Source: I cut and pasted from this site listed right here.
All Credit needs to be given to the writer of this. (I aced cut and paste).
THE IMPORTANCE OF RULES
The old bromide says, “The rookie lawyer knows the rules; the veteran knows the exceptions.” In truth, you don’t know the rules unless you also know all of the exceptions, e.g., there are some thirty exceptions to the rule against hearsay.
Criminal trials are about speeches, evidence, and objections. Objections allow you to limit the speeches and the evidence of the opponent. If you don’t know how and when to object, your opponent will have free rein. For you, trial degenerates to free-for-all mud wrestling. In the same vein, if you are the proponent, you must know the boundaries that limit what you can do and say. Otherwise, your presentation is in constant danger of being sabotaged by your opponent’s well-timed and accurate objection. Every prosecutor and defender must develop a working knowledge of the applicable rules of evidence and criminal procedure, as well as being versed in the skill of effective legal research and writing. Your ability to litigate in a courtroom includes the requirement of being able to explain the application of the rules evidence, practice, and procedure to the trial court in such a manner that the judge understands and trusts your knowledge of the law.
[Note: On December 1, 2011 the Federal Rules of Evidence were restyled. (1 – Federal Objections)]
THE ANALOGY WITH ATHLETIC CONTESTS
I find it helpful to analogize the subject of objections in a criminal trial to the procedure for enforcing rules in a typical athletic sporting contest. In each, two sides are pitted against one another. There is planning, preparing, gamesmanship, strategy and the desire to win in the courtroom and on the athletic playing field. Courtroom trials and sporting contests are each limited by rules that are enforced by official judges or referees whose word on the rules is final. But there is a big difference between in the procedure for enforcing rules in the courtroom vis a vis the athletic playing field. First, in our game, the courtroom trial, the referee, i.e., judge, doesn’t drop a flag unless you, the speaker for your team ask her to do so. Second, you, the lawyer, have the laboring oar to figure out precisely what rule, many of them have numbers, of the game has been violated by the alleged foul. Fouls are typically committed by the opposition, but they may be committed by others, even the referee-judge. So you’ve go to be knowledgeable enough regarding the rules of evidence, criminal procedure, and criminal law to recognize that you have a valid objection, and also to know what that specific objection is. Third, you’ve go to be experienced, cunning, and wise enough to be able to decide in a split second if it is strategically appropriate to make the objection. This calculus of whether to object or not involves numerous factors. For example, you may need to ask yourself whether your otherwise valid objection is to form or substance of an opponent’s question. If the objection is only to the form of the question, your opponent may be able to correct the error simply by rephrasing the question. If so, the evidence will come in and you’ve emphasized it to the jury by objecting. Once you decide that you are going to object, you’ve go to be ready and able to articulate to the referee-judge the legal basis for your objection. And, to finally cap it off, you’ve got to be so quick on the trigger that you can do all of this in a couple of seconds or else you risk waiving your objection because it is not deemed timely by the trial and appellate court. (Always remember that appellate court are courts of error correction; they are there to correct error by the trial court if you have properly “preserved” the error in the record of the case;typically, you preserve error by objection.)
CONSTITUENT PARTS OF AN OBJECTION TO ADMISSIBILTY OF EVIDENCE
To exclude evidence, when you object to the admission of the other side’s evidence, your objection must be (1) timely. It must also be specific as to (2) ground, (3) party, (4) part, and (5) purpose. This, your objection to the admissibility of evidence must:
- Follow rapidly in a timely manner after the occurrence of the objectionable act.
- State a specific ground of evidentiary inadmissibility.
- Identify the party against whom it is inadmissible.
- Identify the part of the evidence that is inadmissible.
- Object to the opponent’s general unrestricted offer of evidence when it is admissible only for a limited purpose.
PRETRIAL OBJECTIONS AND MOTIONS IN LIMINE
In criminal defense practice, you will often want to obtain admissibility rulings through pretrial motions to suppress or exclude evidence and other motions in limine. The idea behind a pretrial objection or motion in limine is to keep the jury from being exposed to inadmissible evidence. It is always preferable to present your motion in limine in writing. The judge has three choices in ruling on your pretrial objection or motion in limine – she may grant it, deny it, or defer (reserve) ruling. In some instances the subject of the motion in limine is such that the trial court cannot issue a definitive pretrial ruling without actually hearing the background evidence. Time constraints prevent the judge from hearing all the evidence prior to trial. So in these cases the judge puts off ruling on the motion in limine until the juncture in the trial when it will be offered. In such cases, the trial judge will, if asked by the proponent-movant of the motion in limine, issue a preliminary order to the opposing party directing that, before the evidence in question is presented to the jury, the opposing party must approach the bench and announce its intention to introduce the disputed evidence, giving the movant the opportunity to make an objection. Even if the trial judge will not grant your motion in limine, you can usually get one of these “approach the bench before offering the proof” orders. These motions in limine are particularly valuable in situations involving uncharged misconduct (prior acts of misconduct) under Rule 404(b) FRE and TRE and prior convictions for impeachment under Rule 609 FRE and TRE.
If the trial judge rules on your pretrial objection, how definitive is the court’s ruling? For example, if the ruling is against you, do you have to renew the objection at trial when your opponent seeks to introduce the evidence you objected to prior to trial. Rule 103(b) FRE says that “Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Rule 103 TRE is not as clear when it states “When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.” My advice to Texas defenders is to always renew your objection at trial to the offer of evidence that you objected to in a pretrial motion in limine. Do not rely on the trial court’s overruling of your pretrial motion.
EVAPORATED AND CONDENSED OBJECTIONS – Generic & Texas
Here are two lists of basic condensed grounds for objections The first is simply a list of generic objections that can be used to assist practitioners across the country. The second is a list of a few basic objections for defenders and prosecutors in Texas criminal cases. Neither list is exhaustive. You may find one or the other useful as a quick ready reference guide. Each ground of the Texas list is linked to its source in the TexasRulesofEvidence, and in some instances to the FederalRulesofEvidence. For a complete explanation of criminal evidence and much more comprehensive explanation of objections, consult the 200 page CCJA monograph, Making and Meeting Objections in Criminal Caseson the CCJA DVD. The book contains a comprehensive discussion of several hundred objections, all of which are keyed to different stages of the trial and to specific rules in the TexasRulesofEvidence. For those who are looking for a little free web-based help with their objections, there are a few resources (1 – 1 page – jury argument), ( 2 – slide show), (3 – list), (4 – short list without explanations), (5 – preserving the appeal), (6 – the Federal Rules of Criminal Procedure).
Never lose sight of the fact that there will be no ruling by the court excluding or admitting evidence unless you or opposing counsel objects. Your join issue by objecting or filing a pre-objection motion in limine when you want to keep opposition evidence out and by making an offer of proof when your evidence is excluded. In cases where you anticipate that you will need to make an offer of proof, consider putting the court on notice in advance with a motion in limine proffering evidence that says basically that you are going to offer such-and-such as evidence at the trial and that you anticipate the opposition will object; explain to the court in your motion in limine proffering evidence that you think the evidence is admissible and why. Ask the court to allow you to make an offer of proof for the record.(Note that the FRE and TRE allow you to make a witness offer or a lawyer offer; however, the court (federal) or the court or your opponent (Texas) can force you to make a witness (Q&A) offer rather than a lawyer offer.) For more on the law and techniques of making an offer of proof (proffer), see the Making and Meeting Objections monograph.
HIP-POCKET LIST OF +70 BASIC GENERIC OBJECTIONS
(Best for Use in Jurisdictions Using the Federal Rules of Evidence as a Model)
Note: There are many more potential objections than the ones listed below, e.g., during jury voir dire, you might object to opponent impermissibly attempting to commit or pledge a prospective juror to a particular result, in opening statement, you might object to counsel arguing the case, in direct or cross-examination, you might object to the opponent making disparaging sidebar remarks, not addressed to the court, while you are questioning a witness, in jury argument you might object to the opponent arguing facts that are not supported by evidence, expressing her personal opinion, etc. That said, here’s a list of some basic objections that recur in criminal trials across the country:
AMBIGUOUS (SEE VAGUE)
ANSWER EXCEEDS (GOES BEYOND) SCOPE OF QUESTION AND CONSTITUTES A VOLUNTEERED STATEMENT BY THE WITNESS
ARGUMENT IMPROPER (E.G., REFERS TO FACTS NOT IN EVIDENCE, MISSTATES EVIDENCE, MISQUOTES WITNESS, VOUCHES FOR WITNESS, INDICATES PERSONAL BELIEF OR OPINION OF COUNSEL, UNFAIRLY PREJUDICIAL, COMMENT ON DEFENDANT’S FAILURE TO TESTIFY, INDIRECT ATTACK ON ACCUSED BY ATTACKING INTEGRITY OF DEFENSE COUNSEL; [For specific objections to JURY ARGUMENT ]
ARGUMENTATIVE IN CONTENT AND TONE WITHOUT ASKING FOR NEW INFORMATION; USING HIS/HER QUESTION TO ARGUE THE CASE
ASKING ONE WITNESS TO COMMENT ON THE VERACITY OF ANOTHER WITNESS’ TESTIMONY IMPROPERLY INVADES THE PROVINCE OF THE JURY TO DETERMINE WITNESS CREDIBILITY AND IS IMPROPER CHARACTER EVIDENCE. (EXAMPLE: WHERE ONE WITNESS IS ASKED WHETHER ANOTHER WITNESS LIED OR TOLD THE TRUTH) [Note: There are lots of cases on this, but prosecutors seem to have a proclivity for such “war the officer lying” questions on cross of the defendant, e.g., United States v. Geston, 299 F.3d 1130 (9th Cir. 2002); United States v. Sullivan, 85 F.3d 743 (1st Cir. 1996); United States v. Boyd, 54 F.3d 868 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206 (2nd Cir. 1987), and for “was the other officer telling the truth” questions on direct of officers, e.g., United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998).]
