during trial while testifying
o Criminal: The opponent will always be entitled to see the document whether used
before or during trial in a criminal case.
You cannot read from an exhibit that has not yet been admitted into evidence!
803(5) the hearsay exception is reading the document into evidence, so long as
introduced for TOMA
RULE 612. WRITING USED TO REFRESH MEMORY
If a witness uses a writing to refresh memory for the purpose of testifying either
(1) while testifying;
(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of
justice; or
(3) before testifying, in criminal cases;
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the
witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If
it is claimed that the writing contains matters not related to the subject matter of the testimony the court
shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder
to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to
the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order
under this rule, the court shall make any order justice requires, except that in criminal cases when the
prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its
discretion determines that the interests of justice so require, declaring a mistrial.

Fed. Rule 807 Residual Hearsay Exception

Rule 807. Residual Exception
A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission of the statement into evidence. However, a
statement may not be admitted under this exception unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet
it, the proponents intention to offer the statement and the particulars of it, including the name and address of the
declarant.

127

catch-all hearsay exception, exception of last resort

Used where the evidence is close, but doesnt fit in one of the other exceptions
o Ex: it is a business record, but is missing one of the elements, for example, made
in routine practice
Need to know (1) that it exists and (2) foundation
Foundation that we need to know:
o Offered statement must have circumstantial guarantess of trustworthiness that
equal those exceptions in 803 and 804 (reliability)
o Goes to material fact
o More probative on the relevant point than other evidence that is reasonably
available to the proponent
Fed. Rule 804(b)(6)-Forfeiture by Wrongdoing (BB)
o Witness is testifying to what OTCD said. It is being offered against B. Turns out
that B threatened the OTCD not to testify.
If thats the case, this statement is admissible against B, without having to
prove any other exception.
So you have to show that the OTCD is not available and then that it was
Bs wrongdoing that caused the unavailability, then B has forfeited the
right to make a hearsay exception.
o Not in the TX Rules

Rule 805 Hearsay within Hearsay

Can show up within oral statements as well.
o Most common is in writing statements by bystanders who dont have a duty to the
business.
Each level of hearsay has to be admissible under an exception themselves.
**Rule 806
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
When a hearsay statement, or a statement defined in Rule 801(e)(2) (C), (D), or (E), or in civil cases a statement
defined in Rule 801(e)(3), has been admitted in evidence, the credibility of the declarant may be attacked, and if
attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified
as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is
not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the
party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to
examine the declarant on the statement as if under cross-examination.

OTCD makes a statement to a W, W goes into court and is asked if they talked to OTCD.
W testifies that OTCD said
o What if OTCD is biased under 613, has a prior conviction-609, and poor character
under 608
o Opponent can attack the OTCD under 806 under any recognized methods of
impeachment
o Can also rehabilitate OTCD under 806
o The OTCD does not have to be there, can impeach an absent OTCD
o OTCD in effect becomes a witness
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o Other side may avoid calling them b/c the OTCD isnt a good witness and they
think that I will forget that I can impeach them without them being called
o This does take effort though so you probably dont want to call the witness unless
the statement is very important and you have good impeachment evidence
Right to Confrontation
Raleigh said the common law permitted him to confront Lord Codham, his objection was
overruled and he was sentenced to death.
o Legal commentators were outraged by this case b/c he was not given an
opportunity to confront (and his case was not unique, this was common practice)
o So 6th amend says that in a criminal trial, the D has a right to confront the
witnesses against you (only criminal trials)
This rule arises when the OTCD is not available to testify at trial
The keyword in the Crawford decision is testimonial hearsay
o Changed about 25 years of practice: before if it was either reliable or a firmly
rooted exception it was admissible
o Scalia said the original intent of the drafters was to provide the right of
confrontation to those witnesses not only in trial, but who had testimonial
hearsay
The Court did not define exactly what testimonial included
o But said:
At a minimum, it includes prior testimony at preliminary hearing see
BB p.220
Also said that it would be testimonial if the person objectively would
know that would be used against them in trial?
What we need to know: When it is testimonial we can:
o Call the witness to the stand and eliminate the problem; or
o Show that the OTCD was unavailable AND that the D had an opportunity to
cross-examine the OTCD.
Business records may or may not be testimonial
o Depends on purpose for creation: general rule (for all statements)- if they are
prepared for trial or in anticipation of trial
Dying declarations are not covered by confrontation clause
A casual comment to police officers is non-testimonial

Privileges

See BB chart p. 93
Evidentiary privileges are generally disfavored because they may prevent disclosure of
otherwise relevant and reliable information
o Rationale for privileges: public policy deems certain relationships should be
protected or furthered
Two types of privileges:
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o Testimonial privileges prevent certain individuals from being called as witnesses

