1)
Presumptions & BOPs
a)
Burden of Proof
i)
production
(1)
procedure
(a)
move for directed verdict
(b)
object if submitted to the jury
(c)
if goes to jury, ask for jnov (b/c rzbl jury cannot answer yes to that Q
b/c there is no evidence to support it)
(d)
complain on appeal there was insufficient evidence
(2)
for each essential
element of the claim, you must put on sufficient evidence to support a jury
finding - "some evidence," "more than a mere scintilla of evidence"
(3)
if you don't meet,
you don't get to go to the jury
ii)
on whom
(1)
generally on P
(2)
affirm defenses: on D
(3)
inferential rebuttal
(a)
production on D
(b)
persuasion on P
b)
Presumptions
i)
true presumptions are rebuttable
(1)
effect
(a)
rebutting evidence => presumption disappears
(b)
no rebutting
evidence => presumption conclusively established
(2)
examples
(a)
death from cirx. of extreme peril
(b)
missing 7 years = dead
(c)
mailbox presumption if properly addressed & postage
(d)
bailee was negligent if left stuff w/ him in good condition & got back
damaged
(e)
course & scope (of work) presumptions
(f)
warning heeded if put on label of something
(3)
procedures
(a)
P puts
on basic facts giving rise to presumption
(b)
burden of production shifts to opponent to put on some facts that
tend to rebut the presumption
(c)
if burden of
production met, then burden of persuasion shifts back
(d)
once rebutted, cbc
analysis if presumption remains as some evidence
ii)
irrebuttable presumptions (not
true)
(1)
a person w/ a disability deprived of his civil rights, there is
conclusive presumption of dmgs of $100
(2)
Black lung presump. if minor for 10+ years and has black lung there is a
rebuttable presumption that he got black lung from work
iii)
persuasion burden shifting presumptions
(1)
presumption shifted BO production and entire BOpersuasion to other party
(2)
Powell knows of no other cirx. in which this occurs except in the gift
case in Bogart
iv)
permissible inferences (not true presumptions)
(1)
hypo D left a sponge in P; med mal case; E is that the surgeon-D was in
charge, but there is T from the P that if a sponge was left in a body it can
only be b/c of the negligence of the surgeon; this is res ipsa
(2)
you prove control and type of injury that wouldn't have occurred but for
negligence, that is not a true presumption b/c doesn't est. negligence
unless/until contrary E put on
(a)
allows you to get past directed verdict - can get to jury
(b)
you get res ipsa instruction
(c)
spoliation is an inference just like res ipsa
(d)
judicial notice
is an inference (you may consider xxx as evidence) and you have inferences in
criminal cases
2)
Spoliation & Guilt
a)
Spoliation
i)
def: destroying the evidence
ii)
instruction: when a party has possession of E & has scienter that it may
be E in a controversy and then he disposes it, makes it unavailable or fails to
produce it, there is an inference in law that the E would have been unfavorable
iii)
inference is permissible, so the jury can think it but ct can't
tell them to consider it intentional
b)
Flight
i)
flight evidence okay if related to primary offense (not propensity but
404b)
ii)
104b finding if some other reason (besides guilt) offered for flight,
then may keep the flight out (104b=judge)
c)
Witness Intimidation:
rule E of W intimidation is A to prove consciousness of guilt if
i)
related (402 relevance) and
ii)
reliable (104b
conditional admissibility)
iii)
403
d)
Bribery (like intimidation: 402, 104b, 403)
i)
bribing party engaged in the conduct corruptly
ii)
w/ an intent to
influence T or not show up
3)
Statutory Evidence Rules
a)
Communications of Sympathy
i)
can't offer condolences as
evidence of guilt of person saying "sorry"
ii)
unless:
(1)
stmt re negligence
or culpable conduct re accident/event is A to prove liability
(2)
this includes
excited utterances but that would seldom if ever happen b/c would always be an
ABPO
b)
Remarriage & Wrongful Death
Beneficiary
i)
can intro E of actual marriage
ii)
but not:
(1)
c/L marriage
(2)
extramarital relationship or
(3)
marital prospects of surviving spouse
iii)
one case says you can't even use this to impeach but this case is wrong
and you should argue as much
c)
Safety Belts
d)
Sobriety Tests
e)
Comments on Weight of Evidence
i)
Tex:
(1)
Common when the judge rules on objections; you must object right
then to preserve your error. Then ask for comment to be stricken and get
a jury instruction to disregard.