ASKING A LAY WITNESS TO PROVIDE A PERSONAL EVALUATION OF EVIDENCE ADDUCED BY ANOTHER WITNESS, ABOUT WHICH EVIDENCE THE WITNESS HAS NO PERSONAL OR EXPERT KNOWLEDGE
ASSUMING FACTS NOT IN EVIDENCE (LOADED QUESTION THAT PREVENTS THE WITNESS FROM HAVING THE OPPORTUNITY TO DENY THE EXISTENCE OF THE ASSUMED FACT)
ASKED AND ANSWERED (SEE REPETITIOUS)
AUTHENTICATION LACKING OR IMPROPER (FAILURE TO IDENTIFY ITEM OF EVIDENCE, E.G., WRITING, AND SHOW ITS LOGICAL RELEVANCE) (SEE FAILURE TO LAY PROPER FOUNDATION)
BADGERING THE WITNESS (ALSO, QUARRELING WITH , ARGUING WITH, SHOUTING AT, BULLYING, LOOMING OVER, AND THREATENING)
BEST EVIDENCE RULE VIOLATED (SEE ALSO, “ORIGINAL WRITING” RULE)
BEYOND SCOPE OF DIRECT (IN JURISDICTIONS THAT LIMIT THE SCOPE OF CROSS TO THE SUBJECT MATTER OF THE DIRECT AND MATTERS AFFECTING CREDIBILITY OF THE WITNESS)
BILL OF RIGHTS VIOLATED AND EXCLUSIONARY RULE APPLICABLE [SUGGESTION: PRINT THE BILL OF RIGHTS FROM THE CCJA PAGE AND PUT IT IN YOUR TRIAL NOTEBOOK SO THAT YOU MAY CITE THE COURT THE LANGUAGE OF A PARTICULAR RIGHT THAT HAS BEEN VIOLATED BY THE GOVERNMENT IN OBTAINING EVIDENCE.] (SEE ILLEGAL SEARCH AND SEIZURE, ILLEGAL IDENTIFICATION, CONFESSION INVOLUNTARY AND WITHOUT PROPER WARNINGS)
CHAIN OF CUSTODY NOT PROPERLY ESTABLISHED (PARTICULARLY WHEN ITEM IS FUNGIBLE AND THUS EASILY ALTERABLE AND NO SINGLE WITNESS CAN IDENTIFY THE ITEM WITH PERSONAL KNOWLEDGE)
CHARACTER EVIDENCE IMPROPER (E.G., TO ESTABLISH PROPENSITY)
COMPOUND QUESTION THAT CONTAINS TWO OR MORE QUESTIONS WITHIN A SINGLE QUESTION
COMMENT ON EVIDENCE BY JUDGE
COMMENT ON DEFENDANT’S POST-ARREST SILENCE FOR IMPEACHMENT PURPOSES WHEN DEFENDANT REMAINS SILENT AFTER BEING GIVEN MIRANDA WARNINGS VIOLATES DUE PROCESS [Doyle v. Ohio, 426 U.S. 610 (1976);but see Jenkins v. Anderson, 447 U.S. 231 (1980) okay to impeach accused with with prior prearrest silence, e.g., delay in reporting offense; Anderson v. Charles, 447 U.S. 404 (1980) okay to impeach accused with prior inconsistent statement after Miranda warning. See Impeachment]
CONFESSION OBTAINED WITHOUT REQUIRED WARNING AND VOLUNTARY WAIVER OF RIGHTS UNDER FIFTH AND SIXTH AMENDMENTS
CONFESSION INVOLUNTARY (SEE INVOLUNTARY CONFESSION)
CONFESSION OF CO-DEFENDANT INADMISSIBLE [See Bruton v. United States, 391 U.S. 123 (1968); Gray v. Maryland, 523 U.S. 185 (1998); Motions]
CONFRONTATION CLAUSE OF SIXTH AMENDMENT VIOLATED BY PROSECUTOR’S OFFER OF OUT-OF-COURT STATEMENT FOR A HEARSAY PURPOSE, I.E., FOR THE TRUTH OF THE MATTER ASSERTED IN THE STATEMENT, NOTWITHSTANDING THAT THE OUT-OF-COURT STATEMENT MAY APPEAR TO FIT WITHIN AN EXCEPTION OR EXEMPTION TO THE HEARSAY RULE [See Crawford v. Washington, 541 U.S. 36 (2004); See also the discussion at Motions]
- UNDER THE Crawford Rule YOU ARE LOOKING FOR 4 CONDITIONS: 1. THE OUT-OF-COURT STATEMENT OF A WITNESS IS BEING OFFERED BY THE PROSECUTION AGAINST THE ACCUSED IN A CRIMINAL CASE FOR THE TRUTH OF THE MATTER ASSERTED IN THE OUT-OF-COURT STATEMENT; 2. THERE WAS NO OPPORTUNITY FOR THE DEFENSE TO CROSS-EXAMINE THE WITNESS AT THE TIME OF THE STATEMENT; 3. AT THE TIME OF THE TRIAL WHEN THE OUT-OF-COURT-STATEMENT IS OFFERED, THE DECLARANT, I.E., THE PERSON WHO MADE THE OUT-OF-COURT STATEMENT, IS UNAVAILABLE AS A WITNESS; AND 4. THE OUT-OF-COURT STATEMENT OF THE UNAVAILABLE DECLARANT IS CLASSIFIED AS “TESTIMONIAL” BY THE USSC.
- WHAT IS A “TESTIMONAL” OUT-OF-COURT STATEMENT? Crawford, A MURDER PROSECUTION, DIDN’T TELL US MUCH, OTHER THAN THE FACT THAT MRS. CRAWFORD’S STATEMENTS TO POLICE THAT WERE CONTRADICTORY TO HER DEFENDANT HUSBAND’S STORY WERE “TESTIMONIAL”; BECAUSE SHE ASSERTED HER MARITAL PRIVILEGE AND DID NOT TESTIFY AT TRIAL, IT WAS CONSTITUTIONAL ERROR FOR THE COURT TO RECEIVE HER OUT-OF -COURT STATMENT OVER THE DEFENSE CONFRONTATION CLAUSE OBJECTION. THE COURT SUGGESTED THAT AFFIDAVITS, DEPOSITIONS, PRIOR TESTIMONY THAT THE DEFENDANT WAS UNABLE TO CROSS-EXAMINE, AND “STATEMENTS THAT WERE MADE UNDER CIRCUMSTANCES WHICH WOULD LEAD AN OBJECIVE WITNESS REASONABLY TO BELIEVE THAT THE STATEMENTS WOULD BE AVAILABLE FOR USE IN A LATER TRIAL” WOULD BE CLASSIFIED AS “TESTIMONIAL” OUT-OF -COURT STATEMENTS.
- LITTLE BY LITTLE, WE ARE FINDING OUT WHAT IS AND ISN’T TESTIMONIAL. WE CAN SURMISE FROM Crawford THAT DYING DECLARATIONS AND STATEMENTS OF CO-CONSPIRATORS WILL NOT BE VIEWED BY THE USSC AS TESTIMONIAL. SINCE Crawford, THE USSC HAS ENLIGHTENED US WITH THESE CASES: Davis v. Washington, 547 U.S. 813 (2006) HOLDING THAT AN OUT-OF-COURT STATEMENT MADE FOR THE PRIMARY PURPOSE OF SECURING HELP IN AN ONGOING EMERGENCY, E.G., A 911 CALL REPORTING AN ONGOING ASSAULT, WAS NOT TESTIMONIAL; Hammon v. Indiana, DECIDED AS A COMPANION CASE TO Davis INVOLVED A STATEMENT BY A DOMESTIC ASSAULT VICTIM UNDER CIRCUMSTANCES VERY SIMILAR TO Crawford; THE STATEMENT OF MS. HAMMON WAS HELD TO MEET ALL OF THE Crawford REQUIREMENTS AS WAS THEREFORE INADMISSIBLE. SEE ALSO Hammon v. Indiana, 829 N.E.2D 444 (IND 2005); Bryant v. Michigan, __ U.S. __, 131 S.CT. 1143 (2011), ANOTHER ONGOING EMERGENCY CASE WITH A NONTESTIMONIAL OUT-OF-COURT STATEMENT, THIS ONE WHERE A MORTALLY WOUNDED VICTIM MADE THE STATEMENT TO A COP DESCRIBING THE SHOOTER, ID’ING THE SHOOTER, AND THE LOCATION OF THE SHOOTING; Wharton v. Bockting, 549 U.S. 406 (2007) HOLDING THAT CRAWFORD WAS NOT RETROACTIVE; Giles v. California, 554 U.S. 353 (2008) WHICH SEEKS TO CLARIFY THE FORFEITURE RULE, WHEREBY A DEFENDANT FORFEITS HIS SIXTH AMENDMENT RIGHT TO CONFRONT A WITNESS AGAINST HIM WHEN A JUDGE DETERMINES THAT A WRONGFUL ACT BY THE DEFENDANT MADE THE WITNESS UNAVAILABLE TO TESTIFY AT TRIAL;Melendez-Diaz v. Massachusetts, 557 U.S. 1256 (2009) (KENNEDY, ROBERTS, BREYER AND ALITO DISSENTING) WHICH HELD THAT A FORENSIC LABORATORY REPORT IN THE FORM OF AN AFFIDAVIT STATING THAT A SUSPECT SUBSTANCE WAS COCAINE RANKED AS TESTIMONIAL; THE PROSECUTION REPORT HAD BEEN CREATED SPECIFICALLY TO SERVE AS EVIDENCE IN A CRIMINAL PROCEEDING AND ABSENT STIPULATION, THE PROSECUTION COULD NOT INTRODUCE SUCH A REPORT WITHOUT OFFERING A LIVE WITNESS COMPETENT TO TESTIFY TO THE TRUTH OF THE STATEMENTS MADE IN THE REPORT; THE COURT SAID “DOCUMENTS KEPT IN THE REGULAR COURSE OF BUSINESS MAY ORDINARILY BE ADMITTED AT TRIAL DESPITE THEIR HEARSAY STATUS. BUT THAT IS NOT THE CASE IF THE REGULARLY CONDUCTED BUSINESS ACTIVITY IS THE PRODUCTION OF EVIDENCE FOR USE AT TRIAL”; Bullcoming v. New Mexico, __ U.S. __, 131 S.CT. 2705 (2011) (KENNEDY, ROBERTS, BREYER, ALITO DISSENTING) WHERE THE QUESTION PRESENTED WAS WHETHER THE CONFRONTATION CLAUSE PERMITS THE PROSECUTION TO INTRODUCE A FORENSIC LABORATORY REPORT CONTAINING A TESTIMONIAL CERTIFICATION – MADE FOR THE PURPOSE OF PROVING A PARTICULAR FACT – THROUGH THE IN-COURT TESTIMONY OF A SCIENTIST WHO DID NOT SIGN THE CERTIFICATION OR PERFORM OR OBSERVE THE TEST REPORTED IN THE CERTIFICATION; THE USSC HELD THAT SURROGATE TESTIMONY OF THAT ORDER DOES NOT MEET THE CONFRONTATION REQUIREMENT, I.E., THE ACCUSED IS ENTITLED TO BE CONFRONTED WITH THE ANALYST WHO MADE THE CERTIFICATION, UNLESS THAT ANALYST IS UNAVAILABLE AT TRIAL AND THE ACCUSED HAD A PRETRIAL OPPORTUNITY TO CROSS-EXAMINE THAT PARTICULAR SCIENTIST. [Note: Keep an eye out for the decision inWilliams v. Illinois, cert granted 131 S. Ct. 3090 (2011), (1) where a DNA expert who did not perform the DNA test testified at trial and relied upon the forensic opinion/results of the non-testifying analyst in arriving at an in-court opinion.]
- NOTE THAT UNDER Crawford EVEN THOUGH AN OUT-OF-COURT STATEMENT FITS INTO A RECOGNIZED HEARSAY EXCEPTION, THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT BARS USE OF TESTIMONIAL OUT-OF-COURT STATEMENT BY AN UNAVAILABLE WITNESS WHOM THE DEFENDANT HAS NOT HAD THE OPPORTUNITY TO CROSS-EXAMINE, IRRESPECTIVE OF WHETHER THE STATEMENT IS DEEMED RELIABLE; THE STATEMENT IS INADMISSIBLE AS UNCROSSEXAMINED. SEE Crawford v. Washington, 541 U.S. 36 (2004)
- NOTE: Here is a marvelous 164-page pdf compendium containing summaries of state and federal cases addressing the Confrontation Clause decided after Crawford v. Washington; these summaries include every Supreme Court case since Crawford and the state and federal cases granting relief on Confrontation Clause grounds through January 1, 2011.
