Evidence Attack Sheet for the Texas Bar Exam

Creating a comprehensive study guide in the form of an “Evidence Attack Sheet” for the Texas Bar Exam is a task that requires a deep understanding of the rules of evidence and their application. Below is an outline designed to help a law student prepare for Texas evidence law questions on the Texas Bar Exam. This guide will not cover all nuances of the law but will provide a solid foundation and checklist for the most commonly tested concepts.


**I. RELEVANCE (Texas Rule of Evidence 401, 402, 403)**
A. Logical Relevance
1. Evidence must be material and have probative value.
2. Exclude evidence that is not related to a fact of consequence.

B. Legal Relevance
1. Weigh probative value against prejudicial effect.
2. Exclude if probative value is substantially outweighed by risks, e.g., unfair prejudice, confusion.

A. Character Evidence (Rule 404)
1. Character generally not admissible to prove conduct.
2. Exceptions: character at issue, criminal cases (defendant’s character, victim’s character, and rebuttal by prosecution).

B. Habit & Routine Practice (Rule 406)
1. Admissible to prove conduct in conformity.

C. Prior Bad Acts (Rule 404(b))
1. Not admissible to prove character but may be admissible for other purposes (motive, opportunity, intent).

A. Generally, all persons are competent.
B. Exceptions: Lack of mental capacity, judges, and jurors.

**IV. DIRECT & CROSS-EXAMINATION (Rules 611-615)**
A. Form of Questions (611)
B. Refreshing Recollection (612)
C. Prior Statements of Witnesses (613)
D. Exclusion of Witnesses (Sequestration Rule 615)

**V. IMPEACHMENT (Rules 608, 609)**
A. Prior Inconsistent Statements (613)
B. Bias, Interest, or Motive to Misrepresent
C. Conviction of Crime (609)
1. Felonies or crimes involving moral turpitude.
2. Time limitations for use.
D. Truthfulness or Untruthfulness (608)
E. Rehabilitation of Witnesses (608)

**VI. PRIVILEGES (Article V)**
A. Attorney-Client Privilege
B. Spousal Privileges
1. Spousal Immunity
2. Marital Communications Privilege
C. Doctor-Patient Privilege
D. Clergy-Penitent Privilege
E. Other Privileges

**VII. HEARSAY (Rules 801-807)**
A. Definition of Hearsay
1. Statement made out of court offered to prove the truth of the matter asserted.
B. Non-Hearsay Purposes
1. Effect on the listener or reader
2. Circumstantial evidence of the declarant’s state of mind
C. Hearsay Exceptions (Declarant Unavailable, Rule 804)
1. Former testimony, dying declaration, statement against interest, etc.
D. Hearsay Exclusions
1. Opposing party’s statement, declarant-witness’s prior statement, and identifications.
E. Hearsay Exceptions (Declarant’s Availability Immaterial, Rule 803)
1. Present sense impression, excited utterance, then-existing mental, emotional, or physical condition, etc.

**VIII. EXPERT AND LAY OPINION (Rules 701-705)**
A. Lay Witness Opinion (701)
B. Expert Witness Opinion (702)
1. Qualifications
2. Reliability
3. Basis of Opinion
4. Disclosure of Underlying Facts or Data
C. Learned Treatises (803(18))

A. Requirement of Authentication
1. Testimony by a witness with knowledge.
2. Nonexpert opinion on handwriting.
3. Comparison by trier or expert witness.
4. Distinctive characteristics.

**X. BEST EVIDENCE RULE (Rule 1002-1004)**
A. Requirement of Original to Prove Content
1. Admissibility of duplicates.
2. Exceptions to the requirement of the original.

A. Rulings on Evidence
B. Record of Offer and Ruling
C. Objections
D. Offers of Proof

A. Distinctions specific to Texas evidence law
1. Texas may have unique privileges or rules regarding the admissibility of certain evidence.

A. Apply the rules to practice fact patterns.
B. Analyze and identify potential issues.
C. Practice writing concise arguments for admissibility or exclusion.

This attack sheet is intended to act as a quick reference and review tool for law students and bar exam candidates. It’s important to flesh out each section with more detailed rules, exceptions, and relevant case law that might be tested on the Texas Bar Exam. Additionally, one should remain current with updates or changes to Texas evidence law that could be relevant for the exam.

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