HEARSAY AN EXCEPTION FOR EVERY OBJECTION
Presented by:
JUDGE BONNIE SUDDERTH
nd
352 District Court – Tarrant County Justice Center
401 W. Belknap Street, 8th Floor
Fort Worth, Texas 76196
bsudderth@tarrantcounty.com
Co-Author:
STEPHEN J. NAYLOR
Law Office of Stephen J. Naylor, P.L.L.C.
101 Summit Avenue, Suite 906
Fort Worth, Texas 76116
sjn@naylorfamlaw.com
State Bar of Texas
25TH ANNUAL
ADVANCED EVIDENCE AND DISCOVERY COURSE 2012
Dallas - April 26-27, 2012
San Antonio – May 24-25, 2012
CHAPTER 17
Judge Bonnie Sudderth
Judge Bonnie Sudderth has served as judge of the 352nd District Court since 1996. She received
her J.D. in 1985 from the University of Texas School of Law, received her B.S., magna cum laude, from
the University of Southern California. She is Board Certified in both Personal Injury Trial Law and Civil
Trial Law by the Texas Board of Legal Specialization. Judge Sudderth is a Fellow of the College of the
State Bar of Texas.
Judge Sudderth is a Past President of the American Judges Association (2001-02) and has also
served as a Commissioner on the Texas Commission on Judicial Conduct (1991-1996), as a Member of the
Task Force Staff Diversity Committee of the Texas Commission on Judicial Efficiency (1996). Last year,
Judge Sudderth served as President of the Eldon B. Mahon Inn of Court in Tarrant County. She is a
Charter Member of the Tarrant County Bar Foundation and a Fellow of the Texas Bar Foundation. She also
serves on the State Bar of Texas Rules Committee.
In 2008, Judge Sudderth received the Outstanding Mentor Award at the local level from the Tarrant
County Young Lawyers Association as well as the Outstanding Mentor Award at the state level from the
Texas Young Lawyers Association. She was also recognized as the Outstanding Faculty Member by the
Texas Wesleyan Law School Alumni Association. Last year, Judge Sudderth received the Excellence in
Justice Award at the 2011 Power Attorney Awards Ceremony sponsored by the Fort Worth Business Press
and the Texas Wesleyan School of Law.
Judge Sudderth is also a two-time recipient of the State Bar of Texas’ “Best Series of Articles”
award for her contributions to the Tarrant County Bar Bulletin.
Hearsay - An Exception for Every Objection
Chapter 17
TABLE OF CONTENTS
I.
II.
III.
SCOPE OF ARTICLE. ...................................................................................................................................... 1
HEARSAY, GENERALLY. .............................................................................................................................. 1
STATEMENTS THAT ARE NOT HEARSAY. ............................................................................................... 1
A.
Non-Assertive Statement ...................................................................................................................... 1
B.
Computer Generated “Statements” ....................................................................................................... 2
1.
Computer-Stored Data ............................................................................................................. 2
2.
Computer-Generated Data ....................................................................................................... 2
3.
Metadata................................................................................................................................... 3
C.
Statement not Offered for its Truth ....................................................................................................... 3
D.
Operative Facts ..................................................................................................................................... 3
IV.
STATEMENTS WHICH, BY RULE, ARE NOT HEARSAY ......................................................................... 3
A.
Impeachment by Prior Inconsistent Statement...................................................................................... 3
B.
Prior Consistent Statement to Rebut. .................................................................................................... 4
C.
Statement of Identification. ................................................................................................................... 4
D.
Admissions by Party-Opponent ............................................................................................................ 4
1.
Pleadings and Other Statements Made By Attorneys. ............................................................. 4
2.
Statements from Interpreters. ................................................................................................... 5
3.
Admissions in the Context of Social Media............................................................................. 5
E.
Depositions ........................................................................................................................................... 5
1.
“Same Proceeding”. ................................................................................................................. 5
2.
Hearsay Within Hearsay. ......................................................................................................... 5
3.
Non-Hearsay vs. Hearsay Exception. ...................................................................................... 6
V.
EXCEPTIONS TO THE HEARSAY RULE – AVAILABILITY OF DECLARANT IMMATERIAL ........... 6
A.
TRE 803(1) Present Sense Impression.................................................................................................. 6
B.
TRE 803(2) Excited Utterance .............................................................................................................. 6
C.
TRE 803(3) Then Existing Mental, Emotional or Physical Condition ................................................. 7
D.
TRE 803(4) Statements for the Purposes of Medical Diagnosis or Treatment ..................................... 7
1.
Ongoing Treatment. ................................................................................................................. 7
2.
Scope of the Rule. .................................................................................................................... 8
E.
TRE 803(5) Recorded Recollection ...................................................................................................... 8
F.
TRE 803(6) Records of Regularly Conducted Activity ........................................................................ 9
1.
Foundation. .............................................................................................................................. 9
2.
Trustworthiness. ....................................................................................................................... 9
3.
Hearsay-Within-Hearsay........................................................................................................ 10
4.
Personal Records.................................................................................................................... 10
5.
Third-Party Documents .......................................................................................................... 11
G.
TRE 803(7) Absence of Entry In Records .......................................................................................... 11
H.
Public Records and Reports ................................................................................................................ 12
I.
TRE 803(9) Records of Vital Statistics............................................................................................... 12
J.
TRE 803(10) Absence of Public Record or Entry .............................................................................. 12
K.
TRE 803(11) Records of Religious Organizations ............................................................................. 13
L.
TRE 803(12) Marriage, Baptismal, and Similar Certificates .............................................................. 13
M.
TRE 803(13) Family Records ............................................................................................................. 13
N.
TRE 803(14) Records of Documents Affecting an Interest in Property ............................................. 13
O.
TRE 803(15) Statements in Documents Affecting an Interest in Property ......................................... 14
P.
TRE 803(16) Statements in Ancient Documents ................................................................................ 14
Q.
TRE 803(17) Market Reports, Commercial Publications ................................................................... 14
R.
TRE 803(18) Learned Treatises .......................................................................................................... 15
S.
TRE 803(19) Reputation Concerning Personal or Family History ..................................................... 16
T.
TRE 803(20) Reputation Concerning Boundaries or General History ............................................... 16
U.
TRE 803(21) Reputation as to Character ............................................................................................ 17
V.
TRE 803(22) Judgment of Previous Conviction ................................................................................. 17
i
Hearsay - An Exception for Every Objection
W.
X.
Chapter 17
1.
Pleas of Nolo Contendere. ..................................................................................................... 17
2.
Application in Misdemeanor Cases. ...................................................................................... 17
3.
Collateral Estoppel Concerns. ................................................................................................ 17
TRE 803(23) Judgment as to Personal, Family or General History or Boundaries ............................ 18
TRE 803(24) Statement Against Interest ............................................................................................ 18
VI.