(504(b))
o Confidential communications privileges-prevents disclosure of certain specified
confidential (503(b))
But under 508, identity of informant, but not the communication, is
privileged
Courts view privileges very narrowly
For each privilege, determine who holds the privilege
o Testimonial- testifying person holds the privilege
o Confidential communications- communicating party holds the privilege
But lawyer, doctor, etc. can claim the privilege on behalf of the client
(holder)
o A party may be a holder, but doesnt have to be
How can you invoke a privilege?
o Personally refuse
H can claim his own privilege; wife can claim her own; and he may be
able to claim on wifes behalf and vice versa
o Can Block a third person
Eavesdropper
o Can block a comment by the opponent about you invoking privilege
Exception: spousal privilege
Rule 501:
In TX the law of privilege encompasses:
o (1) constitutional privileges,
o (2) statutory privileges
o (3) privileges found in Rules of Evidence
o Courts cannot look to common law to broaden or limit privileges
DIFF: Fed allows privileges:
o (1) from constitution
o (2) statutory and
o DIFF: the Fed Rules contain no specific privilege rules instead privileges should
be governed by common law (power to expand and limit privileges as their reason
and experience dictates)
Exception: State privileges in Fed court
federal diversity cases- Erie doctrine says that when diversity of
citizenship, state law concerning privileges would govern.
For other states privileges in TX courts, look to conflict of laws
Fed. Courts will apply common law privileges when:
o Federal criminal case
o Federal question case
o Civil rights case
Testimonial Privileges

130

o Fed- Trammel: witness-spouse alone has a privilege to refuse to testify adversely

(the witness may neither be compelled to testify nor foreclosed from testifying
against spouse)
o TX-504(b)same
Confidential Communications Privileges
o Certain confidential communications are protected and may not be disclosed
without the consent of one or more persons
o Fed-Jaffee: held that confidential communications between licensed (even if a
social worker) psychotherapist and her patients in the course of diagnosis or
treatment are protected from compelled disclosure.
TX does not have parent-child privilege; federal courts generally dont
either
o For communications privileges, the holder of the privilege is the communicating
party (i.e. the speaker)
Holder of the privilege may always claim the privilege to prevent
disclosure of info sought
Subsequent holders (guardians, executors) and holders agents may
also claim privilege (509(c))
o Privileges apply to civil, criminal, and administrative proceedings (not just at
trial) (do they all apply to all of these??)
o If communications privilege, holder may (1) refuse personally to disclose
privileged info, (2) prevent third party from making an unauthorized disclosure of
privileged info and (3) prevent, with some exceptions, an adverse comment on the
invocation of privilege
o What Info is Privileged
Only prevents the disclosure of confidential communications!
Confidentiality attaches only to those communications where the
speaker intends to maintain secrecy.
o Two requirements for confidentiality: (1) physical privacy
(in a room) and (2) intent to maintain secrecy in the future
Judge determines if confidential under 104(a) by POE
Eavesdropping: inadvertent or intentional hearing of a confidential
communication will NOT waive a privilege.
o Courts will not allow eavesdropper to disclose info if
holder meets confidential intent requirement (KEY: did the
person communicating know someone else was listening)
the information must also directly relate to the confidential relationship
specified in the applicable rule of evidence (properly related parties)
ex: for atty-client privilege to apply, client must be talking to atty
as a lawyer not as her best friend
communication may be oral, written or non-verbal (with communicative
intent).
BUT no privilege to preexisting docs created independent of the
confidential relationship
131

o Ex: cannot give 3 year old incriminating letter to lawyer

and protect it under A/C priv
Ex: husband pulls back bed sheet and shows his wife the stolen
goods
General Rule: neither the court nor the opposing counsel may comment on, or draw
inferences from, the invocation of a privilege.
o Exception in spousal privilege
Privilege Exceptions:
o Where an exception exists, the info must be disclosed
o The party trying to pierce a privilege has the burden of proving that an exception
does exist
Waiver of Privilege (Rule 511/512)
***RULE 511. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or
consents to disclosure of any significant part of the privileged matter unless such disclosure itself
is privileged; or
(2) the person or a representative of the person calls a person to whom privileged communications
have been made to testify as to the person's character or character trait insofar as such
communications are relevant to such character or character trait.
**RULE 512. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT
OPPORTUNITY TO CLAIM PRIVILEGE
A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made
without opportunity to claim the privilege.

