HBA Evidence – Keeping It In

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EVIDENCE
Keeping It In, Keeping It Out – Preservation of Error
Through Making and Meeting Objections In Texas
Family Law
By:
John F. Nichols, Sr.
Presented To The
Houston Bar Association
Family Law Section Luncheon
November 7, 2012
Houston, Texas
1
I.
Introduction
This article covers the “basics” of evidence, predicates and
foundations, and preserving error in the ten (10) phases of a
family law case as outlined in O’Conner’s Texas Family Law
Handbook.
2
II. Scope of Article
The article is divided into the ten phases of a Texas
family law case:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Pre-trial hearings, motions, and conferences;
Jury selection (if applicable);
Opening statements;
Presentation of evidence;
Motion for directed verdict;
Charge conference (if applicable);
Closing arguments;
Receipt of verdict;
Post-verdict motions; and
Request for findings (non-jury).
3
III. Library References
The following are “must have” publications in their latest
version:
Texas Objections – James Publishing;
Family Law Section Tool Kit;
Family Law Section Predicates Manual;
O’Connor’s – Texas Rules of Evidence;
O’Connor’s – Texas Family Law Handbook;
Judge Wenke’s – Making and Meeting Objections;
O’Connor’s Texas Civil Trials;
Steven Lubet’s Modern Trial Advocacy 3rd Edition;
and
(9) ABA’s Electronic Evidence and Discovery Handbook.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
4
IV. Texas Bar CLE References
The best deal going!
State Bar of Texas Online Library – 16,000+ articles.
$295.00 per year!!!
(subscription)
5
V.
Appendices
(1)
(2)
(3)
(4)
(5)
(6)
Common Objections and Comments;
Quick Reference Guide to Commonly Used
Predicates and Foundations;
Procedure For Making and Meeting
Objections;
Tool Kit Objections Checklist;
Table of Authorities; and
63 types, kinds, and “phrases” of evidence.
6
VI. Basics of Evidence
Page 3 of the outline lists the 63 types, kinds, and phrases
of evidence.
See Black’s Law Dictionary, 9th Edition 2011 by Professor
Bryan Garner.
7
VII. Documentary & Demonstrative Evidence
A. The Basics.
M - Mark
I - Identify
A - Authenticate
O - Offer
8
VIII. Documentary & Demonstrative Evidence
B. The “Evidentiary Tree” -- Overview
1. Preliminary questions – Rule 104
2. Relevance – Rule 401
3. Authenticity – Rule 901
4. Self authentication – Rule 902
5. Hearsay & exceptions – Rule 801, 803
6. Best evidence rule – Rule 1001-1008
7. Probative value vs unfair prejudice – Rule
403
9
Rule 104 – Preliminary Questions
For Admissibility
1. Qualifications to be a witness.
2. Existence of privilege.
3. Admissibility of evidence determined by the
court.
4. Relevancy conditioned on fact – “connecting it
up.”
10
Rule 401 - Relevance
1. Does it have the tendency to make the existence of
any fact “more or less probable?”
2. Relevance does not have to carry any particular
weight.
3. The question is: “Does it have any tendency to prove
or disprove a consequential fact in the litigation?”
11
Rule 901 - Authenticity
1.
Testimony of witness with knowledge: Rule
901(b)(1).
2.
Comparison by the trier of fact, or by expert
witnesses, with a specimen which has been
authenticated: Rule 901(b)(3).
3.
Circumstantial
Rule 901(b)(4).
proof
of
the
evidence
itself:
12
Rule 901 - Authenticity
4.
Public records. Rule 901(b)(1).
5.
Evidence produced as a result of an accurate
process or system. Rule 901(b)(9).
13
Rule 902 – Self Authentication
1.
Official publications: Rule 902(5).
2.
Self authentication by inscriptions, signs, tags or
labels: Rule 902(7).
3.
Authentication of regularly conducted business:
Rule 902(11).
14
Rule 801 & 803– Hearsay & Exceptions
Rule 801 – Hearsay – Electronic Evidence
1. Is an electronic writing a statement by a declarant
within the meaning of 801(a)?
2. A computer generated printout does not involve a
person, so it cannot be hearsay.
3. The “header” on a fax is not hearsay.
4. Email offered to prove that a relationship existed
between two parties to the conversation is not
hearsay, it is an “operative fact.”