(2)
Reversible error?
Usually an instruction to the jury is sufficient to cure any error - would have
to be pretty egregious to have reversible error.
ii)
Fed: no rule on comments so has to be really bad; can't become an
advocate or show bias
f)
Retention of Attorney
4)
Impeachment
a)
impeachment allowed
b)
improper impeachment is the
problem; as a subterfuge for improper purposes
i)
If W testifies to a non-collateral matter on direct, then opponent
may impeach on both cross and by extrinsic E.
ii)
If W testifies to a
collateral matter on direct, then opponent may impeach on cross, but must
take the answer.
iii)
set-ups not allowed: Setups or "smuggling" --> if W never testifies
on direct to the fact to be impeached but cross-ex elicits facst on cross,
for the purpose of setting the W up for contradiction, and then seks to
contradict the answer by extinsic E
c)
Leaves false impression on direct-exà
On direct, the W doesn't directly contradict the impeaching E, but
testifies about the general s.m. and leaves a false impression of a fact that is
inconsistent w/ the impeaching evidence.
i)
Tex
rule
can impeach false impression given on direct (and can use extrinsic E)
ii)
(US) If the cross-ex is rzbly suggested by the direct T, then the
impeachment Evidence (extrinsic) may be used. "Plainly w/in the scope of D's
direct ex."
iii)
same thing if given not on "direct" but as a nonresponsive answer on cx
d)
for improper setups can use 403 b/c probative value only to setup
e)
calling a witness only to impeach him (impeaching your own W)
i)
607 allows it
ii)
but usually 403 will keep it out
iii)
wait until W put on & says the bad stuff then don't let him impeach him
5)
Experts
a)
Court Appointed:
ct can appoint an expert to testify in front of the jury per R 706
i)
how selected: parties agree, ct picks own person; can get suggestions
from parties
ii)
expert must agree to serve as an expert for you
iii)
appoitned expert will write a report and be subj. to depo by party
iv)
at trial expert can be called by any party and by the court
v)
you can tell the jury that the court appointed the expert, in the
judge's discretion; ACN says it "seems to be essential" but prob. means
essential to have that part of the rule
b)
Experiments & Demos: 403/104b analyses
i)
Tests & Experiments
(1)
conduct
the test/experiment for use as substantive evidence (you've done the test to
generate data that is relied upon by your testifying expert)
(2)
foundation: reliably conducted test
(3)
keep secret!
(a)
consulting-only experts must do the tests! and the testifying expert
can't be there
ii)
Recreations,
Demonstrations (to
demonstrate general principles of the field)
Champeau
(1)
foundational test
(a)
in some cases, test
must be properly conducted only; doesn't have to be substantially similar
to event; but must be at least similar to the event under certain cirx.
Four Corners Helicop.
(b)
must instruct jury
(c)
recreations must be fair & accurate depictions (else to weight)
(d)
must be helpful
(2)
objecting: 403 (jury v. likely to be influenced by this)
iii)
Simulations
to reenact the accident
McKnight
(1)
foundational test: substantially similar (else to weight)
iv)
procedure:
(1)
104 relevance needs ct. finding that a jury could find the
experiment makes sense
c)
Daubert Robinson Kelly
i)
hearing:
(1)
test
"where cause for questioning the expert's reliability arises"
(2)
At least in SJ context failure to hold a hearing may be an abuse of
discretion. But there are cirx when hearings are not req'd
ii)
burden: proponent of the expert bears the
burden of proof by a preponderance (court must find by preponderance)
6)
Best Evidence Rule
a)
writings & recordings
b)
photographs
c)
"originals" and duplicates are okay
d)
need original for:
A. "To prove the content"
1. must produce original to prove
content of the writing (which is usually covered)
2. content of writing is not the
s.m. of the litigation but it is E of the content; the BER doesn't say you must
prove payment by a writing but if you do use a writing you have to use the
original of the writing
B. Absence of content
1. ACN says BER doesn't apply and
you don't have to admit the document
2. ex. what if you say
I've read docs XYZ and there's nothing in there about 1? Then you need to
produce under 1006 summaries.
