Fall 2008
This outline is for Wellborn’s 4-hour course with both Federal and Texas Rules.
Black text= general principles of evidence that apply under both Federal and Texas
Blue text= applies under Texas Rules of Evidence
Red text= applies under Federal Rules of Evidence
Chapter I. Relevancy- F.R.Evid. Art. IV.. 4
I. General Principles: F.R.Evid. 401-403. 4
II. Character: F.R.Evid. 404, 405, 412-415. 8
III. Habit and Routine Practice: F.R.Evid. 406. 19
IV. Subsequent Remedial Measures: F.R.Evid. 407. 20
V. Compromise and Offers to Compromise: F.R.Evid. 408-410. 21
VI. Liability Insurance: F.R.Evid. 411. 22
Chapter II. Hearsay: F.R.Evid. Art. VIII23
I. Definition: F.R.Evid. 801(a)-(c)23
A. Introduction. 23
B. Verbal Acts23
C. Effect on State of Mind of Listener or Reader23
D. Implied Assertions24
E. Circumstantial Evidence of Declarant’s State of Mind. 26
II. Prior Statement by Witness: F.R.Evid. 801(d)(1)27
A. Inconsistent Statements: F.R.Evid. 801(d)(1)(A)27
B. Consistent Statements: F.R.Evid. 801(d)(1)(B)27
C. Identification of a Person: F.R.Evid. 801(d)(1)(C)28
III. Admission by Party-Opponent:29
A. Statute:29
B. Individual: F.R.Evid. 801(d)(2)(A)29
C. Adoptive- party has manifested its belief that someone else’s statement is true. 30
D. Authorized: F.R.Evid. 801(d)(2)(C)31
E. Employee: F.R.Evid. 801(d)(2)(D)31
F. Co-Conspirator: F.R.Evid. 801(d)(2)(E)32
IV. Present Sense Impression: F.R.Evid. 803(1)33
V. Excited Utterance: F.R.Evid. 803(2)34
VI. Then Existing Mental, Emotional, or Physical Condition: F.R.Evid.803(3):35
A. Statute:35
B. Then Existing Physical Condition. 35
C. State of Mind in Issue (present state of mind when state of mind is in issue as an essential element)35
D. State of Mind to Prove Conduct; Statement of Memory of Belief (where state of mind is not in issue but is offered for an inference)36
