Evidence

• A lay witness may give opinion testimony based on opinions or inferences that are
• A- Rationally based on (witness’s) perception
• Can perceive thru the 5 senses
• Do not have to say WHY they perceived the way they did
• Rationally related
• Must have some logical reason for drawing the connection
• B- helpful to a clear understanding of witness’s testimony or the determination of a fact in issue
• Must only be helpful to the jury, doesn’t have to be necessary
• Remember this rule is only triggered by opinions, not facts alone (but every witness gives opinions)
• May be offered to prove
• 1- Collective facts – witness’s conclusory opinions Ex: The car was going fast
• 2- Skilled observations – because of a witness’s familiarity with something, they form an opinion regarding its authenticity
• In Federal court, opinion based on skilled observation will be treated as an expert, subject to 702

• 1- Value
• Property owner rule- a witness can say the value of his own property if he has a basis for it
• The higher the value the more foundation necessary to establish it
• Can’t attest to the value of someone else’s property though
• 2- Other’s mental capacity
• But not their intent or motive, because that invades the province of the jury
• 3- Other’s intoxication
• 4- Speed
• Can say fast, slow, etc, but not a specific mph

• Federal rule- lay opinion may not
• be based on scientific, technical, or other specialized knowledge within the
• scope of 702

§ Texas doesn’t have this, but courts are likely to honor the idea

• 1- Determine qualification of expert
• Should lay proper foundation
• Judge will determine under 104(a)
• Opponent may voir dire the witness about his qualifications
• 2- Determine reliability of expert opinions
• Daubert test- Federal
• Kelly Test- Texas criminal
• Robinson- Texas civil (consistent with Daubert)

ú See more on these below (702)

• If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence, or to determine a fact at issue, a witness qualified as an expert by knowledge, skill experience, training or education may testify thereto in the form of an opinion or otherwise
• Proponent must first lay foundation to establish the witness as an expert
• Whether someone is an expert will depend on what they are testifying about
• Certain areas may require advanced education

• Determination of status as an expert is up to the judge under 104(a) (see above)
• Opponent may voir dire the witness about his qualifications at trial if this has not been done at pretrial
• Stipulating
• Parties may agree that the witness is qualified

• Expert testimony must also be reliable
• Federal says “the testimony is the product of reliable principle and methods”
• Note- courts are skeptical about science
• in determining the reliability of expert testimony, the court should look at (it is recommended to do this pretrial)

• Daubert Test**** (Federal)
• Has the theory been tested? (How many times)
• Peer review?
• Error rate?
• Generally accepted? Merely a factor, not the whole test

• Kelly Test (Texas)
• More factors than Daubert
• All looking at reliability

The old rule was Frye =- methods must be generally accpeted in the scientific community

• The burden of satisfying the proper test is
• Texas criminal- clear and convincing
• Texas ciivl and all federal-preponderance of the evidence

Judge will decide whether this has been met (preferably pretrial)

An expert can base his opinion on facts or data in the case that he perceived, reviewed, or those made known to him before or at the hearing.

• Can rely on things he saw at trial
• Or can rely on counsel filling him in on what’s going on at trial

If he bases his opinion on things reasonably relied upon by experts in his type of field, they don’t have to be independently admissible as evidence

• Notes- what is not a sufficient basis
• Not relying on facts
• Improper extrapolation of analysis
• Insufficient foundation
• Ipse dixit (it is what it is)
• Temporal proximity- making conclusions on timing alone

Opinion testimony is not objectionable if it embraces an ultimate issue to be decided by the trier of fact.

• Can request a jury instruction reminding the jury to decide the witness’s credibility
• Federal rule goes further
• Prohibits expert testimony in criminal cases about whether thedefendant possessed the requisite mental state

• Mixed questions of law and fact
• An expert may be able to testify to this if he had sufficient legal criteria to form an opinion
• BUT legal experts may not offer opinions on the law itself
• EXCEPT when it is very specific and beyond the scope of the normal understanding of the judge

• Expert may testify and give reasons for opinion without prior disclosure of the underlying facts or data unless the court requires otherwise.
• May disclose underlying facts on direct examination or be required to on CX
• Will probably only have to give the underlying basis if the court suspects that the opinion is based on unreliable data
• This should be handled pretrial, but if it is not, it will be addressed at trial

• Daubert/Kelly/Robinson Tests
• Know burdens of proof

• Additional Texas provisions
• party who didnt call the expert can voir dire him as to underlying facts
• if court determines underlying facts are not sufficient, the opinion is inadmissible

• When the underlying facts would be inadmissible as evidence, the court shall exclude them IF the potential danger caused by them (risk of jury
• using it for wrong purpose) outweighs their value OR they are unfairly prejudicial. If otherwise
• inadmissible facts are disclosed, then a limiting instruction should be given upon request.
• Federal equivialent is in 703 and requires substantially outweigh

