INTRODUCTION

To a trial lawyer, the basic rules of evidence are like an alphabet. They are building blocks and they are means to an end. Once one learns an alphabet, one can use it to write words or to read them; and once one learns the rules of evidence, one can similarly learn to use them to communicate.

The premise behind this outline is that the best way to approach the rules of evidence is to approach them as though they were an alphabet, something that ought to be so familiar that it can be used almost without thinking.

[Unless the context otherwise indicates, references to the Texas Rules are to the Texas Civil Rules of Evidence, although the Texas Criminal Rules are substantially similar. A reference to a "Rule" without indication of either "Federal" or "Texas" is a reference to both, the implication being that the two are similar, unless the context otherwise indicates.]

I. THE BASIC RULE OF ADMISSIBILITY

A. Evidence Admissible: All "relevant" evidence is admissible unless it is excluded by an exclusionary principle. Rule 402.

B. What is "Relevant" Evidence?: Federal Rule 401 says that "relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Texas now has an identical provision.

Problem 1: Arnold is the defendant in a civil case, in which it is alleged that he was driving while intoxicated. The plaintiff offers proof that there were several empty beer cans in his automobile when he was stopped. There is no proof that beer from these particular cans contributed to Arnold's alleged intoxication, or for that matter even that he drank them; all that can be shown is that they were in his car. Is this evidence relevant?__________________________________ [See, e.g., Rodriguez v. State, 282 S.W. 225 (Tex. Crim. App. 1926) (bottle of tequila found at place of collision); Marshall v. State, 262 S.W.2d 491 (Tex. Crim. App. 1954) (empty beer cans); Talley v. State, 399 S.W.2d 559 (Tex. Crim. App. 1966) (21 unopened beer cans). These cases are but part of a long line of authority holding such evidence admissible.]

Problem 2: After Arnold testifies that he was not intoxicated, the plaintiff calls as a witness an expert who offers testimony that it was his opinion that there were indications of deception when Arnold stated that he was not intoxicated during a pretrial polygraph examination by this expert. Is this evidence relevant? ____________________________ [Note: it is not admissible. Cf. Lewis v. State, 500 S.W.2d 167 (Tex.Crim. App. 1973) (not admissible even after agreement because not reliable); Skillern & Sons, Inc. v. Stewart 379 S.W.2d 525 (Tex. Civ. App.--Ft. Worth 1983, writ ref'd n.r.e.). But is it relevant?]

Problem 3: Also in Arnold's trial, the plaintiff offers into evidence the Los Angeles telephone book and a witness who plans to testify that it was raining in Utah on the day that Arnold was arrested. Is this evidence relevant? _____________________ __________________________ [See also Montelongo v. Goodall, 788 S.W.2d 717 (Tex. App.--Austin 1990, no writ) (expert testimony about building codes that were not in effect at time in question held not relevant).]

C. Materiality: Materiality is one of two components of relevance. A "material" issue is one that, in the language of the rules, is "of consequence to the determination of the action." The relevancy of a piece of evidence may depend upon whether the issue to which it relates is material. See, e.g., Wyatt v. General Motors Corp., 703 S.W.2d 708 (Tex. App.--Corpus Christi 1985, no writ) (OSHA regulations admissible as evidence of appropriate standard of care in negligence case, though not admissible in other kinds of litigation, including proceedings based directly on OSHA violation, because not related to disputed fact issues); see also Trevino v. City of Houston, 695 S.W.2d 289 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.) (where defendant had stipulated that workers compensation benefits would be paid in lump sum if defendant was found liable, exclusion of evidence about plaintiff's financial condition was proper).

Note: Neither federal rule 401 nor Texas rule 401 uses the words "materiality" or "probative value," but they are useful tools for understanding.

D. Probative Value: This is the second element of relevance. Evidence has "probative value" if, again in the language of the federal rules, it has "any tendency to make the existence of any fact...more probable or less probable." Note that relevancy is a matter of degree, because probative value is a matter of degree; even slight probative value is some probative value, because the rules talk in terms of "any tendency."

Problem 4: In Bailey v. Boatland of Houston, Inc., 585 S.W.2d 805 (Tex. Civ. App.--Houston [1st Dist.] 1979, writ granted), decedent was killed in a boating accident. His heirs claimed the boat was "unreasonably dangerous" in that it did not have a "kill switch" (i.e., a device to kill the engine automatically if the operator is thrown from the boat). Defendants, rebutting this claim, offered evidence that such switches were not commercially available and that it was accepted industry practice not to install them. The trial court admitted this defensive evidence, and the jury rendered a take nothing judgment against plaintiffs. The court of civil appeals reversed, holding the evidence irrelevant: "It did not address the utility of the product...but rather emphasized the care exercised by the manufacturer...[which] is not in issue." The Texas Supreme Court granted a writ of error; what result? _________________________________________________ See Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 746 (Tex. 1980) (admissible).

E. "A Brick is Not a Wall.": This statement, by McCormick, sums it up. C. McCORMICK, EVIDENCE (2d ed. 1972). A brick is not a wall taken by itself, but it can form part of a wall when put with other bricks. Thus a piece of evidence need not prove the entire case all by itself to be admissible, because it may add that slight weight that would be necessary, when taken together with other evidence, to build a "wall" of proof.

F. Relevance Is Part of the Required Predicate for Exhibits: There are several specific steps to the introduction of an exhibit. (1) The exhibit must have a number. (2) It must be identified and the predicate to its admissibility proved by a witness. The predicate requires a showing of relevance. (3) It must be tendered to the opponent. (4) It must be offered into evidence. (5) The opponent may object. (6) The proponent may support the exhibit by argument, or by further predicate. (7) It must be received by the court and the record must show its receipt. (8) It may be interpreted or passed to the jury.

G. Predicate for a Photograph: A photograph is admissible on a showing that it "fairly represents" (or "truly and accurately represents") what it is intended to depict. (Otherwise, it wouldn't be relevant!)

II. THE HEARSAY RULE OF EXCLUSION

A. What is Hearsay?:

1. Technical Definition: "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Federal Rule 801; Texas Rule 801 is identical in this respect.

2. Crump Definition: "You can't give someone else's version of the facts in court."

3. Credibility-Dependence Approach: "Evidence is hearsay when its probative force depends in whole or in part on the competence or credibility of some person other than the person by whom it is sought to be introduced." Winn v. Federal Land Bank, 164 S.W.2d 864 (Tex. Civ. App.--Galveston 1972, writ ref'd).

4. Implied Assertion: Tex. R. Civil Evid. 801(c): "Matter asserted" includes not only the express statement, but even "any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter." But cf. In re Estate of Watson, 720 S.W.2d 806 (Tex. 1986) (affectionate letters held admissible to show affection of writer; held, not hearsay). (Is this holding consistent with the Rule?)

5. Prior Consistent, or Inconsistent, Statements: A prior consistent statement, offered to rebut recent fabrication or improper motive, is not hearsay under Rule 801. A prior inconsistent statement is not hearsay if used to impeach; however, it may not be used as substantive evidence unless under oath, in a trial, hearing, proceeding, or deposition--Texas Rule 801(e)(1); Federal Rule 801(d)(1).

Problem 5: Edward, while driving his car, was killed in a collision with another car driven by Fay. Edward's executor, who is now suing Fay's estate, offers the testimony of George, a police officer who investigated the accident. It is planned that George will testify to the following: (1) What he did during his investigation, and what he observed; ________ (2) What Harold and Isabel, who were witnesses and saw the incident, told him happened; ________ (3) A statement made by Isabel that was inconsistent with her testimony at this trial, offered to impeach her testimony _________ [cf. Hartman v. Maryland Cas. Co., 417 S.W.2d 640 (Tex. Civ. App.--Waco 1967, no writ) (upholding instruction to jury that such a statement was admissible but had "no probative value" on substantive issues)]; (4) Certain readings taken by him from a tape measure and from electronic equipment; ________ (5) His own opinion, based upon application of his training and expertise to what he knows of the accident, as to how the accident happened [cf. rules regarding expert opinion evidence, which are discussed in section V(E)(3) of this outline, infra)]; ________ (6) That the accident location was in Travis County, based on his reading of a highway sign to that effect [cf. Green Tree Acceptance, Inc. v. Harrison, 595 S.W.2d 608 (Tex. Civ. App.--Austin 1980, no writ)].___________________________________

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B. Rationale: While many reasons have been given for the hearsay rule, the most persuasive is that the declarant cannot be cross-examined. Other rationales include inability to judge demeanor, face-to-face confrontation, absence of the oath and greater susceptibility of words to mistaken repetition than other events.

C. Statements as Operative Conduct: Certain types of out-of-court statements are not hearsay, even if repeated in court. This is so because sometimes it becomes appropriate to introduce evidence that someone made a statement without necessarily taking the position that the statement is "true" (or to use the Crump definition, some statements are not a "version of the facts," they are the facts). The mere fact that the statement was made is itself relevant. This principle includes "verbal acts" completing a transaction. it also includes statements relevant because they impart knowledge, such as a warning. Note: The question, "Does the value of the evidence depend on the credibility of the declarant?" is a useful test here. Cf. SMK Energy Corp. v. Westchester Gas Co., 705 S.W.2d 174 (Tex. App.--Texarkana 1985, no writ) (newspaper stories about extraneous pipeline explosions and deaths held admissible in pipeline condemnation proceeding held admissible because not offered to prove truth of matter asserted, but instead to show public fear of pipelines, which was relevant to decrease in land value); Meredith v. Eddy, 616 S.W.2d 235 (Tex. Civ. App.--Houston [1st Dist.] 1981, no writ) (in suit for road easement, plaintiff's testimony that landowner "told me that was the road to my place" held to be designation of easement and hence not hearsay but operative fact); see also Zurich Ins. Co. v. Wiegers, 527 S.W.2d 511 (Tex. Civ. App.--Austin 1975, no writ) (testimony that insurer's attorney had "denied coverage," offered as an element of uninsured motorist claim, was not hearsay, because it had "legal significance without regard to its truth or falsity").

Problem 6: In order to prove that a contact was formed between him and John, Ken offers evidence to the effect that he said to John: "I offer you $10,000 for 100 widgets," and John said: "I agree." Are either of these utterances hearsay? _____________________________________________________________________ __________________________ [Cf. Yellow Freight System, Inc. v. North American Cabinet Corp., 670 S.W.2d 387 (Tex. Civ. App.--Texarkana 1978, no writ) (statements forming basis of bargain are not hearsay).]

Problem 7: In a suit to enjoin operation of a bawdy house, officer Larry testifies that on 3 separate occasions he was solicited to engage in sexual intercourse for fixed fees. [Morgan v. State, 596 S.W.2d 220 (Tex. Civ. App.--Houston [14th Dist.] 1980, no writ) (admitted)] _________________________________________________________

D. Conduct as Hearsay: "Assertive Conduct." "Assertive" conduct can be hearsay; obviously, a nod of the head by an out-of-court declarant presents the same difficulty of cross-examination as would the statement, "yes." An upraised index finger means the number "one," and if so used, is assertive.

E. "Nonassertive Conduct." Conduct which evidences a belief which, in turn, "says" something about a material issue without being intended as an assertion is admissible in the federal system. The key is that it is not intended by the declarant as an assertion. Rule 801(a)(2).

Problem 8: In order to prove X was insane, a litigant offers evidence that the State of Texas confined X in a facility for the mentally ill. Is this conduct, by the State, hearsay? ______________________________________________________________

But: Note that the Texas "implied assertion" approach makes an implication hearsay if it is part of a "statement" and if its probative value depends on the credibility or the belief of the declarant.

Problem 8a: The only known remedy for X disease is medicine Y and the only known use of medicine Y is to cure X disease. To prove that Oglethorpe had X disease, witness testifies that declarant, a doctor, stated, "The best medicine for Oglethorpe is Y." Hearsay? ______________________________ (Taken from the comment to Texas Rule 801.)