o With one exception, once waiver has occurred, the communication permanently
loses its privilege status and the holder may not prevent further disclosure
DIFF: There is no Fed. Rule 511 b/c there are no listed privileges in fed
rule
o Voluntary Waiver
Holder voluntarily discloses the privileged communication either publicly
or potentially through a more intimate disclosure (telling friends)
If holder calls character witness whose personal knowledge includes
relevant privileged info, voluntary waiver will occur (511)
o Involuntary v. Inadvertent disclosure
Involuntary-where disclosure has been erroneously compelled
Where involuntary disclosure has occurred, the privilege will be
reinstated to prevent further disclosure (512)
Inadvertent-where disclosure was voluntary but unintentional (511)
Waiver of privilege may occur
Ex: not removing privileged docs from records turned over to
opposing counsel during discovery
The SC said this was a waiver, so the legislature passed 193.3(d)
which allows 10 days for the disclosing party to identify the info
and reclaim privilege (snap-clause)
o Does not apply to purely involuntary disclosure
o Party claiming waiver has burden of proving that waiver has in fact occurred
132

o Consent
Where holder fails to either assert privilege or object to questioning which
asks for privileged info, the holder has consented to disclosure
o Waiver will also occur when the holder or his rep calls a character witness to
whom the communications were made, and the communications are relevant to
the character evidence being offered
o Waiver Through Offensive Use Doctrine
When an affirmative act, such as filing a law suit, places privileged info
directly in issue, the courts may conclude that party filing the lawsuit has
affirmatively waived the privilege.
Applies to all privileges, even those not codified in TX Rules of Evid
Uses privilege as a sword, not as a shield (brings lawsuit to which it
knows the other party will lose because they will not be able to discover
any of the material info)
Apply three-prong analysis to determine if a waiver has occurred:
Party asserting the privilege must seek affirmative relief (v.
defending itself)
Privileged info sought must be such that, if believed by the fact
finder, in all probability it would be outcome determinative of the
cause of action asserted; and
o Not mere relevance, not mere contradiction in position;
confidential communication must go to heart of the
affirmative relief sought
Disclosure of the confidential communication must be the only
means by which the aggrieved party may obtain the evidence
TEST: If any of these requirements is lacking, the privilege must
be upheld.
Burden of Proof:
o The person claiming the privilege has the burden of proving (can use extrinsic
evidence) that the claimed privilege does in fact exist
Judge decides under 104(a) if burden has been met
Effect of Claiming the Privilege-Rule 513
***RULE 513. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE;
INSTRUCTION
(a) Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), the claim of a privilege,
whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or
counsel, and no inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the
extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Claim of Privilege Against Self-Incrimination in Civil Cases. Paragraphs (a) and (b) shall not apply
with respect to a party's (not witness) claim, in the present civil proceeding, of the privilege against selfincrimination.
(d) Jury Instruction. Except as provided in Rule 504(b)(2) and in paragraph (c) of this Rule, upon request
any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an
instruction that no inference may be drawn therefrom.

o Privileges futher extrinsic policy (open communication, relationships) (v. 403furthers intrinsic judicial policy-fairness and sufficient process)
133

o 513(c) Civil- if PARTY invokes self-incrimination privilege, opposing party can

comment on it
The opposing party can call the D (who was/is D in criminal
counterpart case) to the stand. D can invoke the privilege against
self-incrimination, but the opposing party can comment about it.
Even after D invokes the privilege, the opposing can continue
questioning and the D will have to continue invoking.
Criminal- if you invoke self incrimination privilege, the opposing party
cannot comment on it
Rule 508*RULE 508. IDENTITY OF INFORMER
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to
disclose the identity of a person who has furnished information relating to or assisting in an investigation of
a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff
conducting an investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to
which the information was furnished, except the privilege shall not be allowed in criminal cases if the state
objects.
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of
the informer or the informer's interest in the subject matter of the communication has been
disclosed to those who would have cause to resent the communication by a holder of the privilege
or by the informer's own action, or if the informer appears as a witness for the public entity.
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a
party that an informer may be able to give testimony necessary to a fair determination of a
material issue on the merits in a civil case to which the public entity is a party, or on guilt or
innocence in a criminal case, and the public entity invokes the privilege, the court shall give the
public entity an opportunity to show in camera facts relevant to determining whether the informer
can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the
court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily
upon affidavit. If the court finds that there is a reasonable probability that the informer can
give the testimony, and the public entity elects not to disclose the informer's identity, the
court in a civil case may make any order that justice requires, and in a criminal case shall,
on motion of the defendant, and may, on the court's own motion, dismiss the charges as to
which the testimony would relate. Evidence submitted to the court shall be sealed and preserved
to be made available to the appellate court in the event of an appeal, and the contents shall not
otherwise be revealed without consent of the public entity. All counsel and parties shall be
permitted to be present at every stage of proceedings under this subdivision except a showing in
camera, at which no counsel or party shall be permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the
legality of the means by which evidence was obtained and the court is not satisfied that the
information was received from an informer reasonably believed to be reliable or credible, it may
require the identity of the informer to be disclosed. The court shall, on request of the public entity,
direct that the disclosure be made in camera. All counsel and parties concerned with the issue of
legality shall be permitted to be present at every stage of proceedings under this subdivision
except a disclosure in camera, at which no counsel or party shall be permitted to be present. If
disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and
preserved to be made available to the appellate court in the event of an appeal, and the contents
shall not otherwise be revealed without consent of the public entity.

o Protects the identity of informant, but not the info they disclosed
*Rule 502
*RULE 502. REQUIRED REPORTS PRIVILEGED BY STATUTE

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A person, corporation, association, or other organization or entity, either public or private, making a return or report
required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the
return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report
is required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be
made so provides. No privilege exists under this rule in actions involving perjury, false statements, fraud in the
return or report, or other failure to comply with the law in question.