EXCEPTIONS TO THE HEARSAY RULE –DECLARANT UNAVAILABLE .......................................... 18
A.
Former Testimony ............................................................................................................................... 19
B.
Dying Declarations ............................................................................................................................. 20
C.
Statement of Personal or Family History ............................................................................................ 20
VII.
IMPEACHMENT ............................................................................................................................................ 20
A.
Prior Inconsistent Statement. .............................................................................................................. 21
B.
Impeaching Hearsay Statements ......................................................................................................... 21
VIII.
OBJECTIONS AND PRESERVATION OF ERROR. .................................................................................... 21
A.
Right to Object. ................................................................................................................................... 21
B.
Time for Objection.............................................................................................................................. 21
C.
Sufficiency of Objection. .................................................................................................................... 22
D.
Running Objections. ........................................................................................................................... 22
E.
Limited and Conditional Admissibility............................................................................................... 22
F.
Necessity of Obtaining Ruling on Objection. ..................................................................................... 22
G.
Estoppel or Waiver-Similar Evidence................................................................................................. 22
H.
Offer of Proof. ..................................................................................................................................... 22
I.
The Contents of Limine Orders Do Not Preserve Error. .................................................................... 23
IX.
CONCLUSION ................................................................................................................................................ 23
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Hearsay - An Exception for Every Objection
Chapter 17
admissible, as long as each offered portion fits a rule or
exception. 6
HEARSAY – AN EXCEPTION FOR
EVERY OBJECTION
III. STATEMENTS THAT ARE NOT HEARSAY.
Wise practitioners follow the King’s advice to the
White Rabbit and “begin at the beginning” 7 when
considering the admissibility of evidence within the
context of hearsay. Rather than skip directly to the
exceptions, it is usually best to begin with the more
fundamental question – is this evidence really hearsay?
The answer isn’t always as obvious as it seems.
For example, an attorney need not fret over whether a
lunatic’s outburst “Repent now - the end is near!”
meets the excited utterance exception to the hearsay
rule if the statement isn’t offered to prove that, in fact,
the world is coming to an end. Not offered for the truth
of the matter asserted, the apocalyptic warning simply
isn’t hearsay to begin with. On the other hand, just
because a witness is available and providing testimony
in court doesn’t mean that his own prior out-of-court
statement isn’t hearsay. If offered to prove its truth, a
prior statement may very well be barred by hearsay
notwithstanding the fact that the witness is available in
court and subject to thorough cross-examination
regarding it.
As stated earlier, hearsay is an out-of-court
statement offered for the truth of the matter asserted.
Two important definitions provide further guidance
when applying this rule: (1) “Statement” is an oral or
written expression or nonverbal conduct intended as a
substitute for verbal expression; and (2) “Matter
asserted” includes any matter explicitly asserted and
any matter implied, if the statement’s probative value
flows from the declarant’s belief as to the matter.8 (As
stated above, the federal rule, which mirrors the
language of the Texas rule, does not include a
definition of “matter asserted,” thus excluding implied
matters from the definition’s scope.)
I.
SCOPE OF ARTICLE.
This paper endeavors to give an overview of
hearsay evidence law, focusing primarily on the
application of hearsay exceptions within the context of
civil matters in state courts.
II. HEARSAY, GENERALLY.
Hearsay is defined as a statement, other than one
made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the
matter asserted. 1 The Texas Rules of Evidence define
the term “matter asserted” to include any matter
explicitly asserted, as well as any matter implied by a
statement, if the probative value of the statement as
offered flows from declarant’s belief as to the matter. 2
(Under the Federal Rules of Evidence the term “matter
asserted” is not defined, thus limiting the applicability
of the hearsay rule in federal courts to those matters
actually asserted, not to those merely implied.)
TRE 802 boldly declares hearsay to be
inadmissible unless otherwise permitted by rule or
statute. 3 Never has there been a better example of the
“exception swallowing the rule” than in the notion that
hearsay is inadmissible. Not counting hearsay which is
admissible pursuant to statutory authority, four
separate hurdles in the Rules of Evidence themselves
must be cleared before hearsay evidence will actually
be inadmissible: (1) The statement fails to meet the
definition of “non-hearsay”; (2) The statement doesn’t
fall within the 24 enumerated exceptions which apply
no matter whether the declarant is “available” or
“unavailable”; (3) The statement doesn’t fall within the
three other enumerated exceptions which apply when
the declarant is “unavailable”; 4 and (4) A timely,
specific objection has been raised by the opponent to
the hearsay nature of the evidence offered. Otherwise,
as TRE 802 goes on to say, inadmissible hearsay will
not be denied its probative value merely because it is
hearsay. 5
Within the area of hearsay, it is never too
ambitious an undertaking to look for an exception for
every objection. Even hearsay-within-hearsay is
1
Tex. R. Evid. 801(d).
2
Tex. R. Evid. 801(c).
3
Tex. R. Evid. 802; see Tex. R. Evid. 801(e), 803, 804.
A. Non-Assertive Statement
Because the definition of “statement” includes
both verbal and non-verbal assertions, silent gestures
such as pointing, nodding, or headshakes are subject to
a hearsay challenge. 9 These gestures are basically a
substitute for a verbal response such as “over there,”
“yes,” “no,” etc.
However, other non-verbal gestures which are not
intended as an assertion, such as tears or cringing, are
not considered hearsay under either the Texas or
6
Tex. R. Evid. 805.
7
See, Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—
San Antonio 1991, pet ref’d).
Lewis Carroll, Alice’s Adventures in Wonderland.
8
Tex. R. Evid. 801(a) & (c).
5
9
Tex. R. Evid. 801(a).
4
Tex. R. Evid. 802.
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Hearsay - An Exception for Every Objection
Chapter 17
Federal rules because the declarant did not intend the
gesture to be a statement. Technically, non-assertive,
non-verbal statements such as these meet the definition
of hearsay – they are offered to prove the declarant’s
belief of a fact, and therefore the existence of that fact,
e.g., that the person was in pain or in fear. However,
because the circumstance surrounding the exhibition of
this type of conduct generally vouches for the
trustworthiness of the gesture, these non-assertive nonverbal gestures are simply not considered hearsay in
common law.
Likewise,
purely
contextual
out-of-court
statements that are nothing more than a question are
not considered hearsay. 10 Imperative sentences giving
orders, exclamatory sentences, and interrogatory
sentences posing questions usually fall outside the
hearsay definition. If these sentences are relevant at all,
they are normally relevant simply because the sentence
was uttered. 11 The predicate for offering non-assertive
statements as non-hearsay usually includes the
following evidence:
definition of hearsay. The reliability of such data, or
statements generated which are based upon the data, is
dependent upon the accuracy, veracity and credibility
of the person who supplied the information and the
person who entered the data into the computer.
As the Fort Worth Court of Appeals put it:
[C]an a machine, in itself, be a “declarant”
and can it make “statements?” The answer to
the first question is “no.” Mechanical
devices, like bloodhounds, are not persons
and cannot be “declarants.” But they can
serve as vehicles for storing or transmitting
“statements” made by a “person.”