Problem 8b: The witness testifies that the declarant said, "Open the door, Richard;" offered to prove that Richard was in the room beyond the door. Hearsay? ______________________________________ (Taken from comment to Texas Rule.)

F. A Deposition in the same proceeding is not hearsay. Texas Rule 801(e)(3).

G. Determining Whether Something Is Hearsay: Whether something is hearsay thus depends on whether: (1) there is a "statement;" (2) whether it is made by an out-of-court "declarant;" and (3) what it is offered to prove.

Problem 9: Which of the following is hearsay? (1) A laboratory report indicating that a substance was heroin, offered by the prosecution in a controlled substance case to prove that the substance was heroin. _______________ (2) Testimony to the effect that a bloodhound (who does not testify) followed a trail that led to the defendant. ___________________ (3) Testimony that a mechanic told the plaintiff in a products liability case, "That axle is defective," offered to prove that there was a defect. __________ (4) The same statement as in (3), offered to show plaintiff's knowledge of the defect (relevant to a defense of contributory negligence) [cf. McAfee v. Travis Gas Corp., 137 Tex. 134, 153 S.W.2d 442 (1941) (statement offered to show effect on hearer not hearsay).] _______________ (5) Plaintiff's decedent's statement, "I am in great pain," right after the accident, offered to prove pain and suffering. _______________ (6) Same as (5), but offered to prove that decedent was conscious. [Cf. Thrailkill v. Montgomery Ward & Co., 670 S.W.2d 382 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.) (witness' testimony to what her doctor told her, held, admissible; not relevant only to show truth of matter asserted, but more importantly, to show effect on hearer, relevant to her mental anguish)]. _______________ (7) Business records of a bank, offered to prove that defendant withdrew $5,000 the day before allegedly hiring a hit man to commit a capital murder. __________________

Problem 9a: Plaintiff, in a medical malpractice case, testifies that she learned that her doctor was negligent because another doctor told her he was negligent(!) Plaintiff offers this testimony to show the date of discovery of the claim, to avoid a statute of limitations defense. Hearsay? ___________________________ See Krueger v. Gol, 787 S.W.2d 138 (Tex. App.--Houston [14th Dist.] 1990, writ denied) (held, not hearsay because of purpose).

H. Former Statements of Now-Testifying Witnesses: The Federal and State rules say that certain kinds of prior statements of testifying witnesses are not hearsay, as follows:

1. Prior Inconsistent statements, but only if under oath and in a prior "proceeding;"

2. Prior Consistent Statements Rebutting Charges of Recent Fabrication, whether or not under oath; and

3. Prior Statements of Identification; e.g., the fact that the witness picked this accused in a lineup is not hearsay.

Problem 9b: Defendant testifies now that the light was green when he entered the intersection at issue. Defendant gave a deposition in a prior, unrelated suit in which he testified that he couldn't remember very well whether the light was green or red on this occasion. Plaintiff wants to introduce this deposition testimony not only to impeach defendant, but as substantive evidence. Admissible? __________________ _______________________________________________________________________ In response to this attempt to undermine his testimony (which is accompanied by a suggestion by plaintiff that defendant recently concocted his present testimony to help his case), defendant wants to use an unsworn statement he gave to the investigating police officer at the accident scene, saying the light was green, consistently with his present testimony--both to bolster his credibility and as substantive evidence. Admissible?___________________________________________________________

I. Admissions of a Party Opponent: The federal rules treat admissions by a party opponent as not hearsay. See Federal Rule 801(d). So do the Texas Rules. Texas Rule 801(e)(2).

Problem 10: Plaintiff Linda, in order to prove that defendant Mary was negligent in causing an automobile collision, offers to testify that Mary spoke to her after the accident and said: "It was all my fault, because I ran a red light." Is this testimony admissible? ____________________________________ [Cf. Snyder v. Schill, 388 S.W.2d 208 (Tex. Civ. App.--1964, writ ref'd n.r.e.) (personal knowledge and opinion rules are relaxed in the case of admissions; a party should be "held to exercise care")].

1. "Implied" and "Adoptive" Admissions: Flight, fabrication, destruction of evidence, intimidation of witnesses and like conduct are sometimes treated as admissions. E.g., Johnson v. Whitehand, 21 S.W.2d 41 (Tex. Civ. App.--Austin 1929, writ dism'd) (intimidation); cf. Mitchell v. Napier, 22 Tex. 120 (1858) (refusal to answer a proper interrogatory). They are also sometimes treated as nonassertive conduct (and this treatment is more consistent with the Rules when the act is not a statement). RAY sec. 1148 n.1. Also, if a party "manifests" his adoption of the statement of another, the adoption is an admission. Fed. Rule 801(d)(2); cf. Ins. Co. of N. America v. Stoburg, 456 S.W.2d 402 (Tex. Civ. App.--Austin 1970), rev'd on other grounds, 464 S.W.2d 827 (Tex. 1971) (employer's report to F.A.A. constituted adoptive admission where it included damaging witness statements.) Even silence (by a party who heard, understood and had the opportunity to reply to something a person could naturally be expected to deny if untrue) may be an admission, though the courts are strict here. Muse v. McWilliams, 295 S.W.2d 680 (Tex. Civ. App.--Amarillo 1956), rev'd on other grounds, 300 S.W.2d 643 (Tex. 1957) (failure to deny statement that defendant failed to stop at stop sign). See also Wenk v. City Nat'l Bank, 613 S.W.2d 345 (Tex. Civ. app.--Tyler 1981, no writ) (defendant's silence and failure to correct monthly mailed accounts held evidence of accuracy of accounts).

Problem 11: Patient confronts doctor with a medical record and makes the statement, "This record shows that your hospital committed malpractice!" Doctor says nothing; later, he destroys the records. All of this evidence is offered to prove negligence on the part of the hospital, of which the doctor is chief resident. Admissible? _____________________________________________________________________

2. Vicarious Admissions: Statements of an agent may sometimes be admissible against his principal. Old Texas practice was strict, limiting these vicarious admissions to those the agent was authorized to make for the principal. E.g., Big Mack Trucking Co. v. Dickerson, 497 S.W.2d 283 (Tex. 1973). More liberal courts look to whether the statement concerned a subject within the agent's authority. Fed. Rule 801(d)(2) covers both "a statement by a person authorized by [the party] to make a statement concerning the subject" and "a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship." Texas now follows the same approach as the federal courts. See Tex. R. Civ. Evid. 801(e)(2)(D); Elliott Valve Repair Co. v. B.J. Valve & Fitting Co., 675 S.W.2d 555 (Tex Civ. App.--Houston [1st Dist.]), rev'd on other grounds, 679 S.W.2d 1 (Tex. 1984) (statements by salesperson not hearsay, because although salesperson had no authority to finalize sale, salesperson did have authority to call on prospect and discuss the goods). The agency must be independently proved, but it can be inferred circumstantially. Cf. Yellow Freight System, Inc. v. North American Cabinet Corp., supra (agency established though plaintiff could not remember identity of agent he dealt with); but cf. Norton v. Martin, 703 S.W.2d 267 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.) (testimony that declaration was made by unknown person whom witness "thought" was employee held insufficient to prove predicate, which required showing that statement concerned matter within declarant's scope of employment). Cf. Norsul Oil & Mining Ltd. v. Commercial Equip. Leasing Co., 703 S.W.2d 345 (Tex. App.--San Antonio, 1985, no writ) (where deponent, in unrelated case, was in "intimate and interwoven relationship" with respondent in turnover proceeding, deposition was properly admitted because it dealt with that relationship).

3. Co-Conspirators' Statements: Both Texas and the federal rules admit statements of co-conspirators "during the course and in furtherance of the conspiracy." In the federal system, the Supreme Court has held that "independent" proof of the conspiracy is not required and that the court may consider the hearsay statement itself as circumstantial proof of the predicate. Bourjaily v. United States, 107 S. Ct. 2775 (1987).

4. Judicial Admissions: While admissions are ordinarily not "binding," a judicial admission, being one that is a deliberate, clear statement during a judicial proceeding, inconsistent with the facts of a party's case, material to an issue in controversy and enforceable consistently with public policy, may be binding. Cf. Valdes v. Moore, 476 S.W.2d 936 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.).

Problem 12: In a fraud case, Plaintiff offers to testify that defendant no. 1, in making allegedly fraudulent representations to him by phone, said: "Defendants no. 2, 3, 4, 5 and 6 are all here with me and agree I should tell you this." Admissible against nos. 2 through 6? [Cf. Walter E. Heller & Co. v. Barnes, 412 S.W.2d 747 (Tex. Civ. App.--El Paso 1967, writ ref'd n.r.e.)] ___________________________________

Problem 13: Plaintiff takes the position that the following are admissible and defendant cannot controvert them: (1) alternative pleadings in his answer, though defendant has filed a general denial; (2) statements in defendant's counterclaim; (3) statements in a pleading in another case [College Station v. Seaback, 594 S.W.2d 772 (Tex. Civ. App.--Waco 1979, no writ) (held all admissible; item (2) uncontrovertible)]. __________________________________________________ _____________________________________________________________________

5. Prior Pleadings: Pleadings in the same or other cases by a party may be admissible against that party. So may statements, testimony or informal utterances. Scott v. Scott, 554 S.W.2d 274 (Tex. Civ. App.--Houston [1st Dist.] 1977, no writ).

Problem 14: Defendant, accused of involuntary manslaughter, has agreed to a negligent-homicide plea bargain. The defendant is also being sued in a civil case out of the same transaction. If you represented defendant, would you recommend that he plead "guilty" or "nolo contendere"? ______________________ See Tex. Code Crim. Proc. Ann. Art. 27.02(5) (1966) (nolo pleas inadmissible); Fed. Rule 410 (same); Tex. R. 410 (same). Cf. Cox v. Bohman, 683 S.W.2d 757 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.) (where plaintiff showed evidence of traffic "conviction," but defendant only paid fine and did not plead guilty in open court, held, similar to nolo plea; reversed); but cf. Rainbo Baking Co. v. Stafford, 764 S.W.2d 379 (Tex. App.--Beaumont 1989), writ denied per curiam, 787 S.W.2d 41 (1990) (traffic conviction on plea of guilty held admissible against pleader).

Problem 15: Plaintiff in a civil case offers to prove that in a prior trial of the same case, he testified consistently with his present testimony. Admissible as an "admission"? ____________________________________________________________

Problem 16: Plaintiff failed to tell his treating physician, during an examination, about the injury he now claims. [TEIA v. Smith, 592 S.W.2d 10 (Tex. Civ. App.--Texarkana 1979, no writ) (non-statement held an admission)]. Admissible? _____________________________________________________________________

III. EXCEPTIONS TO THE HEARSAY RULE (IT MAY BE HEARSAY, BUT IT'S GREAT HEARSAY!)

A. Rationale: Most exceptions to the hearsay rule exhibit one or both of the following characteristics--

1. Necessity: There are some kinds of hearsay evidence whose exclusion would render important issues unreasonably difficult of proof.

2. Trustworthiness: Some kinds of hearsay carry with them a circumstantial probability of reliability or truth.

Problem 17: Both in common law and in modern times, jurisdictions have widely admitted evidence of a "dying declaration" by a victim identifying his murderer. Why? __________________________________________________________________ Furthermore, business records have generally been considered admissible as an exception to the hearsay rule. Why? ______________________________________

B. Unavailability: Both the Texas and the Federal Rules distinguish between exceptions that require "unavailability" of the declarant and those that do not. The declarant is unavailable if he is dead, absent, claiming the Fifth Amendment, etc. The "former testimony" exception is an example of one that requires unavailability; the business record exception does not. A discussion of some common exceptions follows.

C. Dying Declarations:

1. Requirements: Rule 804(b)(2) covers a statement by a declarant "while believing his death imminent, concerning the cause or circumstances of what he believed to be his impending death." The rule does not require actual death, but does require that declarant be unavailable.

