1. Pretrial Motions- when and how are they used
    • Motion in Limine- May make a motion to obtain a ruling on the admission of a specific piece of evidence before trial
    • Making a motion in limine does NOT preserve error for appeal. If the evidence is admitted, the opponent should still object to its admission during the trial to preserve error
    • A pretrial ruling on the evidence is not necessarily final
    • The judge does NOT have to rule on it before trial, may wait until trial
    • These are key in civil practice
    • Can be filed at any time

    • Motion to suppress - Made when an item of evidence was obtained in violation of the Constitution (4th, 5th, 6th Amendments)
    • Usually apply in criminal cases
  2. 611(a) and (b)- Control by the Court and Scope of Cross-Examination
    • (a) Applies to both Federal and Texas
    • The Court will exercise REASONABLE control over the process of questioning witnesses for the purposes of
    • Ascertaining the truth
    • Utilizing time
    • Preventing harassment or embarrassment
    • Idea of balancing these three interests
    • The JUDGE is in control of the courtroom
    • He has discretion, BUT may not abuse it
    • Abuses of discretion are reviewed on appeal

    • 611(b)
    • a witness may be cross examined on any matter relevant to any issues in the case, including credibility
    • This is different from the Federal Rule
  3. 611(c)- Leading Questions
    • Leading questions should NOT be used in direct examination
    • Exception: when the witness wont answer any questions (Is it correct that your name is Emily Schmedlapp?)

    • Leading questions are permitted
    • 1) on cross examination (they SHOULD be used in CX) OR
    • 2) when dealing with a hostile witness
    • You may want to ask the judge to declare the witness hostile in order to ask these questions
    • If the proponent is permitted to ask leading questions on direct examination, then the opponent may not ask leading questions on cross examination
    • Cant have leading questions in both

    • OR 3) against an adverse party
    • Ex: the defendant in a civil case
  4. Scope of Direct and Cross examination in Texas and Federal
    • Direct- anything relevant to the case
    • Texas CX- anything, even credibility
    • Federal CX- limited to what was raised on direct OR touching on witness's credibility
  5. Scope of redirect and recross
    • Redirect- scope is anything raised on cross;
    • know that there is not a righ to redirect, it is up to the judge
    • should be done with non-leading questions (proponent)
    • this is an opportunity to rehabilitate the witness who has been attacked
    • Recross- scope is what was raised on redirect
    • usually leading questions (opponent)
  6. What is "the Rule"? Texas and Federal?
    • Texas Rule 614
    • At the request of a party the court shall (will) exclude a witness to prevent them from hearing testimony of other witnesses
    • OR the court (trial court) may make the order on its own motion (sue sponte)
    • Certain people MAY NOT be excluded from the courtroom
    • 1) A PARTY who is a natural person OR in civil cases the spouse of such person
    • 2) Officers or employees of a party who is not a natural person that the attorney has recognized as a representative for the party
    • 3) Persons whose presence is essential to presentation of a party’s case
    • Burden of proving the party’s
    • importance is on the party requesting to prevent exclusion
    • Experts are typically “essential”
    • 4) The VICTIM in a criminal case
    • UNLESS the victims testimony may be materially affected by hearing other testimony

    • Federal equivalent is 615
    • Differences:
    • No exception for the spouse of a person who is a natural person
    • No exception for “victims” in criminal case
    • BUT does specify for those authorized by statute This puts the burden on the attorney to prove that a statute exists allowing the person to be in the courtroom (such as a victim)
  7. What are the possible results of violation of "the Rule"
    • 1- Judge may hold violator in contempt
    • 2- Witness may be disqualified
    • 3- Witness may testify, but judge will give limiting instruction to the jury so they will consider that he was present during the other testimony
  8. What is Federal Rule 614 (Calling of Additional Witnesses)
    • Allows trial judge to call and interrogate witness on his own OR by request of the party
    • When a witness is called under this rule, any opposing party may object.
    • Parties and judge may question the witness
    • Jury may also request that an additional witness be called, then the judge or party may call them

    • NOT applicable in Texas: judge may NOT comment on evidence and may not call witnesses
    • BUT the judge may suggest that the attorneys call more witnesses
    • judge may question witnesses but be careful not to comment on evidence
    • Juries cannot call witnesses in Texas, but they may question then only in civil
  9. Federal and Texas Rules of Optional Completeness
    • 106 (Both) If you enter part of a writing or statement into evidence, your opponent may enter the remaining part to ensure that the jury receives the full picture of the contents
    • The opponent may interrupt the proponent’s case in chief in order to introduce the rest of the evidence
    • Texas: opponent actually introduces the remaining evidence
    • Federal: opponent can force proponent to introduce the rest of it