Thus, if Officer Jones... was reading
information which had been entered by a
person, such as a business ledger or letter,
those portions of the hearsay definition
dealing with a statement by a declarant
would be satisfied. 13
(1)
(2)
(3)
(4)
where and when the statement was made;
who was present;
the tenor of the statement;
that the tenor of the statement is nonassertive; and
(5) that the non-assertive statement is logically
relevant to the material facts of consequence
in the case. 12
2.
Computer-Generated Data
Courts draw a distinction between computer data
which is entered into a computer by a person and
computer data which is generated by the computer
itself automatically. The latter is not considered
hearsay. Again, the court in Murray explains:
If, however, Officer Jones was reading
information which was simply being
automatically recorded by the machine, such
as climatological data, a hearsay problem is
not presented. The mere fact that the same
data was ultimately printed in hard copy
would not convert it into hearsay. 14
B.
Computer Generated “Statements”
Cases involving electronic evidence often raise
the issue of whether electronic writings constitute
“statements” under Rule 801(a). The determination as
to whether computer-generated statements are hearsay
depends upon the type of electronic information under
consideration.
Thus, the Murray court reasoned, one cannot assume
that a hearsay problem is present every time a machine
“talks,” transmits data, or otherwise communicates
information. 15
To determine whether computer data is subject to
a hearsay challenge, one must focus on whether the
data offered was entered by a human being or
generated by the internal operations or programs in the
computer itself. (If the data is computer-generated,
other evidentiary hurdles may bar admissibility of the
evidence, such as authentication and establishing the
reliability of the system itself, relative to its proper
1.
Computer-Stored Data
Computer data, or the compilation of computer
data into a statement or other report, if based upon
facts or information entered into a computer by
someone for storage purposes fits squarely within the
10
Harrison v. State, 686 S.W.2d 220, 222 (Tex.App.—
Houston [14th Dist.] 1984, pet ref’d) (permitting a witness to
testify he heard the complainant ask for a controlled
substance not hearsay because it was “not an assertion of
fact at all, but merely a question.”) cited with approval in
Fischer v. State, 207 S.W.3d 846, 850 n.5 (Tex.App.—
Houston [14th Dist.] 2006, aff’d on other grounds 252
S.W.3d 375 (Tex.Crim.App. 2008)).
13
Murray v. State, 804 S.W.2d 279, 284 (Tex.App.—Fort
Worth 1991, pet. ref’d).
11
Edward J. Imwinkelreid, Evidentiary Foundations, 7th ed.,
§10.02[2][a], p. 409 (2008).
12
Id.
2
14
Id.
15
Id.
Hearsay - An Exception for Every Objection
Chapter 17
functioning and accuracy. But the scope of this paper is
limited to admissibility within the context of hearsay.)
fact, divorced, but rather to show that she believed she
was divorced. 20
3.
D. Operative Facts
If the mere making of an out-of-court statement—
regardless of its truthfulness—has legal significance,
then evidence that the statement was made is not
hearsay because it is not offered to prove the truth of
the matter asserted. 21 This is most obvious when the
words themselves constitute a necessary part of the
cause of action or defense, or as is sometimes said, are
verbal acts, or part of the ultimate issue.22 Operative
facts are admissible as evidence to prove the making of
an utterance or a statement and not to establish the
truth of the contents of such a statement. 23 For
example, a statement would be an operative fact if the
mere making of the statement were the basis of a fraud
claim or if the words or writings constituted the offer,
acceptance, or terms of a contract.24
Metadata
Metadata is historical data pertaining to a
computer file itself, including information such as the
date and time a document was created, how many
times a document has been edited or saved, the actual
edits – including the content of deleted information which have been made to a document over time, and so
forth. Since the creator of the document has no control
over the metadata content (and may be completely
oblivious as to its existence), it would likely be
considered computer-generated data, and, therefore,
non-hearsay.
Caveat: Since metadata is normally hidden and
usually not intended to be reviewed, several states have
issued ethics opinions concluding that it is unethical to
mine inadvertently-produced metadata. 16 A few ethics
opinions have held that mining metadata is not
unethical. 17 Texas does not yet have an ethics opinion
directly on point.
IV. STATEMENTS WHICH, BY RULE, ARE
NOT HEARSAY
TRE 801 provides two sides to the hearsay coin.
While Sections (a-d), through the definitions provided,
tell us what hearsay is, Section (e), on the other hand,
tells us what hearsay hearsay is not. The types of
statements described in TRE 801(e) are not hearsay
exceptions, but rather statements which are not
considered hearsay to begin with. When responding to
a hearsay objection lodged against these types of
statements, the proper response is not that the
statement falls within an exception to hearsay. The
appropriate response is that these statements are not, by
rule, hearsay at all.
C. Statement not Offered for its Truth
Even if a statement is assertive, the statement is
not hearsay unless the proponent offers the statement
to prove the truth of the assertion. 18 When arguing that
a statement is not being offered for its truth, an
attorney is arguing that the fact that the statement was
made is relevant, not necessarily that the facts in the
statement are true. For example, in an action for
slander, plaintiff offers the content of the statement to
prove the defamatory conduct, certainly not to prove
the truth of the statement made.
Where the question is whether a party has acted
prudently, wisely or in good faith, information on
which he acted is original and material evidence and
not hearsay. 19 For example, in one case, a party was
permitted to testify that a Mexican judge had told her
she was divorced. The statement was admissible
because it was not offered to prove that she was, in
A. Impeachment by Prior Inconsistent Statement.
Any witness may be impeached by showing that
on a prior occasion he made a material statement
inconsistent with his trial testimony. Such a statement
can be taken from many sources – from formal, sworn
statements made in prior testimony, affidavits and
discovery responses, to casual remarks made by a
witness to a bartender at the local pub. With regard to
the latter, because it is unsworn, this statement can
only be used to attack the credibility of the witness,
and may not be received as evidence to prove the truth
16
NY. Comm. On Prof’l Ethics, Op. 749 (1002); Prof’l
Ethics of the Fla. Bar, Op. 06-2 (2006); Ala. State Bar office
of the Gen. Counsel, Op. No. 2007-02 (2007); D.C. Bar, Op.
341.
20
Chandler v. Chandler, 842 S.W.2d 829, 831 (Tex.App.—
El Paso 1992, writ denied).
17
Md. State Bar Ass’n, Comm. on Ethics, Op. 2007-092
(2006); ABA Formal Op. 06-442.
18
21
Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d
760, 782 (Tex.App.—Dallas 2005, no pet. h.).
th
Edward J. Imwinkelreid, Evidentiary Foundations, 7 ed.,
§10.02[3][a], p. 415 (2008).