CONFRONTATION, FACE-TO-FACE DENIED WHEN WITNESS OR DEFENDANT IS BLOCKED OR SCREENED FROM LIVE CONFRONTATION [Coy v. Iowa, 487 U.S. 1012 (1988) holding that use of closed-circuit live TV to block the child witness’ view of the defendant was a confrontatin clause violation; but see, Maryland v. Craig, 497 U.S. 836 (1990) which permitted use of blocking or screening the witness from seeing the defendant provided there is a particularized showing that such blockageis likely to avoid trauma to the witness.]
CONFUSION OF ISSUES
CONTINUING (RUNNING) OBJECTION
COUNSEL AT TRIAL, RIGHT TO PROCEED WITHOUT [See Faretta v. California, 422 U.S. 806 (1975); McKaskle v. Wiggins, 465 U.S. 168 (1984) cannot refuse stand-by counsel; but see Martinez v. Court of Appeal of California, 528 U.S. 152 (2000) no constitutional right to self-representation on appeal. ]
CROSS-EXAMINATION TO SHOW BIAS IMPROPERLY DENIED [See Davis v. Alaska, 415 U.S. 308 (1974).]
CROSS-EXAMINATION DENIED BY TRIAL COURT LIMITING COUNSEL’S CONTACT WITH WITNESS [See Delaware v. Van Arsdall, 475 U.S. 673 (1986); Perry v. Leeke, 488 U.S. 272 (1989)]
CUMULATIVE EVIDENCE, NEEDLESSLY, IN THAT IT FAILS TO ADD TO THE PROBITY OF PREVIOUSLY ADMITTED EVIDENCE
DISCOVERY VIOLATION [Brady v. Maryland, 373 U.S. 83 (1963);United States v. Agurs, 427 U.S. 97 (1976); United States v. Bagley, 473 U.S. 667 (1985); Kyles v. Whitley, 514 U.S. 419 (1995); Strickler v. Greene, 527 U.S. 263 (1999) materiality, i.e., reasonable probability of different result, required; See Pretrial Practice]
DISPLAYING EVIDENCE PRIOR TO ITS INTRODUCTION OR CONTINUING TO DISPLAY EVIDENCE AFTER IT HAS BEEN USED
EXPERT TESTIMONY NOT ADMISSSIBLE (E.G., UNDERLYING FACTS OR DATA INSUFFICIENT; FIELD OF SCIENTIFIC, TECHNOLOGICAL OR OTHER SPECIALTY OF EXPERTISE NOT RELIABLE AND/OR RELEVANT BASED ON DAUBERT FACTORS SUCH AS: (1) WHETHER THE PRINCIPLE HAS BEEN TESTED, (2) THE RESULTS OF PUBLISHED PEER REVIEW, (3) ERROR RATES AND (4) GENERAL ACCEPTANCE; OLD FRYE – United States v. Frye, 293 F. 1013 (D.C. 1923) (1) RULE REQUIRES GENERAL ACCEPTANCE) [See Expert]
EXPERT WITNESS NOT COMPETENT
FAILURE TO LAY PROPER FOUNDATION FOR ADMISSION OF TESTIMONY, EXHIBIT, OR DOCUMENT (PREDICATE) (SEE LACK OF EVIDENTIARY PREDIATE)
FINAL ARGUMENT IMPROPER (SEE ARGUMENT IMPROPER; OBJECTIONS TO ARGUMENT)
GOADING THE DEFENSE INTO MOVING FOR A MISTRIAL, PROSECUTORIAL CONDUCT INTENDED TO AND IN FACT SUCCEEDING IN [Note: Oregon v. Kennedy, 456 U.S. 667 (1982) established that where the prosecutor’s conduct is intended to “goad” the defense into moving for a mistrial, the defense may successfully claim that a retrial is barred by the Fifth Amendment protection against double jeopardy. The idea behind this ground for objection is that prosecutors shouldn’t be permitted by intentional misconduct to force a mistrial that will allow them to retry the accused when conditions are better, e.g., a missing witness may be found, a more conviction-oriented jury may be empanelled, etc. In my home state, Texas, the rule also applies by case law to “reckless” goading.]
HABIT NOT ESTABLISHED, IMPROPER HABIT EVIDENCE BECAUSE
HEARSAY, QUESTION CALLS FOR OR ANSWER CONTAINS (1 – HISTORY OF THE RULE AGAINST HEARSAY – TREASON TRIAL OF SIR WALTER RALEIGH), (2 – VARIOUS EXCEPTIONS TO RULE AGAINST HEARSAY DISCUSSED)
HEARSAY WITHIN HEARSAY
HEARSAY, EVIDENCE CONTAINS
HEARSAY, EVIDENCE IS THE RESULT OF AND IS BASED UPON
ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF FOURTH AMENDMENT
INVOLUNTARY CONFESSION IN VIOLATION OF DUE PROCESS OR LAW
IMMATERIAL IN THAT IT IS OF NO CONSEQUENCE TO ANY ISSUE IN THE CASE (COUPLE WITH IRRELEVANT)
IMPEACHMENT IMPROPER ( IMPROPER OPINION OR REPUTATION CHARACTER EVIDENCE – RULE 404 FRE, IMPROPER PROOF OF PRIOR CONVICTION – RULE 609 FRE, IMPROPER FOUNDATION FOR PROOF OF WITNESS’ PRIOR INCONSISTENT STATEMENT – RULE 613 FRE,IMPROPER PROOF OF UNTRUTHFULNESS -RULE 608FRE, IMPEACHMENT WITH AN IRRELEVANT OR COLLATERAL MATTER – RULE 403 FRE)
INCOMPETENCY OF WITNESS (E.G., LACK OF PERCEPTION, LACK OF MEMORY, INABILITY TO UNDERSTAND NATURE AND OBLIGATION OF OATH – RULE 603 FRE, INABILITY TO NARRATE OR COMMUNICATE IN LANGUAGE OF COURT, LACK OF PERSONAL KNOWLEDGE – RULE 602 FRE, LACK OF EXPERTISE TO TESTIFY AS AN EXPERT – RULE 702 FRE ) [Note that thecompetency under RULE 601 FRE is that “every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.” So children, retarded persons, insane persons, etc., are not automatically disqualified to testify in federal criminal cases.]
IRRELEVANT IN THE SENSE THAT IT DOES NOT MAKE A FACT OF CONSEQUENCE TO THE LAWSUIT ANYMORE OR LESS LIKELY – RULE 401 FRE
JUDICIAL NOTICE IMPROPER – RULE 201 FRE
JUDGE ASKING QUESTION THAT IMPROPERLY INFLUENCES THE JURY AND/OR INTERFERES WITH COUNSEL’S PRESENTATION OF CASE ( SEE COMMENT ON WEIGHT OF EVIDENCE – TOLERATED IN SOME JURISDICTIONS, E.G., FEDERAL COURT – SEE RULE 614 FRE)
LACK OF EVIDENTIARY PREDICATE (FOUNDATION) FOR ADMISSION OF TESTIMONY, EXHIBIT, OR DOCUMENT
LACK OF PERSONAL KNOWLEDGE (WITNESS, OTHER THAN EXPERT, DOES NOT HAVE FIRST-HAND INFORMATION) – RULE 602 FRE
LAY WITNESS OPINION AND/OR INFERENCE IMPROPER; NOT HELPFUL TO CLEAR UNDERSTANDING OF WITNESS’ TESTIMONY OR DETERMINATION OF FACT IN ISSUE, NOT RATIONALLY BASED ON PERCEPTION OF WITNESS (E.G., SEE RULE 701 FRE)
LEADING QUESTION ON DIRECT EXAMINATION (QUESTION SUGGESTS OR COAXES DESIRED ANSWER) – RULE 611(C) FRE
LEGAL CONCLUSION (QUESTIONS CALLS FOR OR ANSWER CONTAINS) – RULE
LIMITED PURPOSE OR PARTY, EVIDENCE ADMISSIBLE ONLY FOR A LIMITED PURPOSE OR LIMITED TO A PARTICULAR PARTY (AND OFFERED GENERALLY OR AGAINST ALL PARTIES) – RULE 105 FRE
MISLEADING THE JURY
MISSTATEMENT (MISCHARACTERIZATION) OF EVIDENCE BY COUNSEL (OR WITNESS)
OFFER TO PLEAD GUILTY OR NOLO CONTENDERE INADMISSIBLE (SEE RULE 410 FRE)
OPENING STATEMENT IMPROPER ( E.G., ARGUMENTATIVE, INVADES PROVINCE OF COURT BY PROVIDING INSTRUCTIONS ON LAW, STATES PERSONAL OPINION OR BELIEF OF COUNSEL, PROSECUTOR SPECULATING ABOUT DEFENSE EVIDENCE) [The CCJA OPENING STATEMENT page will provide a longer list of possible objections.]
OPINION ON ULTIMATE ISSUE
PRIOR BAD ACTS, MISCONDUCT, WRONGS, OR OTHER CRIMES (UNCHARGED MISCONDUCT, EXTRANEOUS OFFENSES) IMPROPER TO SHOW PROPENSITY/DISPOSITION (SEE RULE 404(B) FRE)
PRIOR CONVICTION INADMISSIBLE
PRIOR SEXUAL BEHAVIOR IMPROPER
PERSONAL KNOWLEDGE OF LAY WITNESS LACKING (SEE LACK OF PERSONAL KNOWLDGE)
POST-ARREST SILENCE AGAINST THE DEFENDANT, USE OF DEFENDANT’S – [Seeabove re Comment on Post-Arrest Silence; see also Doyle v. Ohio, 426 U.S. 610 (1976); Fletcher v. Weir, 455 U.S. 603 (1982)]
PRIVILEGED COMMUNICATION (E.G., ATTORNEY-CLIENT; DOCTOR-PATIENT (IF ANY); CLERGY; INFORMANT’S IDENTITY; SPOUSAL CAPACITY; SPOUSAL OR MARITAL COMMUNICATION; SELF-INCRIMINATION)
QUESTION HAS BEEN ANSWERED BY WITNESS AND IS NOW GIVING AN ANSWER THT GOES BEYOND THE QUESTION POSED (SEE WITNESS HAS ANSWERED)
QUESTION ON CROSS-EXAMINATION GOES BEYOND SCOPE OF DIRECT AND ISSUES OF WITNESS CREDIBILITY (APPLIES ONLY IN JURISDICTIONS, E.G., FEDERAL COURT, WHERE SCOPE OF CROSS IS LIMITED TO SUBJECT OF DIRECT AND ISSUES RELATED TO WITNESS CREDIBILITY)
REMAINDER RULE, EVIDENCE OF WRITING OR RECORDED STATEMENT SHOULD NOT IN FAIRNESS BE CONSIDERED CONTEMPORANEOUSLY UNDER THE
RELEVANCE LACKING (SEE IRRELEVANT) ( E.G., HAS NO TENDENCY TO MAKE EXISTENCE OF ANY FACT OF CONSEQUENCE TO THE CASE MORE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE)
RELIGIOUS BELIEFS OR OPINIONS OF WITNESS INADMISSIBLE TO SHOW WITNESS’ CREDIBILITY IMPAIRED OR ENHANCED (E.G., SEE RULE 610 FRE)
REPETITIOUS (SEE ASKED AND ANSWERED)
REQUIREMENT OF ORIGINAL VIOLATED ( SEE BEST EVIDENCE RULE, ORIGINAL DOCUMENT RULE)
SENTENCE INCREASE BY THE TRIAL JUDGE ABOVE STATUTORY MAXIMUM VIOLATES SIXTH AMENDMENT RIGHT TO TRIAL BY JURY [ See Blakely v. Washington, 542 U.S. 296 (2004)]
SEQUESTRATION OF WITNESSES (“THE RULE” OF WITNESSES) VIOLATION (AS WHEN EVIDENCE THAT ANOTHER WITNESS HAS MADE NOTATIONS UPON IS PRESENTED TO A TESTIFIYING WITNESS)
SHACKLING, BINDING , GAGGING, NOT APPROPRIATE UNDER CIRCUMSTANCES [See Illinois v. Allen, 397 U.S. 337 (1970)]
SIDEBAR REMARK ( SIDEBAR REMARKS ARE STATEMENTS OF COUNSEL FOR ONE PARTY NOT ADDRESSED TO THE COURT AND TYPICALLY MADE WHILE COUNSEL FOR ANOTHER PARTY IS EXAMINING A WITNESS, ARGUING A QUESTION TO THE COURT OR ADDRESSING THE JURY.)
