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)
Pre-trial hearings, motions, and conferences;
Jury selection (if applicable);
Opening statements;
Presentation of evidence;
Motion for directed verdict;
(6)
(7)
(8)
(9)
Charge conference (if applicable);
Closing arguments;
Receipt of verdict;
Post-verdict motions; and
(10) Request for findings (non-jury).
3

III. Library References
The following are “must have” publications in their latest version:
(1) Texas Objections – James Publishing;
(2) Family Law Section Tool Kit;
(3) Family Law Section Predicates Manual;
(4) O’Connor’s – Texas Rules of Evidence;
(5) O’Connor’s – Texas Family Law Handbook;
(6) Judge Wenke’s – Making and Meeting Objections;
(7) O’Connor’s Texas Civil Trials;
(8) Steven Lubet’s Modern Trial Advocacy 3 rd Edition; and
(9) ABA’s Electronic Evidence and Discovery Handbook.
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, 9 th 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 proof of the evidence itself:
Rule 901(b)(4).
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.
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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

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 of the accuracy of the information.
20

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
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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) Business Records
(2) Medical Records
(3) Computer Records
(4) Government Records
(5) Publications
25

X. There are three (3) Forms of
Evidence: (con’t)
B. Demonstrative – things:
(1) Clothing
(2) Charts
(3) Videos
(4) Photographs
(5) Body language
3. Electronic Evidence (Hybrid):
A. Testimonial
B. Nontestimonial
(1) Wiretaps
(2) E-Mails
(3) Videos
(4) Audiotapes
26

XI. Predicates/Foundations:
1.
Admissions
(1) Party opponent
(2) Implied admission
(3) Judicial admission
2.
Authentication
(1) Writing
(2) Voice (telephone calls)
(3) Physical items clothing
(4) Photographs
(5) Tape recordings
27

XI. Predicates/Foundations: (con’t)
3.
Self Authentication
(1) Public documents
(2) Certified copies
(3) Official publications
(4) Public documents
(5) Newspapers / periodicals
(6) Business records affidavit
(7) Attorneys fees affidavit
4.
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
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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) Voluminous data otherwise admissible
(3) Not conveniently examined by court
(4) Underlying data available for inspection
(5) 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) Express; or
(2) Inferred or implied.
4.
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 embarrassment.
36

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) Asked and answered
(2) Argumentative
(3) Assumes facts not in evidence
(4) Best evidence
(5) Compound
40

XII. General Rules in the Presentation of Evidence: (con’t)
(6) Demonstrative evidence lacks foundation
(7) Hearsay
(8) Immaterial
(9) Incompetence – no personal knowledge
(10) Judicial notice – court file
(11) Leading and suggestive
(12) Misstates former testimony
(13) Non-responsive
(14) Calls for opinion / conclusion
(15) Violates parole evidence rule
(16) Privilege
(17) Call for general narrative
(18) Refresh recollection (mind is evidence)
(19) Speculation / conjecture
41

XII. General Rules in the Presentation of Evidence: (con’t)
18. Conduct of Counsel
(1) Prompting the witness
(2) Attempting to intimidate witness
(3) Side bar remarks
(4) Arguing with witness
(5) Testifying
(6) Allusive language
(7) Failure to maintain place at bar
(8) Privileged communication
(9) Assumes facts not in evidence
(10) Collateral source rule
(11)
Disqualified / violation of “The Rule”
(12) Hypothetical assumes fact / not in evid.
42