19
Duke v. Power Electric and Hardware Company, 674
S.W.2d 400, 404 (Tex.App.—Corpus Christi 1984, no writ);
Globe Discount City v. Landry, 590 S.W.2d 813, 815
(Tex.App.—Waco 1979, writ ref’d n.r.e.).
22
Id.
23
Id.
24
See Bobbie Brooks, Inc. v. Goldstein, 567 S.W.2d 902,
906 (Tex.Civ.App.—Eastland 1978, writ ref’d n.r.e.).
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Hearsay - An Exception for Every Objection
Chapter 17
of the matter asserted by the witness. (In such
situations, the court should give a limiting instruction
to the jury that the statement can be considered for
impeachment purposes only.)
However, if the prior inconsistent statement meets
the requisites of sworn testimony under TRE
801(e)(1)(A-D), then it is admissible as non-hearsay
both to impeach credibility and to prove the truth of the
matter asserted therein. In order to rise to the level of
substantive, probative evidence, the witness’s prior
statement must be: (1) inconsistent with the witness’s
current testimony during a trial or hearing, and (2)
given under oath, subject to the penalty of perjury, at a
trial, hearing, deposition or other proceeding. 25 In
addition, the witness must testify at trial or hearing and
be subject to cross-examination concerning the prior
inconsistent statement. Assuming these conditions
have been met, the actual substance of a witness’s prior
inconsistent statement is admissible as non-hearsay to
prove the truth of the matter previously asserted.
D. Admissions by Party-Opponent
Admissions by party-opponent are included as
statements which are considered non-hearsay. This
type of admission is defined as a statement which is
offered against a party and is: (A) the party’s own
statement in either an individual or representative
capacity; (B) a statement of which the party has
manifested an adoption or belief in its truth; (C) a
statement by a person authorized by the party to make
a statement concerning the subject; (D) a statement by
the party’s agent or servant concerning a matter within
the scope of the agency or employment, made during
the existence of the relationship; or (E) a statement by
a co-conspirator of a party during the course and in
furtherance of the conspiracy. 29 The rule is broad in
application, and basically boils down to this – any
relevant statement made by a party (or his authorized
agent, acting within the scope of the existing agency) is
admissible against that party.
1.
Pleadings and Other Statements Made By
Attorneys.
Included within this rule are not only statements
appearing in discovery responses and pleadings from
the present case, but also statements appearing in other
proceedings as well. Given the nature of the
relationship between attorney and client, it is
understandable why courts have little trouble in finding
that that allegations and statements made by the party’s
attorney in motions and pleadings constitute authorized
admissions under the rule. The Texas Supreme Court
has construed the rule to apply even to pleadings which
have been superceded and not inconsistent with the
party’s position at trial. 30 Stepping beyond written
motions and pleadings, federal courts have applied the
federal rule (which mirrors the Texas rule) to
statements made by attorneys during advocacy in
opening statements and closing arguments.
Even pleadings of a party in other causes of action
which contain statements inconsistent with that same
party’s present position are receivable and admissible
as admissions. 31 Finally, one Texas appellate court has
extended these general rules even further, proclaiming
that even pleadings which have not been verified and
“bear no file mark” constitute admissions under this
rule. 32
B.
Prior Consistent Statement to Rebut.
Bolstering a witness by attempting to introduce
prior consistent statements is generally not permitted 26.
However, while a witness’s prior consistent statements
would normally be inadmissible hearsay, TRE
801(e)(1)(B) categorizes certain prior consistent
statements as non-hearsay. Under this rule, the
admissibility of prior consistent statements is restricted
to use in rebutting an express or implied charge of
either recent fabrication or improper influence or
motive. Absent such an allegation, either express or
implied, a prior consistent statements remains
inadmissible under TRE 613(c).
If admissible, then the prior consistent statement
may be used to both rebut the charge levied and to
prove the truth of the matter asserted in the prior
statement. However, the statement must have been
made before the charged recent fabrication, improper
influence or motive arose in order to fall within the
ambit of TRE 801(3)(1)(B). 27
C. Statement of Identification.
A prior statement of identification of a person
made after perceiving the person is defined as nonhearsay. 28 While this rule is most often used in
criminal cases, the rule is applicable in civil cases as
well.
29
Tex. R. Evid. 801(e)(2).
30
25
(except a grand jury proceeding in a criminal case)
Bay Area Healthcare Grp., Ltd. V. McShane, 239 S.W.3d
231, 235 (Tex. 2007).
26
Tex. R. Evid. 613(c).
31
Westchester Fire Ins. Co. v. Lowe, 888 S.W.2d 243, 252
(Tex.App.—Beaumont, 1994, no writ).
27
Walker v. Lorehn, 355 S.W.2d 71, 75 (Tex.Civ.App.Houston 1962, writ ref’d nre.).
28
32
Huff v. Harrell, 941 S.W.2d 230, 239 (Tex.App.—Corpus
Christi 1996, writ denied).
Tex. R. Evid. 801(e)(1)(C).
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Hearsay - An Exception for Every Objection
Chapter 17
2.
Statements from Interpreters.
If a party makes an interpreter his agent to
communicate – whether by authorizing the interpreter
to translate a statement for him concerning a specific
subject, or by designating the interpreter as his agent
for purposes of translating a specific statement – the
fact that the original statement, as received in English,
came through a translator will not turn an otherwise
admissible out-of-court admission into objectionable
hearsay. 33
To determine whether a party has adopted an
interpreter as his agent, four factors are considered: (1)
who supplied the interpreter; (2) whether the
interpreter had any motive to mislead or distort; (3) the
interpreter's qualifications and language skills; and (4)
whether actions taken subsequent to the translated
statement were consistent with the statement as
translated. 34 After taking these factors into account, if
the proponent can demonstrate to the satisfaction of the
trial court that the party authorized the interpreter to
speak for him on a particular occasion or otherwise
adopted the interpreter as his agent for purposes of
translation, then the out-of-court translation may be
properly admitted under TRE 801(e)(2)(C) or (D). 35 If
the court, acting within its discretion, is not so
satisfied, then the court should not admit it over a
hearsay objection. 36
with, a hearsay objection, standing alone, cannot work
to keep these statements away from the jury (although
these statements may be subject to objection on other
grounds 41).
E.
Depositions
In a civil case, a statement is not considered
hearsay simply because it is contained in a deposition.
TRE 801(e)(3) provides that as long as the deposition
is one which was taken in the same proceeding, the
statement may be admitted into evidence whether or
not the witness is available to testify at trial.42 This
contrasts with federal practice, which requires a
showing of witness unavailability before deposition
testimony may be used in lieu of live testimony. 43
1.
“Same Proceeding”.
The Texas Rules of Civil Procedure define the
term “same proceeding” to include a proceeding in a
different court that involves the same subject matter
and the same parties, or their representatives or
successors in interest. Under TRCP 203.6, a deposition
is admissible against a party, even if that party was not
joined in the lawsuit until after the deposition was
taken, if: (1) the deposition is admissible under the
former testimony exception 44, or (2) if the party was
given a reasonable opportunity to re-depose the witness
but failed to do so.