15
Rule 801 & 803 – Hearsay & Exceptions
5. E-mails between parties to a contract that
define the terms of a contract, or prove it’s
content are not hearsay they are operative
facts.
6. A failure to raise a hearsay objection means
that the evidence may be considered for
whatever probative value the finder-of-fact
chooses to give it.
16
Rule 801 & 803 – Hearsay & Exceptions
Rule 803 – Hearsay Exceptions and Electronically
Stored Information.
1. Rule 803(1) – Present sense impression.
2. Rule 802(2) – Excited utterance.
3. Rule 803(3) – Then existing state of mind or
condition.
4. Rule 803(6) – Business records.
17
Rule 801 & 803 – Hearsay & Exceptions
5. Rule 803(8) – Public records.
6. Rule 803(17) – Market reports, commercial publications.
18
Rule 1001-1008 – Best Evidence Rule
1. Printout of e-mails shown to reflect the data
accurately, is an original (and not the screen).
2. The question is: Does it accurately reflect the
data?
19
Rule 403 – Balance of Probative
Value With Unfair Prejudice
Electronically stored information has been found to be
unduly prejudicial:
1. when it contains offensive or highly derogatory
language;
2. when there is substantial danger that a jury
might mistake computer animation for actual
events;
3. when considering summary evidence; and,
4. when the court is concerned with the reliability
20
of the accuracy of the information.
D. Examples of Predicates for Admissibility:
1. Photographs
2. Business records
3. Audios
4. Videos
5. Map
6. Financial information statements
7. Handwritten letters
8. Police reports
9. Object of clothing
21
10. Bank records
11. Deposition excerpts
12. Summaries
13. Expert reports
14. Mental health records
15. E-mails
16. Summaries of testimony
22
VIII. Be Judicious in your Objections
Don’t object unless the evidence
will hurt your case.
23
IX. There are two (2) kinds of Evidence:
1.
Direct Evidence – See, hear, touch, or smell –
lipstick on collar.
2.
Circumstantial Evidence – Logical and legal
inferences from facts proved – bucket of
paint on car.
24
X. There are three (3) Forms of Evidence:
1. Testimonial – Oral of written (depositions)
2. Nontestimonial Evidence:
A. Documentary – paper:
(1)
(2)
(3)
(4)
(5)
Business Records
Medical Records
Computer Records
Government Records
Publications
25
X. There are three (3) Forms of
Evidence: (con’t)
B. Demonstrative – things:
(1)
(2)
(3)
(4)
(5)
Clothing
Charts
Videos
Photographs
Body language
3. Electronic Evidence (Hybrid):
A. Testimonial
B. Nontestimonial
(1)
(2)
(3)
(4)
Wiretaps
E-Mails
Videos
Audiotapes
26
XI. Predicates/Foundations:
1.
Admissions
(1) Party opponent
(2) Implied admission
(3) Judicial admission
2.
Authentication
(1)
(2)
(3)
(4)
(5)
Writing
Voice (telephone calls)
Physical items clothing
Photographs
Tape recordings
27
XI. Predicates/Foundations: (con’t)
3.
Self Authentication
(1)
(2)
(3)
(4)
(5)
(6)
(7)
4.
Public documents
Certified copies
Official publications
Public documents
Newspapers / periodicals
Business records affidavit
Attorneys fees affidavit
Best Evidence Rule
(1) Original required (Auth Q’ed)
(2) Original not required
28
XI. Predicates/Foundations: (con’t)
5. Character Evidence
(1) Reputation
(2) Truthful / untruthful
6. Charts/Diagrams
7. Depositions
8. Foreign Law
(1) State
(2) Country 30 day notice / translation
29
XI. Predicates/Foundations: (con’t)
9.