C. general rule: a dupl is as
good as the original
exceptions
1. Question as to authenticity of
original:
2. Unfair to admit duplicate:
e)
Originals lost or destroyed 1004(1)
1. 104a fact q for court to
decide if all originals lost destroyed
2. burden on opponent to raise
issue if thinks lost in bad faith
3. routine bsns practice &
destroyed negligently not bad faith
f)
Originals not obtainable
g)
Original in Possession of opponent & they're on notice you need/want them
1004(3)
h)
Collateral Exemptions
1. incidental writings
2. ex. W testifies to what
billboard says; date on newspaper
3. not closely related to
controlling issue
4. sometimes used for inscribed
chattles
i)
Other exemptions
1. public records (1005): can
get cert copy
2. summaries (1006)
a. summary T is E and will
support a verdict; if a chart made out of ct the chart may be HS; you can then
offer the chart for demonstrative purposes only and then can't go to jury room
c. originals/dups must be made
avail. for examination
d. the docs must be admissible -
can't use summary rule to get around HS...or authenticity...of the underlying
docs
3. admission of content (1007):
written admissions by you opponent can be offered by you as E of the doc
(written not oral)
ii) Function of Judge and Jury
1008
A. Questions for court: writing,
dup, genuine Q as to authenticity, destroyed/lost?, destroyed in BF
B. Questions for the jury 104b
1. whether the writing ever
existed
2. whether another writing is the
original
3. whether secondary E correctly
reflects the content
j)
translations
i)
file translation 45 days before use
ii)
if not objected to or competing translation filed (10 days pretrial), use
it
7)
Jury Views
a)
is evidence and can be considered
b)
counsel gets notice
c)
counsel & judge present
d)
reversible error:
i)
was the view necessary?
ii)
safeguards followed?
iii)
get record: court reporter, video
iv)
if denied view: must make OOP
8)
Privileges
a)
Texas
i)
501:
ii)
502: reports req'd by law that the law says are privileged
iii)
Constitutional
privileges: against self incrimination
b)
Federal: all are
common law
c)
the privileges
i)
Marital Privileges
(1)
testimonial privilege
(a)
FED Trammell
(i)
privilege against being forced to testify
(ii)
can be waived by only the testifying spouse (the D spouse need not
consent)
(iii)
see Texas exceptions
(b)
TEX
504b
i. elements
1. criminal cases
2. spouse (of accused) has
privilege not to be called for the state
3. but may testify (can't
be invoked by accused)
ii. who holds the privilege: the
spouse of the accused
iii. you may comment on the
fact that the spouse chooses not to testify for the defense as an exception to
513a (and if you testify for defense, you are subj. to wide open cross); may
be called to testify for the defense
iv. exceptions: 504b4
1. state can call spouse if
spouse or any minor child or someone in HH was victim of accused-spouse (ex.
can call battered wife and compel her to testify against her husband); these can
be property crimes, too (unlike a4c)
2. state can call re matters
occurring prior to marriage
(2)
communication privilege (same in
Tex & Fed)
(a)
confidential: made privately btwn person and spouse and not intended for
disclosure to others
(b)
when? made during marriage (and lasts forever) (even c/L Colburn)
(c)
who? made to spouse
(i)
Permanent separation the priv. won't attach
·
was the couple
cohabitating
·
if they weren't how
long had they been living apart
·
had either spouse
filed for divorce
(ii)
BOP by preponderance by party claiming protection that not separated
(d)
who claims? person or guardian/rep or by spouse on person's behalf (so
in effect both must agree)
(e)
exceptions
1. crime-fraud exception: if
communication made in furtherance of aiding, committing, planning crmie/fraud
2. civil proceedings btwn
spouses: by or on behalf of one spouse against another;