SPECULATION (CONJECTURE, GUESS)
SUPPRESSION HEARING TESTIMONY OF ACCUSED NOT ADMISSIBLE AT TRIAL [Simmons v. United States, 390 U.S. 377 (1968), e.g., testimony given by defendant at suppression hearing to establish “standing” may not be used against her at trial on the issue of guilt; but see Harris v. New York, 401 U.S. 222 (1971) which allows the use of statements obtained in violation of Miranda for impeachment purposes.]
TRIAL IN ABSENTIA NOT PERMITTED WHERE DEFENDANT NOT PRESENT AT BEGINNING OF TRIAL; ACCUSED HAS RIGHT TO BE PRESENT [See Crosby v. United States, 506 U.S. 255 (1993); United States v. Gagnon, 470 U.S. 522 (1985)]
UNFAIRLY PREJUDICIAL (E.G. RULE 403 FRE – POTENTIAL DANGER OF “UNFAIR” PREJUDICE SUBSTANTIALLY OUTWEIGHS PROBATIVE VALUE – OBJECTING PARTY HAS BOP; OBJECT THAT THE OTHERWISE ARGUABLY RELEVANT EVIDENCE UNFAIRLY EXAGGERATES THE TRUTH AND TENDS TO IMPROPERLY STIR THE PASSIONS OR SYMPATHY OF THE JURORS) EVEN THOUGH ARGUABLY RELEVANT
WASTE OF TIME
WEARING PRISON GARB VIOLATES DUE PROCESS [See Estelle v. Williams, 425 U.S. 501 (1976)]
WITNESS HAS ANSWERED THE QUESTION AND IS NOW VOLUNTEERING AN ANSWER TO A QUESTION THAT HASN’T BEEN ASKED
QUIK REFERENCE GUIDE
OBJECTIONS IN TEXAS CRIMINAL TRIALS
copyright Ray Moses 2000
all rights reserved
Here are some useful trial objections that can be made in criminal trials under the Texas Rules of Evidence (TRE). The TRE are similar in many respects to the Federal Rules of Evidence (FRE), however, they do differ in some significant respects, e.g., Rule 609 impeachment of a witness with prior conviction, the presence of a Texas rule of “optional completeness,” etc. Because our TRE are to some extent a rip-off of the FRE, reading the history of the FRE provides the courtroom warrior with a valuable perspective in understanding the rules of the game. Texas criminal lawyers should be aware of the Texas Rules of Appellate Procedure and the Texas Uniform Court Reporters Manual.
[This criminal defense lawyer’s 26-page paper on the subject of evidence for
Texas defenders is worth a look. Texas defenders who practice in both state and federal court will find it useful to study this frame-by-frame comparison of the FRE and the TRE put together by a Texas law professor.]
Objections to the Form of the Question
+ DUPLICITOUS (See Asked and Answered and Needlessly Cumulative) – Rule 403 TRE, FRE ; Rule 611(a) TRE, FRE.
Objections to the Substantive Admissibility of Evidence
+ AUTHENTICATION, INSUFFICIENT AND IMPROPER – Rule 901 TRE, FRE.
+ BEST EVIDENCE (ORIGINAL WRITING) RULE, NOT THE ORIGINAL WRITING, RECORDING, OR PHOTOGRAPH Rule 1002 TRE, FRE.
+ BOLSTERING –
- WITH PRIOR CONSISTENT STATEMENT Rule 801(e)(1)(b) TRE. Rule 801(d)(1)(b) FRE.
+ CHARACTER EVIDENCE, IMPROPER PROOF OF CHARACTER TRAIT OF DEFENDANT OR VICTIM – Rule 404(a) TRE.
- NOT A PERTINENT CHARACTER TRAIT OF DEFENDANT/VICTIM. Rule 404(a) TRE.
- PROSECUTION OFFERING EVIDENCE OF DEFENDANT’S PERTINENT CHARACTER TRAIT BEFORE DEFENDANT OFFERED EVIDENCE OF SUCH CHARACTER TRAIT; THEREFORE, THE EVIDENCE IS NOT IN PROPER REBUTTAL. Rule 404 (a) (1) TRE.
- PROSECTION OFFERING EVIDENCE OF VICTIM‘S PERTINENT CHARACTER TRAIT BEFORE DEFENSE OFFERED EVIDENCE OF SUCH TRAIT [HOMICIDE/SELF DEFENSE EXCEPTION: ALSO, THIS IS NOT PROSECUTION EVIDENCE OF THE PEACEABLE CHARACTER OF THE VICTIM OFFERED BY THE PROSECUTION IN A HOMICIDE CASE TO REBUT PREVIOUS DEFENSE EVIDENCE THAT THE VICTIM WAS THE FIRSTAGGRESSOR.] Rule 404 (a) (2) TRE.
- SPECIFICINSTANCES OF DEFENDANT’S CHARACTER TRAIT NOT ADMISSIBLE BECAUSE THE TRAIT IS NOT AN ESSENTIALELEMENT OF THE CHARGE OR DEFENSE. Rule 405(b) TRE.
+ CHARACTER EVIDENCE, IMPROPER PROOF OF WITNESS‘ CHARACTER FOR TRUTHFULNESS OR UNTRUTHFULNESS – Rule 608 TRE.
- CHARACTER TRAIT INQUIRY TOO BROAD BECAUSE RULE 608 REFERS ONLY TO TRAIT OF A WITNESS FOR TRUTHFULNESS OR UNTRUTHFULNESS AND NOT CHARACTER GENERALLY OR ANY OTHER SPECIFIC CHARACTER TRAITS – Rule 608 (a)(1) TRE.
- MAY NOT BOLSTER YOUR WITNESS WITH POSITIVE EVIDENCE OF TRUTHFUL CHARACTER BEFORE WITNESS’ CHARACTER FOR TRUTHFULNESS HAS BEEN ATTACKED BY REPUTATION, OPINION, OR OTHERWISE. – Rule 608 (a) (2) TRE.
- SPECIFIC INSTANCES OF WITNESS’ CREDIBILITY [“CREDIBILITY” PROBABLY MEANS “CHARACTER FOR TRUTHFULNESS”] OR LACK OF IT NOT ADMISSIBLE ON CROSS OR BY EXTRINSIC EVIDENCE. – Rule 608 (b) TRE. [NOTE: I BELIEVE THAT THIS PORTION OF THE RULE IS MEANT TO BE AN ABSOLUTE BAR ON CROSS OR EXTRINSIC EVIDENCE ONLY WHEN THE SOLE REASON FOR PROFFERING THAT EVIDENCE IS TO ATTACK OR SUPPORT THE WITNESS’ CHARACTER FOR TRUTHFULNESS; ANY RIGHT TO CROSS ON OR INTRODUCE EXTRINSIC EVIDENCE FOR OTHER GROUNDS OF IMPEACHMENT, E.G., BIAS, CONTRADICTION, PRIOR INCONSISTENT STATEMENT, IS LEFT TO RULES 402 TRE AND 403 TRE, NOT 608 (B) ]
+ CHARACTER EVIDENCE, IMPROPER EFFORT TO IMPEACH WITNESS WITH PROOF OF PRIORCONVICTION – Rule 609 TRE.
- PROOF NOT ELICITED FROM THE WITNESS OR BY PUBLIC RECORD. – Rule 609 (a) TRE.
- CRIME IN QUESTION NOT A FELONY OR A MISDEMEANOR INVOLVING MORAL TURPITUDE. Rule 609 (a) TRE. [WHAT CONSTITUTES “MORAL TURPITUDE” MISDEMEANOR DETERMINED BY CASE LAW.]
- PROPONENT OF IMPEACHMENT DID NOT SUSTAIN THE BURDEN OF PROVING THAT THE PROBATIVE VALUE OF ADMITTING THE PROOF OF THE PRIOR CONVICTION OUTWEIGHS ITS PREJUDICIAL EFFECT TO THE DEFENSE (OR PROSECUTION). [NOTE: THE BALANCING TEST HERE, UNLIKE RULE 403 TRE, PREVENTS IMPEACHMENT OF A WITNESS WITH A PRIOR CONVICTION, UNLESS THE PARTY SEEKING TO IMPEACH CAN SUSTAIN THE BURDEN OF PROVING THAT THE PROBATIVE VALUE OF THE IMPEACHMENT WITH THE OTHERWISE ADMISSIBLE PRIOR OUTWEIGHS ITS PREJUDICIAL EFFECT TO A PARTY.] SEE THEUS V. STATE, 845 SW2D 874 (Tex. Crim. App. 1992) SETTING OUT THE 5 FACTORS IN THE BALANCING TEST, I.E., (1) IMPEACHMENT VALUE OF THE PRIOR, (2) TEMPORAL PROXIMITY OF PAST CRIME TO THE PRESENT CRIME CHARGED.AND WITNESS’ SUBSEQUENT HISTORY, (3) SIMILARITY OF PAST CRIME AND OFFENSE BEING TRIED, (4) IMPORTANCE OF DEFENDANT’S TESTIMONY, AND (5) IMPORTANCE OF THE CREDIBILITY ISSUE [Note: The first factor attributes greater impeachment value to prior convictions involving deception or moral turpitude than crimes involving violence because violent crimes are more likely to have a prejudicial effect. The second factor favors admission of the prior conviction if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law. The third factor. similarity between an offense and the current offense. militates against admissibility, whereas dissimilarity between the prior offenses and the current offense favors admissibility. The fourth factor focuses on the importance of the defendant’s testimony; when the evidence presented in a case involves only the defendant’s testimony versus the testimony of the prosecution’s witnesses, the importance of the defendant’s testimony escalates; as the importance of the defendant’s credibility escalates, the need to allow the prosecution an opportunity to impeach the defendant’s credibility also escalates. The fifth factor, which is very similar to the fourth factor, focuses on the importance of the credibility issue; for example, when the evidence presented in a case involves only the defendant’s testimony versus the testimony of the State’s witnesses, the importance of the defendant’s credibility escalates; as the importance of the defendant’s credibility escalates, the need to allow the prosecution an opportunity to impeach the defendant’s credibility also escalates. With regard to obtaining a reversal for error in the trial courts application of the Theus balancing test the cases say that “A trial court abuses its “wide discretion” when its decision to admit a prior conviction lies outside the zone of reasonable disagreement.” (1) Rule 609 (a) TRE.