Problem 18: In a personal injury case, plaintiff offers testimony of a witness who heard plaintiff, in a delirium, talking about his pain. Upon being told by a doctor that he was dying, the plaintiff, in response to a question asking him what happened, gave a statement as to how the incident occurred. If plaintiff does not die, is this testimony admissible? ___________________________________________________________

2. Rationale: Dying Declarations are admitted on the theory that they are necessary (because often they may be the only means of proving a homicide case) and on the theory they are trustworthy. At common law, it was deemed unlikely that a person would go to "meet his Maker" with a "lie upon his lips."

D. Statements Against Interest:

1. Requirements: A statement which is against the declarant's pecuniary or property interest is admitted as an exception to the hearsay rule. Also, Fed. Rule 804(b)(3) admits statements "so far tend[ing] to subject [declarant] to civil or criminal liability or to render invalid a claim against him by another, that a reasonable man...would not have made the statement unless he believed it to be true." Texas has a similar provision, Rule 804(24), that includes "statements against social interest" i.e., statements that make the declarant "an object of hatred, ridicule or disgrace." The Federal Rule requires unavailability; Texas does not. See Robinson v. Harkins & Co., 711 S.W.2d 619 (Tex. 1986) (in wife's action against husband's employer for injury from collision of truck with train, her husband's oral statements and statement in IAB notice of injury that he was driving truck were declarations against his interest and admissible, even though husband could not be found, in wife's suit against employer).

Problem 19: In a civil case, in which plaintiff alleges that defendant negligently allowed plaintiff's property to be stolen, plaintiff testifies that he spoke to the alleged thief (who is now taking the Fifth Amendment) and the thief admitted to the theft. This testimony is offered to prove the fact of the theft. Admissible? __________ ________________________________________________ [Cf. Leigh v. Weiner, 679 S.W.2d 46 (Tex. App.--Houston [14th Dist.] 1984, no writ) (in constructive trust case, testimony as to what testator had wanted done with her estate, held, properly admitted as a statement against interest)].

2. Distinction From Admissions: A statement against interest need not have been made by a party opponent in order to be admissible. But unlike an admission, it must have been contrary to declarant's interest when uttered. An admission can be a statement innocuous to the declarant when made, which has now become usable against him; a declaration against interest cannot.

3. No Such Thing as an "Admission Against Interest": This hybrid term is the result of occasional confusion of admissions with statements against interest.

E. Business Records: A most important hearsay exception.

1. The Rule: Rule 803(6) admits a "memorandum, report, record, or data compilation" of "acts, events, conditions, opinions or diagnoses" if (a) it was made in the regular course of business, (b) it was the regular course of business for entries in the record to have originated or be transmitted by employees with personal knowledge, and (c) it was the regular course of business for the record to be made at or near the time of the event recorded, unless (d) the source or the method or circumstances of preparation indicate "lack of trustworthiness."

2. Opinions: The Rule specifically allows "opinions" and "diagnoses" that are recorded as part of the business routine. [The old rule of Loper v. Andrews, 404 S.W.2d 300, 305 (Tex. 1966), which excluded certain opinions and diagnoses in medical records, is clearly overruled; see comment to Texas Rule 803(6).]

3. Authentication: The predicate for admissibility for the record must be established by testimony of "the entrant, custodian or other qualified witness." The authenticating witness need not have personal knowledge himself of the items in the business record. However, he must have personal knowledge of the facts constituting the predicate for admissibility; i.e., he must know how the records keeper prepares its records. This knowledge must relate to the general methodology, but it need not be specific to the individual record. See Clark v. Walker-Kurth Lumber Co., 689 S.W.2d 275 (Tex. app.--Houston [1st Dist.] 1985, writ ref'd n.r.e.) (credit manager able to testify from general knowledge of business routine, although employed after dispute arose).

4. Regularity: The record must be kept routinely, in the ordinary course of business; thus a letter sent by plaintiff's physician to defendant insurer in response to inquiry, stating percentage disability, was not an admissible business record. TEIA v. Sauceda, 636 S.W.2d 494 (Tex. App.--San Antonio 1982, no writ); accord, Hirdler v. Boyd, 702 S.W.2d 727 (Tex. App.--San Antonio 1985, no writ). But the Rules relax this requirement as compared to prior practice. Cf. Ziegler v. Tarrant Cy. Child Welfare Unit, 680 S.W.2d 674 (Tex. App.--Ft. Worth 1984, writ ref'd n.r.e.) (records in parental termination case included report of physician in affidavit form; admissible because Rules were "less restrictive" than old practice). See also Pfeffer v. Southern Tex. Laborers' Pen. Trust Fund, 679 S.W.2d 691 (Tex. App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.) (audit report admissible though entries done at or about time of audit, not at time of underlying work shown in audit records).

5. Affidavit Procedure: A record may be admitted in Texas upon an affidavit of the authenticating witness establishing the required predicate, if filed 14 days before trial. Rule 902(10).

Problem 20: Consider a straightforward business record. Even though hearsay, would the record be admissible? Who would be the authenticating witness and what questions would be asked of that witness? ____________________________ _____________________________________________________________________

Problem 21: Quentin is suing Robert over an automobile accident. Quentin plans to prove his entire case by offering into evidence a hospital report, which happens to include statements of witnesses to the accident. Will Quentin succeed? ________________________________________ Compare Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex. 1962) (hospital record showing accident circumstances not admissible because did not originate with employee) with current Rule 803(6).

Problem 22: In a sworn account action, the vice-president of Plaintiff Corp. is the only witness. Plaintiff Corp. acquired the claim by assignment from X Corp. Plaintiff offers a summary of the account prepared by X Corp. The witness, who is not an employee of X Corp. but rather an officer of Plaintiff Corp., the assignee, testifies as to the business records predicate from his understanding of X Corp. Admissible? [see Clark v. Walker-Kurth, supra.] _________________________ _____________________________________________________________________

Problem 23: Sam is being sued for fraud, for making a false financial statement to obtain credit. A bank employee witness testifies how he received from Sam a balance sheet (which he identifies) that is alleged to have been false. The plaintiff's attorney then asks whether the bank required and retained this form in the ordinary course of business. He then offers the balance sheet into evidence. If this is the only predicate shown, can you, as Sam's attorney, make any objection that will be sustained? (adapted from a case tried by the author of this outline). ________________________

6. Computer Records Maintained as Such by a Business: Records maintained by means of computer compilation in the regular course of business are admissible if they comply with Rule 803(6). There is authority to the effect that if the computer record is actually qualified as a business record, as distinguished from an analysis prepared for litigation or similar purposes, that is all the predicate needed. E.g., Baylor Univ. Med. Center v. Travelers Ins. Co., 587 S.W.2d 501 (Tex. Civ. App.--Dallas 1979, writ ref'd n.r.e.); see also Wenk v. City Nat'l Bank, 613 S.W.2d 345 (Tex. Civ. App.--Tyler 1981, no writ); Voss v. Southwestern Bell Tel. Co., 610 S.W.2d 537 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.).

7. Computer Summaries, Analyses, Etc. Prepared for Suit: This is a different problem. A summary of voluminous records is admissible in the judge's discretion. But the process must be authenticated and (1) the originals must be so voluminous as to make inspection by the jury impractical, (2) they must be admissible under 803(6) and (3) they must be produced in court or made available to the opponent. Black Lake Pipe Line Co. v. Union Constr. Co., 538 S.W.2d 80 (Tex. 1976) (judge has considerable discretion). See Rule 1006.

Problem 24: There is offered into evidence a computer summary, prepared for this specific case, of voluminous computer-stored information retained in the regular course of business, compiled from records made upon employees' personal knowledge and made at the time of the event recorded. Admissible? ________________________

Problem 25: Defendant offers medical records of Dr. Thompson, who recorded that he "found nothing abnormal" in X-rays taken of plaintiff. Admissible? [Cf. Taylor v. Anderson, 474 S.W.2d 541 (Tex. Civ. App.--San Antonio 1971, writ ref'd n.r.e.)]. _____________________________________________________________________

8. Absence of Entry: Absence of an entry can be offered to show nonoccurrence if entries were regularly made upon the event. Rule 803(7).

9. Third-Party Record-Keeper: To an increasing degree, business relies on third-party data processing services. Is a record maintained by the X Data Processing Co. on behalf of the Y Corporation a "business record"--and if so, whose and how will it be authenticated? In Wenk v. City National Bank, 613 S.W.2d 345 (Tex. Civ. App.--Tyler 1981, no writ), the court held that they are business records of the business (Y Corporation) if Y Corporation has "indirect control" over the keeping of the records and can furnish a witness who can testify from personal knowledge that the method of preparing and keeping records of the kind at issue meets the statutory requisites.

F. Recorded Recollection:

1. Requirements: A memorandum or other notation may be admitted upon proof by the declarant that (1) he once had personal knowledge of the matter but (2) he now has "insufficient recollection" to allow him to testify "fully and accurately," and (3) he made or adopted it when his memory was fresh and his knowledge was then correctly recorded, unless (4) circumstances cast doubt on trustworthiness. (Note that this is one of the few instances in the law in which ignorance is a requirement!) Rule 803(4). (Note that the rule disallows receipt in evidence of the exhibit itself, but only allows it to be read).

Problem 26: Immediately after a robbery, Tom, a witness, saw the getaway car drive off and wrote down its license number. Steven, the defendant, was apprehended while driving an automobile with the same license number. If Tom cannot recall the number by using his memory, how would you go about introducing the evidence that would show Steven was driving the getaway car? ______________________________ _____________________________________________________________________

2. Distinction From Business Records: Recorded recollection need not have been made in the ordinary course of business (but it requires another predicate in that the declarant must personally authenticate the record).

3. Distinction From Present Memory Refreshed: A witness with hazy memory may usually be shown a report, memorandum or other information to refresh his memory. It need not be a memorandum personally prepared by the witness. In such a case, no recorded recollection is involved; the witness testifies from present memory. Recorded recollection is used when the witness cannot recall. Note that Texas Rule 612 and Federal Rule 612 provide that use of a writing while testifying (or in the court's discretion, before testifying) generally entitles the opponent to inspect it, use it in cross examination, or introduce pertinent portions.

Problem 27: Assume that the getaway-car witness, Tom, testifies he remembers the license number upon being shown the paper upon which he wrote it. Now how would the identity of the getaway car be shown? _____________________________________

G. Public Records and Reports:

1. Rationale: Public records are sort of like "business records of the government." They are admissible because generally trustworthy and necessary.

2. Requirements: Rule 803(8) admits "records, reports, statements or data compilations" of public agencies setting forth their (A) activities, (B) matters observed under duty, with duty to report, or (C) factual findings of investigation, made pursuant to authority granted by law, unless untrustworthy. See Fields v. State, 690 S.W.2d 37 (Tex. App.--Dallas 1985, no writ) (affidavits of examining physicians, even though done under court order, were not admissible in involuntary commitment proceeding because (1) they were offered without an authenticating witness or self-authentication and (2) the predicate for public records was not shown); Cf. Shedrock v. DPS, 699 S.W.2d 676 (Tex. App.--San Antonio 1985, no writ) (photocopies of DPS notices of convictions called "green sheets" held admissible to prove prior traffic convictions in driver's license suspension proceeding, where sponsoring witness qualified them under both business records and official records subsections); Laing v. DPS, 700 S.W.2d 38 (Tex. App.--Ft. Worth 1985, no writ) (breath-test-refusal documents, including affidavit of officer, held admissible as official records). See also Wigley v. State, 705 S.W.2d 264 (Tex. App.--San Antonio 1986, no writ) (findings derived from investigation admissible in forfeiture case). As to untrustworthiness, see Horvath v. Baylor Univ. Med. Center, 704 S.W.2d 866 (Tex. App.--5th Dist. 1985, no writ) (HEW "guidelines" for phenylketonuria programs lacked indicia of reliability displayed by factual findings).