If its a banking form that has to be submitted as required by law, can I require that it be
treated as privileged info? Yes
o Privilege apples if the report or return is:
Required by law; and
And the law allows it to be privileged and it says its privileged.
o Who holds the privilege?
Person filing report and person/agency receiving the report

**** Rule 503Lawyer-client privilege

****RULE 503. LAWYER-CLIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "client" is a person, public officer, or corporation, association, or other organization or entity either public
or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to
obtaining professional legal services from that lawyer.
(2) A "representative of the client" is (i) a person having authority to obtain professional legal services, or to act
on advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating
legal representation for the client, makes or receives a confidential communication while acting in the scope of
employment for the client.
(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the
practice of law in any state or nation.
(4) A "representative of the lawyer" is:
(A) one employed by the lawyer to assist the lawyer in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.
(5) A communication is "confidential" if 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.
(b) Rules of Privilege.
(1) General rule of privilege. A 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 to the client:
(A) between the client or a representative of the client and the client's lawyer or a representative of the
lawyer;
(B) between the lawyer and the lawyer's representative;
(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer,
to a lawyer or a representative of a lawyer representing another party in a pending action and
concerning a matter of common interest therein;
(D) between representatives of the client or between the client and a representative of the client; or
(E) among lawyers and their representatives representing the same client.
(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer
or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the
lawyer's representative by reason of the attorney-client relationship.
(c) Who May Claim the Privilege. The privilege may be claimed by the client, the client's guardian or conservator,
the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation,
association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's
representative at the time of the communication is presumed to have authority to claim the privilege but only on
behalf of the client.
(d) Exceptions. There is no privilege under this rule:

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(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone
to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by a
lawyer to the client or by a client to the lawyer;

Definitions. As used in this rule:

o A client is a person, public officer, or corporation, association, or other
organization or entity, either public or private, who is rendered professional legal
services by a lawyer, or who consults a lawyer with a view to obtaining
professional legal services from that lawyer.
This includes those who come to you for legal assistance, even if you
decide not to represent them (prospective clients info is privileged)
Does not include business deal offers, personal advice, etc.
o A representative of the client is:
A person having authority to obtain professional legal services, or to act
on advice thereby rendered, on behalf of the client, or
Any other person who, for the purpose of effectuating legal representation
for the client, makes or receives a confidential communication while
acting in the scope of employment for the client.
If you are in house attorney for a corp, the corp or is your client
(not the individual CEO, acct., etc., even when that is the person
you are taking your orders from)
Ex: The lawyer is doing an internal investigation, asks lots of
employees questions, even the mailroom employee is a
representative of the client (so privileged)
If you have a cousin who asks you to handle something for them
and you are the one dealing with the lawyer, you are acting as
representative of the client
****Who holds the privilege?
The CLIENT is the one who holds the privilege, the attorney can
claim it also
Who can claim it?
Attorney, client, clients representative
If the attorney claims it, there is a presumption that the attorney
has the authority to claim it
o Before an attorney claims it, they need to check with client
to see if they want to claim it
o A lawyer is a person authorized, or reasonably believed by the client to be
authorized, to engage in the practice of law in any state or nation.
If the client reasonably believes the person hes talking to is a lawyer, and
the communication is intended to be confidential, then this privilege
applies.
If the client goes into the office and is talking to someone who has
been suspended or disbarred, etc. the client will be protected if
they reasonably believe

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If the lawyer tells them he is suspended for the next 30 days, the
client may not be protected
o A representative of the lawyer is:
One employed by the lawyer to assist the lawyer in the rendition of
professional legal services; or
Employees must be paid??
Unpaid attorneys/interns/etc. could sign confidentiality
agreements, but that would not protect them under this privilege,
but would create a contract that they would breach if they
disclosed info
An accountant who is reasonably necessary for the lawyers rendition of
professional legal services.
This can be on a volunteer basis
o A communication is confidential if 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.
A communication may still be confidential, even if third persons are in the
room
If it is important for that person to be in there to further the
investigation or the legal services
Applies if lawyer gives the info to his paralegal, etc.
Communications b/w people other than the lawyer and client can apply;
ex. a conversation b/w a representative for the client and a representative
for the lawyer, if it takes place in furtherance of the rendition of legal
services to the client
Rules of Privilege.
o General rule of privilege. A 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 to the client:
Between the client or a representative of the client and the clients lawyer
or a representative of the lawyer;
Between the lawyer and the lawyers representative;
By the client or a representative of the client, or the clients lawyer or a
representative of the lawyer, to a lawyer or a representative of a lawyer
representing another party in a pending action and concerning a matter of
common interest therein;
Between representatives of the client or between the client and a
representative of the client; or
Among lawyers and their representatives representing the same client.
The client is the holder of the privilege, but others (his
representatives and the lawyer) may assert the privilege on his
behalf