    • 107- Texas only- acts, recordings, and writings; addresses admissibility
    • BOTH 106 and 107 can trump other rules in order to introduce the rest of a document, etc.
    • In order to do this though, the evidence must be more than just relevant; Must be on the same subject and necessary to make the evidence fully understood
  10. Rule 603- Oath
    • The Witness must take an oath (or affirmation) that he or she will testify truthfully
    • There is no specific form of oath, the judge has discretion
    • Must be one to awaken the conscience
    • Individuals usually don’t get to pick the form of the oath
    • BUT if they have specific religious requirements, the judge should try to meet them in order to prevent 1st amendment problems

    Oath may be taken in or out of jury’s presence
  11. Rule 602- Personal Knowledge
    • A witness may not testify UNLESS evidence is introduced sufficient to support a finding that he or she has personal knowledge of the matter (Texas and Federal)
    • This evidence may be shown through testimony
    • UNLESS expert witness under 703 (doenst need personal knowledge)
    • If an objection is made to the witness’s lack of personal knowledge, the judge will conduct a hearing outside the presence of the jury
    • Under 104(b) the judge makes the initial determination of personal knowledge; Then it is up to the jury

    • May request voir dire of the witness
    • Premature CX to determine personal knowledge before direct or cross examination at trial
    • This is NOT a rule, just common practice and subject to the court’s discretion
  12. Competency and Common law requirements
    • A witness is presumed to be competent unless shown otherwise (Texas and Federal)
    • Common law
    • Moral Capacity
    • Mental capacity to observe
    • Mental capacity to recall
    • mental capacity to narrate
  13. Texas Rule 601(a)- who is competent to testify? Compare with the Federal Rule
    • 1) Insane persons at the time of trial or at the time the event took place that they are testifying about
    • It is the judge’s decision whether a witness is competent
    • Burden is on challenger to show that the witness is insane
    • Under 604, the judge may allow hearsay to determine competency

    • 2) Children- who have been examined by court and determined incompetent to testify
    • Those of tender years, mentally challenged, etc.
    • Opponent must request that the court evaluate the competence of a child (The court will NOT do so sua sponte)
    • Key to determining incompetence: whether the person (child) had sufficient intellect to appreciate the transaction and understand that it is wrong to testify something untrue

    • Failure to object to incompetence forfeits the issue and it cannot be raised on appeal
    • If you object, the judge may allow the testimony and decide later

    • Federal- in civil actions where state law applies, the state competency requirements will be used
    • presumes children competent
    • AND allows a judge to disqualify witnesses who are insane at time of trial or time of instance they are testifying about
  14. 601(b)- Dead Man Statutes
    • Texas civil actions only
    • in actions by or against executors, administrators, or guardians when the judgement could be entered for or against them

    • neither party may testify to statements made by the decedent UNLESS
    • 1- Statement is corroborated
    • In writing
    • Introduce a disinterested party
    • as a witness

    OR 2- other party is called to testify
  15. Spousal privilege- confidential communications (504(a))
    • anything said to the other spouse during a valid marriage is considered confidential
    • validity of the marriage is an issue for the judge to determine under 104a
    • only applies to oral statements made
    • the accused spouse CAN prevent the other spouse from relaying confidential information
    • the spouse MAY still testify about other things if they so choose, but cannot tell confidential statements
    • criminal and civil
  16. Spousal Privilege not to testify (504(b))
    • Texas Criminal ONLY
    • There is a federal equivalent based on Trammel, but it doesnt specify civil, criminal, or both

    • Witness spouse has the privilege, but can still testify voluntarily (but confidential communications can still be kept out)
    • a spouse not testifying is something opposing counsel can comment on

    • the privilege is NOT available
    • crimes against the spouse, member of either household, or any minor
    • regarding matters before the marriage
  17. May the Judge or jury members testify?
    • No- Rules 605 and 606
    • 605 Texas and Federal- judge may not testify in a case in which he is sitting
    • no objection necessary to preserve error
    • judge may not comment on the evidence
    • Rule 606 (criminal and civil)
    • jurors cannot testify in a case in which they are sitting; if they do, opposing counsel should object outside presence of the jury
  18. Rule 606(b)- Jurors testifying as to events in the jury deliberations
    • May NOT testify as to any matter or statement occurring during deliberations
    • OR effect of anything on juror's minds
    • OR juror's mental processes (flipping a coin)
    • NOR may affidavits regarding such be admitted