3. "Factual Findings" Is Construed Liberally, at Least Under the Federal Rule, to Include Informal Evaluative Opinions. The Supreme Court held that this rule included informally expressed conclusions suggesting pilot error in a JAG report on an investigation of an aircraft crash. Beech Aircraft Corp. v. Rainey, 109 S. Ct. 439 (1988). This approach makes "factual findings" similar to "opinions and diagnoses" in business records.

4. Self-Authentication: Domestic public documents may be authenticated as self-proving (i.e., no sponsoring witness required): (1) by the signature plus the seal of the signing person (Rule 902(1)), or (2) by a certificate by a person with a seal, to the effect that the signature is genuine (902(2)), or (3) if authorized by law to be recorded and filed, by a certified copy (902(4)). Self-authentication of foreign documents is complex; see Rule 902(3).

5. Absence of Public Record: A state officer's certified statement that a record was found to be absent after diligent search is admissible to disprove the existence of a fact which would otherwise be recorded. See Rule 803(10).

Problem 28: Dr. X is being prosecuted for practicing medicine without a license. The facts are that he was at one time licensed, but the license was revoked and no subsequent license has been issued. How might these facts be proved? _________________________________________________ Cf. State v. Gross, 624 S.W.2d 287 (Tex. App.--Ft. Worth 1981, no writ).

Problem 29: In Wood v. Paulus, 524 S.W.2d 749 (Tex. Civ. App.--Corpus Christi 1974, writ ref'd n.r.e.), it became necessary to introduce a Mexican marriage license. The proponent offered it with (1) a certificate from a Mexican officer that it was a true copy of the original in his custody and (2) a certificate of a Mexican consular official located in Houston that the custodian had signed and had lawful custody. Admissible over objection? ________________________________________________

Problem 30: An official DPS record states, "Reports filed with DPS indicate no negligence." Cf. Texas Dept. of Pub. Safety v. Nesmith, 559 S.W.2d 443 (Tex. Civ. App.--Corpus Christi 1977, no writ). Admissible? _______________________

H. Excited Utterances: Rule 803(2) admits "a statement relating to a startling event or condition made while the declarant was under the stress or excitement" thereof. The declarant need not be unavailable. E.g., Hartford Acc. & Indem. Co. v. Hale, 400 S.W.2d 310 (Tex. 1966).

I. Present Sense Impression: Rule 803(1) admits a statement describing "an event or condition" made "while the declarant was perceiving [it] or immediately thereafter." Such a statement is admissible even if there is no exciting stimulus. This is a Texas doctrine, from the famous Houston Oxygen case. Houston Oxygen Co. v. Davis, 161 S.W.2d 474 (Tex. 1942).

Problem 31: A few moments before a serious accident, a passenger in an uninvolved vehicle, upon being passed by one of the involved vehicles, stated that the driver "must be drunk, and we will find them somewhere on the road wrecked if they keep that rate of speed up." Can this declaration be repeated in court? _________________

Problem 32: Alleged victim runs to a neighbor shouting, "I've just been raped!" Admissible? ________________________________ Would the statement be admissible if the alleged victim waited until the following day to tell the neighbor? ______________________________________________ Cf. RAY sec. 927 (outcry admissibility rationale).

1. Res Gestae: The words "res gestae" mean "the matters transacted." Courts frequently admit oral declarations surrounding the relevant event by characterizing them as res gestae. The phrase has been used to describe spontaneous utterances, contemporaneous narrative, bodily condition, state of mind and other hearsay exceptions, as well as non-hearsay declarations. It is a broad, non-technical term.

2. "Res Gestae" Not Technically in the Rules, but Useful: Although often criticized as a sloppy term, res gestae is still widely used and has some utility in symbolizing that utterances close to the main event are likely to be admissible.

J. Statements About Bodily or Mental Condition:

1. Then Existing Mental, Emotional, or Physical Condition: Under Rule 803(3), this sort of utterance is admissible. See Southern Pacific Transp. Co. v. Peralez, 546 S.W.2d 88 (Tex. Civ. App.--Corpus Christi 1976, writ ref'd n.r.e.) ("my back is killing me").

a. Declarations as to State of Mind: When the state of mind of a declarant is relevant to an issue, statements evidencing it and made contemporaneously with it are often admissible. E.g., Fulner v. State, 445 S.W.2d 546 (Tex. Civ. App.--Ft. Worth 1969, writ ref'd n.r.e.) (juror's extrajudicial statement of bias).

b. Declarations of Future Intention: A statement of intention to do an act in the future may be admissible to show that the person did that act. Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285 (1891) (deceased's declaration of intent to go to location properly offered as proof that he did go). But Rule 803(3) expressly excludes a statement of memory of a past event.

2. Statements for Purposes of Medical Diagnosis or Treatment: Under Rule 803(4), statements to diagnosing or treating physicians, even if they concern history rather than present condition, are considered sufficiently trustworthy to be granted a hearsay exception. Crocker v. State, 573 S.W.2d 190 (Tex. Crim. App. 1978) (declaration of crime victim to treating doctor concerning his historical condition before crime--admissible). Note that the rule is broad; it covers both "treatment" and "diagnosis."

Problem 33: In a wrongful death action, the deceased's wife offers evidence to the effect that deceased (1) complained repeatedly of pain after the accident and prior to his death. _______________ He also (2) cried out occasionally _______________ and (3) often asked for morphine. _______________ He (4) told his doctor that he had never felt such pain before. _______________ Two weeks before the fatal accident, (5) he told his wife that he loved her and wanted to be with her always. _______________ On the day of the accident, before leaving on the drive during which the fatal accident occurred, he (6) stated to other witnesses that he intended to drive slowly and enjoy the scenery. _______________ After, he (7) told her how the accident happened. _______________ Which of these declarations are admissible in hearsay form? __________________________________________________________

K. Former Judgments in Other Cases: Judgments are hearsay if offered to prove the truth of the legal or factual theory prevailing in a case (as distinguished from their use to prove the mere fact of a judgment having been taken, which would be relevant, for instance, to a claim of collateral estoppel). There are certain exceptions. E.g., Rules 803(22)-(23) (judgments regarding conviction, personal, family or general history, and boundaries). See also St. Paul Mercury Ins. Co. v. Tri-State Cattle Feeders, Inc., 628 S.W.2d 844 (Tex. App.--Amarillo 1982) writ ref'd 638 S.W.2d 868 (Tex. 1983) (criminal conviction for theft is not conclusive evidence in a civil case on an insurance policy covering theft, but it is persuasive evidence).

L. Former Testimony: If (1) the witness is unavailable, (2) the witness testified in this case or another case, and (3) the opponent or a party with similar interest had opportunity and similar motive to develop his testimony, it is admissible.

Problem 34: Witness Wally testified in a deposition in a similar case brought by another plaintiff against the defendant in the present case. Wally is now taking the fifth amendment. Can Defendant offer Wally's deposition testimony from the other case? ___________________________________________________________________

M. Miscellaneous Hearsay Exceptions: Rules 803 and 804 contain many other hearsay exceptions, including those for market reports and commercial publications of certain types, if it is shown they are generally relied on in the trade, see Curran v. Unis, 711 S.W.2d 290 (Tex. App.--Dallas 1986, ___) (photocopied business periodical, which accountant testified was generally relied on); statements in written records or by family, etc., or reputation, of family history or pedigree; ancient documents (documents 20 years old, properly authenticated); recorded documents or documents affecting property; boundary reputation in land cases; and learned treatises. In addition, there are "unwritten" exceptions such as that for properly done opinion polls.

Problem 35: Southwest Airlines wants to demonstrate to the court that the "attitude of travelers toward...existing carriers" is such that the Texas Aeronautics Commission was correct in certifying Southwest over the objections of Braniff, Continental and Trans-Texas. What is the most convincing way to prove this? [See Texas Aeronautics Comm'n v. Braniff Airways, Inc., 454 S.W.2d 199 (Tex. 1979)]. _______________ _____________________________________________________________________

Problem 36: How would one prove the following? The market value of turkeys damaged by bad turkey chow sold by defendant [see City National Bank v. Kiel, 384 S.W.2d 260 (Tex. Civ. App.--Ft. Worth 1961, writ ref'd n.r.e.) ("Turkey World Magazine" case); see also Federal Rule 803(17)]? ______________________________ _____________________________________________________________________ One's relationship to Howard Hughes (in order to share in his estate) [cf. Rule 803(11)-(13), (19); Sherrill v. Estate of Plumley, 514 S.W.2d 286 (Tex. Civ. App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.) (reputation or family declarations, but not newspaper obituary where writer neither shown to be family member nor unavailable)]? ____________________________________ One's title to land in a trespass to try title suit involving a boundary dispute [cf. Rule 803(14, 15, 20) (recorded documents, documents affecting property, reputation as to boundaries)]? _____________________________________________________________________

N. Federal Rule Covering Good Evidence That Would Otherwise Be Excluded as Hearsay: The Federal Rules contain a special pair of provisions that allow relaxation of the hearsay rules in the judge's discretion. Federal Rules 803(24); 804(b)(5).

1. Requirements: If evidence would otherwise be inadmissible hearsay but is (a) material, (b) more probative than any other reasonably available evidence and (c) such that admitting it would serve the interest of justice and the purposes of the rules, the court may admit it. Id.

2. Pretrial Notice: The opponent must have notice sufficient to allow him to meet the evidence, with the declarant's name and address, if it is to be admitted under this exception. Id.

3. Other Jurisdictions: Jurisdictions without such a rule have occasionally followed this approach. E.g., Dallas County v. Commercial Union Assoc. Co. Ltd., 286 F.2d 388 (5th Cir. 1961) (newspaper report of fire more than half a century old).

Problem 37: The only witness to a fatal accident gave a detailed statement to the investigating officer in writing. Before it was possible to take his deposition or try the case, however, the witness dropped dead of a heart attack. What would you do if you represented one of the parties and the statement was favorable to you? ________________________________________________ What would you do in response if you represented the opposing side? _________________________ _____________________________________________________________________

O. Certain Other Problems Relating to Hearsay:

1. Multi-Level Hearsay: A declaration may be "multi-level hearsay," or "hearsay within hearsay." If so, all levels must be "bridged" by proper exceptions. See Rule 805 (admissible if "each part...conforms with an exception.")

Problem 38: Plaintiff offers a set of hospital records into evidence. The records contain reports to the effect that an unknown reportee said the accident was plaintiff's fault as well as reports that plaintiff complained of pain. ________________________

2. Attack on Declarant's Credibility: When hearsay is used, the opponent can attack, and the proponent can support, the declarant's credibility in a manner similar to that of a witness. E.g., Rule 806.

3. Camouflaged Hearsay: Witnesses often report hearsay in a form that makes it sound like personal knowledge or otherwise conceals its hearsay nature. Cf. Campbell v. Ft. Worth Bank & Trust Co., 705 S.W.2d 400 (Tex. App.--Ft. Worth 1986, ________) (summary judgment affidavit based on "best of his [affiant's] knowledge" is no evidence at all and cannot be considered proof of assertions).

Problem 39: A witness testifies, "I investigated the matter, and my investigation revealed the following--" Admissible? _______________________________________

4. Confusion: The hearsay rule and its exceptions create more difficulty and confusion for lawyers and judges--even good ones--than any other evidence rule.

Problem 40: What has caused the following rulings? Why are they incorrect? (1) Plaintiff, in a fraud case, offers the alleged fraudulent statement, whereupon defendant interposes an objection of "hearsay," whereupon the judge puzzles whether the statement is covered by a hearsay exception. _________________________________ (2) In another case, the judge insists that a recorded recollection is admissible only if it refreshes the witness' memory. ______________________________ (3) Another judge admits all hearsay originally uttered in the presence of the defendant. _______________________________________________________________________

IV. THE EXCLUSION OF EVIDENCE WHOSE RELEVANCE IS OUTWEIGHED BY PREJUDICE

A. The Basic Concept: Remember that relevant evidence includes a lot of marginal evidence because it includes all evidence having any tendency to prove or disprove facts at issue. Some of this evidence should be excluded.