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Its not the clients privilege but what the lawyer says to the client
is protected by the privilege
Note: If lawyer says something incriminating, and the client
decides they dont want the conversation to be privileged, the
lawyer cannot block them (so lawyer cannot claim privilege for
what he tells client?)
o Special rule of privilege in criminal cases. In criminal cases, a client has a
privilege to prevent the lawyer or lawyers representative from disclosing any
other fact which came to the knowledge of the lawyer or the lawyers
representative by reason of the attorney-client relationship.
This is broad
What if the client tells you where the dead body is? Yes, privileged
What if the client asks lawyer to help him get rid of the murder weapon?
No, there is an exception (furtherance of a crime)
What about other info that you learn about the case that may or may not
have come from the defendant (through records, documents, etc)?
Yes
This special rule covers what may not otherwise be confidential under the
privilege
Who May Claim the Privilege. The privilege may be claimed by the client, the clients
guardian or conservator, the personal representative of a deceased client, or the successor,
trustee, or similar representative of a corporation, association, or other organization,
whether or not in existence. The person who was the lawyer or the lawyers
representative at the time of the communication is presumed to have authority to claim
the privilege but only on behalf of the client.
Exceptions. There is no privilege under this rule:
o Furtherance of crime or fraud. If the services of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to commit what the client
knew or reasonably should have known to be a crime or fraud;
o Breach of duty by a lawyer or client. As to a communication relevant to an issue
of breach of duty by a lawyer to the client or by a client to the lawyer.
Ex: Comes up a lot in criminal cases when the criminal starts
representing themselves, so they file collateral action and say that his
attorney was ineffective assistance of counsel, and attorney of this formerclient now has to defend himself
You are then given authority to relate confidential info to, for
example, the DAs office, against the former client
Can also occur in civil cases

****Rule 504H/W privileges: confidential communication privilege.

Definition. A communication is confidential if it is made privately by any person to
the persons spouse and it is not intended for disclosure to any other person.
Rule of privilege. A person, whether or not a party, or the guardian or representative of
an incompetent or deceased person, has a privilege during marriage and afterwards to
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refuse to disclose and to prevent another from disclosing a confidential communication

made to the persons spouse while they were married.
o Requirements:
There must be a valid marriage
The communication must be made during the course of the marriage
While separated, before divorce, this is still during marriage and
these communications can be privileged
Even after the husband and the wife get divorced, the wife can still
prevent the husband from testifying about confidential
communications made during marriage
o This allows spouse (or certain reps) to have a privilege to block disclosure of any
confidential communication he or she made during marriage to the other spouse.
See 504(b)- In CRIMINAL cases one spouse may not prevent the other
from testifying against them, but can block them from disclosing
confidential communications made during the marriage.
Who may claim the privilege. The confidential communication privilege may be claimed
by the person or the persons guardian or representative, or by the spouse on the persons
behalf. The authority of the spouse to do so is presumed.
Exceptions. There is no confidential communication privilege:
o Furtherance of crime or fraud. If the communication was made, in whole or in
part, to enable or aid anyone to commit or plan to commit a crime or fraud.
o Crime against spouse or minor child. In a proceeding in which the party is
accused of conduct which, if proved, is a crime against the person of the spouse,
any minor child, or any member of the household of either spouse.
This is very broad
If she says that she hit the neighbors minor child, that is not privileged
Privilege not to Testify in Criminal Case.
o Rule of privilege. In a criminal case, the spouse of the accused has a privilege not
to be called as a witness for the state. This rule does not prohibit the spouse from
testifying voluntarily for the state, even over objection by the accused. A spouse
who testifies on behalf of an accused is subject to cross-examination as provided
in rule 611(b).
o Failure to call as witness. Failure by an accused to call the accused's spouse as a
witness, where other evidence indicates that the spouse could testify to relevant
matters, is a proper subject of comment by counsel.
This is contrary to most of the other privilege ruleshere, adverse
comment is allowed but the other rules usually ban it
o Who may claim the privilege. The privilege not to testify may be claimed by
the person or the person's guardian or representative but not by that
person's spouse (criminal D).
Prevents accused spouse from blocking witness spouses testimony
o Exceptions. The privilege of a person's spouse not to be called as a witness for the
state does not apply:

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1. Certain criminal proceedings. In any proceeding in which the

person is charged with a crime against the person's spouse, a
member of the household of either spouse, or any minor.
2. Matters occurring prior to marriage. As to matters occurring prior
to the marriage.
Ex: Wife is out in backyard with shovel standing over hole. She has murdered someone.
Husband asks her what shes doing and she points to the hole. She comes in and slams
the door. She has blood on her shirt and doesnt say anything.
o If he is called to stand to testify about blood on her shirt, he has a privilege not to
testify against her.
But if he has already taken the stand and then is questioned about the
blood on her shirt, he does not have privilege b/c there is no
communication (if there were a confidential communication she could
block him)
o Her slamming the door is not considered a statement, unless they have a prior
agreement that slamming the door means a particular thing
Or maybe if slamming the door was sending a message (Im mad, etc.)
Could this be a hearsay statement? If the declarant intended it to be a
substitute
o When he asks her what she is doing in the backyard, and she points into the
ground, that is probably privileged as a communication
Would not be a confidential communication if the neighbors were
watching this also (and she knew the neighbors were there)
Compare it to the eavesdropper rule and see if wife intended for it
to be confidential (physical space and intent to be confidential)
o If she comes in and says I killed the neighbor- that is a confidential
communication
o The privilege belongs to the spouse that made the statement in question
o What about when police come and take her to jail and husband says Dont worry,
I will help you in this crime
Falls under the exception of in furtherance of a crime so not privileged
o He can waive privilege about what he tells her
o If the husband is testifying against the wife that she said that she killed somebody,
she can block him from testifying about this
He can be forced to testify about her telling him that she needs his help
b/c its in furtherance?

*Rule 505- Clergy Privilege

*RULE 505. COMMUNICATIONS TO MEMBERS OF THE CLERGY
(a) Definitions. As used in this rule:
(1) A "member of the clergy" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other
similar functionary of a religious organization or an individual reasonably believed so to be by the person
consulting with such individual.

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(2) A communication is "confidential" if made privately and not intended for further disclosure except to
other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing
a confidential communication by the person to a member of the clergy in the member's professional character as
spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by the person's guardian or
conservator, or by the personal representative of the person if the person is deceased. The member of the clergy to
whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the
communicant.

Whos the holder, whats the privilege, who can claim, what are exceptions
Aka priests-penitent privilege
Very broad definition since it includes similar functionary and spiritual adviser
o Applicable when clergyman is acting in his function as spiritual advisor
o BUT, Some people may not recognize Sister Grace to be a clergy-member for the
purposes of this rule
Can include people who get their license online??
Judge will decide under 104(a) whether this person is a clergy member
Who has the privilege?
o The person who is communicating holds the privilege and can refuse to disclose
Who can claim?
o The holder, or a representative or guardian, or the clergy-member (presumed to
have authority to claim only on behalf of communicant)
This privilege survives the death of the communicating person
This rule covers spiritual advice- this is ambiguous

*Rule 508 Identity of Informer

RULE 508. IDENTITY OF INFORMER
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the
identity of a person who has furnished information relating to or assisting in an investigation of a possible violation
of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which
the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the
informer or the informer's interest in the subject matter of the communication has been disclosed to those
who would have cause to resent the communication by a holder of the privilege or by the informer's own
action, or if the informer appears as a witness for the public entity.
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that
an informer may be able to give testimony necessary to a fair determination of a material issue on the
merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and
the public entity invokes the privilege, the court shall give the public entity an opportunity to show in
camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing
will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that
the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable
probability that the informer can give the testimony, and the public entity elects not to disclose the
informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case
shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the
testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available
to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without
consent of the public entity. All counsel and parties shall be permitted to be present at every stage of

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proceedings under this subdivision except a showing in camera, at which no counsel or party shall be
permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of
the means by which evidence was obtained and the court is not satisfied that the information was received
from an informer reasonably believed to be reliable or credible, it may require the identity of the informer
to be disclosed. The court shall, on request of the public entity, direct that the disclosure be made in camera.
All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage
of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be
permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof
shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the
contents shall not otherwise be revealed without consent of the public entity.

This is an identity privilege (not communicating or testimonial)