    • Exceptions- where juror may testify
    • 1) Texas- whether outside influence was brought upon any juror (This usually has to be an outside PERSON influencing them AND often courts require that the outside person have intent to influence)
    • Federal Rule allows juror to testify as to extraneous prejudicial information OR mistake in entering verdict onto form (more broad than Texas, doesnt have to just be person influencing)
    • OR 2) to rebut a claim that juror wasnt qualified to serve (only to rebut though)
  19. Rule 610-Religious Beliefs (Texas and Federal)
    • Evidence of a witness’s religion is not admissible for showing CREDIBILITY
    • If this is violated, the opponent must object to preserve error
    • Inquiry about religion IS permissible for showing bias, interest, etc.
    • Can CX with respect to the bias, but not offer evidence of their actual religious beliefs
  20. Steps to Introduce something into evidence
    • 1) Have item marked by court reported
    • ask judge if he would like to see it, and show to opposing counsel
    • 2) Lay foundation
    • ask witness non-leading questions
    • 3) Formally offer into evidence
    • opponent should object here to insufficient predicate
    • if judge does not allow evidence, proponent should make offer of proof
    • 4) publish to the jury
  21. Rule 103 and Offers of Proof
    • In order for a ruling to be “erroneous,” it must affect a substantial right of a party AND an objection or offer of proof is made
    • Offer of proof is made when evidence has not been admitted
    • offer should be made outside presence of the jury
    • Proponent should tell what the evidence would have shown if admitted.
    • This also gives the judge an opportunity to change his mind
    • This should be done “as soon as practicable” but before the jury charge (as per Rule 103)
    • May require making the offer in question and answer form
    • If a party requests, then it MUST be done
    • Judge MAY do this sua sponte
    • Judge may also choose to let the record reflect why he ruled the way he did (so they don’t have to wonder on appeal)
  22. Objections under 103(a)
    • Must be specific
    • Must be timely (as soon as grounds for objection are apparent)
    • ex: after a question is asked, or after an exhibit is offered into evidence

    • Methods of Making Objections
    • 1- Running - keeps a smoother flow of the trial
    • must be timely and must get permission from the judge
    • 2- Blanket
    • like running but made outside the presence of jury; if judge grants, find out if it is a final ruling
    • 3- Repeating
  23. Explain Waiver and Forfeiture and fundamental v plain error
    • Forfeiture- failure to make the timely assertion of a right
    • if forfeited, a party can probably still claim plain or fundamental error on appeal
    • Waiver- intentional relignquishment or abandonment of a known right; if a party has waived they are not able to claim plain error, or maybe fundamental error on appeal

    • Fundamental error (criminal) - may be able to raise something forfeited or waived, BUT it is limited to things that go to the heart of the trial
    • Plain error (civil) -if waived, you cant raise
    • if forfeited then you can raise for first time on appeal
  24. Rule 105 Limiting Instructions (Texas and Federal)
    • If no request is made though, it cannot be a ground for complaint on appeal
    • It is ERROR for the judge not to grant
    • Ask the judge to make the ruling for the record
    • The instruction is given
    • In Criminal
    • When the evidence is admitted AND should be given again in the final charge
    • Civil
    • In the jury charge, and maybe when evidence is admitted
  25. Rule 104(a)- Things to be decided only by the judge
    • preliminary questions concerning a witness’s qualifications will be determined by the court (judge)
    • The court is not bound by the rules of evidence except those relating to privilege
    • Qualifications that a judge would decide are
    • Competency (Rule 601)
    • Expert Witnesses (Rule 702)
    • BUT the jury determines credibility of the witness (104(e))

    • The JUDGE makes final determinations on
    • Deciding whether privilege exists (104(a))
    • Determining admissibility of evidence
    • Relevancy
    • Character evidence
    • Hearsay
    • Scientific evidence
  26. 104(b) when the relevancy of evidence depends on a condition of fact
    • when the relevancy of evidence depends on a condition of fact, the court shall admit it upon or subject to the introduction of evidence sufficient to support fulfillment of the condition
    • This rule applies to
    • Personal knowledge
    • Authenticity of evidence
    • Whether a Rule 404b act occurred (extraneous offenses)
    • IN these situations, the judge makes the initial determination of the relevant condition of fact
    • THEN the jury makes the final determination
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