Evidence by alicejenny

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									       TEXAS ASSOCIATION OF COUNTIES
2011 JUDICIAL ORIENTATION FOR NEW COUNTY JUDGES



         EVIDENCE BASICS




        ASSOCIATE DEAN CALVIN (CAL) LEWIS
       TEXAS TECH UNIVERSITY SCHOOL OF LAW
           TEXAS ASSOCIATION OF COUNTIES
                  TEXAS JUDICIAL ACADEMY
        JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                   EVIDENCE BASICS


   Agenda
       Relevance
       Privileges
       Witnesses
       Expert & opinion testimony
       Hearsay evidence
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                    TEXAS JUDICIAL ACADEMY
          JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS


   References

       Texas Rules of Evidence Handbook
        2011, Jones McClure Publishing, Inc.

       Texas Evidentiary Foundations, 3rd
        edition, Lexis Law Publishing 2005
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         EVIDENCE BASICS




          RELEVANCE
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                    TEXAS JUDICIAL ACADEMY
          JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                    EVIDENCE BASICS


   Relevance

       To be admissible, evidence must be
        relevant (TRE 402)

       Evidence which is not relevant is
        inadmissible (TRE 402)
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS

   Definition of “relevant evidence”
       Legal definition:
            Evidence having any tendency to make the
             existence of any fact that is of consequence to
             the determination of the [case] more probable
             than it would be without the evidence (TRE
             401)
       Simplified definition:
            Testimony must assist the trier of fact to
             understand the evidence admitted at trial or to
             determine a fact in issue
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                       TEXAS JUDICIAL ACADEMY
             JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                       EVIDENCE BASICS

   Example of “relevant” and “irrelevant”
    evidence”
       Irrelevant evidence
           Evidence that a defendant charged with using
            marijuana is the nephew of a drug kingpin
            recently sentenced to imprisonment for
            smuggling a ton of marijuana into the country

       Relevant evidence
           Evidence that the defendant tested positive for
            the presence of marijuana in his/her urine
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                    TEXAS JUDICIAL ACADEMY
          JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                    EVIDENCE BASICS


   Who determines relevance?
       Judge determines relevance

       Ask yourself

         What, if any, matter of significance
          does the evidence tend to prove in this
          case?
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                    TEXAS JUDICIAL ACADEMY
          JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                    EVIDENCE BASICS


   How are issues raised concerning
    relevance?
       A party objects to the evidence on the
        grounds that it is irrelevant
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS

   How should the judge react to objections
    based on relevance?
       Allow the objecting party to explain the basis of
        the objection
       Give opposing counsel the opportunity to respond
       Judge asks any clarifying questions of either
        counsel
       Make a ruling based on the judge’s assessment of
        whether the evidence is relevant
       Stand by your ruling
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         PRIVILEGES
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS


   Privileges
       No person has a privilege to:
         Refuse to testify
         Refuse to disclose any matter

         Refuse to produce any object or writing; or

         Prevent another from being a witness or
          disclosing any matter or producing any
          object or writing (TRE 501)
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS

   Privileges
       Exception to the rule pertaining to
        privileges
         Lawyer-client privilege (TRE 503)
         Husband-wife privilege (TRE 504)

         Communication to members of the clergy
          (TRE 505)
         Identity of informer (TRE 508)

         Physician-patient privilege (509)

         Mental health information in civil cases
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS

   Privileges
       Lawyer-client privilege (TRE 503)
            Client has a privilege to refuse to disclose and
             prevent any other person from disclosing
             confidential communications made for the
             purpose of facilitating the rendition of
             professional legal services to the client

            Privilege can be claimed by the client or the
             client’s lawyer on behalf of the client
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS

   Privileges
       Husband-wife privilege (TRE 504)
            Married persons have a privilege during the
             marriage and afterwards to refuse to disclose
             and to prevent another from disclosing a
             confidential communication made to the
             person’s spouse while they were married

            Privilege can be claimed by the person or
             his/her representative or the spouse on the
             person’s behalf
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS

   Privileges
       Communications to members of the clergy (TRE
        505)
            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 clergy member’s
             professional role as spiritual adviser

            Privilege can be claimed by the person or
             his/her representative or by the member of
             the clergy on behalf of the person
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS

   Privileges
       Identity of informer (TRE 508)
            Government may 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
            Privilege can be claimed by an appropriate
             representative of the government (usually law
             enforcement agent)
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              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Privileges
       Physician-patient privilege (TRE 509)

            In civil proceedings, 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

            Privilege can be claimed by the patient or
             his/her representative or by the physician on
             behalf of the patient
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS

   Privileges
       Physician-patient privilege (TRE 509)

            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
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Privileges
       Confidentiality of mental health information in
        civil cases (TRE 510)

            Communications between a patient and a
             professional is confidential and shall not be
             disclosed in civil cases

            Privilege may be claimed by the patient or the
             patient’s representative or the professional on
             behalf of the patient
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                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Privileges
       There are exceptions to many of these
        privileges

       Privileges may be waived under certain
        circumstances (TRE 511)
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         WITNESSES
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   Witnesses – competency and incompetency
       Every person is competent to be a witness with
        the following exceptions (TRE 601)

            Insane persons

            Children

                 Who appear not to possess sufficient
                  intellect to relate transactions with respect
                  to which they are interrogated
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           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Competency of children to testify

                          Question
       Is a two-year old competent to testify as
        to the details of a sexual assault?

       What about a four-year old?

       A six-year old?
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                     TEXAS JUDICIAL ACADEMY
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   Witnesses – exclusion of witnesses
    (TRE 614)
       At the request of either party, the court
        shall order witnesses excluded so they
        cannot hear the testimony of other
        witnesses

       The court may order exclusion of
        witnesses on its own motion
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    EXPERT TESTIMONY
            &
NON-EXPERT (LAY) TESTIMONY
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NON-EXPERT (LAY) TESTIMONY
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   Opinion testimony by lay witnesses (TRE
    701)
       Basic rule: Lay opinions are admissible if
        they are –

         Rationallybased on personal
          perception and

         Helpful   to the trier of fact
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                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS

       Examples of allowable lay opinions
        Speed of a motor vehicle
        Distances
        Size, color, shape, and texture
        Resemblance to other objects
        Quality and apparent source of sounds, light, or
         odor
        Physical description of a person (e.g. old or
         young, dark or fair, apparently healthy or sick,
         strong or weak, etc)
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                    TEXAS JUDICIAL ACADEMY
          JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Examples of allowable lay opinions
       Apparent emotional or psychological state
        of another (angry or frightened, upset ,
        sad, etc)
       Apparent mental state of another (e.g.
        “weapon was fired accidentally,” Fairow
        v. State, 943 S.W.2d 985 (Tex Crim App.
        1997))
       Value of property
       Person is intoxicated
       Particular substance is marijuana
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                    TEXAS JUDICIAL ACADEMY
          JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Examples of inadmissible lay opinions
       Proper punishment for a criminal
        defendant
       Amount of damages a plaintiff should
        receive for pain and suffering (too
        speculative)
       Specialized scientific knowledge
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Lay opinion must be “rationally based
    on personal perception”
       Opinion must be based on personal
        knowledge

       Excludes opinions based on mere
        speculation or conjecture
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS

   Lay opinion must be based on “personal
    knowledge”
       “Personal knowledge” does not mean
        categorical certainty
           Words like “I think” and “I believe” are
            acceptable if based on first-hand knowledge

       Judge plays a screening role to exclude
        evidence not based on first-hand
        knowledge
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          TEXAS JUDICIAL ACADEMY
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   EXPERT TESTIMONY
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           Testimony by Experts (TRE 702)
   Three basic requirements for the admission
    of any expert testimony –
       First: witness must be qualified;

       Second: proposed testimony must be grounded in
        scientific, technical, or other specialized
        knowledge; and

       Third: testimony must assist the trier of fact to
        understand the evidence admitted at trial or to
        determine a fact in issue
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                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Testimony by experts
       Basic Rule: A “qualified expert” witness
        may testify “in the form of an opinion or
        otherwise”

       Expert testimony may inform the jury of a
        matter of scientific, technical, or other
        specialized knowledge
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Three basic requirements for the
    admission of any expert testimony –

       First: witness must be qualified
                   TEXAS ASSOCIATION OF COUNTIES
                         TEXAS JUDICIAL ACADEMY
               JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS

   What does “qualified expert” mean?
       No across-the-board or detailed list of credentials
        that an expert must have

       One may qualify based on “knowledge, skill,
        experience, training, or education”

            Formal education without experience in the
             field may be a sufficient qualification or

            Experience without formal education may also
             be sufficient
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Method of qualifying an expert
       Proponent must lay a proper foundation
        showing the person is qualified
       Usually involves showing qualification by –
         Academic credentials
         Degrees

         Honors received

         Length and nature of work experience

         Areas of specialization

         Government certificates
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   Method of qualifying an expert (cont)
       Usually involves showing qualification –

         Organizational    memberships
         Officesheld
         Publications

         Professional awards

         Etc.
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                      TEXAS JUDICIAL ACADEMY
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   Who determines qualification as an
    expert?
       Judge determines whether witness is
        qualified as an expert (TRE 104(a))

       Trial judge has great discretion in
        determining whether a witness possesses
        the requisite qualifications
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Voir dire by opposing counsel
       Uses voir dire to determine any basis(es)
        for objection to qualification

       Generally permissible

         Priorto determining qualification of
          witness to give opinion testimony
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Waiving qualification of expert
       Qualification of witness often waived by
        opposing counsel
           Qualification often increases credibility and
            reliability of witness in mind of trier of fact

           Opposing counsel may not want jury to hear the
            lofty qualifications of witness

       Proponent counsel usually allowed to
        qualify witness notwithstanding waiver
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                      TEXAS JUDICIAL ACADEMY
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   Three basic requirements for the
    admission of any expert testimony –

       Second: proposed testimony must be
        grounded in scientific, technical, or other
        specialized knowledge
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   What does it mean that the “proposed
    testimony must be grounded in scientific,
    technical, or other specialized knowledge?”

       Means the area of expertise is sufficiently
        reliable
           Such that this expert can assist the jury in
            understanding or determining a material fact or
            issue in this case

       Goal is to weed out “junk science”
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Three basic requirements for the
    admission of any expert testimony –

       Third: testimony must assist the trier of
        fact to understand the evidence admitted
        at trial or to determine a fact in issue
                   TEXAS ASSOCIATION OF COUNTIES
                         TEXAS JUDICIAL ACADEMY
               JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS


   What does “assist the trier of fact to
    understand the evidence” mean?
       Basic question for judge: Can a jury receive
        appreciable help from this expert witness?

            Does witness help the trier of fact make a more
             intelligent and informed decision?

       Trial judges have broad discretion to determine
        when expert testimony would assist the trier of
        fact
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                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   What does “to determine a fact in
    issue” mean?
       Must relate sufficiently to the matter at
        issue in the case

       Example: A foot doctor could not give an
        expert opinion on whether a brain
        surgeon committed medical malpractice
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Types of scientific evidence commonly
    admitted –
       Chemical analysis for alcohol
          On breath
          In blood, urine, or saliva

       Ballistics tests
       Radar measurements of speed
       Fingerprint evidence
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   Types of scientific evidence commonly
    admitted (cont) –
       Blood tests to determine paternity

       DNA evidence

       Blood splatter analysis

       Microscopic hair analysis
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   Controversial types of scientific
    evidence –
       Voiceprint evidence (spectography)

       Horizontal gaze nystagmus (HGN) tests

         Test that gauges intoxication by
          measuring the involuntary oscillation of
          the eyes

       Psychological syndrome evidence
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                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Forms of expert testimony –
       May testify to personal knowledge of the
        facts in issue

       May provide general background
        information regarding theory and
        principles relative to the field of expertise

       May evaluate specific data and facts in
        issue in light of experience in a particular
        specialized field
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   Special rules of interest

       The degree of an expert’s certainty goes
        to weight, not admissibility

       Expert cannot testify that a particular
        witness is or is not telling the truth about
        an event
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                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   Determining reliability and relevance
    of the expertise

       Trial judge is gatekeeper regarding the
        reliability and relevance of all expert
        testimony
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          TEXAS JUDICIAL ACADEMY
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  HEARSAY EVIDENCE
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                      TEXAS JUDICIAL ACADEMY
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   What is hearsay?
       Hearsay is a statement which was made or
        occurred out of court and is offered in court to
        prove the truth of the facts asserted