A. ex.
in divorce case,
B. custody cases,
C. will contest if one spouse died
and someone claiming under will (through deceased spouse)
3. crime against spouse or minor
child
A. conduct must be a crime
B. against a person (not property)
C. person is spouse or any minor
child or member of HH of either spouse
*includes civil cases* (assault)
4. commitment or competence or
similar proceedings: brought by or on behalf of either spouse
ii)
Priest-Penitent 505
(1)
elements
(a)
confidential:
not intended for further disclosure by speaker
(b)
to clergy: minister, priest, rabbi, accredited practitioner or other
similar functionary of a religious org. (prob. a leadership advisory kind of
role) or individual rzbly believed to be so by the person speaking
(c)
made to clergy in his professional role as spiritual advisor
(2)
holder: speaker (can be invoked by speaker on behalf of clergy); clergy
can invoke on behalf of speaker
(3)
exceptions?
there are some statutory
a) Tex. Fam. 261.202: proceeding
re child abuse says there are no privileges except (not priest-penitent)
b) TRE 511(2): you waive your
privilege if you call the person w/ whom there are privileged communications as
a character witness
c) there is no crime-fraud
exception!
(4) FEDERAL: same
iii)
Physician-Patient
(1)
Fed: NONE
(2)
Criminal proceedings: NONE
(3)
Civil in Texas: v. ltd.
(a)
elements
(i)
confidential communications; physician & patient; re professional
services rendered to patient or
(ii)
records of identity, dx, evaluation or treatment that are
created/maintained by dr. (identify means you can't force them to give list of
their patients)
(iii)
apply even if patient recv'd services of dr before medical liability &
ins. act
(b)
"confidential" = not intended to be disclosed
to others other than those present to help dr, those rzbl necessary for
transmission of the communication, or participating in dx and treatment, incl.
members of patient's family
(c)
"Physician"
(licenced to practice medicine or rzbl believed by patient to be so); doesn't
include chiropractors
(d)
holder = patient
(e)
exceptions
swallow rule
(i)
medical
authorization: 509 (e2) & 509f (blanket authorizations not good enough anymore)
1.
writing
2.
signed by patient (if can't for some reason can be signed by
parent/guardian of the minor) or if some party other than patient like GAL or
something
3.
info covered by release (e.g. dates)
4.
reasons and purposes for release
5.
person(s) to whom info may be released
6.
can be withdrawn
(ii)
proceedings to collect on a claim for serivces (e3)
(iii)
patient litigant
exception (biggest
exception) (e1)
1.
patient sues dr (for malpractice, license revocation or whenever
disclosure relevant to claims or defense of a physician) (just by suing for
mental anguish you don't put your mental health in issue)
2.
very imp. Tex. case, noted in commentary; RK v. Ramirez
a.
exception applies when: RK
i.
the records sought
to be discovered are relevant to the condition at issues and
ii.
the condition is
relied upon as a part of a party's claim or defense (relevant medical records)
b.
do a benefit v.
burden anaylsis
(4)
criminal
(a)
communication to anyone involved in drug/alcohol treatment
(b)
being treated voluntarily or examined for admission for treatment
(note doesn't say "confidential
communications"; can be to anyone in therapy with you)
(c)
it's not really a
"privilege" but is inadmissible!!!
iv)
Psychotherapist
1. Texas rule (very similar to
dr/patient but a little stronger)
a. only in civil cases
b. must be confidential: not
intneded for disclsoure to 3P's unless they are part of the process somehow
c. must be w/ a "mental health
professional"
i. authorized to practice
medicine
ii. licences to eval/treat mental
disorders (would have to be a licensed counselor)
iii. involved ni treatment or exam
of drug abusers
iv. rzbly believed by patient to
be above
d. also protects records and
idnetify
e. exceptions are almost
identical to dr/patient
2. FED court (is a "big deal" b/c
there is no dr/patient privilege)
a. Redmond v. Jaffee
i. policy--> why this privilege
and not dr/patient? b/c MD's can dx you even if you don't talk to them but for
this type of medical relationship, if someone is not open and honest w/ you you
cannot treat them at all - there is no objective testing; and the things you
tell them is more personal than many of the things you tell your MD
ii. facts: on duty police shot
man and went to counselor; P sued civil rts and tried to get records and notes
of psychotherapist;
iii. elements per Jaffee
(but doesn't say much)
A. communication confiential
B. comminciation made in the
course of dx or treatment
C. scope (who)? a licensed
psychotherapist, psychiatrists and pscyhologists will definately be covered by
privilege & licensed social worker (b/c that was in Jaffee);
why? b/c they provide a lot of
mental health treatment
D. (rejects balancing test that
lower ct had adopted)
iv. exceptions?