Who is the holder of the privilege?
o The government is the holder of the privilege
Violation of the law does not have to be a criminal law; could be civil or admin law
Typically arises when the police get a call from an informant about what is about to
happen or what just happened
Who can claim the privilege?
o A representative of the public entity to which the info was furnished
508(b)Veto provision
o prosecution can veto the claim of privilege to keep the judge from dismissing the
charges
o must be read in conjunction with 508(c)(2)- if having determined the informants
identity is required for a fair determination of the issues or guilt/innocence, but
the public entity nonetheless decides not to disclose that identity, the trial court on
motion of the D shall dismiss the charges to which the testimony would relate.
This rule allows prosecution with a high stake in the public entitys refusal to
comply to object to continued invocation of the privilege
Ex: You are a defense attorney who sees that all of the states info came from a
confidential informant and the defendant has reason to believe that it is an ex who has
revenge out for her
o Judge may let it out for this
3 exceptions:
o (c)(1)-Informant may voluntarily identify themselves or they may take the stand
to testify
o (c)(2)-Judge concludes that informant has important info about the transaction in
question (important issue on the merits)
DIFF b/t civil and criminal cases!!!!
In civil cases, this exception arises when the informer may be able
to testify to a material issue on its merits AND when the public
entity is a party.
In criminal cases, disclosure may be required when it appears that
the informer may be able to give testimony necessary to a fair
determination of the issues of guilt.
o This is normally used when informant can give eyewitness
testimony; not just gossip or rumor
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o Failure to disclose the informers identity under (b) may

result in dismissal of the charges to which the informers
testimony relates.
See 508(b)
o (c)(3)-If the judge has reason to believe the informant is not reliable then the
judge can disclose the identity of informant so that defense counsel can look into
his reliability
All of this happens in an in camera hearing, parties are not present
***Rule 509 Physician-Patient Privilege
***RULE 509. PHYSICIAN-PATIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "patient" means any person who consults or is seen by a physician to receive medical care.
(2) A "physician" means a person licensed to practice medicine in any state or nation, or reasonably
believed by the patient so to be.
(3) A communication is "confidential" if not intended to be disclosed to third persons other than those
present to further the interest of the patient in the consultation, examination, or interview, or those
reasonably necessary for the transmission of the communication, or those who are participating in the
diagnosis and treatment under the direction of the physician, including members of the patient's family.
(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings.
However, a communication to any person involved in the 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.
(c) General Rule of Privilege in Civil Proceedings. In a civil proceeding:
(1) Confidential communications between a physician and a patient, relative to or in connection with any
professional services rendered by a physician to the patient are privileged and may not be disclosed.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or
maintained by a physician are confidential and privileged and may not be disclosed.
(3) The provisions of this rule apply even if the patient received the services of a physician prior to the
enactment of the Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. art. 4590i.
(d) Who May Claim the Privilege in a Civil Proceeding. In a civil proceeding:
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient
acting on the patient's behalf.
(2) The physician may claim the privilege of confidentiality, but only on behalf of the patient. The authority
to do so is presumed in the absence of evidence to the contrary.
(e) Exceptions in a Civil Proceeding. Exceptions to confidentiality or privilege in administrative proceedings or in
civil proceedings in court exist:
(1) when the proceedings are brought by the patient against a physician, including but not limited to
malpractice proceedings, and in any license revocation proceeding in which the patient is a complaining
witness and in which disclosure is relevant to the claims or defense of a physician;
(2) when the patient or someone authorized to act on the patient's behalf submits a written consent to the
release of any privileged information, as provided in paragraph (f);
**** (4) as to a communication or record relevant to an issue of the physical, mental or emotional
condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's
claim or defense;
(f) Consent.
(1) Consent for the release of privileged information must be in writing and signed by the patient, or a
parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated
incompetent to manage personal affairs, or an attorney ad litem appointed for the patient, as authorized by
the Texas Mental Health Code, Tex. Health & Safety Code 571.001-571.026; the Persons with Mental
Retardation Act; Tex. Health & Safety Code 591.001-591.025; Chapter V, Texas Probate Code; and Tex.
Fam. Code 107.011; or a personal representative if the patient is deceased, provided that the written
consent specifies the following:

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(A) the information or medical records to be covered by the release;

(B) the reasons or purposes for the release; and
(C) the person to whom the information is to be released.
(2) The patient, or other person authorized to consent, has the right to withdraw consent to the release of
any information. Withdrawal of consent does not affect any information disclosed prior to the written notice
of the withdrawal.
(3) Any person who received information made privileged by this rule may disclose the information to
others only to the extent consistent with the authorized purposes for which consent to release the
information was obtained.

(a)(1) Deals with medical care, that is pretty broad

(a)(2) talks about licensed professionals or someone reasonably believed by patient to
be licensed
(a)(3) confidential communications- when intended to further the interest of diagnosis
and treatment
(b)
o There is NO privilege in TX in criminal proceedings
o BUT there is a privilege for communications to any person involving the
treatment, or examination for admission to treatment, for alcohol or drug abuse is
not admissible in criminal proceeding
It doesnt say confidential so it could include group therapy
The policy is that we want people to get better, so many argue for allowing
these statements to be privileged
o This is very broad, and we are not sure if there are exceptions (none are stated)
o Privilege extends to everyone in the group, not just the counselor
o This rule does not say that anything you ask for will be admissible, it just means
that they can discover it
(c)(2)
o In civil cases, records are confidential even if they are 25 years old;
Who may claim the privilege?
o if doctor claims on behalf of patient it is presumed to be valid
o patient or representative of patient
(e) Exceptions
o (e)(1)- doctor can use the info in defense if you sue for malpractice
Ex: you say he didnt catch your neck injury, but you never mentioned any
pain in or around your neck
o (e)(2)- consent; essentially a waiver of the privilege
o (e)(4)- especially in personal injuries claim
(4) as to a communication or record relevant to an issue of the physical, mental or
emotional condition of a patient in any proceeding in which any party relies upon the
condition as a part of the party's claim or defense