B. Exclusion of Relevant Evidence "Substantially Outweighed" by Prejudice (The "Great Override"): The Rules have the following provision: "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." Rule 403. See also Silcott v. Oglesby, 721 S.W.2d 290 (Tex. 1986) (refusal to allow testimony informing jury that abducted child was plaintiff's adoptive son, rather than natural son, was not error in child abduction case; such evidence would confuse issue by introducing collateral matter). This provision is colloquially known as "The Great Override." It vests considerable discretion in the court. (Note: "Surprise" is no longer a counterweight. The remedy is continuance.)

C. Existence of Prejudice Not Enough to Exclude: Notice that the mere fact that a piece of evidence can be labelled "prejudicial" is not enough to exclude it! Most highly probative evidence is "prejudicial". The prejudice must "substantially" outweigh the relevance before the evidence is to be excluded. Furthermore, "prejudice" does not mean merely "hurtful" to the opponent; it means that the evidence is subject to some improper use by the jury. For an interesting (and perhaps controversial) example, see Missouri-Kansas-Texas RR. Co. v. Alvarez, 703 S.W.2d 367 (Tex. App.--Austin 1986, no writ) (where defendant offered evidence of intoxication in suit concerning car-train accident, lower court correctly excluded evidence because it was slight and was substantially outweighed by unfair prejudice under Rule 403). Cf. Wall v. Noble, 705 S.W.2d 727 (Tex. App.--Texarkana 1986, writ ref'd n.r.e.) (doctor's sexual liaison with patient now suing him for malpractice held relevant to determine his compliance with standard of care in obtaining informed consent to surgery).

Problem 41: Plaintiff Pool suffers brain injury in an accident, and claims damages because it allegedly made him more violent and interfered with his consortium with his wife. Defendant offers, in rebuttal, to show (1) numerous earlier violent acts by Pool against his wife, who twice placed him under peace bonds, and (2) that plaintiff earlier had sued for divorce from his wife, and that Pool and his wife were separated. The trial court excludes this evidence; what result on appeal? ___________________ _________________________ Ford Motor Co. v. Pool, 688 S.W.2d 879 (Tex. App.--Texarkana 1985, writ granted) (prejudice, to exclude, must "substantially" outweigh relevance; "evidence should not be excluded without 'very good cause'"); rev'd on other grounds, 29 Tex. Sup. Ct. J. 301 (Tex., April 2, 1986).

Problem 42: Should polygraph results be admissible in civil or criminal trials? How would the rules treat them? ______________________________________________

Problem 43: Plaintiff slipped and fell after pulling on defendant grocer's grocery cart. In order to demonstrate that the cart was bent, rusted and probably stuck, she offers evidence that other carts in the store, on other days, were observed by witnesses to be bent and defective. Admissible? _______________________________________ See Obiedio v. J. Weingarten, Inc., 515 S.W.2d 308 (Tex. Civ. App.--Houston [1st Dist.] 1974, writ ref'd n.r.e.).

Problem 43a: To prove the deserved amount of punitive damages, plaintiff offers evidence of (1) defendant's net worth [admissible under Lunsford v. Morris, 746 S.W.2d 471 (Tex. 1988)] and (2) defendant's gross receipts, before offering evidence showing entitlement to punitives. Admissible? ______________________________ Cf. Miller v. O'Neill, 775 S.W.2d 56 (Tex. App.--Houston [1st Dist.] 1989, no writ) (requiring prima facie showing of conduct warranting punitives before allowing discovery of net worth); Southland Corp. v. Burnett, 790 S.W.2d 828 (Tex. App.--El Paso 1990, no writ) (evidence of gross receipts and number of stores held "irrelevant" because "no reasonable relation to" net worth).

D. The Recurring Problems (Particular Kinds of Circumstantial Evidence): Certain kinds of circumstantial evidence presenting relevance-prejudice balancing problems recur so often that specific sets of rules have evolved to deal with them. These areas include:

1. Liability Insurance: Generally inadmissible to prove insured's liability. Rule 411.

2. Subsequent Remedial Measures (Repairs, Product Changes, or New Safety Rules): The general rule is that these are inadmissible to prove negligence or fault. Rule 407. The general rule is, however, shot through with exceptions; the evidence may be admissible to resolve a disputed issue of control over the item, feasibility of safer processes, causation, etc. Result: in every case in which it would be helpful, plaintiff tries to wedge evidence of this sort into an exception. Most statements of the rule cover negligence or conduct only, leaving product defect cases ambiguous. Federal courts are split on the question. Texas apparently admits the evidence; Texas Rule 407 says the Rule "does not preclude" remedial measures in strict liability cases. See also Caterpillar Tractor Co. v. Boyett, 674 S.W.2d 782 (Tex. App.--Corpus Christi 1984, no writ). Suggestion: Argue the relevance-prejudice balancing test of Rule 403. Note that Texas Rule 407(b) admits a "notification of defect" (e.g., a recall letter).

3. Offers of Compromise, Negotiations, or Settlement; Payment: Generally not admissible [see Rule 408] (but a separate statement amounting to an admission of a party opponent may be admissible). Cf. Rural Development, Inc. v. Stone, 700 S.W.2d 661 (Tex. App.--Corpus Christi 1985, no writ) (Rule 408 extends protection not only to settlement agreement itself, but also to statements and conduct in negotiations; therefore, defendant's conduct in negotiations could not be admitted to prove defendant's malice toward plaintiff even if relevant to that purpose). See also Scurlock Oil Co. v. Smithwick, 30 Tex. Sup. Ct. J. 74 (Tex., Nov. 26, 1986) (reversible error to admit Mary Carter agreement, showing that defendant guaranteed large sum to a different plaintiff, since purpose of demonstrating bias and interest was inapplicable).

Payment of medical and like expenses is also generally inadmissible to show liability. Rule 409. Note on how not to do it: In Port Neches Indep. Schl. Dist. v. Soignier, 702 S.W.2d 756 (Tex. App.--Beaumont 1986, no writ), the compensation carrier wrote a letter authorizing payment of plaintiff's medical expenses and acknowledging coverage of the injury. The court held that the letter was properly admitted as an admission since it went beyond payment, protected by Rule 409, and actually admitted coverage.

4. Habit, Custom, Business Usage or Routine: Generally admissible (but note that character evidence, which is often difficult to distinguish, is usually not admissible). Rule 406. Cf. Cruce v. Eureka Life Ins. Co., 696 S.W.2d 656 (Tex. App.--Dallas, 1985, writ ref'd n.r.e.) (trustee under deed of trust allowed to prove that notice of sale was mailed to mortgagor by testimony that to do so was the regular business practice of his employer); see also Mediacomp, Inc. v. Capital Cities Communication, Inc., 698 S.W.2d 207 (Tex. App.--Hou. [1st Dist.] 1985, no writ) (routine contracting practices admissible to show manner of probable formation of contract).

5. Scientific Analysis or Opinion Evidence: Admissible only if properly explained, shown to have been properly obtained and based upon principles of general acceptance in the scientific community. This test is more rigorously applied in criminal cases. Hernandez v. State, 530 S.W.2d 563 (Tex. Crim. App. 1975). See also Dean v. State, 636 S.W.2d 8) Tex. App.--Corpus Christi 1982, no writ) (sodium pentathol test results, or "truth serum" results, inadmissible in Texas); Burden v. State, 634 S.W.2d 349 (Tex. App.--Ft. Worth 1982, no writ) (polygraph result not admissible on offer of either party, for any purposes).

6. Experiments: Admissible within the discretion of the court if the conditions are adequately explained to the jury and are sufficiently similar.

7. Failure to Call a Witness: An inference may be drawn about opponent's failure to call a witness only if that witness should logically have been favorable if the opponent's case were valid. A party may explain the failure to call a witness.

Problem 44: In a wrongful death action, the following items of evidence are offered; are they admissible? (1) A witness testifies of the deceased that "He was a careful driver." _______________ (2) Another witness says, "The deceased generally drove at least five miles an hour below the speed limit." _______________ (3) Yet another witness testifies that the defendant, immediately after the accident, came running up and said, "It was my fault! I'll pay for your medical bills; I have insurance!" _______________ (4) Plaintiffs also offer evidence that defendant, charged with negligent collision, offered to plead guilty but instead was tried and found guilty. ______________________ (5) Defendant's garage mechanic testifies that defendant had his brakes checked after the accident and put in new linings ______________ Defendant, for his part, wants to inform the jury (6) that he placed a car the next day on the same hill where plaintiff's was and tested visibility from where his own car had been [see Kirk v. Bennett, 456 S.W.2d 191 (Tex. Civ. App.--Waco 1971 writ ref'd n.r.e.) (held admissible)]. _______________, and (7) that the failure of his wife (a passenger in the car at the time) to testify is attributable to her visiting her mother in Indiana. _________________________________________________________________

Problem 45: An accident reconstruction expert testifies and devastates the plaintiff's case. On cross-examination, plaintiff's lawyer asks, "Isn't it a fact that you are an employee of defendant's liability insurer?" Defendant objects, asks for an instruction to disregard and moves for a mistrial. What should the judge do? ___________________________________________________ [Aguilera v. Reynolds Well Serv., Inc., 234 S.W.2d 282 (Tex. Civ. App.--San Antonio 1950, writ ref'd) (admissible)].

E. Character Evidence and Reputation in Civil Cases:

1. When Not in Issue: The general rule in civil cases is that character and reputation are inadmissible except when directly in issue (or when reputation for truth and veracity is offered for impeachment). See Rule 404(a) (character not admissible to show person "acted in conformity therewith").

2. Texas Rules Allow Character on Assault or Moral Turpitude Issues: The Texas rules allow character even in civil cases to rebut an accusation involving moral turpitude or an accusation of assault, or in rebuttal to such evidence. Texas Rule 404, Int'l Security Life Ins. Co. v. Flinck, 475 S.W.2d 363 (Tex. Civ. App.--Amarillo 1971), rev'd on other grounds, 496 S.W.2d 544 (Tex. 1973).

3. Character Directly in Issue: Of course, character is provable when directly in issue in a civil case (e.g., damages for slander). For an unusual example, see Kanow v. Brownshadel, 691 S.W.2d 804 (Tex. App.--Hou. [1st Dist.] 1985, no writ) (in suit by attorney to recover attorney's fees, client's criminal record was admissible to show probability that contract was what attorney claimed). For a case standing for the doubtful proposition that motive of witness is not admissible unless witness' state of mind is at issue, cf. Rose v. Intercontinental Bank, N.A., 705 S.W.2d 752 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.).

4. Proof of Character. Character, when admissible, may be shown by reputation or opinion; or, if on cross examination, or if directly relevant, by specific instances. See Rose v. Intercontinental Bank, N.A., supra (concerning opinion evidence to rehabilitate character of witness for truthfulness, but only after attack). See also First Southwest Lloyds Ins. Co. v. MacDowell, 769 S.W.2d 954 (Tex. App.--Texarkana 1989, writ denied) (earlier suspicious fire held properly excluded on issue of arson in fire policy suit, at least where little evidence linked it to plaintiffs).

Problem 46: Reconsider the problem involving Pool, who claims the accident made him more violent, but can be shown to have committed many violent acts before the accident. Admissible? [Ford Motor Co. v. Pool, supra] ________________________ _____________________________________________________________________

Problem 46a: After defendant's secretary has testified in disbarment proceeding that defendant has "too much integrity to be a lawyer," State Bar counsel seeks to elicit testimony that he customarily padded his hours in bills to clients. Admissible? _____________________________ State Bar v. Evans, 774 S.W.2d 656 (Tex. 1989) (held, yes.)