- A PERIOD OF MORE THAN TEN YEARS HAS ELAPSED SINCE THE DATE OF THE CONVICTION OR THE RELEASE OF THE WITNESS FROM THE CONFINEMENT IMPOSED FOR THAT CONVICTION WHICHEVER IS THE LATER DATE. [INTERNAL BALANCING EXCEPTION: THE OTHERWISE REMOTE PRIOR CONVICTION MAY BE ADMISSIBLE IN THE INTERESTS OF JUSTICE IF THE PROPONENT OF THE IMPEACHMENT INTRODUCES FACTS AND CIRCUMSTANCES THAT PROVE THAT THE PROBATIVE VALUE OF THE REMOTE CONVICTION SUBSTANTIALLY OUTWEIGHS ITS PREJUDICAL EFFECT.] – Rule 609 (b) TRE.
- THE CONVICTION WAS PROBATED AND THE WITNESS SATISFACTORILY COMPLETED THE PROBATION AND THE WITNESS HAS NOT BEEN CONVICTED OF A SUBSEQUENT FELONY OR MISDEMEANOR INVOLVING MORAL TURPITUDE. – Rule 609 (c) (2) TRE.
- THE PROPONENT OF THE CONVICTION WAS ASKED BY THE OPPONENT IN A TIMELY WRITTEN REQUEST TO PROVIDE WRITTEN NOTICE OF INTENT TO USE EVIDENCE OF A PRIOR CONVICTION TO IMPEACH THE WITNESS AND THE PROPONENT FAILED TO GIVE THE OPPONENT SUFFICIENT ADVANCE NOTICE THAT WOULD ALLOW THE OPPONENT A FAIR OPPORTUNITY TO CONTEST THE USE OF SUCH PRIOR CONVICTION TO IMPEACH THE WITNESS. – Rule 609 (f) TRE.
+ COMPETENCE, WITNESS’ LACK OF – Rule 601 TRE.
+ CONFUSING THE ISSUES – Rule 403 TRE.
+ CROSS-EXAMINATION, DENIAL OF THE RIGHT OF – Rule 611 (a) and (b) TRE.
+ CUMULATIVE EVIDENCE, NEEDLESS PRESENTATION OF – Rule 403 TRE.
+ EXPERT IS NOT QUALIFIED BY KNOWLEDGE, SKILL, EXPERIENCE, TRAINING OR EDUCATION – Rule 703 TRE, FRE.
+ EXPERT’S CLAIMED FIELD OF EXPERTISE IS NOT GENERALLY RECOGNIZED AS A SCIENTIFIC, TECHNICAL, OR OTHERWISE SPECIALIZED DISCIPLINE – Rule 702 TRE.
+ EXTRANEOUS OFFENSE (UNCHARGED MISCONDUCT; PRIOR BAD ACTS, CRIMES, OR WRONGS; IMPROPER PROPENSITY EVIDENCE), IMPROPER CHARACTER EVIDENCE IN THE FORM OF PROOF OF – EVIDENCE OF OTHER CRIMES, WRONGS, OR BAD ACTS IS NOT ADMISSIBLE TO PROVE THE CHARACTER OF A PERSON IN ORDER TO SHOW CONFORMITY THEREWITH; HOWEVER. PROOF OF PRIOR BAD ACTS MAY BE ADMISSIBLE FOR SOME LIMITED PURPOSE, SUCH AS PROOF OF (1) motive, (2) opportunity, (3) intent, (4) preparation, (5) plan, (6) knowledge, (7) identity, (8) absence of mistake of fact or accident or (9) other unlisted reason. SEE MONTGOMERYV. STATE, 810 SW2D 372 (TEX. CRIM. APP. 1991) WHICH IS THE SEMINAL CASE ON RULE 404(b) TRE PROOF OF UNCHARGED MISCONDUCT (EXTRANEOUS OFFENSES) – Rule 404(b) TRE. [NOTE: THIS RULE SEEMS TO ALLOW THE PROPONENT TO OFFER PROOF OF PRIOR BADS ACTS OF A PERSON FOR ANY RELEVANT AND PROPER PURPOSE OTHER THAN PROPENSITY. FURTHER, IF THE PROSECUTION’S PROOF OF THE PRIOR BAD ACT IS WEAK, I SUGGEST THAT THE DEFENSE TRY TO KEEP SUCH EVIDENCE FROM THE JURY AND OBJECT TO IT PRIOR TO ITS INTRODUCTION BEFORE THE JURY ON THE GROUND THAT THE PROSECUTION’S PROOF OF THE PRIOR BAD ACT IS INSUFFICIENT TO SUPPORT A REASONABLE JUROR FINDING THE EXISTENCE OF SUCH PRIOR BAD ACT BEYOND A REASONABLE DOUBT. REMEMBER ALSO THAT THERE IS A PRETRIAL NOTICE REQUIREMENT IMPOSED ON THE PROSECUTION TO REVEAL “OTHER CRIMES, WRONGS, OR ACTS” EVIDENCE THAT THE PROSECUTION INTENDS TO INTRODUCE IN ITS CASE-IN-CHIEF, PROVIDED THAT THERE IS A TIMELY DEFENSE REQUEST FOR SUCH NOTICE. FINALLY, ALWAYS REMEMBER THAT IF YOUR RULE 404(b) TRE OBJECTION TO PROOF OF EXTRANEOUS OFFENSES (UNCHARGED MISCONDUCT, PRIOR BADS ACTS) IS OVERRULED, YOU SHOULD ALSO OBJECT TO THE PROOF AS BEING INADMISSIBLE UNDER RULE 403 TRE. ]
+ HABIT, INADMISSIBLE – CONDUCT NOT SUFFICIENTLY SHOWN TO BE ROUTINE PRACTICE – Rule 406 TRE.
+ HEARSAY – AN OUT-OF-COURT STATEMENT BY A DECLARANT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED – Rule 802 TRE.
+ HEARSAY WITHIN HEARSAY – ONE PART OF THE COMBINED HEARSAY STATEMENTS DOES NOT CONFORM TO AN EXCEPTION TO THE HEARSAY RULE – Rules 802 TRE & RULE 805 TRE.
+ IMPEACHMENT, IMPROPER
- STATEMENT OR CIRCUMSTANCES SHOWING BIAS OR INTEREST OF WITNESS – (1) WITNESS NOT INFORMED OF CONTENTS AND WHERE, WHEN, AND TO WHOM STATEMENT SHOWING BIAS OR INTEREST WAS MADE, OR (2) WITNESS NOT GIVEN AN OPPORTUNITY TO EXPLAIN OR DENY STATEMENT OR CIRCUMSTANCES ON CROSS-EXAMINATION — Rule 613 (b) TRE.
- CHARACTER TRAIT OF A WITNESS FOR VERACITY (UNTRUTHFULNESS/TRUTHFULNESS) BASED ON OPINION (OR REPUTATION) – VERACITY CHARACTER WITNESS NOT SHOWN TO HAVE SUFFICIENT KNOWLEDGE OF SUBJECT WITNESS UPON WHICH TO FORM A PERSONAL OPINION CONCERNING THE CHARACTER TRAITOF SUBJECT WITNESS’ VERACITY OR VERACITY CHARACTER WITNESS NOT SHOWN TO HAVE SUFFICIENT KNOWLEDGE OF SUBJECT WITNESS’ REPUTATION IN THE RELEVANT COMMUNITY FOR CHARACTER TRAIT OF VERACITY. Rule 608(a) TRE
- PRIOR INCONSISTENT STATEMENT OF WITNESS – (1) WITNESS NOT INFORMED OF CONTENTS AND WHERE, WHEN, AND TOWHOM ALLEGED PRIOR INCONSISTENT STATEMENT WAS MADE, OR (2) WITNESS NOT GIVEN AN OPPORTUNITY TO EXPLAIN OR DENY STATEMENT ON CROSS-EXAMINATION. – Rule 613 (a) TRE.
- PROOF OF EXTRANEOUS OFFENSE, UNCHARGED MISCONDUCT INCLUDING CRIMES, WRONGS, AND OR ACTS – REFER TO EXTRANEOUS OFFENSE RE RULE 404(b) TRE ABOVE FOR AN EXPLANATION OF THE OBJECTION TO IMPROPER EVIDENCE OF PROPENSITY TO COMMIT CRIME IN AN EFFORT TO SHOW THE PERSON’S CONDUCT IN THE INSTANT CASE WAS IN CONFORMITY TO SUCH PRIOR MISCONDUCT.
+ IRRELEVANT – HAS NO TENDENCY TO MAKE THE EXISTENCE OF ANY FACT OF CONSEQUENCE TO THE DETERMINATION OF THE CRIMINAL ACTION MORE PROBABLE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE – Rule 402 TRE. [HINT: YOU MAY HAVE AN OUT-OF-COURT STATEMENT THAT QUALIFIES AS ADMISSIBLE HEARSAY , BUT WHICH IS INADMISSIBLE BECAUSE IT IS NOT RELEVANT; ALWAYS ASK YOURSELF IF THE OUT-OF-COURT STATEMENT IS RELEVANT. ALSO, BE CAREFUL IN YOUR OPENING AND QUESTIONS NOT TO “OPEN THE DOOR” (EXPAND THE ADMISSIBILITY) TO DAMAGING EVIDENCE THAT OTHERWISE WOULD BE IRRELEVANT.]
+ JUDICIAL; NOTICE , IMPROPER – Rule 201 TRE.
- JUDICIALLY NOTICE FACT WAS NEITHER: (1) GENERALLY KNOWN WITHIN THE TERRITORIAL JURISDICTION OF THE TRIAL COURT, NOR (2) CAPABLE OF ACCURATE AND READY DETERMINATION BY RESORT TO SOURCES WHOSE ACCURACY CANNOT BE REASONABLY DISPUTED. – Rule 201 (b) TRE.
- THE OBJECTING PARTY, AFTER MAKING A TIMELY REQUEST, HAS NOT BEEN GIVEN AN OPPORTUNITY TO BE HEARD AS TO THE PROPRIETY OF THE TRIAL COURT TAKING JUDICIAL NOTICE. – Rule 201 (e) TRE.
+ KNOWLEDGE. LACK OF PERSONAL – Rule 602 TRE, FRE. SEE “PERSONAL KNOWLEDGE, LACK OF ” BELOW.
+ LAY OPINION, IMPROPER – Rule 701 TRE.
+ LEADING QUESTION – Rule 611(c) TRE.
+ MISLEADING THE JURY – Rule 403 TRE.
+ MISQUOTING THE RECORD – Rule 611(a) TRE.