A. not set out in Jafee
B. but dicta says there must be
an exception where comminication req'd to avert danger to patient or others
C. patient litigant exception: if
patient puts mental health in issue
v. held by patient
F. Trade
Secrets:
1. Tex 507
a. purpose: protect a company's
proprietary interests
b. when? balancing test
i. may refuse to disclose (&
prevent others) trade secret you own
"trade secret" is any forumula,
pattern, device, or compilation of ino which is used in one's bsns and presents
opportunity to obtain advantage over competitors who do not know or use it
Altai
·
kind of thing that
gives you a competitive advantage
·
that others don't
know
ii. if will not tend to conceal
fraud or otherwise work injustice
1. balancing test: secrecy
interest v. need for specific evidence in a specific need in lit.
2. factors
·
dangers of abuse
(filing just to get forumla)
·
GF of party seeking
it
·
adequacy of
protective measures
a. in camera disclosure
b. only disclosed to attys not
clients
c. only disclosed to judge
d. ct can swear everyone to
secrecy
e. seal the records
·
availability of
other means of proof
3. means "only if disclosure
necessary for a fair adjudication of the requesting party's claims or defenses"
c. protection: when disclosure
is directed, judge can take "protective measures"
d. Continental General Tire:
Tex 98
1. facts: tread separtes from
belt on tire and want to know skim stock forumla to test theory
2. 507 "prevent fraud and
injustice"; R. 507 "accomdates both interest by req'ing a party to dislcose only
if necessary to preven tfraud/injust" meaning disclose if necessary for a fair
adjudication of the requesting party's claims or defenses
3. procedure!
i. party resisting must est.
info is trade secret
ii. burden shifts to party
seeking info to show disclosure necessary for fair adjudication
iii. tc should weight degree of
need for info w/ potential harm for disclosure to resisting party & then
grant/overrule and put in whatever restraints are practicable and necessary (need
v. burden)
2. Fed???
G.
Informant's privilege 508
1. purpose: aid law enforcement
by permitting the state govt to keep secret the identity of their informers
2. protection: only protects the
identity of informant, not the content of the communications
3. who owns it? may be claimed
by representative of the public entity to which info furnished
exception:
if state objects, they can prevent the assertion of the privilege by the federal
government in crim cases
4. exceptions
a. voluntary disclosure:
i. if identity of informer; must
be a disclosure to those who would have cause to resent the info (the bad guys)
ii. if the state calls the
informer to the witness stand, no more
b. if the informant likely to be
able to give testimony necessary on merits
i. civil: to fair determination
of a material issue on the merits (rare) or
ii. crim: if the informer may be
able to give info necessary to a fair determination of guilt or innocence
A. judge in camera finds out what
informer knows
B. then judge decides if it's
necessary for fair determination of guilt or innocence (if state refuses the ct
shall on motion of D dismiss charges!)
c. legality of getting evidence
d. situation: if what the
informant knows is used to est. probable cause; and the ct is not satisfied that
the info is "rzbly believed to be reliable and credible" then the ct can order
disclosure of informant's identity
v)
Trade Secret
vi)
Informer's
d)
Waiver
i)
disclosure
(1)
511 (1) partial disclosure as a waiver
(a)
elements
(i)
holder of privilege
(ii)
voluntarily discloses or consents
(iii)
a significant part of the privilege
(2)
burden to prove disclosure, significant, voluntary
(a)
civil: burden to show disclosure wasn't a waiver
(b)
crim: discovering party to show the disclosure was a waiver (intentional
relinquishment of a known rt in crim cases)
ii)
512: no waiver
(1)
if erroneously compelled disclosure, no waiver
(2)
or disclosure made w/o opportunity to claim the privilege (e.g.