F. Similar Occurrences: There is no specific Rule covering this issue; it is governed by general relevance balancing principles (Rules 401-403). Similar occurrences (other accidents, misconduct, transactions, etc.) may be admissible if sufficiently similar to the incident at issue, relatively probative and offered to demonstrate certain kinds of issues, such as--notice of dangerous conditions; sometimes, dangerousness or defectiveness itself; a continuing scheme or plan; value (similar sales), see Bauer v. Lavaca-Navidad River Auth., 704 S.W.2d 107 (Tex. App.--Corpus Christi 1985, no writ); construction of contract language (prior course of sales); construction of contract language (prior course of dealing); etc. Cf. Davis v. Snider Indus., 604 S.W.2d 341 (Tex. Civ. App.--Texarkana 1981, writ ref'd n.r.e.) (if unrelated accident occurs at same place, from same instrumentality, under similar conditions, it may be admissible to prove negligence of person responsible for instrumentality); see also McGraw-Edison Co. v. Davis, No. 14,339, ___ S.W.2d ___ (Tex. App.--Austin, Feb. 2, 1986, ________) (other incidents involving same product may be used to show dangerousness if they occurred under conditions substantially similar to event in suit); John Deere Co. v. May, 773 S.W.2d 369 (Tex. App.--Waco 1989, writ denied) (certain evidence about 34 unrelated incidents involving John Deere tractors held admissible in neutral-to-reverse gearshift case, where "same type of occurrence," identical circumstances not required). In general, however, the common-law rule is that "res inter alios acta" (transactions with third parties) are inadmissible. E.g., Texas Farm Bureau Mut. Ins. Co. v. Baker, 4596 S.W.2d 193 (Tex. Civ. App.--Tyler 1980, no writ).

Problem 47: Plaintiff offers evidence that defendant's altimeter has failed, similarly to the case at bar, in a number of other airplane crashes. Admissible? _________ _______________________. [Tex. & N.O.R.R. v. Davis, 210 S.W.2d 195 (Tex. Civ. App.--Beaumont 1948, writ ref'd n.r.e.) (sufficiently similar train accidents admissible within judge's discretion); see also Missouri-Kansas-Texas R.R. v. May, 600 S.W.2d 255 (Tex. 1980) (other similar accidents admissible to show ultrahazardous crossing)]. What if defendant offered evidence that its employees had never heard of the altimeter failing though used in flights cumulating over a billion miles? _________ _______________________________________________________ [cf. Pound v. Popular Dry Goods Co., Inc., 139 S.W.2d 341 (Tex. Civ. App.--El Paso 1940, no writ) (employees knew of no person other than plaintiff injured by washing machine--admissible)].

G. Completeness Doctrines: Sometimes, evidence that would otherwise be inadmissible becomes admissible because of its relationship to evidence already admitted.

1. The Doctrine of Verbal Completeness: If the answer to a question is admissible and relevant, the question itself may be relevant to explain the relevance of the answer.

2. Remainder of or Related Writings or Recorded Statements. Rule 106 allows the opponent to introduce these items. See Azar Nut Co. v. Caille, 720 S.W.2d 685 (Tex. App.--El Paso 1986, _____) (when defendant introduced letter written to plaintiff, plaintiff could introduce response letter written by plaintiff's attorney).

3. The Doctrine of the Open Door: Evidence that is otherwise inadmissible may become admissible if it rebuts evidence offered by the opponent (particularly if the opponent has offered evidence that is inadmissible in the first place). The boundaries to this exception are vague.

Problem 48: Plaintiff has offered into evidence a petition from another case, and it has been admitted (assume it falls within a hearsay exception). Defendant wants to offer statements from an amendment to that petition. __________________________ _____________________________________________________________________

Problem 49: In the trial of a civil fraud case, plaintiff's counsel happens to be in possession of information to the effect that the defendant was arrested last year for auto theft and no-billed by the grand jury, as well as more aprocryphal information indicating that the defendant was arrested on a contempt charge for failing to pay child support but released when he purged himself by paying. Counsel is pondering how to introduce this highly relevant evidence when, to his surprise, he hears defense counsel ask his client: "Have you ever in your life been arrested?," to which question the defendant replies, "No." What is plaintiff's counsel likely to do? When the defense counsel objects, what is the judge likely to say, incredulously, to defense counsel? (From a case tried by the author of this outline) _________________ _____________________________________________________________________

H. "Sexual Conduct Shield Law:" Rule 412 excludes opinion, reputation, and most past incidents regarding prior sexual conduct of an alleged victim in certain kinds of sexually related prosecutions.

I. Broad Admissibility of Prior Offenses Against Sexual Offenders. Rules 413, 414 and 415 make prior sexual offenses admissible against sexual offenders in certain kinds of cases. These Rules are new, are an attempt to make evidence more liberally admissible against sexual offenders, and are quite different from Rule 404, which governs prior conduct in other cases.

Problem 49a: In Courtroom A, in an aggravated robbery, the prosecutor offers (1) a prior, unrelated robbery to prove that defendant has a propensity toward robbery. In Courtroom B, in a sexual assault case, the prosecutor offers (2) a prior, unrelated sexual assault to prove propensity; and the defendant, whose defense is consent, offers (3) evidence of the alleged victim's prior sexual conduct allegedly as showing a propensity toward consent. Analyze admissibility of (1), (2) and (3):_____________ _____________________________________________________________________ _____________________________________________________________________

V. EXCLUSION OF OPINION EVIDENCE OR CONCLUSIONS

A. The Personal Knowledge Requirement: It is no longer quite true that "opinions" or "conclusions" of lay witnesses are inadmissible, while "facts" actually observed are admissible. The correct principle today is the "personal knowledge" requirement, expressed in Rule 602, together with the lay witness opinion provision of Rule 701.

B. Lay Witness Opinions Admissible Within Limits: The old "fact-not-opinion" approach may still have some utility as a rough guide. However, much lay witness opinion is in fact admitted, and the Rules recognize it forthrightly. See Rule 701 (opinions admissible if (1) "rationally based on...perception" and (2) "helpful" to jury). Compare Byrd v. Southwestern Multi-Copy, Inc., 693 S.W.2d 704 (Tex. App.--Hou. [14th Dist.] 1985, ______) (lay witness not permitted to testify on another person's intent; restrictive view taken against opinions) with Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435 (Tex. App.--Corpus Christi 1985, ______) (lay witness permitted to testify to emotional damage suffered by family and to testify to causation by slander; liberal view).

C. Collective Facts Doctrine, "Shorthand Rendition of the Facts," Estimates, and Similar Evidence: If a collective characterization will elucidate an otherwise confused array of observed facts, it may be admissible. This sort of description is sometimes referred to as a "shorthand rendition of the facts." United Gas Pipe Line Co. v. Smith, 232 S.W.2d 756 (Tex. Civ. App.--Texarkana 1950, no writ) (statement that property was "capable of fair partition"--admissible). Estimates are generally admitted though they have some opinion element to them. Cf. Hocheim Prairie Farm Mut. Ins. Ass'n v. Burnett, 698 S.W.2d 271 (Tex. App.--Ft. Worth 1985, no writ) (homeowner, though not qualified as expert, could testify to actual cash value of structure before fire). Lay witnesses are also often permitted to characterize human mood, mental state, intention or reason based on observations. Gulf, C. & S.F.R. Co. v. Davis, 139 S.W. 674 (Tex. Civ. App.--Austin 1911, no writ) (witness opinion that fall was "intentional"--admissible). Terms or practices familiar to a witness may be explained even though the explanation may involve some element of conclusion. Austin v. Johnson, 195 S.W.2d 222 (Tex. Civ. App.--Austin 1946, writ ref'd n.r.e.) (experienced electrician is testifying to "fact" in concluding person was killed by contacting wires). Indeed, strictly speaking, every observation is affected by the observer's processing of sense impressions and involves conclusions, so this rule must be reasonably construed.

Problem 50: In a negligence case, plaintiff testifies that defendant's premises were "dangerous" and "unsafe" and adds that her injuries "will probably never heal." Admissible? _____________________________________________________________ [Compare Thompson v. Galveston, H. & S.A. Ry. Co., 106 S.W. 910 (Tex. Civ. App. 1908, writ dism'd) (opinion that curve "dangerous" excluded) with Missouri Pac. Ry. Co. v. Jarrard, 65 Tex. 560 (1886) (opinion track "unsafe" admitted).]

Problem 51: In a negligence case in which defendant is alleged to have driven while intoxicated, the plaintiff calls as a witness a bystander who saw defendant driving. What questions will the plaintiff probably ask relative to intoxication? __________ _____________________________________________ [Little v. State, 331 S.W.2d 317 (Tex. Crim. App. 1960)].

D. Limits on Lay Opinions (Legal Conclusions, Speculation, Evidence Unhelpful to the Jury, etc.): It should not be valid to exclude lay evidence merely because it involves an element of "opinion," or because it "invades the province of the jury," or because it is "not accompanied by a factual basis." "Speculation" about the future, about possibilities or about causation is generally condemned. Perhaps the best test is: can this witness add something by his opinion that the jury is not equally equipped to conclude? For an example of an opinion that was allowed in spite of some speculation, see Wilfin, Inc. v. Williams, 615 S.W.2d 242 (Tex. Civ. App.--Dallas, 1981, writ ref'd n.r.e.) (statement that profit "would not have been less than $8,000" by witness not qualified as expert on precise subject held admissible--"shorthand rendition").

E. Experts: An expert witness may offer an opinion on a subject within his expertise. According to Rule 702, an expert is one who by virtue of training, experience or other knowledge, is able to assist the jury upon a subject not within the ordinary experience of lay persons. For an interesting example of exclusion, see Thompson v. Mayes, 707 S.W.2d 951 (Tex. App.--11th Dist. 1986, _________________) ("psychological autopsy" was not based on type of "specialized knowledge" that would assist jury).

Problem 52: Plaintiff, in order to prove a product defect, calls a metallurgist with no industry experience but degrees from Caltech and Harvard, who offers testimony that the axle was probably defective at the time of manufacture. Plaintiff also offers a mechanic with no formal education but with five year's experience in repairing vehicles of the type at issue, who testifies that the part would not fail under normal conditions unless defective. _______________________________________________ [Lone Star Gas Co. v. Thomas, 345 S.W.2d 845 (Tex. Civ. App.--Ft. Worth 1961, writ ref'd n.r.e.) (veterinarian with training but with no experience--competent); but cf. Hailes v. Gentry, 520 S.W.2d 555 (El Paso 1975, no writ) (police officer, on basis of experience and observation of scene alone, may not testify to vehicle speed in accident case--skid mark measurement, together with relevant expertise, or similar reliable indica required). Contra, Lovell v. DeHoney, 615 S.W.2d 276 (Tex. Civ. App.--Dallas 1981, writ ref'd n.r.e.)].

F. Use of Hearsay in Formulating Opinion. Rule 703 allows an expert to base opinions on facts "perceived by him or made known to him" (Texas Rule, "reviewed by him"), including facts "not...admissible in evidence" if they are "of a type reasonably relied on by experts in the particular field." This provision has been criticized as allowing in evidence a veritable hemorrhage of hearsay. The Rule also allows the expert's opinion to be elicited without disclosure of the bases or facts underlying it. Rule 705. Hence the hypothetical question, although allowed, is unnecessary. The opponent may, of course, inquire into the basis in cross examination (and the Texas Rule, as amended, makes clear that the proponent may disclose it, too). Cf. Moore v. Polish Power, Inc., 720 S.W.2d 183 (Tex. App.--Dallas 1986, writ ref'd n.r.e.) (evidence relating to characteristics of carpet and pad was based on data reasonably relied on by expert and therefore was admissible in personal injury action). Thus an expert may testify on the basis of:

1. A hypothetical question;

2. His own perception; or

3. Facts made known to him (including inadmissible information if reasonably relied on by experts in the field); and

Once qualified, he may opine without giving the basis.