+ NARRATIVE ANSWER – Rule 611(a) TRE.
+ PERSONAL KNOWLEDGE, NON-EXPERT WITNESS’ LACK OF – Rule 602 TRE. [ NOTE THAT THE LACK OF PERSONAL KNOWLEDGE OBJECTION APPLIES TO THE HEASAY (OUT-OF-COURT) DECLARANT AS WELL AS TO THE IN-COURT DECLARANT. SO, THIS OBJECETION IS VALID UNLESS THE FACTS WOULD SUPPORT A FINDING THAT THE OUT OF COURT DECLARANT HAD PERSONAL KNOWLEDGE OF HIS ASSERTION OF FACT WHEN THE OUT-OF-COURT ASSERTION IS OFFFERED FOR THE TRUTH OF THE MATTER ASSERTED.]
+ PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS, INADMISSBILE – Rule 410 TRE.
+ PRIVILEGED COMMUNICATION
- ATTORNEY-CLIENT PRIVILEGE – Rule 503 TRE.
- HUSBAND- WIFE (MARITIAL) PRIVILEGE – RIGHT OF THE PERSON MAKING AND/OR THE PERSON TO WHOM A CONFIDENTIAL COMMUNICIATION IS MADE PRIVATELY BY THE PERSON TO THE PERSON’S SPOUSE TO REFUSE TO DISCLOSE AND PREVENT ANOTHER FROM DISCLOSING SUCH STATEMENT. – Rule 504 (a) TRE.
- SPOUSAL CAPACITY OF ONE SPOUSE TO TESTIFY AGAINST ANOTHER – SPOUSE HAS A PERSONAL PRIVILEGE NOT TO BE CALLED BY PROSECUTION AS A WITNESS AGAINST OTHER SPOUSE, EXCEPT, THE PRIVILEGE OF A PERSON’S SPOUSE NOT TO BE CALLED AS A WITNESS FOR THE PROSECUTION DOES NOT APPLY IN PROCEEDINGS IN WHICH THE PERSON IS CHARGED WITH A CRIME AGAINST THE PERSON’S SPOUSE, A MEMBER OF THE HOUSEHOLD OF EITHER SPOUSE, OR ANY MINOR. – Rule 504(b) TRE.
- COMMUNICATION TO ANY PERSON INVOLVED IN THE TREATMENT OR EXAMINATION OF ALCOHOL OR DRUG ABUSE BY A PERSON BEING TREATED VOLUNTRILY OR BEING EXAMINED FOR ADMISSION TO TREATMENT FOR ALCOHOL OR DRUG ABUSE. – Rule 509 (b) TRE (NOTE: THERE IS NO GENERAL PHYSICIAN-PATIENT PRIVILEGE IN TEXAS CRIMINAL PROCEEDINGS.)
+ RELEVANT, NOT – Rule 402 TRE SEE THE DISCUSSION UNDER “IRRELEVANT.”
+ SUMMARY, INADMISSIBLE –
- UNDERLYING WRITINGS, RECORDINGS, AND/OR PHOTOGRAPHS NOT SHOWN TO BE ADMISSIBLE. – Rule 1006 TRE.
- NO ADEQUATE SHOWING THAT SUCH ITEMS CANNOT BE CONVENIENTLY EXAMINED IN COURT. – RULE 1006 TRE.
- ORIGINALS OR DUPLICATES NOT MADE AVAILABLE FOR EXAMINATION OR COPYING BY OTHER PARTIES AT REASONABLE TIME AND PLACE. – Rule 1006 TRE.
+ UNDUE DELAY – Rule 403 TRE.
+ UNFAIR PREJUDICE, DANGER OF SUBSTANTIALLY OUTWEIGHS THE PROBATIVE VALUE OF THE EVIDENCE (OBJECTING PARTY HAS BURDENOF PROOF TO EXCLUDE OTHERWISE RELEVANT EVIDENCE) – Rule 403 TRE. YOUR “FALLBACK” OBJECTION WHEN EVIDENCE IS RELEVANT AND OTHERWISE ADMISSIBLE IS UNFAIRLY PREJUDICIAL; REMEMBER THAT PROBATIVE EVIDENCE IS SUPPOSED TO BE PREJUDICIAL IN PROVING A FACT OF CONSEQUENCE, JUST NOT “UNFAIRLY” SO. [HINT: THINK ABOUT THE USEFULNESS OF OFFERING TO STIPULATE TO A FACT THAT YOUR OPPONENT MUST PROVE; CAN YOU ARGUE COGENTLY TO THE TRIAL JUDGE THAT BY AN AGREED STIPULATION YOUR OPPONENT CAN PROVE HIS ESSENTIAL FACT BUT IN THIS LESS UNFAIRLY PREJUDICIAL WAY WITHOUT ANY APPRECIABLE LOSS OF PROBATIVE VALUE OF HIS PROOF, I.E., ARGUE THAT THE OPPOSITION WILL GET EVERYTHING IT NEEDS FROM THE LESS UNFAIRLY PREJUDICIAL STIPULATION, SEE TIP 6 BELOW. [Note: A Rule 403 TRE analysis by the trial court should include, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.]
CHART OF SOURCES OF INDIVIDUAL RIGHTS
State courts must enforce federal constitutional rights that apply to state court proceedings. A state court also has power to construe state constitutional provisions in a manner that more broadly protects individual rights than the federal constitution. Of course, a state court may construe the state constitution in lock-step (complete harmony) with the federal constitution; or it can look first (primacy) to the state constitution; or it can address the federal constitutional claim first; or it can look at both the state and federal rights. One possible effect of the sharp curtailment of constitutional due process by the United States Supreme Court and crime-control oriented federal judges is the revitalization of state supreme courts concern for individual rights. In making objections, defense lawyers may find it efficacious to rely on state constitutions and bills of rights as well the Bill of Rights of the United States Constitution.
Use this model to make yourself a chart that references your state constitution and procedural code. This model is one that I put together many years ago
Protected Right Federal Constitution State Constitution State Code of Procedure
Speech and Press First Amendment Texas – Art. 1, Sec. 8 Art. 1.16
Illegal Search Fourth Amendment Texas – Art. 1, Sec. 9 Arts. 1.06,
Self-Incrimination Fifth Amendment Texas – Art. 1, Sec. 10 Arts. 1.05,
Arts. 38.21, 38.22
Grand Jury Fifth Amendment Texas – Art. 1, Sec. 10 Arts. 1.05, 1.141
Chs. 19, 20, 21
Double Jeopardy Fifth Amendment Texas – Art. 1, Sec. 14 Arts. 1.10, 1.11, 36.33
Due Process Fifth Amendment Texas – Art. 1, Sec. 19 Art. 1.04
Due Process Fourteenth Amendment Texas – Art. 1, Sec. 19 Art. 1.04
Speedy Trial Sixth Amendment Texas – Art. 1, Sec. 10 Art. 1.05
Jury Trial Sixth Amendment Texas – Art. 1, Sec. 10 Arts. 1.05, 1.12, 1.13,
1.15, 36.19, 36.29
Public Trial Sixth Amendment Art. 1.24
Accusation Sixth Amendment Texas – Art. 1, Sec. 10 Art. 1.05
Confrontation & Sixth Amendment Texas – Art. 1, Sec. 10 Arts. 1.05, 1.15, 1.25,
Compulsory Sixth Amendment Texas – Art. 1, Sec. 10 Art. 1.05
Assistance of Sixth Amendment Texas – Art. 1, Sec. 10 Art. 1.05
Excessive Bail Eighth Amendment Texas – Art. 1, Secs. 11 Arts. 1.07, 17.01-17.38
Cruel & Unusual Eighth Amendment Texas – Art. 1, Sec. 13 Arts. 1.09, 16.21, 43.24
Equal Protection Fourteenth Amendment
Proof Beyond A In re Winship Art. 1.08
Exclusionary Rule Mapp v. Ohio Art. 38.23
Habeas Corpus Texas – Art. 1, Sec. 12 Art. 1.08
PRACTICE TIPS FOR MAKING OBJECTIONS
+ TIP 1: IF YOU ANTICIPATE THAT OBJECTIONABLE MATERIAL WILL BE OFFERED OR INTRODUCED BY THE OPPOSITION, CONSIDER USING A MOTION INLIMINE TO BRING THIS TO THE ATTENTION OF THE COURT WELL BEFORE THE JURY EVER HEARS ANY REFERENCE TO THE OBJECTIONABLE MATTER. YOUR GOAL IS TO SHIELD THE JURY FROM EXPOSURE TO INADMISSIBLE EVIDENCE. (1 – PRESERVING ERROR IN FEDERAL COURT; 13 PAGES)
+ TIP 2:IF YOU MOVE TO EXCLUDE OR SUPPRESS EVIDENCE AND YOUR MOTION TO EXCLUDE OR SUPPRESS IS NOT GRANTED, BE SURE THAT YOU OBTAIN A SPECIFIC PRETRIAL RULING THAT THE TRIAL JUDGE STATES IS DEFINITIVE. OTHERWISE, TO PRESERVE ERROR, YOU WILL HAVE TO OBJECT TO THE ADMISSION OF THE EVIDENCE AGAIN AT THE TIME IT IS OFFERED AT TRIAL. SEE RULE 103 (a) FRE AND TRE.
+ TIP 3:IF YOU HAVE TRIED UNSUCCESSFULLY TO KEEP THE GOVERNMENT FROM IMPEACHING THE DEFENDANT WITH A PRIOR CONVICTION PURSUANT TO THE INTERNAL BALANCING TEST OF RULE 609, YOU WILL NOT BE ALLOWED TO APPEAL THE COURT’S DECISION TO ALLOW THE IMPEACHMENT, UNLESS YOUR CLIENT TAKES THE STAND AND EXPOSES HIMSELF TO THE IMPEACHMENT. SEE LUCE V. UNITED STATES, 469 U.S. 38 (1984).
+ TIP 4: BE VERY CAREFUL WHEN YOU MAKE A SO-CALLED “RUNNING OBJECTION”; BE CERTAIN THAT YOUR ORIGINAL OBJECTION IS AS PERFECTLY FORMED AS POSSIBLE; DO NOT TREAT YOUR RUNNING OBJECTION AS CARRYING OVER TO ALL WITNESSES; WITH EACH NEW WITNESS WITH WHOM THE OBJECTIONABLE SUBJECT IS RAISED, EXPRESSLY STATE YOUR OBJECTION INTO THE RECORD AND ASK FOR A RUNNING OBJECTION TO ANY SUCH INQUIRIES OF THAT WITNESS. TEXAS LAWYERS – SEE THIS 4 PAGE ARTICLE
+ TIP 5: THE REMAINDER RULE AND THE RULE OF OPTIONAL COMPLETENESS DO NOT MAKE OTHERWISE INADMISSIBLE EVIDENCE ADMISSIBLE. REMEMBER THAT THE REMAINDER RULE OF RULE 106 TRE AND FRE ONLY APPLIES TO WRITINGS OR RECORDED STATEMENTS; IF YOU OFFER EVIDENCE OTHER THAN A WRITING OR RECORDED STATEMENT, THE OPPOSITION DOES NOT HAVE A RIGHT AT THE TIME OF THAT OFFER TO INTRODUCE ANOTHER PART OF THAT EVIDENCE, EVEN IF IT IS ADMISSIBLE. THE REMAINDER RULE DOES NOT APPLY UNLESS THE EVIDENCE YOU ARE OFFERING IS A WRITING OR RECORDED STATEMENT. [TEXAS LAWYERS: BE AWARE THAT RULE 107 TRE CREATES AN ADDITIONAL RULE OF EVIDENCE FOR TEXAS TRIALS – THE RULE OF OPTIONAL COMPLETENESS (ROC) NOT CONTAINED IN THE FRE. THE ROC IS BROADER THAN THE REMAINDER RULE OF RULE 106 FRE & TRE. THE ROC APPLIES TO ACTS, DECLARATIONS, AND CONVERSATIONS, AS WELL AS TO WRITINGS AND RECORDED STATEMENTS; HOWEVER, THE ROC DOES NOT ALLOW CONTEMPORANEOUS INTRODUCTION OF SUCH UNWRITTEN OR RECORDED ACTS, DECLARATIONS, AND CONVERSATIONS, ASSUMING THEY ARE OTHERWISE ADMISSIBLE.]