• If the underlying facts are independently admissible, no balancing test needed
• If they are not independently admissible, the court conducts balancing test to decide whether to admit
• Then if the evidence is admitted, a limiting instruction may be proper

The balancing test should be done pretrial, but doesnt have to be

• original- anything intended to be an original
• duplicate- counterpart made from same impression as the original (reproduction of original)

• To prove the content of a writing, recording, or photograph, the original is required except as otherwise provided by rules or law
• This does NOT apply
• To testimony about an event if the event is written down
• To writing used to refresh recollection under 612
• If the contents of the evidence are not at issue

• Duplicate is admissible to the
• same extent as an original UNLESS (must make an objection here)
• 1- questions is raised as to authenticity of the original
• 2- it would be unfair to admit the duplicate
• instead of original

• Original was lost or destroyed
• Must not have been lost or destroyed in bad faith though
• Person trying to enter the duplicate has burden of provingoriginal was lost

Original cant be obtained by judiciary means

• No original in Texas (must be able to prove)
• No federal equivalent to this

• Opponent has original and will not produce
• Must first have given notice to opponent that you intend to introduce it at trial

Writing, recording, or photograph is not related to a controlling issue in the case (collateral rule)

Contents of something on public record may be proven by copy that is certified as correct OR testified to as correct by a witness who has compared it to the original

• Voluminous writings, recordings, or photographs otherwise admissible (all the documents are independently admissible) that cannot be conveniently examined in court may be pressed in the form of chart, summary, or calculation.
• Court may order the originals to be produced in court though
• And the originals must be made available for both parties to examine or copy at a reasonable time and place

contents of writings, etc. may be proved by testimony or depositions of party they are being offered against or by that party’s written admission, without accounting for the originals (ex: admitting in the depo that that is the original)

• NO person has a privilege to
• Refuse to be a witness
• Refuse to disclose
• Refuse to produce
• This also includes preventing another from being a witness, disclosing, or producing
• Blocking 3rd persons
• Blocking comments on claims
• EXCEPT as otherwise provided by the Constitution, statute, these rules, or other rules.(exclusively--no looking to common law)

Federal rule provides for constitutional and statutory, and gives courts discretion in determining common law privileges as well

In some federal civil cases, state law will previal and the state privileges will be followed

• Inadvertent disclosure- voluntary disclosure, but unintentional
• Ex: handing over documents not realizing they are privileged
• This constitutes a waiver of the privilege, BUT under Tex. R. Civ. P. 193.3(d), if the disclosing party requests the material back within ten
• days, there is NO waiver

• Offensive Use waives a privilege
• Offensive use if using privilege as a sword rather than a shield
• This occurs when
• The party invoking the privilege is seeking affirmative relief,
• The privileged information sought is such that, if believed by the fact-finder in all probability it would be outcome determinative of the cause
• of action asserted, (goes to the heart of the relief sought), AND
• Disclosure must be only means by which the aggrieved party may obtain the evidence

• A claim of privilege is not defeated if it was
• compelled erroneously (this is when the court wrongly orders disclosure) OR
• made without opportunity to claim privilege
• ex: an eavesdropper

• A) claim of privilege should not be commented on by judge or counsel and no inference should be drawn from it
• Unless otherwise provided in 504(b)(2)
• B) In jury cases, it should be made possible to make claims of privilege outside the presence of the jury
• C) a and b do not apply to privilege against self incrimination
• Civil- can comment on privilege of self incrimination
• Criminal- you cannot
• D) Unless otherwise provided, a jury instruction may be given if requested by a party who an adverse inference may be drawn against due to invocation of privilege.
• Instruction is that no inference may be drawn from the claim of privilege
• Exceptions
• In a criminal case where there is a spousal privilege, counsel may comment on the choice not to testify and NO limiting instruction is available regarding it
• In a civil case, a party may comment on the invocation of privilege against self incrimination

• in criminal cases only
• valid marriage at the time of trial
• can only be claimed by the testifying spouse
• invoking this privilege may be commented on by counsel
• no privilege in crimes against sopuse, any minor, any household member

• In Federal according to Trammel case
• doesnt specify criminal or civil

• Confidential communication under this rule is that made privately by person to their spouse and not intended for disclosure
• Nonverbal conduct meant as communication can be privileged under this
• Observations (ex: what was he wearing) are not privileged communication
• Privilege is held by any person (party or not) to refuse to disclose and prevent another from disclosing confidential communications during
• the marriage
• Privilege may only be claimed by the communicating spouse though
• EVEN if the spouse chooses to testify under 504(b), confidential communications during the marriage can still be blocked
• Exceptions
• Communications made in furtherance of crime or fraud
• Crimes against spouse, or any minor child, or any household member of either spouse

• IF the report is required by law AND it says it is privileged, you can claim a privilege
• Reports this may include
• Census
• Bank records
• Accident reports
• Divorce counseling reports
• Child abuse reports
• The privilege is held by the person filling it out OR the person filing it
• NO privilege in actions involving perjury, false statements, fraud
• in the report, or other failure to comply with law
• This rule is NOT expressly written in Federal rules