Problem 53: If plaintiff wished to have his metallurgist or mechanic testify that his use of the product was unlikely to have created the defect, how would plaintiff do so? ______________________________________________________________________

G. Impeachment of Experts: In addition to other means of impeachment, experts may be impeached by treatises, books and articles shown to be "authoritative" in the field in question. Anzaldua v. Amer. Guaranty & Liab. Ins. Co., 596 S.W.2d 222 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.). An expert may also be impeached by statements in the hearsay basis of his opinion, even if he disagrees with them. Id.

Problem 54: On cross examination of plaintiff's medical witness, counsel for defendant offers letters from a surgeon who operated on plaintiff. Plaintiff's witness relied on these letters in forming his opinion but disagrees with some contents and conclusions in them. Admissible? See Anzaldua, supra. ____________________________________________

H. Texas' Apparently Liberal Approach to Admitting Even Mixed Legal Conclusions. See Burchfield v. Texarkana Mem. Hosp., 31 Tex. Sup. Ct. J. 36 (1987) (expert held properly allowed to testify to mixed questions of law and fact concerning "proximate cause" and "negligence" under proper definitions); Texaco Inc. v. Pennzoil Co., 729 S.W.2d 838 (Tex. App.--Houston [1st Dist.], writ ref'd n.r.e.) (upholding lay witness' testimony as to existence of binding agreement).

Problem 54a: "Mr. Expert Witness, based upon the following definition [correct definition of negligence inserted here], what is your opinion as to whether defendant was negligent?" [Admissible?] __________________________________________ _____________________________________________________________________

I. Scientific Expert Testimony: The Daubert Decision. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993), the Supreme Court revised the treatment of scientific evidence, which earlier had been governed by a simpler, stricter rule, the Frye rule.

1. The Earlier Standard under the Frye Rule. The so-called Frye Rule was simple--maybe overly simplistic. In excluded evidence about a scientific principle or technique unless it had achieved "general acceptance" in the relevant scientific community. This approach tended to exclude new discoveries or extension of existing techniques, and it did not reflect Rule 702 very accurately.

2. The Daubert Decision: Requirements of (a) Relevancy or "Fit" and (b) Scientific "Reliability." In Daubert, the Supreme Court rejected the older Frye Rule, focused on Rules 403 and 702, and articulated two requirements. First, the scientific principle must fit the case, so that it is sufficiently relevant to the solution of some issue raised by the case. Second, it must show scientific method or reliability under a multifactor standard, including testability (or falsifiability if false), peer review or publication, error rates, and degree of acceptance, plus any other relevant factors.

Problem 54b: The prosecution offers DNA analysis and statistical evidence of a kind never before used in any court in an effort to demonstrate that defendant's hair is the same as hair recovered from the crime scene, to a high degree of scientific certainty. If defense counsel objects under Daubert and Rules 403 and 702, what factors should the prosecution establish to show that its technique and results are admissible? _____________________________________________________________________ _____________________________________________________________________

VI. COMPETENCY

A. In General: Texas requires that witnesses be able to (1) understand and take the oath (or at least understand that falsehood is evil and punishable), see Rule 603, and (2) not be insane, and if children, be able to "relate transactions," Rule 601. Cf. Federal Rule 603 (oath to "testify truthfully"); Rule 601 (all witnesses competent unless excluded; state competency rules apply to state claims in federal court).

Problem 55: In an assault case, the attorney for plaintiff calls the alleged victim, who is four years old. What will the defense likely do before she testifies? ____________ _____________________________________________________________________What will the plaintiff do to demonstrate that her testimony is admissible? (What questions?)____________________________________________________________ _____________________________________________________________________

B. The "Dead Man" Rule: Under Texas Rule 601(b), a party to an action may not testify to a statement by decedent or ward in an action against or by the executor, administrator or guardian unless the statement is corroborated or unless called by an opposing party. The party may obtain an instruction explaining to the jury why his testimony was excluded. Tex. R. Civ. P. 182a. See generally Tramel v. Billings, 699 S.W.2d 259 (Tex. App.--San Antonio 1985, no writ) (statute did not apply to insurance interpleader action because of "nontestamentary" character of case--i.e., it was not a proceeding against or for an executor; decedent's oral statements admitted anyway if corroborated by any legal source, including documents, not emanating from or depending upon interested party); see also In re Estate of Watson, 720 S.W.2d 806 (Tex. 1986) (affectionate letters written to decedent, offered to show affection, were not excludable as "testimony" of a transaction, but were themselves the "transaction" and were admissible).

Problem 56: Plaintiff sues decedent's estate on the claim that he had an oral contract, witnessed by no one else and evidenced by no writing or physical evidence, with decedent. Is his testimony admissible? ______________________ [Cf. Defoeldvar v. Defoeldvar, 666 S.W.2d 668 (Tex. App.--Ft. Worth 1984, no writ) (oral transaction offered by party against decedent not admissible without corroboration)].

VII. AUTHENTICATION OF TANGIBLE ITEMS AND DOCUMENTS (AND OTHER PROBLEMS RELATING TO THEM)

A. Tangible Things: Tangible things (also referred to as "real" evidence or "demonstrative" evidence) must be adequately tied to the case by testimony. See Rule 901 (evidence sufficient for finding that the matter "is what its proponent claims").

1. General Rule: An object must be identified and its relevance demonstrated through a witness. However, lack of positive identification is not usually enough to exclude the evidence. For instance, testimony that a gun "looks similar to" one used in the incident at issue would probably be sufficient for admittance. Cf. Atkins v. State, 515 S.W.2d 904 (Tex. Crim. App. 1978) (uncertainty goes to weight, not admissibility); Franco v. Graham, 470 S.W.2d 429 (Tex. Civ. App.--Corpus Christi 1971), reformed on other grounds, 480 S.W.2d 390 (Tex. 1972) (taillight bulbs; witness uncertain whether they were the same ones he removed from car--admissible, and uncertainty affects only weight of evidence).

2. Changed Condition; Chain of Custody: Where the condition of a thing at different times is relevant, there may be some unusual circumstances in which the opponent may claim that it is necessary to show a chain of custody to it or at least absence of change (e.g., a chemical sample). C. McCORMICK, EVIDENCE sec. 212 (2d ed. 1982); see also Imperial Cas. & Indem. Co. v. Terry, 451 S.W.2d 303 (Tex. Civ. App.--Tyler 1970, no writ) (physical evidence of damage inadmissible where not shown to have occurred before sample collected). But a chain of custody is not generally required in civil cases. Missouri-Kansas-Texas R.R. v. May, 600 S.W.2d 755 (Tex. 1980) (hospital record of blood test may be admissible though it did not reflect security measures, if any, or identity of person taking sample--these affect weight, not admissibility).

3. Diagrams, Photographs, Models: The predicate is that the item must fairly and accurately depict the object in question. Posed or recreated photographs are within the court's discretion. Cf. Air Shields, Inc. v. Spears, infra. A diagram need not be to scale. The maker or photographer need not be called if there is someone else with personal knowledge of the item depicted. The court has wide discretion, however, to exclude the exhibit if it is a non-exact replica. Champlin Oil & Ref'g Co. v. Chastain, 403 S.W.2d 376 (Tex. Sup. 1965). See also Rules 401-02 (relevant evidence); 403 (exclusion in discretion of court).

4. Charts and Summaries: Admissible within Discretion of The Court. See Speier v. Webster College, 616 S.W.2d 617 (Tex. 1981) (trial court did not abuse discretion in admitting chart cataloguing damages of plaintiffs, even though chart was a summary and was incomplete in that it emphasized aspects of plaintiffs' but not defendant's case); see also Champlin Oil & Ref'g Co. v. Chastain, supra; Rule 1006 ("chart, summary or calculation" --"may be" admitted. Original data must be made available).

5. Prejudicial Nature of Exhibit: Most jurisdictions permit even gruesome exhibits if relevant; some require masking or exclusion of portions that are unduly inflammatory and of little probative value. For an example in an unusual context, see Red River Pipeline Co. v. Amonett, 695 S.W.2d 802 (Tex. App.--Amarillo 1985, no writ) (in pipeline condemnation proceeding, photographs received in evidence, which showed interim state of land during actual construction, were properly admitted).

6. Sound Recordings; Motion Pictures. For a seven-part test for admissibility of tape sound recordings, see RAY sec. 1467 (including proper instrument operation, proper recording procedure, absence of changes, proper playback or presentation, speaker identification and voluntariness). The Texas Supreme Court has held, however, that this elaborate predicate is not required. Seymour v. Gillespie, 608 S.W.2d 897 (Tex. 1981) (garbled tape recording admissible on simple identification by listener). Motion pictures are said to have the same foundation requirements as stills, see RAY sec. 1466, but with greater court discretion. Cf. Air Shields, Inc. v. Spears, 590 S.W.2d 574 (Tex. Civ. App.--Waco 1979, writ ref'd n.r.e.) (movie showing day in the life of child, blinded in accident in question, properly admitted within trial court's "wide discretion"); see generally Rules 401-03.

Problem 57: In an episode of "Owen Marshall, Counselor at Law," the learned defender stood and said: "These are the defendant's telephone records, your honor, and we offer them into evidence." What is wrong here? _______________________ _____________________________________________________________________ [Cf. Guetersloh v. CIT Corp., 451 S.W.2d 759 (Tex. Civ. App.--Amarillo 1970, writ ref'd n.r.e.) (documents not offered or received; treated by appellate court as though received because so treated by all parties).]

Problem 58: A photograph depicting the deceased after the autopsy is offered. [See Williams v. State, 604 S.W.2d 146 (Tex. Crim. App. 1980) (photos clarified head wound, and shaved head showing stitches as result of 7-inch incision from surgery did not merely obfuscate it--held, admissible).] Admissible? _______________________

Problem 59: Hospital records show blood test results indicating plaintiff was intoxicated but do not show who took the blood, how it was tested, whether it was contaminated, etc. Admissible? ________________________ [Cf. M-K-T RR. v. May, supra.] Also, light bulbs that "look like" the ones taken from plaintiff's car. ___________________________ [Franco v. Graham, supra.] Also, a chart summarizing plaintiff's damages, based on evidence, but assuming plaintiffs evidence to be true. __________________________ [Speier v. Webster College, supra.] Also, a day-in-the-life film. _________________________ [Air Shields, Inc. v. Spears, supra.]

B. Documents:

1. Authentication: Documents, like objects, must be "authenticated" (i.e., proved to be what they purport to be) as well as proved "relevant" (i.e., shown to have probative value on a material issue) to be admissible. Usually, authentication requires live testimony. See, e.g., Rule 901(a)-(b) (evidence must show matter is "what its proponent claims").

2. Examples of Proper Authentication: Examples of authentication include identifying testimony, circumstantial evidence from pattern or appearance, comparison by jury or expert, public recording, and production by a system shown to be accurate. See In re Estate of Watson, infra.

3. Self-Authentication: Remember that some documents--e.g., government records--may be proved by certification or related processes. Cf. Rule 902 (government documents under seal or certified; official publications; commercial paper).

4. Signature: A lay witness can ordinarily testify to the identification of a person's signature with which he is familiar. Rule 901(b)(2). See In re Estate of Watson, 720 S.W.2d 806 (Tex. 1986) (letter could be authenticated by lay witness familiar with handwriting, or by other means).

C. The Best Evidence Rule:

1. Application of the Best Evidence Rule: When (and only when) the contents of a writing are in issue, the proponent of evidence concerning the writing must introduce the original or a "duplicate" (unless it is lost; outside the State; in the opponent's possession; or presented on a collateral question). Strictly followed, the rule applies only when the contents are the actual issue. RAY sec. 1566. However, it is sometimes applied erroneously to merely evidentiary documents of great impact. RAY sec. 1561.