+ TIP 6:IN LIEU OF ACTUAL EVIDENCE, OFFER TO STIPULATE TO OTHERWISE ADMISSIBLE PRIOR CONVICTIONS ALLEGED FOR ENHANCEMENT. ARGUE THAT THIS WILL PREVENT UNFAIR PREJUDICE, E.G., UNDER RULE 403 FRE & TRE; CITE THE USSC CASE OF OLD CHIEF V. UNITEDSTATES, 519 U.S. 172 (1997). IF THE COURT DENIES YOUR REQUEST FOR AN AGREED STIPLATION OF THE PRIORS, OBJECT THAT THE RULING IS UNFAIRLY PREJUDICIAL IN THAT THE DANGER OF UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHS THE PROBATIVE VALUE OF ALLOWING INTRODUCTION OF REAL EVIDENCE OF THE PRIORS.
+ TIP 7:IF YOUR OPPONENT TRIES TO INTRODUCE A SUMMARY WITHOUT MAKING ARRANGEMENTS FOR YOU TO SEE THE UNDERLYING MATERIALS AT A REASONABLE TIME AND PLACE OUT OF COURT, OBJECT TO THE SUMMARY UNDER RULE 1006 FRE & TRE.
+ TIP 8:OBJECT IF YOUR OPPONENT TRIES TO REQUIRE YOUR WITNESS TO CHARACTERIZE THE TESTIMONY OF ANOTHER WITNESS, E.G., AS WHERE A PROSECUTOR ASKS A DEFENDANT TESTIFYING IN HIS OWN BEHALF WHETHER A POLICE OFFICER WITNESS WAS LYING WHEN THE OFFICER SAID SOMETHING INCRIMINATING ABOUT THE DEFENDANT. YOUR OBJECTION SHOULD BE THAT THE QUESTION CALLS FOR IMPROPER CHARACTER EVIDENCE. YOU CAN ALSO ADD THAT THE QUESTION IS ARGUMENTATIVE. YOU CAN ALSO ARGUE THAT IT CALLS FOR IMPROPER OPINION EVIDENCE. THE REASON WHY SUCH A QUESTION CALLS FOR IMPROPER CHARACTER EVIDENCE IS THAT IT ASKS ONE WITNESS TO COMMENT ON THE CREDIBILITY OF ANOTHER WITNESS IN AN IMPROPER FORM. THE RULES OF EVIDENCE, E.G., RULE 608 FRE & TRE, MAY ALLOW ONE WITNESS TO VENTURE AN OPINION REGARDING THE TRUTH AND VERACITY OF ANOTHER WITNESS WHEN A SUFFICIENT SHOWING OF FAMILIARITY IS SHOWN; BUT THE RULES DO NOT ALLOW THE OPINION CHARACTER WITNESS TO VENTURE AN OPINION ON THE TRUTH OF THE TESTIMONY OF ANOTHER WITNESS. NEITHER LAY NOR EXPERT WITNESSES SHOULD BE ALLOWED TO TESTIFY THAT ANOTHER WITNESS IS LYING OR FAKING. THAT DETERMINATION IS FOR THE JURY. IN SUPPORT OF THE OBJECTION, ALSO CITE THE RULE 403 FRE & TRE PROHIBITION AGAINST UNFAIR PREJUDICE AND ARGUE THAT THE PROBATIVE VALUE OF SUCH EVIDENCE IS SUBSTANTIALLY OUTWEIGHED BY THE FACT THAT SUCH A QUESTION UNFAIRLY PLACES THE WITNESS IN SUCH AN UNFLATTERING LIGHT AS TO POTENTIALLY UNDERMINE HIS ENTIRE TESTIMONY. ARGUE THAT OPPOSING COUNSEL SHOULD BE ARTICULATE ENOUGH TO SHOW THE JURY WHERE THE TESTIMONY OF WITNESSES DIFFER WITHOUT HAVING THE WITNESS COMMENT ON THE CREDIBILITY OF ANOTHER WITNESS.
+ TIP 9: EVIDENCE OF UNCHARGED CONDUCT ADMISSIBLE UNDER RULE 404(b) FRE & TRE STILL MAY BE EXCLUDED UNDER RULE 403 FRE & TRE IF ITS PROBATIVE VALUE IS SHOWN TO BE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE; NOTE THAT THE BURDEN OF PROOF IS ON THE OPPONENT OF THE EVIDENCE, I.E., THE OBJECTING PARTY, NOT THE PARTY, PROPONENT, SEEKING TO INTRODUCE THE UNCHARGED CONDUCT EVIDENCE.
+ TIP 10:RULE 602 FRE & TRE REQUIRING PERSONAL KNOWLEDGE OF ALL FACT WITNESSES OTHER THAN EXPERTS APPLIES TO HEARSAY DCLARANTS AS WELL AS IN-COURT DECLARANTS. YOU MAY OBJECT TO LACK OF KNOWLEDGE ON THE PART OF THE HEARSAY DECLARANT.
+ TIP 11:BE WARY OF DYING DECLARATIONS BY THE PROSECUTION IN JURISDICTIONS WHERE LAW ENFORCEMENT OFFICERS HAVE BEEN TRAINED TO TELL VICTIMS OF HOMICIDAL VIOLENCE, “IT DOESN’T LOOK GOOD, BUDDY. I DON’T THINK YOU’RE GONNA MAKE IT. IS THERE ANYTHING YOU’D LIKE TO SAY ABOUT WHO HURT YOU OR WHY?” SEE THE EXPLANATION OF CRAWFORD ON THE MOTIONS PAGE. [NOTE: UNDER RULE 804(B)(2) FRE, DYING DECLARATIONS ARE ADMISSIBLE IN FEDERAL CRIMINAL CASES ONLY WHEN THE PROSECUTION IS FOR SOME FORM OF CRIMINAL HOMICIDE. ON THE OTHER HAND, TRE 804(B)(2) DOES NOT RESTRICT THE ADMISSIBILITY OF DYING DECLARATIONS TO CRIMINAL HOMICIDE CASES, BUT IT DOES REQUIRE THAT THE DECLARANT BE UNAVAILABLE. THERE IS NO CAUSE OF ACTION RESTRICTION AS TO THE ADMISSIBILITY OF DYING DECLARATIONS IN FEDERAL OR TEXAS CIVIL CASES.]
+ TIP 12:IF YOU WANT TO INTRODUCE EVIDENCE THAT MAY BE CONTROVERSIAL, ANTICIPATE THE EVIDENTIARY PROBLEMS IN ADVANCE AND CONSIDER ALERTING THE JUDGE THAT YOU WISH TO MAKE AN OFFER OF PROOF; YOU CAN FILE A MOTION TO ADMIT IN WHICH YOU EXPLAIN THAT YOU PLAN TO INTRODUCE CERTAIN EVIDENCE AND ANTICIPATE A POSSIBLE OBJECTION TO SUCH EVIDENCE; LET THE COURT KNOW THAT IF THE OPPOSITION’S OBJECTION IS SUSTAINED, YOU WISH TO MAKE AN OFFER OF PROOF OR PROFFER; BE READY TO MAKE WITNESS OFFER OF PROOF, RATHER THAN A LAWYER OFFER, IF THE OTHER SIDE DEMANDS IT; BE CERTAIN TO GET A RULING ON YOUR OFFER OF PROOF (PROFFER); SOMETIMES JUDGES WILL CHANGE THEIR RULINGS AFTER HEARING THE OFFER OF PROOF AND KNOWING IT MAY NOW BE A GROUND FOR APPEAL.
+ TIP 13:BE ZEALOUS IN REQUIRING THE COURT TO ENFORCE THE RULES OF THE GAME, BUT BE CONSISTENTLY CIVIL WITH THE COURT IN MAKING YOUR OBJECTIONS. DON’T BE A HYPERCRITICAL, CARPING CENSOR TOO READY TO RAISE OBJECTIONS TO TRIVIAL MATTERS. JUDGES USUALLY HAVE WIGGLE ROOM WITH REGARD TO EVIDENCE. YOUR OVERALL ATTITUDE IN MAKING AND RESPONDING TO OBJECTIONS CAN INFLUENCE THE TRIAL JUDGE TO WIGGLE TOWARD YOU OR AWAY FROM YOU. YOUR REPUTATION AS AN ADVOCATE KNOWLEGEABLE OF THE RULES MAY PRECEDE YOU. RUMOR HAS IT THAT JUDGES GOSSIP ABOUT LAWYERS LIKE OLD MAIDS DO ABOUT ROUGH SEX.
+ TIP 14:OBJECT IF OPPOSING COUNSEL EXCUSES A SUBPOENAED WITNESS, BEFORE OR DURING TRIAL, WITHOUT THE COURT’S APPROVAL. ONLY THE COURT CAN EXCUSE A SUBPOENAED WITNESS.
+ TIP 15:IF YOU CALL AN ADVERSE PARTY OR A WITNESS ALIGNED OR IDENTIFIED WITH THE OPPOSITION, REMEMBER THAT YOU CAN OBJECT TO THE OPPOSITION LEADING THE ADVERSE WITNESS ON CROSS. (IN THIS SITUATION, YOU ALSO HAVE THE RIGHT TO LEAD THE ADVERSE WITNESS ON DIRECT.)
+ TIP 16:OBJECT BEFORE THE DAMAGE IS DONE.
+ TIP 17:LEARN TO WEAVE THE PHILOSOPHICAL PURPOSE OF THE EVIDENTIARY RULES INTO THE SUBSTANCE OF YOUR OBJECTION.
+ TIP 18: BE SURE TO CLARIFY THE IMPROPER NON-VERBAL GESTURES OF YOUR OPPONENT (OR THE JUDGE) FOR THE RECORD BY DICTATING A VERBAL DESCRIPTION OF WHAT HAPPENED. NEVER FORGET THAT AS FAR AS THE APPELLATE COURT IS CONCERNED IFITISN‘TINTHERECORD, ITDIDN‘THAPPEN!