eavesdropper)
e)
Comments of Claiming Privilege
i)
513: no comment upon inference from claim of privilege
(1)
except as permitted by 504b2; if D fails to call the spouse if there is
evidence that the spouse would know something relevant
(2)
can't comment on taking a privilege (atty or ct); don't have privilege
hearings in front of the jury
(3)
can comment (atty or ct) and can invoke privilege in front of the jury
if: party invokes 5th so you should file a plea in abatement to stay the
civil case until the crim case is over
ii)
except 504b2, you
can get instruction to jury that jury is not allowed to draw inference
f)
Statutory
i)
Medical & Peer Review
(1)
Medical
Committee
a. Tex. Health and Safety
161.031-32 (Medical Committee privilege)
b. elements
i. medical committee: any
committee (hosp, medical org, hmo, extend care etc; or one created on ad hoc
basis to investigate or est. rules); very broad
ii. records not discoverable nor
subject to subpoena; records of the public hops. committee are not subj. to open
records act (161.032)
c. exception: records made or
maintained in regular course of bsns (this does not incl. patient records, so
you can't refuse to disclose patient records b/c reviewed as part of committees
general bsns)
d. this one is weaker b/c it's
broader
i. can be waived by partial or
even unintentional discl.
ii. BOP on hospital (entity) to
show discl. not a waiver (difference btwn this & other one on BOP)
(2)
Peer Review privielge
a. Tex. Occ. Code 160.001-014
(used to be Medical Practice Act)
b. credentialing (give staff
privileges);
c. negligent credentialing:
i. initial
credentialing is privileged per Woodlands
ii. therefore you can never win on
this coa
exceptions
i. 160.007 b. privilege's only
exceptions are...
A. if communication relevant to
anti-trust or
B. to a civil rts proceeding
ii. 160.010 privilege if you
report info to the peer review committee
A. exception; no cao against a
member against or eee or entity for any act, stmt, recommendation, without
malice in the course of peer review
B. meaning: there is no coa
unless there was malice
C. and even if there is malice,
you can't discover the peer review info
D. malice means 41.007
·
act or omission
·
extreme degree of
risk
·
actual subjective
awareness
·
but proceeds w/
conscious indifference
d. investigatory committee
i. records are
privileged b/c it is "peer review"
ii. privileged not
"waived" somehow--the waiver would have to be in writing
iii. burden to show waiver on him
seeking docs (discovering party)
ii)
Dentists: have a privilege
iii)
Chiropractors: have a privilege
iv)
Podiatrists: have a privilege
9)
Conflict of Laws: apply privilege
law 1. these privileges are designed to encourage
communication on the front end; focus on the expectations of the ppl making the
privilege
a)
Leggat case
communication privileged under Mich. law but not Texas; case filed in Texas;
Texas ct applied MSR test and said state w/ MSR to communication is the
controlling law; place where communication occurred is teh place w/ the MSR;
here Mich law applied to this case!
b)
of place where communication made because it is the state of MSR
Sample Daubert
Robinson Argument Outline
I. The
causation opinion of Dr. Pliskin is based on reliable methodology.
A. Robinson
test
B. Applicable
reliability factors (b/c Kumho says judge can decide what factors apply!)
1. not
exclusive
2. some
Robinson factors are inapplicable
a. rate of
error
b.
subjectivity
3. Robinson
factors that are applicable
a.
non-judicial uses
b.
publication
c. peer
review
d. general
acceptance
4. other
factors are applicable
a. expertise
b.
availability of other experts
c. In re
Paoli (US) says other factors that may exist
C. Dr's
methodology is reliable (apply the factors)
1. non
judicial uses
a. what it
means
b. facts in
this case: non judicial uses you have
c. evidence
supporting (cite deposition of expert saying that he does experiments for
non-lit rzns)
2.
publication
3. peer
review
4. general
acceptance
5. expertise
6.
availability of other experts
here you need
evidence!!! make a record of the factual matters that support your argument on
each of these factors
II. the
methods are reliably applied, etc etc
III. helpful
|