2. What Is an "Original" or "Duplicate?" The Rules include photographic negatives and computer printouts as "originals"; they also admit "duplicates," such as photocopies or carbons, if there is no dispute about the authenticity or if exclusion would be unfair.

Problem 60: Defendant, in a suit on a note, offers to prove payment by his own testimony. Plaintiff objects on the ground of the best evidence rule, stating that since defendant says plaintiff gave him a receipt, the receipt itself should be introduced into evidence. [Jackman v. Jackman, 533 S.W.2d 361 (Tex. Civ. App.--San Antonio 1976, no writ)]. A valid objection? _______________________________ What if defendant defends on the ground that a written instrument, entered into by the parties, brought about an accord and satisfaction of the indebtedness, and he tenders a photocopy as evidence? ____________________________________________________

VIII. CREDIBILITY, IMPEACHMENT, CROSS EXAMINATION AND REHABILITATION

A. Modes of Impeachment: The methodology of impeachment of credibility includes, among other things--

1. Bias or Interest (Prejudice): See Rule 613(b);

2. Psychiatric Condition of the witness;

3. Conviction of Crime: Federal Rule 609 permits evidence of conviction if the crime is punishable by more than one year's imprisonment or involved dishonesty. The conviction or release must have been within the preceding 10 years unless the court decides otherwise. Texas Rule 609 is similar, except that it includes felonies and crimes of moral turpitude regardless of punishment. In both systems, the court must determine that probative value "outweighs its prejudicial effect." In both systems, notice provisions apply.

Note: A completed Texas felony probation is not a conviction. Jackson v. Granite State Ins. Co., 685 S.W.2d 16 (Tex. 1985) ("conviction" of plaintiffs' medical witness for illegally dispensing drugs would have been admissible irrespective of moral turpitude because a felony--but excludable since probation completed).

4. Prior Inconsistent Statements: A statement in conflict with the witness' testimony is admissible to impeach him. See Federal Rule 801 (d)(1), Texas Rule 801(e)(1); Rule 613 (no extrinsic evidence unless witness given "opportunity to explain" or interests of justice require, although witness need not be shown statement during questioning--it need only be given to counsel). Texas requires that the witness be alerted by being told the contents in advance. Texas Rule 613(a). Can the statement be used as substantive (affirmative) evidence as well as impeachment? Sometimes; see Hearsay coverage in this outline, sec. II, above.

5. Bad Opinion of Witness for, or Bad Reputation for, Truth and Veracity: Rule 608 ("opinion" or "reputation" allowed; if attacked, can defend with "good opinion or reputation" evidence). But a witness cannot properly express an opinion on the veracity of another witness' testimony as such. Ochs v. Martinez, 789 S.W.2d 949 (Tex. App.--San Antonio 1990, no writ) (child psychologist could properly testify to general indicia of child sexual abuse and compare child's testimony to those criteria for "fit," but could not properly testify child's testimony was "credible").

6. Contradiction by Other Witnesses, RAY sec. 683.

7. Inadequate Memory.

8. Inadequate Opportunity to Observe.

9. Inability to Understand the Question or Communicate an Answer.

10. Contradictory, Confused or Incredible Testimony.

11. Admission of Untruthfulness (but not opinions or beliefs on religion under Texas Rule 610).

12. Writing Used to Refresh Memory: Texas Rule 612 entitles adverse party to production if used while testifying (or if before testifying, if court orders in interest of justice).

13. (Federal Only) Prior Bad Acts "Probative of Truthfulness." Federal rule 608(b) allows a witness to be cross-examined concerning prior specific acts if "probative of truthfulness or untruthfulness." Texas Rule 608(b) does not allow this evidence.

Problem 61: Before the witness answers "Yes," analyze each of the modes of impeachment here used for propriety. "Mr. Witness, isn't it a fact that (1) you are the husband of a passenger in the car with the plaintiff [McDaniel v. State, 171 S.W.2d 821 (Tex. Crim. App. 1929) (admissible)] ______________________; (2) that your mother was affected with paranoid schizophrenia [Bouldin v. State, 222 S.W. 555 (Tex. Crim. App. 1920) (admissible)] ______________________; (3) that you were convicted of driving while intoxicated twenty years ago [see Federal and State approaches supra] ________________________; (4) that you said in a summary judgment affidavit in this case that the plaintiff was driving 80 m.p.h. whereas here you have said 20 m.p.h. (and the affidavit itself is offered as substantive evidence) ____________________; (5) that you have a bad reputation for truth and veracity in the community in which you reside and you are, in fact, untruthful ____________________________; (6) that you are drunk all the time and were at home drunk when the accident happened [Indem. Ins. Co. v. Marshall, 308 S.w.2d 174 (Tex. Civ. App.--Beaumont 1957, writ ref'd n.r.e.) (at time only)] _________________________; (7) that you were asked a question about the "odometer" on the car but you haven't the vaguest idea what an "odometer" is __________________________; (8) that you have told the plaintiff you would swear black was white to help him [Texas P. Ry. Co. v. Brown, 145 S.W. 1034 (Tex. 1890) (admissible)] __________________________; (9) that you regularly falsify documents and beat your wife?"_______________________________________________________

Problem 62: Plaintiff has sued defendant for negligence in a collision in which defendant allegedly was drunk. He testifies in his own defense. Plaintiff offers to prove that defendant was previously convicted of involuntary manslaughter and received probation, which probation was terminated without revocation three years ago, and that he is currently on probation for misdemeanor theft. Admissible for impeachment? ________________________________________________________ _____________________________________________________________________

B. Special Rules Regarding Impeachment:

1. One's Own Witness: Rule 607 repeals the common law voucher rule and allows a witness to be attacked by the party calling him.

2. Collateral Matter Doctrine: A witness may not, at least in theory, be impeached on a matter neither relevant nor material to the proceedings (a "collateral matter"). See Rule 611(b) (limiting cross to "any matter relevant" to the case). This doctrine, which might colloquially be called the "nitpick doctrine," is honored more in the breach than in the observance.

3. Leading Questions in Examining an Adverse Witness: A hostile witness, adverse party, or witness "identified with an adverse party," may be examined by leading questions. Federal Rule 611(c); Texas Rule 611(c).

4. "Sexual Conduct" Shield Law: See Tex. R. Crim. Evid. 412 (excluding opinion, reputation, and most past incidents regarding sexual conduct of alleged victim in sexually related prosecutions).

Problem 63: Plaintiff calls defendant's driver who was involved in the accident. Upon being greeted with harmful and unexpected testimony, plaintiff's counsel asks: "You have referred to the woman who is with you as your wife, but isn't it a fact that you are just living with her out of wedlock?" Aside from the dubious nature of the tactic, what is the propriety of this question? _______________________________

Problem 64: In a worker's compensation case, the claimant calls his employer's personnel manager. The defendant insurance company objects to claimant's use of leading questions. What result? __________________________________ [Cf. Kiel v. Texas Employers' Ins. Ass'n, 679 S.W.2d 656 (Tex. App.--Houston [1st Dist.] 1984, no writ) (leading held proper, where witness cooperated with adverse party and was hostile in fact)].

C. Enhancement or Rehabilitation of Credibility:

1. Bolstering by Character, Prior Statements, Etc: Not Until Impeached. Certain kinds of "bolstering" of the credibility of a witness is improper. In general, a witness cannot be rehabilitated until impeached. Veracity character witnesses cannot be used, nor can prior consistent statements. But when the testimony is impeached, these types of bolstering evidence become admissible. See generally RAY secs. 771-74; Rules 608(a) (truthful character--only after attacked); 801(d)(1) (prior consistent statement--after attacked).

2. Background: Most jurisdictions allow the witness' background to be shown as a guide to the evaluation of his credibility. Credibility may thus be enhanced by a showing of the witness' profession, education, family, etc. even though not relevant to any material issue.

3. Prior Consistent Statement: To rebut a charge of recent fabrication, or of improper motive or influence, a "prior consistent statement" may be offered. A prior consistent statement is one that is consistent with the witness' present testimony, made at a time when the witness would have had no motive to fabricate. To invoke the right to offer such a prior consistent statement, the charge of fabrication may be express or implied. Rules 613(c); Federal Rule 801(d)(1); Texas Rule 801(e)(1)(B). See also Missouri Pac. Ry. Co. v. Vlach, 687 S.W.2d 414 (Tex. App.--Houston [14th Dist.] 1985, no writ) (supporting credibility with prior consistent statement is proper after attack, but cannot be done after witness is excused).

Problem 65: You represent a banker sued for an act of alleged dishonesty. When you call him as a witness in his own defense, what subjects will begin your examination? ____________________________________________________________

Problem 66: A police officer testifies that the defendant was driving a Chevrolet. The opposing lawyer impeaches him with the transcript of a pretrial hearing, which quotes the officer as saying that it was a Ford. The plaintiff is in possession of the officer's original report, which says it was a Chevrolet, and of a second report and a bulletin issued by the officer, which say the same thing. The officer says the court reporter made a mistake. What can the plaintiff do to support this testimony? (From a case tried by the author of this outline.) _______________________________ _____________________________________________________________________

IX. PROCEDURAL CONSIDERATIONS AND FORM OF QUESTIONS

A. Objections to Question Forms:

1. Leading Questions: A leading question is one that suggests the answer to the witness. "It's raining outside, isn't it?" is leading. "What sort of weather is it?" is not leading. Note that leading questions are not always improper (a common misconception).

a. Federal Rules: Rule 611 says that leading questions are permitted on cross examination and with a hostile witness, but "should not be used on the direct examination of a witness except as may be necessary to develop his testimony." The rule affords considerable discretion to the court, however, to "control the mode...of interrogation" and the court can thus permit leading.

b. Texas: Rule 611 tracks the Federal Rule. Leading questions are allowed on cross, with an "adverse witness," in the case of background facts, with children, with witnesses who cannot remember and like witnesses, and in other situations within the discretion of the court. See RAY secs. 575-79; Cf. Obiedio v. J. Weingarten, Inc., 515 S.W.2d 308 (Tex. Civ. App.--Houston [1st Dist.] 1975, writ ref'd n.r.e.) (witness who speaks English poorly).

c. Practice: Many skillful trial lawyers lead a great deal.

d. Non-leading Formulas: "Directing your attention to...," "Was it ___ or ___?", etc.

2. Repetition: The judge has discretion to prevent undue repetition (Objection: Repetitious). See Obiedio v. Weingarten, Inc., supra; RAY sec. 580.

3. Badgering: It is improper to harass, argue with, shout at or otherwise badger a witness. (Objection: Argumentative or Badgering.)

4. Rambling Answers or Narrative: The court has discretion to control this type of answer. (Objection: Narrative; Unduly Broad; Request Question and Answer Form).

5. Unresponsive Answer: An objection to an unresponsive utterance may be sustained by the court. (Objection: Unresponsive). RAY sec. 582.

6. Connecting Up: Upon being met with an objection concerning relevancy, the proponent may offer to "connect it up later" (a promise frequently honored in the breach). The court has discretion (see rule 104(b), "Relevancy conditioned on fact").

7. Scope of the Direct: Some jurisdictions confine cross examination to matters inquired into during direct examination. Cf. Federal Rule 611(b) ("should be" so limited; court has discretion to permit broader inquiry). Texas does not confine cross.

Problem 67: Plaintiff's counsel asks, "You are the employee of the defendant who was driving when this accident occurred? Isn't it a fact he was going well over 60 m.p.h.?" Can you successfully object to this leading question? ___________________

Problem 68: Plaintiff's counsel, dissatisfied with the answer, says: "You realize, don't you, that your answer is incredible? Why don't you tell us the truth?" What do you do in response? _________________________________________________ _____________________________________________________________________

Problem 69: Counsel for defendant, after asking defendant his name and address, says: "Tell us a l