+ TIP 19:AS A GENERAL RULE, DURING THE TRIAL, DON’T GO “OFF THE RECORD.” THIS MEANS THAT YOU SHOULD NOT ACCEDE TO THE COURT’S REQUEST TO DISCUSS THE CASE OFF THE RECORD. IF THE COURT INSISTS THAT ITS WORDS BE OFF THE RECORD AND ORDERS THE COURT REPORTER NOT TO TRANSCRIBE ITS COMMENTS, WAIT UNTIL THE COURT IS FINISHED. DO NOT INTERRUPT THE COURT, AND DO NOT MAKE ANY OFF THE RECORD RESPONSE OR COMMENT. IF THE COURT’S OFF THE RECORD COMMENTS ARE OF SUFFICIENT CONTENT, WAIT UNTIL TESTIMONY RESUMES, AND STATE INTO THE RECORD WHAT THE COURT SAID IN ITS “OFF THE RECORD” COMMENTS TO YOU. [NOTE: THIS WILL NOT ENDEAR YOU TO THE COURT, BUT WILL PROTECT YOUR CLIENT AND SERVE AS NOTICE THAT YOU WON’T SUBMIT TO BULLYING TACTICS BY THE JUDGE.]
+ TIP 20: REMEMBER THAT YOU STILL HAVE A GOOD HEARSAY OBJECTION WHEN YOUR OPPONENT ASKS A WITNESS TO PARAPHRASE OR SUMMARIZE WHAT A DECLARANT SAID. THE CUNNING OPPONENT MAY TRY THIS PARLOR TRICK BY SAYING, “WITHOUT TELLING US EXACTLY WHAT WAS SAID, TELL US THE GIST OF WHAT YOUR INVESTIGATION REVEALED.”
+ TIP 21:DON’T FORGET TO ASSERT YOUR RIGHT TO A LIMITING INSTRUCTION WHEN THE OPPOSITION’S EVIDENCE IS ADMISSIBLE ONLY FOR A LIMITED PURPOSE. BECAUSE THE LIMITING INSTRUCTION EMPHASIZES THE EVIDENCE IN QUESTION, YOUR DISCRETION MUST GOVERN WHETHER IT IS IN YOUR BEST INTEREST TO RAISE THE ISSUE OF A LIMITING INSTRUCTION. IF YOU ARE ENTITLED TO A LIMITING INSTRUCTION ON A CRUCIAL ITEM OF EVIDENCE AND THE TRIAL JUDGE REFUSES TO GIVE IT, YOU MAY HAVE A GOOD POINT FOR APPEAL.
+ TIP 22:WHEN YOU ARE OBJECTING TO YOUR OPPONENT’S FAILURE TO ESTABLISH AN EVIDENTIARY FOUNDATION OR PREDICATE THROUGH A WITNESS’ ANSWERS, REMEMBER THAT THE PROPONENT OF THE EVIDENCE MUST GENERALLY CONVINCE THE TRIAL JUDGE BY A PREPONDERANCE OF THE EVIDENCE THAT THE FOUNDATION FACTS ARE TRUE.
+ TIP 23:CERTAIN FRONT END PREFATORY WORDS, E.G., “SO,” OR PHRASES, E.G., “WOULD YOU SAY,” ARE GIVEAWAYS THAT A QUESTION WILL BE LEADING. QUESTIONS THAT CONTAIN PHRASES LIKE “COULD YOU, ” “WHAT IF,” “DO YOU SUPPOSE,” ETC., OFTEN PRESAGE A QUESTION THAT ASKS THE WITNESS TO SPECULATE.
+ TIP 24:THE RULES OF EVIDENCE APPLY TO JURY ARGUMENT. THERE ARE A NUMBER OF SPECIFIC OBJECTIONS YOU CAN MAKE TO THE OPPOSITION’S JURY ARGUMENT. OBJECT TO THE OPPOSITION’S ARGUMENT SPARINGLY, E.G., WHEN YOU ARE CERTAIN THAT YOU HAVE A GOOD SUBSTANTIVE OBJECTION FOR APPEAL. REMEMBER THAT THE PROSECUTION HAS NO APPEAL FROM AN IMPROPER DEFENSE JURY ARGUMENT, BUT “WHEN YOU STRAY, YOU MAY HAVE TO PAY” UNDER THE “REPLY DOCTRINE,” THE “INVITED ARGUMENT RULE,” OR THE “OPENING THE DOOR” THEORY. THESE ARE THREE LABELS FOR THE RULE OF JURY ARGUMENT, RECOGNIZED IN SOME CASES, THAT ALLOWS ONE SIDE TO REPLY TO IMPROPER ARGUMENT OF THE OTHER SIDE.
+ TIP 25: SHARPEN YOUR OBJECTING SKILLS BY PLAYING EVIDENCE/OBJECTION GAMES. HARVARD EVIDENCE PROFESSOR NESSON’S WEB SITE HAS A LONG LIST OF EVIDENCE PROBLEMS. HOW DO YOU GET IT IN, AND HOW DO YOU KEEP IT OUT? WHAT IS THE PROPER OBJECTION AND RESPONSE? NOTE THAT THE HARVARD PROFESSOR HAS A LINK TO THE FEDERAL RULES OF EVIDENCE AT THE BOTTOM OF THE PROBLEM PAGE. USE THE RULES AS A RESOURCE IN TRYING TO SOLVE THE EVIDENCE PROBLEMS.
PRACTICE TIPS FOR MEETING AND DEFEATING OBJECTIONS
+ TIP 1:RULE 404(b) FRE & TRE UNCHARGED MISCONDUCT EVIDENCE CAN BE OFFERED FOR ANY PROPER PURPOSE OTHER THAN PROOF OF ACTION IN CONFORMITY THEREWITH (WE CALL THIS IMPROPER PURPOSE “PROPENSITY EVIDENCE.”); NOTE THAT THE STATED EXAMPLES, I.E., MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, ABSENCE OF MISTAKE, OR ACCIDENT, ARE NOT EXCLUSIVE; RATHER, THEY ARE SIMPLY EXAMPLES OF PROPER PURPOSES FOR PROOF OF UNCHARGED MISCONDUCT.
+ TIP 2:WHEN INTRODUCING BUSINESS RECORDS, VET THEM IN ADVANCE TO BE CERTAIN THEY DON’T INCLUDE MATERIALS RECEIVED FROM OUTSIDE SOURCES THAT DON’T COMPLY WITH THE PREDICATE REQUIREMENTS, E.G., NOT WITHIN THE KNOWLEDGE OF THE RECORD MAKER.
+ TIP 3:THE EXCEPTION ALLOWING HEARSAY STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT CAN BE A STATEMENT MADE TO THE “LITIGATION” DOCTOR AS WELL AS TO THE “TREATING” DOCTOR. SEE RULE 803(4) FRE & TRE.
+ TIP 4:AN ADOPTIVE ADMISSION (STATEMENT) UNDER RULE 801(d)(2)(B) FRE & RULE 801(e)(2)(B) TRE DOES NOT HAVE TO BE MADE IN THE PRESENCE OF THE DEFENDANT; ALL THAT IS NECESSARY IS PROOF THAT THE DEFENDANT HAS MANIFESTED AN ADOPTION OF BELIEF IN ITS TRUTH.
+ TIP 5:REMEMBER THAT RULE 806 FRE & TRE ALLOWS YOU TO IMPEACH THE CREDIBILITY FOR A NON-WITNESS CO-CONSPIRATOR DECLARANT, WHOSE STATEMENT IS OFFERED AGAINST YOUR CLIENT, BY ANY EVIDENCE THAT WOULD BE ADMISSIBLE FOR SUCH PURPOSE IF THE DECLARANT HAD ACTUALLY TESTIFIED AS A WITNESS. THIS INCLUDES YOUR RIGHT TO IMPEACH THE NON-TESTIFYING DECLARANT WITH PROOF OF: (1) ADMISSIBLE PRIOR CONVICTIONS UNDER RULE 609 FRE & TRE; (2) LACK OF PERCEPTION; (3) BIAS OR ANIMUS OR INTEREST; (4) PRIOR INCONSISTENT STATEMENT UNDER RULE 613 FRE & TRE WITHOUT THE NECESSITY OF AFFORDING THE DECLARANT AN OPPORTUNITY TO DENY OR EXPLAIN; (5) BAD CHARACTER EVIDENCE RE TRUTHFULNESS UNDER RULE 608 FRE & TRE, ETC. [NOTE: IT MAKES SENSE THAT THE RULES ALL0W YOU TO MAKE THIS ATTACK ON A NON-WITNESS. OTHERWISE, YOUR OPPONENT COULD WALL OFF IMPEACHING EVIDENCE SIMPLY BY INTRODUCING THE CO-CONSPIRATOR’S OUT-OF- COURT STATEMENTS AND KEEPING THE CO-CONSPIRATOR OFF THE STAND.]
+ TIP 6:IF YOU PLAN TO INTRODUCE A SUMMARY OF VOLUMINOUS WRITINGS, RECORDINGS, AND/OR PHOTOGRAPHS THAT CANNOT BE CONVENIENTLY EXAMINED IN COURT, BE SURE TO MAKE ARANGEMENTS FOR THE OPPOSITION TO VIEW THE DOCUMENTS UNDERLYING THE SUMMARY MATERIALS AT A REASONABLE TIME AND PLACE. BEND OVER BACKWARDS TO ACCOMMODATE THE OPPOSITION BECAUSE THE COURT HAS THE POWER TO ORDER THAT THE MATERIALS BE PRODUCED IN COURT. SEE RULE 1006 FRE & TRE. ALSO, IF YOUR SUMMARY INCLUDES BUSINESS RECORDS, SAVE YOURSELF THE TROUBLE OF HAVING TO CALL A LIVE AUTHENTICATING WITNESS BY USING A SELF-AUTHENTICATION CERTIFICATE TO ESTABLISH THE NECESSARY PREDICATE FOR THE EXCEPTION. SEE RULE 902 FRE & TRE, CONTAINING THE FORM FOR THE CERTIFICATE.
+ TIP 7:IF YOUR OBJECTION TO EVIDENCE IS SUSTAINED AND THE OPPOSING COUNSEL MAKES AN OFFER OF PROOF, REQUEST THAT THE OFFER OF PROOF BE IN WITNESS FORM, I.E., THAT THE OFFER OF PROOF BE IN Q & A OF THE WITNESS. YOU HAVE THIS RIGHT UNDER RULE 103(B) TRE. HOWEVER, FRE 103(C) VESTS THE TRIAL JUDGE WITH THE DECISION OF WHETHER THE OFFER OF PROOF IS TO BE IN Q & A FORM. DURING THE PROFFER (OFFER OF PROOF), WHEN THE OPPONENT IS FINISHED WITH HIS DIRECT QUESTIONS OF THE WITNESS YOU SHOULD BE ENTITLED TO CROSS-EXAMINE THE WITNESS DURING THE OFFER OF PROOF RE THE ADMISSIBILITY OF THE DISPUTED EVIDENCE. BLUNT THE FORCE OF THE OPPONENT’S OFFER OF PROOF BY SHOWING ITS EVIDENTIARY FALLIBILITY. OTHERWISE, THE OPPONENT’S LAWYER OFFER OF PROOF MAY BE SO WHOLLY ONE-SIDED THAT THE COURT WILL REVERSE ITS RULING AND ADMIT THE HARMFUL EVIDENCE.