3.
Admissions in the Context of Social Media.
Admissions by a party-opponent are often found
in social media postings. If relevant to the issues in the
case, statements in the form of texts, tweets, emails,
wall posts and blogs are textbook, albeit new-fangled,
examples of admissions by a party opponent. 37 Some
statements may lend themselves to particular hearsay
exceptions, e.g., tweets are often present sense
impressions, 38 “OMG” may signal that a text includes
an excited utterance,39 and what is an emoticon if not a
statement of then-existing emotional condition40? But
no hearsay exception need be urged if the witness
posting the social media messages is a party to the
litigation. Because admissions are not hearsay to begin
33
Saavedra v. State,
(Tex.Crim.App. 2009).
297
S.W.3d
342,
2.
Hearsay Within Hearsay.
While the deponent’s testimony is considered
non-hearsay, this rule extends only to testimony
provided by the deponent which has been made on
personal knowledge. To the extent that a deponent
offers testimony regarding statements made by others,
these other statements would be subject to a hearsay
objection. 45 This is often referred to as hearsay-withinhearsay, to wit: hearsay contained within another
hearsay statement, the latter of which may be allowed
into evidence by exception or classification as “nonhearsay.” With regard to a hearsay-within-hearsay
objection, both layers of hearsay must independently
satisfy an exception to the hearsay rule in order to be
admissible into evidence. 46 A court would commit
346
41
34
Id. at 348.
35
Id. at 349.
36
Id.
Such as the “asininity” objection, an objection which has
no basis in the law whatsoever, but nevertheless is
applicable to a high percentage of remarks made through
social media.
37
Massimo v. State, 144 SW3d 210, 217 (Tex.App.--Fort
Worth 2004, no pet.).
38
Tex. R. Evid. 803(1).
39
Tex. R. Evid. 803(2).
40
Tex. R. Evid. 803(3).
42
Tex. R. Evid. 801(e)(3).
43
Fed. R. Civ. P. 32(a)(4).
44
Tex. R. Evid. 804(b)(1).
45
Urquhart v. Antrum, 776 S.W.2d 595, 596 (Tex.App.–
Houston [14 Dist.] 1988, no writ).
46
5
Tex. R. Evid. 805.
Hearsay - An Exception for Every Objection
Chapter 17
error if it allowed hearsay statements made by a
deponent into evidence simply because the deponent
repeated the hearsay statements during the course of a
deposition. 47
The deposition testimony may also be
objectionable on other grounds. TRCP 199.5(e)
provides only three objections which can be raised
during a deposition: (1) Objection – Leading, (2)
Objection – Form, and (3) Objection – Nonresponsive.
All other objections to a deponent’s testimony –
relevance, reliability, hearsay-within-hearsay – are
expressly reserved to be raised later before the trial
judge.
impression is that: (1) the statement is safe from any
error of the defect of memory of the declarant because
of its contemporaneous nature, (2) there is little or no
time for a calculated misstatement, and (3) the
statement will usually be made to another (the witness
who reports it) who would have an equal opportunity
to observe and therefore check a misstatement. 50
One court has characterized the rule as
“predicated on the notion that the utterance is a reflex
product of immediate sensual impressions, unaided by
retrospective mental processes:”
It is instinctive, rather than deliberate. If the
declarant has had time to reflect upon the
event and the conditions he observed, this
lack of contemporaneity diminishes the
reliability of the statements and renders them
inadmissible under the rule. Once reflective
narratives, calculated statements, deliberate
opinions, conclusions, or conscious thinkingit-through statements enter the picture, the
present sense impression exception no longer
allows their admission. Thinking about it
destroys the unreflective nature required of a
present sense impression. 51
3.
Non-Hearsay vs. Hearsay Exception.
TRE 801(e)(3) defines a witness’s deposition
testimony in the same proceeding as non-hearsay. On
the other hand, if taken in a different proceeding, a
witness’s
deposition
testimony
is
hearsay.
Nevertheless, this deposition testimony may still be
admitted into evidence, under the exception provided
by TRE 804(b)(1), an exception which will be
discussed later. In order for deposition testimony taken
in a different proceeding to be admissible, however,
the deponent must be unavailable for trial.
V. EXCEPTIONS TO THE HEARSAY RULE –
AVAILABILITY
OF
DECLARANT
IMMATERIAL
The twenty-four hearsay exceptions listed in
Texas Rule 803 may be roughly categorized into (1)
unreflective statements, (2) reliable documents, and (3)
reputation evidence. The rationale for all hearsay
exceptions is that, over time, experience has shown
that these types of statements are generally reliable and
trustworthy. 48 Given the title of the rule, it should go
without saying that these two dozen hearsay exceptions
will apply notwithstanding whether the person who
made the statement is available to testify at the hearing
or trial.
B.
TRE 803(2) Excited Utterance
Unlike the present sense impression, the rationale
for the excited utterance exception stems from the
statement’s
spontaneity
rather
than
its
contemporaneity. 52 The excited utterance is defined as
a statement relating to a startling event or condition
made while the declarant was under stress or
excitement caused by the event or condition.53 Thus,
the excited-utterance exception is broader than the
present-sense-impression exception. 54 While a presentsense-impression statement must be made at or near
the time the declarant was perceiving the event or
condition, under the excited-utterance exception, the
startling event may trigger a spontaneous statement to
be uttered hours or even days later. 55 The test in
determining whether a statement is an excited utterance
under Rule 803(2) is whether the declarant was still
dominated by the emotions, excitement, fear, or pain of
the event. The amount of time which has elapsed
A. TRE 803(1) Present Sense Impression
The first exception to the hearsay rule is the
present sense impression - a statement describing or
explaining an event made while the declarant was
perceiving the event or immediately thereafter. 49 The
present sense impression exception to the hearsay rule
is based upon the premise that the contemporaneity of
the event and the declaration ensures reliability of the
statement. The rationale underlying the present sense
47
50
Fischer v. State, at 380.
51
Fischer v. State, at 381.
52
Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.
1992).
53
Urquhart, at 596.
48
Fischer v. State, 252 S.W.3d 375, 379 (Tex.Crim.App.
2008).
54
49
55
Tex. R. Evid. 803(2).
McCarty v. State, 257 S.W.3d 238, 240 (Tex.Crim.App.
2008).
Tex. R. Evid. 803(1) (emph. added).
6
Id.
Hearsay - An Exception for Every Objection
Chapter 17
between the occurrence of the event and the utterance
is a factor considered in determining the admissibility
of the hearsay statement, but it is not the only
consideration.