E. Testator state of mind in will cases37
VII. Statements for Purposes of Medical Diagnosis or Treatment: F.R.Evid. 803(4)37
VIII. Recorded Recollection: F.R.Evid. 803(5)38
IX. Records of Regularly Conducted Activity: F.R.Evid. 803(6),(7)39
X. Public Records and Reports: F.R.Evid. 803(8)-(10)42
XI. Learned Treatises: F.R.Evid. 803(18)43
XII. Former Testimony: F.R.Evid. 804(b)(1)43
XIII. Statement under Belief of Impending Death: F.R.Evid. 804(b)(2)45
XIV. Statement Against Interest: F.R.Evid. 804(b)(3)45
XV. Forfeiture by Wrongdoing: F.R.Evid. 804(b)(6)48
XVI. Residual Exception: F.R.Evid. 807. 48
Chapter III. Procedures for Admitting and Excluding Evidence: F.R.Evid. Art. I50
I. Objections and Motions to Strike: F.R.Evid. 103(a)(1)50
A. Timeliness50
B. Specificity. 51
II. Offers of Proof: F.R.Evid. 103(a)(2), (b)52
A. Two forms of offer of proof:52
B. How to determine which offer of proof is necessary. 52
III. Preliminary Questions: F.R.Evid. 104. 52
IV. Limited Admissibility: F.R.Evid. 105. 54
V. Remainder of or Related Writings or Recorded Systems: F.R.Evid. 106. 55
VI. Curative Admissibility (Opening the Door) and the Rule of Completeness56
Chapter IV. Witnesses: F.R.Evid. Art. VI57
I. Competency: F.R.Evid. 601-606. 57
A. General57
B. Mental Competency; Oath: F.R.Evid. 601, 603. 57
C. Children. 57
D. Dead Man’s Statutes58
E. Lack of Personal Knowledge: F.R.Evid. 602. 58
F. Competency of Juror as Witness: F.R.Evid. 606. 59
II. Impeachment: F.R.Evid. 607-610, 613. 60
A. Prior Inconsistent Statement: F.R.Evid. 613. 60
B. Bias or Interest61
C. Bad Character for Truthfulness: Can be illustrated by three types of character evidence:62
D. Defect of Capacity. 64
E. Contradiction. 65
F. Impeaching One’s Own Witness: F.R.Evid. 607. 65
III. Mode and Order of Interrogation and Presentation: F.R.Evid. 611. 66
A. Control By Court: F.R.Evid. 611(a)66
B. Scope of Cross-Examination: F.R.Evid. 611(b)66
C. Leading Questions: F.R.Evid. 611(c)66
IV. Writing Used to Refresh Memory: F.R.Evid. 612. 67
V. Calling and Interrogation of Witnesses By Court: F.R.Evid. 614. Error! Bookmark not defined.
VI. Exclusion of Witnesses: F.R.Evid. 615. 68
Chapter V. Opinions and Expert Testimony: F.R.Evid. Art. VII70
I. Opinion Testimony By Lay Witnesses: F.R.Evid. 701. 70
II. Testimony by Experts: F.R.Evid. 702. 71
III. Forms and Bases of Expert Testimony: F.R.Evid. 703 and 705. 72
IV. Opinion on Ultimate Issue: F.R.Evid. 704. 73
Chapter VI. Authentication and Identification: F.R.Evid. Art. IX.. 75
I. Real Evidence. 75
II. Writings75
III. Voices and Telephone ConversationsError! Bookmark not defined.
IV. Photographic Evidence. 77
V. Demonstrative (Illustrative) Evidence. 77
Chapter VII. Contents of Writings, Recordings, and Photographs (The “Best Evidence Rule”): F.R.Evid. Art. X 78
I. Introduction; Definition of “Writing”: F.R.Evid. 1001(1)78
II. Requirement of Original: F.R.Evid. 1002: when does the best evidence rules apply?. 78
III. Originals and Duplicates: F.R.Evid. 1001(3) and (4), 1003. 78
IV. Admissibility of Other Evidence of Contents: F.R.Evid. 1004. 79
V. Public Records: F.R.Evid. 1005— N/A.. Error! Bookmark not defined.
VI. Summaries: F.R.Evid. 1006. 79
Chapter VIII.Privileges: F.R.Evid. Art. V (Rule 501)81
I. General81
A. Common Law.. 81
II. Spousal (Husband and Wife)81
A. Two types:81
B. Adverse testimony in a criminal case. 81
C. Confidential communications81
D. Texas and Federal are nearly identical.82
E. Privileges in General82
III. Lawyer-Client82
A. Introduction. 82
B. “Confidential Communication”. 82
C. Representative of the Client; Relation to Work Product Protection. 83
D. Representative of the Lawyer; Joint Defense/Common InterestError! Bookmark not defined.
F. Eavesdroppers; Crime-Fraud Exception. 83
G. Waiver83
IV. Psychotherapist-Patient and Physician-Patient83
A. Federal – 501. 83
B. Texas83
Chapter I. Relevancy- F.R.Evid. Art. IV
I. General Principles: F.R.Evid. 401-403
Rule Summaries
Nutshell (Relevancy): FR 401 Definition of “Relevant Evidence”
The first requisite for evidence to be admissible is that it must be relevant.
In some ways, relevance is a societal concept, for example it is probative to most that love letters written by the accused to the victim’s wife is more likely to have committed the crime. But what is our guide? The assumption must be reasonable.
Materiality: Well, immaterial is the term used by some to indicate that a particular piece of evidence is relevant to a proposition of fact, but that the proposition itself is not an issue under the substantive law. For example, there may be evidence establishing contributory negligence by the injured worker, but if it is a worker’s compensation claim, the evidence would be immaterial and thus irrelevant. To be material, a fact thus must be of consequence to the determination of the action.