• Client- person, public officer, or corporation, association, or organization, public or private who is rendered professional legal services by a lawyer OR one who is consulting a lawyer to get legal services (consultation)
• Representative of client-
• Someone with authority to obtain legal advice on behalf of client,
• OR Any other person who makes or receives confidential communication while acting in scope of employment for the client
• Lawyer- person authorized or reasonably believed to be authorized to practice law in any state or nation
• Representative of lawyer
• someone employed by lawyer to assist in rendition of professional legal services
• Accountants who are reasonably necessary are included here as well

If client knows the lawyer is not licensed, then no privilege

• General rule: client has the privilege to refuse to disclose and prevent others from disclosing confidential communications
• confidential communication in this rule is that not intended to be disclosed to third persons other than those whom disclosure is made in furtherance of the rendition of professional legal services to the client
• OR those reasonably necessary for the transmission of the communication
• If a third party other than someone involved in the legal services is present, there is probably no privilege
• Law clerk is probably ok

• Communications between
• Client or representative of the client and the client’s lawyer or representative of the lawyer
• Lawyer and Lawyer’s representative
• Client or client’s representative to lawyer or representative of the lawyer representing another party in a pending action and concerning matter of common interest
• Between clients representatives OR between client andrepresentative
• Among lawyers and their representatives representing the same
• client

privilege can only be claimed by client or his rep, or lawyer or rep on behalf of the client

• Special criminal provisions
• Client has privilege to prevent lawyer or rep from disclosing any other fact which came to the knowledge of the lawyer or lawyers rep by reason of attorney-client privilege
• This is broad and even includes things the lawyer may find out on his own in regard to the client
• Ex: where the body is buried

• Exceptions
• Communications in furtherance of crime or fraud; cant seek legal advice for committing a crime
• Breach of duty by lawyer or client
• Ex: ineffective assistance of counsel
• When the client breaches a duty, then the lawyer can introduce confidential communications

• patient is seeing physician for medical care
• physician is liciensed or patient believes him to be licensed
• no privilege in criminal proceedings
• except communications made to someone for alcohol or drug rehab (very broad)
• in civil proceedings- communications related to the diagnosis AND medical records are privileged
• ONLY the patient or his representative may claimt he privilege, OR the doctor, but only on the patients behalf
• Exceptions (no privilge)
• Proceedings brought by patient against physician
• When patient consents to release medical information
• When communication is relevant to show mental or emotional
• condition of patient in a proceeding where condition is part of claim or defense

professional is someone authorized to practice in state or nation; must be authorized for diagnosis, treatement, counseling, etc. or involved in treatement of drug users, or beleieved by patient to be licensed

• commications made in the course of receiving treatement are privileged
• patient (or rep) can claim or professional on patient's behalf
• Exceptions (no privilege)
• Proceedings brought by patient against professional
• When patient waives privilege by consent
• In proceeding where party relies on mental or emotional condition as part of claim or defense

• Rule 505* Clergy Privileges
• A) Clergy, minister, rabbi, accredited Christian Science Practitioner, or other similar functionary of religious organization OR someone reasonably believed to be so
• Pretty broad
• B) Person has a privilege to refuse to disclose and prevent another from disclosing confidential communication made to the professional as spiritual advisor
• Whether something is spiritual advice is for the judge to decide
• C) Who may claim the privilege
• The communicator or a representative acting on his behalf
• This privilege survives death
• Clergy may claim, but only on behalf of the communicant
• There are no exceptions, but the privilege may be waived by calling the clergy as a character witness for the communicant

• Governments have the right to refuse to disclose the identity of the person who has furnished information relating to or assisting in investigation of possible violation of law
• Does not have to be violation of criminal law to trigger the privilege
• Privilege may be claimed by appropriate representative of the public entity that the information was furnished to
• There is a veto provision as well
• ONLY the prosecution can veto the claim of privilege; this would be done in order to prevent dismissal of the charges

• Exceptions
• Voluntary disclosure (informant disclosed himself, or prosecution called him as a witness)
• Testimony on the merits
• Whenever the informant may be able to testify to a material issue OR
• Whenever necessary for a fair
• Legality of obtaining evidence
• This arises when the judge has a reason to believe that the informant is not credible
• determination of the issues of guilt

• Deals with the facts actually invovled in the litigation
• judge can judicially notes facts that are
• Generally known within the jurisdiction of the trial court OR
• Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
• discretionary- may take notice
• mandatory- must take notice when requested and supplied with necessary information
• may be done at any part of the proceeding
• party has opportunity to be heard
• Jury instructions
• Civil- court will instruct the jury to accept as conclusive any fact judicially noted
• Criminal- the court will instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed
• Judicial notice is also useful for authenticating evidence