Another key difference between the present sense
impression and the excited utterance is the type of
testimony which can be elicited under these
exceptions. The subject matter restriction of the excited
utterance exception is significantly more liberal than
that of the present sense impression. Statements of
present sense impression are limited to statements
“describing or explaining an event or condition,”
whereas, excited utterances need only “relat(e) to a
startling event or condition.” 56
For the excited-utterance exception to apply, three
conditions must be met: (1) the statement must be a
product of a startling occurrence that produces a state
of nervous excitement in the declarant and renders the
utterance spontaneous and unreflecting, (2) the state of
excitement must still so dominate the declarant’s mind
that there is no time or opportunity to contrive or
misrepresent, and (3) the statement must relate to the
circumstances of the occurrence preceding it.57
A witness may testify to a declarant saying “I
am scared,” but not “I am scared because the
defendant threatened me.” The first statement
indicates an actual state of mind or condition,
while the second statement expresses belief
about why the declarant is frightened. The
phrase “because the defendant threatened
me” is expressly outside the state-of-mind
exception because the explanation for the
fear expresses a belief different from the state
of mind of being afraid. 62
D. TRE 803(4) Statements for the Purposes of
Medical Diagnosis or Treatment
This fourth exception is for statements made for
purposes of medical diagnosis or treatment. In order to
fall within this exception, the statement must describe
the declarant’s medical history, past or present
symptoms, pain, sensations or the inception or general
character of the cause or external source thereof, and
the statement must be reasonably pertinent to diagnosis
or treatment. 63 As with all hearsay exceptions, the
rationale behind this particular exception is deeply
embedded in the presumption of trustworthiness that
such statements carry. In most cases, the desire for an
accurate medical diagnosis and effective treatment,
coupled with the understanding that such diagnosis or
treatment will depend in part upon what the patient
says, is thought to override any motive to lie. A fact
reliable enough to serve as the basis for a diagnosis
should also be reliable enough to escape hearsay
proscription. 64
A two-part test is applied to analyze such
statements: (1) whether the declarant’s motive is
consistent with the purpose of the rule, and (2) whether
it was reasonable for the witness to rely on the
information for purposes of diagnosis or treatment.
C. TRE 803(3) Then Existing Mental, Emotional
or Physical Condition
This exception applies to statements of a
declarant’s then existing state of mind, emotion,
sensation, or physical condition, such as intent, plan,
motive, design, mental feeling, pain, or bodily health.58
Texas courts have held that the type of statement
contemplated by this rule includes a statement that on
its face expresses or exemplifies the declarant’s state of
mind, e.g., fear, hate, love, and pain.59 For example,
statements describing or relating emotional responses
to particular persons qualify as statements of thenexisting state of emotion under Rule 803(3). 60
However, a statement is not admissible if it is a
statement of memory or belief offered to prove the fact
remembered or believed (unless it relates to the
execution, revocation, identification, or terms of
declarant’s will). 61 One federal court explains the
distinction this way:
56
1.
Ongoing Treatment.
The second part of the test becomes the critical
factor in analyzing statements made during ongoing or
long-term treatment. Once diagnosis has been made
and treatment has begun, the rationale behind this
exception may disappear. Because the reports and
comments made by a patient during an extended course
of treatment may be rooted in different motivations,
e.g., denial, deception or secondary gain, or may be
influenced by the treatment process itself, these
statements may not carry with them the presumption of
Id. (emphasis ours).
57
Goodman v. State, 302 S.W.3d 462, 472 (Tex.App.—
Texarkana 2009, pet. ref’d).
58
62
Delapaz v. State, 228 S.W.3d 183, 207 (Tex.App.—Dallas
2007, pet. ref’d) (citing United States v. Ledford, 443 F.3d
702, 709 (10th Cir. 2005)).
Tex. R. Evid. 803(3).
59
Garcia v. State, 246 S.W.3d 121, 132 (Tex.App.—San
Antonio 2007, pet. ref’d).
60
61
63
Id.
64
Tex. R. Evid. 803(4).
See generally, Taylor v. State, 268 S.W.3d 571
(Tex.Crim.App. 2008).
Tex. R. Evid. 803(3).
7
Hearsay - An Exception for Every Objection
Chapter 17
veracity which forms the basis for this exception. 65 In
order for the hearsay exception to apply in this context,
the proponent must demonstrate two things: (1) that
truth-telling was a vital component of the particular
course of therapy or treatment involved, and 2) that it
is readily apparent that the declarant was aware that
this was the case. Otherwise, in these circumstances
the justification for admitting the out-of-court
statement over a valid hearsay objection is “simply too
tenuous.” 66
recollection as a memorandum or record concerning a
matter about which a witness once had personal
knowledge but now has insufficient recollection to
enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness
when the matter was fresh in the witness’s memory and
to reflect that knowledge correctly. A statement falling
within this exception is admissible unless the
circumstances of preparation cast doubt on the
document’s trustworthiness. 68
Four requisites must be established for a statement
to be admissible under this exception: (1) the witness
must have had firsthand knowledge of the event, (2)
the statement must be an original memorandum made
at or near the time of the event while the witness had a
clear and accurate memory of it, (3) the witness must
lack a present recollection of the event, and (4) the
witness must vouch for the accuracy of the written
memorandum. 69 The first requisite – prior first-hand
knowledge of the recorded event – ensures that this
exception not embrace statements of hearsay within
hearsay. The sponsoring witness must have acquired
knowledge of the event first-hand, not through the
accounts of other witnesses.
With regard to the second and third requirements,
whether a statement falls within this exception requires
an examination of both present and historical
circumstances. First, the rule requires that at the time
the memory was recorded, the event was fresh enough
in the witness’s mind to correctly capture the matter
recorded. Second, at the time this recorded memory is
offered into evidence, the witness must be unable to
recall the matter fully and accurately. Full-blown
amnesia is not required – it is sufficient if a witness
simply fails to recall specific details. For example, in
one case, testimony as to the contents of a document
containing serial numbers was permitted into evidence
following the witness’s testimony that she had personal
knowledge of the items listed, but it would be “difficult
for her to remember the serial numbers without the aid
of the list.” 70 (The list was hand-written by the witness
within a week after the burglary of her home.)
The fourth element requires that the witness either
made the statement or adopted it as his or her own.
Courts often characterize this as the witness
“vouching” for information contained in the
statement.71 To meet this requirement, ideally
testimony is elicited that either: (1) the witness
2.
Scope of the Rule.
One aspect of the rule which is not self-evident is
the broad scope of witnesses to which this exception
may be applied. The language of the rule itself does not
require that the statement be made to a medical
provider, but rather for the purpose of medical
diagnosis or treatment. Therefore, under the plain
language of the rule itself, the witness need not be a
physician or have any medical training whatsoever.
Over the years, the exception has been applied to
statements made to psychologists, therapists, licensed
professional counselors, social workers, hospital
attendants and ambulance drivers. The exception may
even extend to family members if other requisites are
present.
