Law School Resources

Case Briefs, Hypos, Class Notes, Outlines, & Analysis

Law School Resources

Evidence Notes & Outlines

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 Intimidationrule  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-exŗ 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


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


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

* Examples only.  Make your own outlines.  Not intended to provide legal advice.  Consult an attorney.

All participants in the study group must always follow the BSL Honor Code.

All participants in the study group must always follow the BSL Honor Code.