Based on the language of Rule 401, “evidence having any tendency” encompasses all items with even the slightest probative value—but Courts typically do not read it this way and label evidence lacking substantial probative value as “irrelevant.”
Nutshell (Relevancy): FR 402 – Relevant Evidence Admissible, Irrelevant evidence inadmissible
Evidence may indeed be relevant, but it must pass other tests or hurdles as well.
FR 402 is written to assume that relevant evidence is admissible by saying “is admissible, except as otherwise provided by the US Constitution, Acts of Congress, by the FR’s, or other rules prescribed by the Supreme Court”—not any common law doctrine that is more restrictive re: the relevancy standard.
Last, the rules states that “Evidence which is not relevant is not admissible.”
Nutshell (Relevancy): FR 403 – Exclude if Probative value substantially outweighed by prejudice
However, even if evidence is indeed relevant, a judge may exclude the evidence if its probative value is substantially outweighed by the danger of:
1. Unfair prejudice = emotional, appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or cause a jury to base its decision on something else
2. Confusion of the issues = distract the jury from the proper issues
3. Misleading the Jury = attach undue weight to the evidence, scientific evidence
4. Undue delay, waste of time, needless presentation of cumulative evidence = as a general rule, evidence may not be excluded solely to avoid delay; waste of time because it has scant probative value
*5. Surprise = court usually grants a continuance over exclusion of relevant evidence
The words substantial and unfair seem to convey that relevant evidence is ordinarily admissible. So, even if the probative value is outweighed by unfair prejudice, it as admitted unless it “substantially” outweighs!
Unfair prejudice = a tendency of the evidence to influence the fact-finder unduly or to induce decision on an improper basis. The judge distrusts the jury’s ability to properly
2: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible-“All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.”
1) All relevant evidence is admissible unless it is made inadmissible by some law or rule, such as hearsay.
2) All irrelevant (zero probative value or wholly immaterial) evidence is not admissible.
D. F.R.Evid. 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time- “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
1) Rule favors admission. It is an extraordinary remedy to be used sparingly because it permits the trial court to exclude otherwise relevant evidence. It is used sparingly, because a court can often diffuse the other consideration/prejudice by controlling presentation or giving limiting instructions.
2) Absent clear abuse of discretion, trial court rulings under 403 are usually upheld by appellate courts.
3) Because probative value must be substantially outweighed to warrant exclusion, most 403 objections are overruled.
4) The proper test is one of balancing probative value against prejudicial effect or other considerations.
5) “Probative value”
a) Defined here not in the absolute sense of 401, but by comparing evidentiary alternatives. The more essential the evidence, the greater the probative value, and the less likely a court should exclude it. This is not an absolute standard.
b) Means with respect to a material fact if the evidence is believed, not the degree the court finds it believable. Judge is not to determine credibility.
6) “Unfair prejudice”
a) “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.”
b) Evidence is unfairly prejudicial if it has an undue tendency to suggest decision on an improper basis. Often emotion. Something that distracts from the principle of equality.
c) You are entitled to tell the story through evidence, even if gory, if it is relevant. EX: US v. McRae- McRae shot his wife at point blank range with a rifle. McRae’s sole defense was accident, and trial court admitted two gory photos because they were important to establishing her position and that of the rifle. Evidence of his quickly established relationships after her death was also admitted as rebuttal to his claim of extreme grief. Court said this was not parade of horrors intended to sway emotions, and it would not sanitize a gory crime where photos were relevant to show angles and such. Evidence of relationships was also probative of motive, since he claimed extreme grief. Under 401 fact of consequence is his intent and probative value is that it only weakly suggests he was not devoted. Probably would have been excluded if he had not brought it up.
EX: Old NC Case- one car auto accident, driver killed. Passenger paralyzed. F passenger sues estate of M driver. He was married but separated, she was married not separated. Witness testified that just before vehicle left road, she was hitting and slapping him. This was contributory negligence, which she denied. His kid offered to testify that P sometimes shacked.