The essential “qualification” expressed in the rule
is that the declarant believe that the information he
conveys will ultimately be utilized in diagnosis or
treatment of a condition from which the declarant is
suffering, so that his selfish motive for truthfulness can
be trusted. That the witness may be a medical
professional, or somehow associated with a medical
professional, is no more than a circumstance tending to
demonstrate that the declarant’s purpose was in fact to
obtain medical help for himself. A declarant’s
statement made to a non-medical professional under
circumstances that show he expects or hopes it will be
relayed to a medical professional as pertinent to the
declarant’s diagnosis or treatment would be admissible
under the rule, even though the direct recipient of the
statement is not a medical professional.
E.
TRE 803(5) Recorded Recollection
Often confused with TRE 612 (a writing used to
refresh memory), the recorded recollection exception
provides for admissibility of statements which preserve
a memory. For those familiar with J.K. Rowling’s
Harry Potter books, it could be characterized as the
“pensieve” exception. 67 TRE 803(5) defines a recorded
65
Taylor v. State, 268 S.W.3d 571 (Tex.Crim.App. 2008).
66
Id.
68
Tex. R. Evid. 803(5).
69
Johnson v. State, 967 S.W.2d 410, 416 (Tex.Crim.App.
1998).
70
Kuczak v. State, 848 S.W.2d 284 (Tex.App.—Fort Worth,
1993, no pet.).
67
A pensieve is a stone basin in which memories are stored
and from which a wizard can extract memories and review
them through the magic of virtual reality.
71
8
Johnson v. State, at 416.
Hearsay - An Exception for Every Objection
Chapter 17
presently remembers recording the fact correctly, or (2)
remembers recognizing the writing as accurate when
reading it at an earlier time. 72 Short of that, it is
considered sufficient if the witness testifies that he
knows the memorandum is correct because of a habit
or practice to record matters accurately or to check
them for accuracy, or merely that he recognizes his
signature on the statement and believes it to be correct
because he wouldn't have signed something that he
didn't believe to be true. 73
Practice Note - this rule permits the proponent of
the evidence to read the statement into evidence, but
not to introduce it an exhibit. However, the opponent
of the evidence may offer the document into
evidence,74 and if so offered, then it may be received as
an exhibit and published to the jury for their review.
One final observation – although this hearsay
exception finds its home under “Exceptions to the
Hearsay Rule – Availability of Declarant Immaterial,”
don’t read too much into that heading. For this
exception to apply, the declarant must be available.
Recall the four elements of proof necessary to invoke
this exception? Who besides the declarant himself
would be competent to testify to (1) first-hand
knowledge of the event, (2) a clear and accurate
memory of it, (3) the lack a present recollection, and,
finally, (4) the accuracy of the written memorandum
within this context?
the records were made by a person with knowledge
who was acting in the regular course of business. 75
Given the ever-increasing electronic nature of society’s
record-keeping, it is important to clarify that
information stored on a computer is considered a
record and regular internet postings may also be
admissible as records as well. 76
1.
Foundation.
Before business records can be admitted into
evidence a proper foundation must be laid. This can be
accomplished using one of two options set forth in the
rule, i.e., either through: (1) the testimony of a
qualified sponsoring witness (the “custodian”), or (2)
an affidavit which complies with TRE 902(10) (a selfauthenticating affidavit). Assuming that the proper
foundation has been laid, the evidence is admissible
unless the source of information or the circumstances
of preparation indicate lack of trustworthiness.
However, the burden is not upon the proponent of the
evidence to prove that the evidence is trustworthy, but
rather upon the opponent of the evidence to show it is
not.
2.
Trustworthiness.
In examining whether a document is trustworthy,
the first inquiry generally begins with the presumption
that underlies the rule – accuracy based upon
motivation. Because these records are generally kept
for the purpose of conducting business activities and
making business decisions, it is presumed that a
motivation for accuracy exists.
Records which are not kept for the purpose of
conducting business activities may not need to be
accurate, and, in fact, may be created or kept for just
the opposite purpose. For example, documents which
are created with litigation in mind might be created or
kept for the purpose of highlighting a particular angle
of an event or circumstance. For that reason, litigationdriven documents – even if kept by a business –
generally are not admissible under this exception. One
federal court 77 has recognized that documents may be
created with dual motivations – prepared for both
litigation and ongoing business purposes. Because of
this, the fact that a document was created for litigation
purposes is not an automatic bar to admissibility, but a
factor to be considered.78 If a document has been
F.
TRE 803(6) Records of Regularly Conducted
Activity
This exception, which is often referred to as the
“business records” exception, provides a vehicle for
exempting regularly-maintained records from the
hearsay objection. The rationale for this exception is
based upon the motivation behind the compiling of
these types of records in the first place. Because they
are records upon which an organization relies in
conducting its own business, these records carry with
them an expectation of trustworthiness. (The term
“business,” as used in this rule, is broadly defined,
including any kind of regular organized activity –
profit, non-profit and even personal business in certain
circumstances.)
The business records exception to the hearsay rule
has four requirements: (1) the records were made and
kept in the course of a regularly conducted business
activity; (2) it was the regular practice of the business
activity to make the records; (3) the records were made
at or near the time of the event that they record; and (4)
75
Puentes v. Fannie Mae, 350 S.W.3d 732, 737 (Tex.App.–
El Paso, 2011).
76
72
United States v. Jackson, 208 F.3d 633, 637-38 (7th Cir.
2000).
Id.
77
73
Id., citing with approval McCormick On Evidence §§ 279–
283 (4th ed.1992).
74
78
U.S. v. Frazier, 53 F.3d 1105, 1110 (10th Cir. 1995).
FRE 803(6) is identical to TRE 803(6), except that it omits
the self-authenticating affidavit mechanism for establishing
admissibility of the business record.
Tex. R. Evid. 803(5).
9
Hearsay - An Exception for Every Objection
Chapter 17
prepared with litigation in mind, its proponent should
be prepared to articulate why the matter recorded is
important to the business outside the context of
litigation. If the proponent can demonstrate the
business importance of the document, it very well may
fall within the exception of TRE 803(6).
While a few appellate courts have found check
registers, financial diaries, and cancelled checks
relating to personal financial records admissible as
business records, each one of those cases can be
distinguished by its unique set of facts, 80 and, taken
together, the less-than-handful of cases which have
allowed this cannot be said to stand for a general
proposition that personal records are treated the same
as business records for purposes of a TRE 803(6)
analysis. On the contrary, in each such case the fact
that the records at issue were personally maintained, as
opposed to being kept by a business or other
organization, resulted in their being held to a
heightened standard of scrutiny. 81
In one case, a federal court held that a handwritten diary record of tips earned as a casino worker,
although personal, was nevertheless admissible as a
business record because it was kept in the course of the
employee’s “business activity.” While the court on the
one hand allowed the exception to apply under the
facts of that particular case, it also signaled with the
other hand an unwillingness to provide a carte blanche
exception in every situation involving personal
records:
3.
