EVIDENCE OUTLINE Prof. Steven Goode – Fall 1997
This outline is e-mailware! While there is no cost for using the outline, you must drop me a line at dfalgoust@mail.utexas.edu to tell me what you think, if it helped you, etc.; it’d also be nice if you dropped by my web page at http://www.geocities.com/NapaValley/3578/ and signed my guest book. Feel free to redistribute this outline unmodified to anyone who may find it useful. This outline is provided “as is” and I make no promises as to its accuracy (it worked for me, your mileage may vary). Good Luck on exams! Damien Falgoust University of Texas School of Law
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Introduction A. While I’m not normally big on commercial outlines, for this course I used Sum & Substance’s Quick Review of Evidence, 3rd Edition; It was written by Professor Goode and so is particularly useful for his class. B. This, then is a list of the only thing that source is missing for Professor Goode’s class: a comparison of the Federal Rules of Evidence (FRE) and the Texas Rules of Evidence (TRE) C. Note here that although I use the convention “TRE” and “FRE,” I use them not only to refer to the respective codes, but also to the common-law rules interpreting them (e.g., “FRE” = federal law generally)
Key differences between the FRE and TRE
The Definition of Hearsay Types of Statements: 1. Verbal Assertion 2. Non-verbal Assertive Conduct 3. Non-Verbal, Non-Assertive Conduct 4. Verbal Non-Assertive Conduct 5. Assertion Used Inferentially Hearsay? Category FRE TRE Common Law
1 Y Y Y
2 Y Y Y
3 N N Y
4 N Y Y
5 N Y Y
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Prior Inconsistent Statements of a Witness Hearsay Exception FRE and TRE-Civil are identical; TRE-Crim excludes grand jury proceedings from the exception (i.e., makes such hearsay statements inadmissible) Former Testimony Hearsay Exception If party against whom testimony is offered didn’t develop prior testimony, can still admit if (FRE: predecessor in interest, TRE: person with similar interest) so developed; however, federal courts have interpreted FRE substantively the same as the TRE Former Testimony – Depositions FRE: Admission of deposition in same proceeding requires unavailability; TRE: no unavailability requirement Statements Against Interests Hearsay Exception Unavailability Required? – FRE Yes, TRE No Statement Against Social Interest Allowed? – FRE No, TRE Yes Statement Against Penal Interest – FRE only requires corroboration for D; TRE imposes corroboration on state or D regardless of who offers (note sometimes corroboration is constitutionally required when state offers) (this isn’t an important distinction) Dying Declarations Hearsay Exception FRE: only for civil and criminal homicide cases; TRE: all civil and all criminal cases Past Recollection Recorded Hearsay Exception TRE makes inadmissible if “circumstances of preparation cast doubt on the document’s trustworthiness” (no such requirement in FRE) Business Records Hearsay Exception – Foundation Requirement FRE: orally via testimony of custodian or other witness; TRE-Civ adds affidavit of custodian
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Residual Hearsay Exception FRE only; no residual exception in TRE Character Evidence – Rape Shield Laws Exceptions permitting evidence of victim’s character: Both: Prior sexual conduct with accused; FRE only: Sexual conduct with others to prove alternate source of semen/injury TRE only: To explain/rebut medical/scientific evidence; motive or bias of victim; impeachment of witness by showing prior criminal offense (this one may be fed, too) Character Evidence – Defensive Use of Specific Instances of Conduct FRE: Never can make such use TRE: Can use if accused of conduct involving “moral turpitude” (not negligence or breach – rather civil conduct that is also criminal, e.g., fraud, assault – definition is still fuzzy, though) Subsequent Remedial Measures TRE makes SRM’s admissible in products liability cases based on strict liability Testimony – Ultimate Issue FRE: otherwise admissible testimony is not inadmissible because it embraces an “ultimate issue,” except no testimony by experts on if a criminal D had the requisite mental state (the Hinckley Rule) TRE: No Hinckley Rule; can’t ask expert for legal conclusion (i.e., can ask if D appreciates good/evil of his act, but not if he is legally sane/insane) Present Recollection Refreshed FRE: if used to refresh witnesses’ memory out of court, discretion as to if other side may inspect; TRE: other side has absolute right to inspect Cross-Examination FRE: limited to issues on direct; TRE: wide-open CX
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Prior Inconsistent Statement – Impeachment/Foundation FRE: no foundation requirement; TRE: foundation required Bias – Impeachment FRE: no foundation requirement; TRE: foundation required Bad Character Shown By Prior Crimes – Impeachment FRE: felony, or misdemeanor involving dishonesty; TRE: Felony or misdemeanor involving moral turpitude (turpitude meaning whatever the Texas Court of Criminal Appeals wants it to mean) Also, FRE: dishonesty always admissible to impeach (other crimes do relevancy balancing test); TRE: always do balancing test regardless of type of crime Also, FRE: can’t use conviction if pardoned or annulled; TRE: completion of probation makes conviction inadmissible to impeach TRE: must give notice of intent to use criminal conviction Bad Character Shown by Things Other Than Conviction – Impeachment FRE: conduct doesn’t have to be criminal; TRE: requires conviction to use Best Evidence Rule – Availability of Original FRE: Must use process to get original no matter where it is; TRE: unavailable if not available in Texas Authentication FRE: to authenticate by comparison with exemplar, only have to do so via some method allowed in FRE §901; TRE: judge must find exemplar genuine, or parties must so stipulate Also: TRE allows authentication of business records via affidavit; FRE doesn’t
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Privileges (FRE adopts state provisions – here, TRE) Spousal Communication: TRE – Only applies to events during marriage; voluntary disclosure waives; eavesdropper can probably testify; doesn’t apply to crime/fraud, commitment, or competency, or to proceedings where crime against minor child or other household member is alleged (FRE only against minor children) Spousal Testimonial: TRE – Not for pre-marriage events; doesn’t apply if spouse is victim (e.g., Felicia Moon has to testify against Warren Moon) Attorney-Client - Corporate Holder of Privilege: FRE – Diversified Industries Test; TRE: Control Group Test Doctor-Patient: TRE – Only applies in civil cases; also applies to psychotherapists; exception for criminal cases is treatment for drug/alcohol abuse
Other notes on Texas Evidence Law: Texas has a dead-man statute Admission of criminal acts to prove character requires notice to the other side
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