Goodwill
(1) Personal
(2) Business
10. Hearsay
(1) Operative facts
(2) Hearsay exceptions
11. Impeachment (Credibility)
(1) Live Testimony
(2) Deposition
30
XI. Predicates/Foundations: (con’t)
12. Judicial Notice
(1) Adjudicative Facts (TRE 201)
- generally known
- easily determined
- relevance
- request must be made
(2) Legislative Facts
- helps court determine legal reasoning and law
making process
(3) Law (Foreign State – TRE 202)
- motion
- copy of law attached
- fair notice to opposing party
- request must be made
31
XI. Predicates/Foundations: (con’t)
(4) Law (Foreign Country – TRE 203)
- 30 days notice
- translation to English
(5) Law (Ordinances, Agencies, Register)
- same requirements as TRE 202
13. Shorthand Rendition
(1) TRE 611 & 1006
- court controls mode of interrogation
- use of summaries
(2) Summaries prepared by witness
(3) Witness reviewed underlying data
(4) Witness describes underlying data
(5) Summary is fair compilation of exhibits
32
XI. Predicates/Foundations: (con’t)
14. Summaries
(1) TRE 1006
(2)
(3)
(4)
(5)
Voluminous data otherwise admissible
Not conveniently examined by court
Underlying data available for inspection
Court has discretion to relax best evidence rule
33
XII. General Rules in the Presentation
of Evidence:
1.
Relevance
(1) Does it make the evidence on a material point more or
less probable?
(2) Do pleadings raise the issue?
(3) Exclusion on special grounds its probative value is out
weighed by:
a. Danger of unfair prejudice
b. Confusing the issues
c. Undue delay
d. Cumulative
34
XII. General Rules in the Presentation
of Evidence: (con’t)
2.
Illegally Obtained Evidence
Q. It is admissible or inadmissible in a civil proceeding.
3.
Rulings on Evidence – Must have a ruling:
(1)
(2)
4.
Express; or
Inferred or implied.
Effect of Erroneous Ruling – no error unless a
substantial right of the party is affected.
35
XII. General Rules in the Presentation
of Evidence: (con’t)
5.
Exclusion of Evidence
(1) Make substance of excluded evidence known to court.
(2) Make offer of proof:
(a) What
(b) When
- Testimonial
- Documentary
- Demonstrative
6.
Mode of Interrogation of Witnesses
(1) It has reasonable control over mode and order of
interrogation of witnesses.
(2) Can avoid needless consumption of time.
(3) Protect witnesses from harassment and undue
36
embarrassment.
XII. General Rules in the Presentation
of Evidence: (con’t)
7.
Scope of Cross-Examination
(1) Restricted
(2) Wide Open – any matter relevant to any issue in the
case, including credibility.
8.
Leading Questions
(1) Adverse witness, party
(2) Hostile witness
9.
Opinion Testimony
(1) Expert opinion
(2) Lay opinion
37
XII. General Rules in the Presentation
of Evidence: (con’t)
10. Expert Qualifications
(1) Hard science
(2) Soft science
11. Remainder of Related Writings – When in fairness, it
should be considered contemporaneously.
12. Piggyback Objections
(1) General
(2) Specific
(3) Joinder
38
XII. General Rules in the Presentation
of Evidence: (con’t)
13. Settlement (Objection) Negotiations
(1) “Opening the door”
(2) TRE 408
14. Criminal Prosecutions
(1) Conviction (timing)
(2) Punitive damages
15. Rules for Preservation of Error on Trial Objections
(1) You must object
(2) You must object timely, in the first instance
39
XII. General Rules in the Presentation
of Evidence: (con’t)
16. Mode of Making Objections
(1) Written Objections
- Before trial
- During trial
(2) Oral Objections
- Running
- Repetitive
(3) Specific, not general
17. Common Objections
(1)
(2)
(3)
(4)
(5)
Asked and answered
Argumentative
Assumes facts not in evidence
Best evidence
Compound
40
XII. General Rules in the Presentation
of Evidence: (con’t)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
Demonstrative evidence lacks foundation
Hearsay
Immaterial
Incompetence – no personal knowledge
Judicial notice – court file
Leading and suggestive
Misstates former testimony
Non-responsive
Calls for opinion / conclusion
Violates parole evidence rule
Privilege
Call for general narrative
Refresh recollection (mind is evidence)
Speculation / conjecture
41
XII. General Rules in the Presentation
of Evidence: (con’t)
18. Conduct of Counsel
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
Prompting the witness
Attempting to intimidate witness
Side bar remarks
Arguing with witness
Testifying
Allusive language
Failure to maintain place at bar
Privileged communication
Assumes facts not in evidence
Collateral source rule
Disqualified / violation of “The Rule”
Hypothetical assumes fact / not in evid.
42
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