See also the offensive use doctrine (wont need it for the purpose of this
privilege b/c this rule covers this scenario)
You would argue that it is admissible under this rule, not under the
offensive use doctrine!!
The exception swallows the general rule
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Ex: person puts injury in issue by claiming damages from the injury ($500
in medical bills, but request $3 million in damages for mental anguish)

***Rule 510 ***RULE 510. CONFIDENTIALITY OF MENTAL HEALTH INFORMATION IN CIVIL CASES
(a) Definitions. As used in this rule:
(1) "Professional" means any person:
(A) authorized to practice medicine in any state or nation;
(B) licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any
mental or emotional disorder;
(C) involved in the treatment or examination of drug abusers; or
(D) reasonably believed by the patient to be included in any of the preceding categories.
(2) "Patient" means any person who:
(A) consults, or is interviewed by, a professional for purposes of diagnosis, evaluation, or
treatment of any mental or emotional condition or disorder, including alcoholism and drug
addiction; or
(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug
abuse.
(3) A representative of the patient is:
(A) any person bearing the written consent of the patient;
(B) a parent if the patient is a minor;
(C) a guardian if the patient has been adjudicated incompetent to manage the patient's personal
affairs; or
(D) the patient's personal representative if the patient is deceased.
(4) A communication is "confidential" if not intended to be disclosed to third persons other than those
present to further the interest of the patient in the diagnosis, examination, evaluation, or treatment, or those
reasonably necessary for the transmission of the communication, or those who are participating in the
diagnosis, examination, evaluation, or treatment under the direction of the professional, including members
of the patient's family.
(b) General Rule of Privilege.
(1) Communication between a patient and a professional is confidential and shall not be disclosed in civil
cases.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained
by a professional are confidential and shall not be disclosed in civil cases.
(3) Any person who received information from confidential communications or records as defined herein,
other than a representative of the patient acting on the patient's behalf, shall not disclose in civil cases the
information except to the extent that disclosure is consistent with the authorized purposes for which the
information was first obtained.
(4) The provisions of this rule apply even if the patient received the services of a professional prior to the
enactment of Tex. Rev. Civ. Stat. art. 5561h (Vernon Supp. 1984)(now codified as Tex. Health & Safety
Code 611.001-611.008).
(c) Who May Claim the Privilege.
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient
acting on the patient's behalf.
(2) The professional may claim the privilege of confidentiality but only on behalf of the patient. The
authority to do so is presumed in the absence of evidence to the contrary.
(d) Exceptions. Exceptions to the privilege in court or administrative proceedings exist:
(1) when the proceedings are brought by the patient against a professional, including but not limited to
malpractice proceedings, and in any license revocation proceedings in which the patient is a complaining
witness and in which disclosure is relevant to the claim or defense of a professional;
(2) when the patient waives the right in writing to the privilege of confidentiality of any information, or
when a representative of the patient acting on the patient's behalf submits a written waiver to the
confidentiality privilege;

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(5) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a
patient in any proceeding in which any party relies upon the condition as a part of the party's claim or
defense;

Definitions
Not necessarily talking about only licensed professionals very broad
Patient is the holder of the privilege
o Catered to those who seek consultation for a mental and emotional condition,
including drug and alcohol problems
Can be claimed by patient, professional, or rep
o Privilege also survives death of the patient
Exceptions (e)
o These are pretty much the same as under 509
Rule 201 Judicial Notice
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either
(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary
information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request
may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially
noticed. In criminal cases, the court shall instruct the jury that it may, but is not required to, accept as conclusive any
fact judicially noticed.

Adjudicative fact= judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of the trial court
or (2) capable or accurate and ready determination by resort to sources who accuracy
cannot reasonably be questioned
o Fact involved in the case
o Can be used to authenticate evidence
For example, counsel can ask the judge to take judicial notice of a
scientific theory (for example the breath test)
Can ask the judge to take judicial notice of the date of Thanksgiving
Ex: can judicially take notice that today is the day JFK was assassinated
under (2) an almanac fact
Judge can judicially take notice without request of parties
Judge must take judicial notice when requested and parties present info
In a civil case, the jury is instructed that they must take the judicially notice as
conclusive; BUT in a criminal case the jury is instructed to accept judicial notice as
conclusively if they want

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