   What is the basic rule of law on hearsay?
       Hearsay is not admissible at trial unless it
        qualifies under one of the exceptions
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                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   What is hearsay?
       More simplified definition

            The trier of fact may only be asked to believe
             those statements made by witnesses
             testifying at trial

            The trier of fact may not be presented with
             out-of-court statements and asked to believe
             that the statements are true

            Unless certain exceptions apply
                  TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS
   Examples of hearsay
       A is charged with possession of marijuana. A
        claims that the substance was not marijuana,
        but oregano. A calls B as his witness, and B
        testifies that C told him that the substance
        tasted like oregano.
       Generally, this would be considered hearsay
            Out of court statement
            Offered in court to prove the truth of the
             facts asserted in the statement (that the
             substance tasted like oregano, not
             marijuana)
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                       TEXAS JUDICIAL ACADEMY
             JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                       EVIDENCE BASICS


   Oral vs. written hearsay

       Hearsay covers any kind of out of court
        statement, both oral and written
           So long as the statement is offered to show
            the truth of the matter asserted
                    TEXAS ASSOCIATION OF COUNTIES
                         TEXAS JUDICIAL ACADEMY
               JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                          EVIDENCE BASICS

   Written hearsay example
       A is again on trial for possession of marijuana.
        Witness B, a criminal investigator, is on the stand
        testifying for the prosecution. B testifies that A’s
        son gave him a written statement indicating
        where the illegal drugs were hidden.
       The written statement itself would be
        inadmissible hearsay evidence if offered to prove
        where the drugs were hidden.
            Out of court declaration
            Offered for the truth of the facts asserted
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                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
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   What is hearsay?

       Hearsay is a statement which was made or
        occurred out of court and is offered in
        court to prove the truth of the facts
        asserted
                 TEXAS ASSOCIATION OF COUNTIES
                       TEXAS JUDICIAL ACADEMY
             JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                       EVIDENCE BASICS

   What is meant by an “out of court
    statement”?
       Any statement except one that is made by
        witnesses during the trial while testifying
        before the trier of fact
           Any oral or written statement by someone
            other than the at-trial witness; and
           Prior statement by the at-trial witness, where
            the prior statement was not made in the
            present trial before the trier of fact
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   “Out-of-court statement” by witnesses at
    trial includes

       Statement made in a deposition or in an
        earlier trial

       Even statements spoken in the judge’s
        chambers during the present trial
                TEXAS ASSOCIATION OF COUNTIES
                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS


   What is hearsay?

       Hearsay is a statement or assertive
        conduct which was made or occurred out
        of court and is offered in court to prove
        the truth of the facts asserted
                TEXAS ASSOCIATION OF COUNTIES
                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS

   What is meant by “truth of the facts
    asserted”?

       Key to the concept of hearsay is to
        remember that an out-of-court
        declaration is not, by itself, either hearsay
        or non-hearsay

       Purpose for which the declaration is
        offered is the key
                  TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS
   What is meant by “truth of the matter
    asserted”?
       Purpose for which the declaration is offered is
        dispositive

            Out-of-court declaration may be offered into
             evidence for many purposes other than to
             prove the truth of the matter asserted in the
             declaration

            Only when the statement is offered to proved
             the truth of the matter asserted in the
             declarations does it constitute hearsay
                TEXAS ASSOCIATION OF COUNTIES
                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS
   Example of when an out-of-court declaration does
    not amount to hearsay
       P is charged with the misdemeanor of “creating a
        public nuisance resulting in injury.” The
        prosecution calls O, the victim to the stand who
        wants to testify that she saw P come into the
        movie theater and yell “fire!” whereupon O
        jumped out of her seat and headed for the exit,
        during which she was trampled by other patrons
        exiting the theater, resulting in minor injury.
        There was in fact no fire in the theater.
       Testimony is not hearsay: Not offered to prove
        that there was a “fire,” but to show how P
        created the panic that caused the stampede
        resulting in the injury to O
                TEXAS ASSOCIATION OF COUNTIES
                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS

   Another example of when an out-of-court
    declaration does not amount to hearsay
       X is charged with misdemeanor vandalism.
        Witness, Y, is called to testify that he saw X and
        Z together on the night of the crime engaging in
        suspicious activity and that when he interrupted
        them unexpectedly, he heard Z suddenly say,
        “Holy Cow!”
       Testimony is not hearsay: Out of court
        statement is not offered to prove that there was
        a “Holy Cow,” but to show how Z was startled at
        being unexpectedly and suddenly interrupted.
      TEXAS ASSOCIATION OF COUNTIES
            TEXAS JUDICIAL ACADEMY
  JUDICIAL EDUCATION SESSION FOR NEW JUDGES
            EVIDENCE BASICS




OUT-OF COURT STATEMENTS
  THAT ARE NON-HEARSAY
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS
   Statements which by rule are NOT hearsay
    (TRE 801(e)(1)(A))
       (1) Prior inconsistent statement by a witness
            If the declarant testifies at the trial or
             hearing and is subject to cross-examination
             concerning the statement and the statement
             is –
                 Inconsistent with the declarant’s
                  testimony and was given under oath
                  subject to penalty of perjury at trial or
                  hearing or other proceeding (except a
                  grand jury proceeding in a criminal case)
                  or deposition
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS

   Statements which by rule are NOT hearsay
    (TRE 801(e)(1)(B))
       (2) Prior consistent statement by a witness
            If the declarant testifies at the trial or
             hearing and is subject to cross-examination
             concerning the statement and the statement
             is –
                 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
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS


   Statements which by rule are NOT hearsay
    (TRE 801(e)(1)(C))
       (3) Prior statement of identification

            If the declarant testifies at the trial or
             hearing and is subject to cross-examination
             concerning the statement and the statement
             is –

                 One of identification of a person made
                  after perceiving the person
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                          EVIDENCE BASICS


   Statements which by rule are NOT hearsay
    (TRE 801(e)(1)(D))
       (4) Prior recorded statements by a child victim
        offered in a criminal case
            If the declarant testifies at the trial or
             hearing and is subject to cross-examination
             concerning the statement and the statement

                 Pertains to certain assault-type crimes
                  against a child 12 years old or younger
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS


   Statements which by rule are NOT hearsay
    (TRE 801(e)(2))
       Admissions by a party-opponent – individual and
        representative admissions

            If the statement is offered against a party and
             is –

                 (A) The party’s own statement in either an
                  individual or representative capacity; or
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS


   Statements which by rule are NOT hearsay
    (TRE 801(e)(2))
       Admissions by a party-opponent – adoptive
        admissions
            If the statement is offered against a party and
             is –

                 (B) A statement of which the party has
                  manifested an adoption or belief in its
                  truth; or
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS


   Statements which by rule are NOT hearsay
    (TRE 801(e)(2))
       Admissions by a party-opponent – authorized
        admissions
            If the statement is offered against a party and
             is –

                 (C) A statement by a person authorized by
                  the party to make a statement concerning
                  the subject; or
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                          EVIDENCE BASICS

   Statements which by rule are NOT hearsay
    (TRE 801(e)(2))
       Admissions by a party-opponent – vicarious
        admissions
            If the statement is offered against a party and
             is –

                 (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
                    TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                         EVIDENCE BASICS

   Statements which by rule are NOT hearsay
    (TRE 801(e)(2))
       Admissions by a party-opponent – co-conspirator
        admissions

            If the statement is offered against a party and
             is –

                 (E) A statement by a co-conspirator of a
                  party during the course and in furtherance
                  of the conspiracy
                  TEXAS ASSOCIATION OF COUNTIES
                        TEXAS JUDICIAL ACADEMY
              JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                        EVIDENCE BASICS


   Statements which by rule are NOT hearsay
    (TRE 801(e)(2))
       Depositions in a civil case (Texas Rules of Civil
        Procedure)

            Deposition may be used in lieu of testimony
             without any requirement that the deponent be
             unavailable to testify at trial
    TEXAS ASSOCIATION OF COUNTIES
          TEXAS JUDICIAL ACADEMY
JUDICIAL EDUCATION SESSION FOR NEW JUDGES
          EVIDENCE BASICS




HEARSAY EXCEPTIONS
                TEXAS ASSOCIATION OF COUNTIES
                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS

   Hearsay exceptions – availability of
    declarant immaterial
       (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

       (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
                TEXAS ASSOCIATION OF COUNTIES
                      TEXAS JUDICIAL ACADEMY
            JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                      EVIDENCE BASICS

   Hearsay exceptions – availability of
    declarant immaterial
       (3) Then existing mental, emotional, or physical
        condition - A statement of the declarant’s then
        existing state of mind, emotion, sensation, or
        physical condition, but not including a statement
        of memory or belief
       (4) Statements for purposes of medical diagnosis
       (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
               TEXAS ASSOCIATION OF COUNTIES
                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS

   Hearsay exceptions – availability of
    declarant immaterial
       (6) Records of regularly conducted
        activity – if kept in the course of a
        regularly conducted business activity
       (7) Absence of entry in records kept in the
        course of regularly conducted business
        activity
       (8) Public records and reports
               TEXAS ASSOCIATION OF COUNTIES
                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS


   Hearsay exceptions – availability of
    declarant immaterial
       (9) Records of vital statistics

       (10) Absence of public record or entry

       (11) Records of religious organizations

       (12) Marriage, baptismal, and similar
        certificates
               TEXAS ASSOCIATION OF COUNTIES
                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS

   Hearsay exceptions – availability of
    declarant immaterial
       (13) Family records
       (14) Records of documents affecting an
        interest in property
       (15) Statements in documents affecting
        an interest in property
       (16) Statements in ancient documents
               TEXAS ASSOCIATION OF COUNTIES
                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS

   Hearsay exceptions – availability of
    declarant immaterial
       (17) Market reports, commercial
        publications
       (18) Learned treatises
       (19) Reputation concerning personal or
        family history
       (20) Reputation concerning boundaries or
        general history
               TEXAS ASSOCIATION OF COUNTIES
                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS


   Hearsay exceptions – availability of
    declarant immaterial
       (21) Reputation as to character

       (22) Judgment of previous conviction

       (23) Judgment as to personal, family, or
        general history, or boundaries

       (24) Statement against interest
                 TEXAS ASSOCIATION OF COUNTIES
                       TEXAS JUDICIAL ACADEMY
             JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                       EVIDENCE BASICS

   Hearsay exceptions – declarant
    unavailable
       Definition of “unavailability”
          A claim of privilege
          Refusal to testify

          Lack of memory

          Death or physical or mental illness or infirmity

          Absence from the hearing and inability of the
           proponent “to procure the declarant’s
           attendance or testimony by process or other
           reasonable means.”
               TEXAS ASSOCIATION OF COUNTIES
                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS

   Hearsay exceptions – declarant
    unavailable
       (1) Former testimony – in civil cases,
        testimony given as a witness at another
        hearing of the same or different
        proceeding, or in a deposition taken in the
        course of another proceeding
       (2) Dying declaration – statement made
        by a declarant while believing that his/her
        death was imminent
                 TEXAS ASSOCIATION OF COUNTIES
                       TEXAS JUDICIAL ACADEMY
             JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                       EVIDENCE BASICS


   Hearsay exceptions – declarant
    unavailable
       (3) Statement of personal of family
        history
           A statement concerning the declarant’s own
            birth, adoption, marriage, divorce, legitimacy,
            etc.
               TEXAS ASSOCIATION OF COUNTIES
                     TEXAS JUDICIAL ACADEMY
           JUDICIAL EDUCATION SESSION FOR NEW JUDGES
                     EVIDENCE BASICS

   Hearsay methodology
       First, ask whether you have an out-of
        court statement or assertive conduct
       Second, ask whether it is offered for the
        truth of the facts asserted
       Third, ask whether it is one of the types of
        statements that, by rule, is not hearsay
       Finally, ask whether it falls under one of
        the exceptions to the hearsay rule
        TEXAS ASSOCIATION OF COUNTIES
           TEXAS JUDICIAL ACADEMY
   JUDICIAL EDUCATION SESSION FOR NEW JUDGES
              EVIDENCE BASICS




TEXAS TECH UNIVERSITY SCHOOL OF LAW
       1802 HARTFORD AVENUE
     LUBBOCK, TEXAS 79409-0004
        (806) 742-3990, ext 274
          calvin.lewis@ttu.edu

								
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