1. Rules 401 and 402 Relevancy
    • Rule 401- Facial, logical relevance (Federal and Texas)
    • Relevant evidence is that which has any tendency to make any fact that is of consequence more or less probable
    • must have probative value
    • Ask: Why is it being offered? How is it relevant to the case?

    Rule 402- Irrelevant evidence is inadmissible
  2. Rule 403- Exclusion of Otherwise admissible evidence
    • Evidence may be excluded if its probative value is substantially outweighed by the danger of
    • 1- unfair prejudice (ex: Gruesome photos)
    • with photos look at
    • number of exhibits
    • detail
    • grusomeness
    • close-up?
    • color
    • size
    • clothed body?
    • (if admitted, request a limiting instruction)
    • 2- Confusion of issues (ex: collateral issues)
    • 3- misleading the jury
    • 4- considerations of undue delay
    • 5- needlessly cumulative
    • (Federal includes "waste of time" as well)
  3. Steps to evaluate evidence under 403
    • 1- identify the probative value
    • probative value- the strength of the connection between evidence and issue of the case; probative value evaluates the STRENGTH of the relevancy
    • Court of Criminal Appeals test for probative value
    • Ask what is the proponent’s need for the evidence
    • Proponent should show need for each piece of evidence evaluated

    • 2- identify the prejudicial dangers listed above
    • that is an exhaustive list

    • 3- weigh the probative value against the prejudice
    • probative value MUST be SUBSTANTIALLY outweighed to be excluded
    • burden is on the opponent to show that it is substantially outweighed

    On appeal, there is a rebuttable presumption that the judge ruled corectly
  4. What is the rule on introduction of liabilty insurance? (411)
    • Whether a party has liability insurance is not admissible to prove negligence or wrongful acts
    • Rationale: little connection between having insuranbce and actually being negligent; may bias the jury into thinking the ins co. can pay the judgment
    • The existence of insurance MAY be admissible when offered for another purpose (should be an issue in dispute), including (not exhaustive)
    • Proof of agency
    • Ownership
    • Control
    • Bias or prejudice of witness
    • Texas courts have allowed counsel to raise the issue of insurance in determining whether a juror is fit to serve
    • Particularly when dealing with insurance employee jurors
    • Anything that has an independent logically relevant reason for being introduced
    • If admitted, request a limiting instruction
  5. What is the rule for subsequent remedial measures (407)
    • Excludes evidence of subsequent measures taken by a party after an injury has occurred when the evidence of the measures taken is used to prove negligence or culpable conduct
    • Only excludes the steps taken AFTER the injury
    • Those taken before may still be admissible When the evidence of subs. measures may be admissible
    • Proving ownership (if at issue)
    • Control or feasibility of precautionary measures (if at issue)
    • Anything that has an independent
    • logically relevant reason for being introduced
  6. Rule 408- Offer to Compromise Claims
    • Evidence of furnishing, offering, or promising to furnish or accepting valuable consideration to compromise a claim which was disputed as to validity or amount is not admissible to prove liability for or invalidity of the claim or amount Must be disputed claims or amounts to be deemed inadmissible under this rule
    • Similarly, statments made in negotiations are not admissible
    • evidence of offers to compromise claims may be admissible for other purposes
    • the rule does not apply to things that are otherwise discoverable

    • Texas rule- pertains to witnesses and parties
    • Federal applies to witnesses only
  7. Good Samaritan Rule- Rule 409
    • Evidence of offers to pay medical bills resulting from injury is not admissible to prove liability for the injury
    • Rationale: To encourage people to lend a helping hand to others
    • This rule covers medical, hospital, or similar expenses
    • A rental car to get to the doctor may be included here
    • A new car probably would not be
    • There are exceptions to this rule, but none are stated
  8. Rule 410- Plea Negotiations
    • The following are not admissible as against a D who participated in plea negotiations
    • Plea of guilty that was withdrawn
    • in civil plea of nolo contendere
    • In criminal- plea of NC that was withdrawn (Not in the federal rule)
    • statements made under Tex Crim Pro Rule 11
    • statements made in plea discussions with an attorney for the prosecution that do not result in any of the above
    • in Federal plea discussions may be admissible in criminal perjury prosecutions
  9. First Five methods of authentication
    • 1) testimony of witness with knowledge Documents: one who witnesses a document’s execution
    • Pictures, x-rays, slides-
    • Pictorial test- need someone who can testify that it is a true and accurate depiction of the actual scene or event
    • Or see silent witness method below. (showing reliable process or system) This would also apply for introduction of charts, diagrams, etc.
    • 2) non expert opinion on handwriting
    • 3) expert witness (handwriting)
    • 4) distinctive characteristics
    • See demonstrative evidence below
    • 5) voice identification
    • done through a witness with knowledge
  10. Last 5 methods of Authentication
    • 6) telephone conversations IF
    • person who answered was the one called OR
    • call made to place of business and was related to the business
    • 7) public records
    • 8) ancient documents/ data
    • must be in a condition as to create no suspicion to authenticity
    • place where it would likely be if authentic
    • 20 years or older
    • 9) evidence produced by accurate process or system
    • for photos, videos, etc this is the silent witness method
    • proponent must prove that the evidence resulted from a reliable process or system
    • For audio recordings, Texas civil cases may look to the Cummings Edwards Test
    • Device was capable of recording
    • Operator was competent
    • Authentic and correct recording
    • No changes made
    • Properly preserved
    • Speakers are identified
    • Testimony was made voluntarily
    • 10) anything else provided by rule or statute
  11. How can you prove up demonstrative evidence?
    • 1- Readily identifiable evidence- with a witness who can physically identify its distinctive characteristics
    • 2- Chain of Custody (usally with fungible goods)
    • Trace back who has had the evidence since the seizure
    • The fewer the gaps, the greater the weight of the evidence will be
    • In Texas it is presumptively valid if you bring in the person who took the evidence to the custody room and brought it to trial
    • If the evidence was tested, the chain must only go from the seizure up until the testing (lab results may violate confronation clause though)
    • 3- Similar objects – jury may be instructed that the evidence is not the ACTUAL thing, but similar
    • 4- Props- may be used if
    • Jury is instructed it was NOT USED in the commission of the crime
    • It is NOT entered into evidence, just used to demonstrate
    • Judge does not have to allow it if it is misleading
    • or prejudicial
  12. What items are self authenticating and what are the requirements
    • 1) Domestic public documents under seal
    • must be signed and sealed
    • 2) Domestic public documents without seal
    • bears signature of someone in official capacity
    • another public officer must certify that
    • a) signor had official capacity
    • b) signors signature is genuine

    • 4) Certified copies of public records
    • must attach a certificate saying that it complies with 1,2, or 3 (foreign records)
    • NO time limit

    • 10) Business records with affidavit (Texas Only)
    • must be filed with the clerk within 14 days prior to trial
    • must also promptly notify the other party 14 days before trial
    • Custodian of the records must certify that the contents of document satisfy 803(6) (Hearsay)
    • IF you miss the 14 day deadline, you MAY still introduce the document
    • BUT it must meet the 901 requirements and you must use a witness with knowledge of the business records

    • Additional items that may be self-authenticated
    • Texas- statutes and court rules
    • Federal- Acts of Congress ONLY
    • TRCP 193.7
    • If a party produces a document in response to discovery request, the document is considered self-authenticating UNLESS a party files an objection to its authenticity
Card Set