Hearsay-Within-Hearsay.
Another hurdle to admissibility arises because
business records are particularly susceptible to
hearsay-within-hearsay concerns. Although 803(6)
does not require that the custodian of the records (or
the TRE 902(10) affiant) have personal knowledge of
the contents of the record, it does require that the
source of the information be someone with personal
knowledge who is acting in the regular course of
business. In other words, the source of the information
must be someone with first-hand knowledge and “a
business duty to report.” 79
Many documents, such as accident reports and
medical records, include statements obtained from
persons other than those who have personal knowledge
with a duty to report. While these additional statements
may be admissible under other hearsay exceptions,
such as excited utterances or statements for the purpose
of medical treatment, they are not admissible under the
business records hearsay exception. So, while a
document in general may meet the requisites for a
business records exception, specific portions of a
document may not.
The presence of these inadmissible portions of a
business record does not necessarily render the entire
record inadmissible. However, it does subject the entire
document to a facially-valid hearsay objection. Once
the hearsay objection is lodged, it becomes the
proponent’s burden to separate the inadmissible parts
from the admissible and re-offer a redacted version of
the business record. Otherwise, the entire document
may rightfully be excluded.
(p)ersonal records kept for business reasons
may be able to qualify. A housekeeper's
records kept neatly and accurately for
purposes of balancing bank statements,
80
See Sabatino v. Curtiss Nat’l Bank, 415 F.2d 632, 634 (5th
Cir. 1969) (construing the Federal Business Records Act, not
FRE 803(6), and allowing the evidence pursuant to the
“liberal” federal standard of favoring admission of evidence
over exclusion “if the proffered evidence has any probative
value at all,” coupled with the clear and compelling
“necessity for the evidence,” given the fact that the only man
who could have provided the information was dead, and that
information went “to the heart of the case”) (emphasis
added); In re M.M.S. and I.M.S., 256 S.W.3d 470, 477
(Tex.App.—Dallas 2008, no pet.) (holding limited to an
authenticity objection raised pursuant to TRE 901, with no
discussion of the applicability of TRE 803(6)); Strahan v.
Strahan, Not Reported in S.W.3d, 2003 WL 22723432 *8
(Tex.App.—Houston [1st Dist.] 2003) (memo op.) (among
the three items sought to be admitted under a business
records exception: the first, a letter, constituted a written
admission and thus was not hearsay; the second, a cancelled
check, was properly proven as a business record, citing one
1984 Texas Supreme Court case which found that cancelled
checks from an organization managed by an individual were
admissible as business records as authority for the bold
proposition “holding canceled checks admissible as business
records;” the third, an invoice from a moving company, was
not found to be improperly excluded as hearsay)
4.
Personal Records.
The “business duty to report” aspect of the rule
also comes into play in the context of using the
business records exception to seek admission of
documents kept by persons, rather than organizations.
Individuals dealing with their own personal financial
affairs ordinarily have no duty to report the
information and may often employ haphazard recordkeeping habits. This casts doubt on the trustworthiness
and accuracy of the information recorded by
individuals, as opposed to organizations, and can
operate as a bar to the introduction of personal
documents through this exception.
79
Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W.3d 707,
716 (Tex.App.—Austin, 2000, pet. dism’d w.o.j.).
81
10
Id.
Hearsay - An Exception for Every Objection
Chapter 17
keeping strict budgets and preparing income
tax returns could qualify under the (rule).” 82
business has adopted or incorporated the third party’s
records into their own business records. 86 With regard
to the second element, no witness need testify that the
accuracy of the third party’s records was actually
verified (although the testimony often does). The
sponsoring witness need only prove that his business
relies upon the accuracy of the other business’s
records. 87 The test also dispenses with proof of the
fourth requirement of TRE 803(6), that the records
were made by a person with knowledge.
Although the standard may be relaxed, some
indicia of trustworthiness must still be demonstrated.
This can be shown in a variety of different ways. For
example, the second business could take steps to
confirm the accuracy of the records, or the business
practices might dictate a need to utilize and maintain
accurate records. If failure to keep accurate records
could result in criminal or civil penalties, that factor
would be considered a strong indicia of reliability.
The court cautioned, however, that in order for
personal records to fall within Rule 803(6), a
proponent must show that the personal records were
“systematically checked and regularly and continually
maintained” to a “meticulous” standard.83 Based upon
the cases which have addressed this issue, it is fair to
surmise that personal diaries, lists and bank statements
will usually not fit within the business records
exception, whereas well-maintained personal financial
ledgers and tax records which have not been created
for litigation purposes are more likely to pass muster.
5.
Third-Party Documents
In the world of commerce where companies are
bought and sold on a daily basis, business records that
have been created by one entity often become the
records of another. During the past decade, the
juxtaposition between documents created and held by
different entities and the requirements for admissibility
of business records under TRE 803(6) has been
examined by several appellate courts. As a result, a
three-part test has been employed to determine the
admissibility of these “third-party documents” pursuant
to the business records exception. 84 Under this test, a
document authored or created by a third party may be
admissible as a business record of a different business
if: (1) the document is incorporated and kept in the
course of the testifying witness's business; (b) that
business typically relies upon the accuracy of the
contents of the document; and (c) the circumstances
otherwise indicate the trustworthiness of the document.
Some might argue that this test actually relaxes
the standard for admissibility for third-party
documents, as opposed to documents which were
created by a sponsoring witness’s own business. For
example, this test contains no requirement for firsthand knowledge of the procedures used in original
preparation of the third-party’s records, as long as after
these documents were incorporated into the other
business’s records, they were relied upon. So, with
regard to the first prong of the test, the predicate
witness need not be the record’s creator nor have
personal knowledge of the content of the record. 85 All
that is required is evidence that the testifying witness’s
G. TRE 803(7) Absence of Entry In Records
The absence of entry in record exception is simply
the flip side to the business records exception
discussed above. TRE 803(7) provides that “evidence
that a matter is not included in the memoranda, reports,
records, or data compilations, in any form, kept in
accordance with the provisions of paragraph Tex. R.
Evid. 803(6),” is admissible “to prove the
nonoccurrence or nonexistence of the matter, if the
matter was of a kind of which a memorandum, report,
record, or data compilation was regularly made and
preserved, unless the sources of information or other
circumstances indicate lack of trustworthiness.” 88 For
example, testimony about what is not documented in
medical records has been held admissible under Rule
803(7). 89
Applying Rule 803(7) is a two-step process. First,
it is necessary to show that records were kept in
accordance with Rule 803(6). After that, the fact that a
matter is not included in the records may be used to
prove the nonoccurrence or nonexistence of the
matter. 90 The second step may be proved by the
document itself (which is silent as to the matter sought
to be proved as a nonevent) or through testimony of a
86
Simien v. Unifund CCR Partners, 321 S.W.3d 235, 241242 (Tex.App.—Houston [1st Dist.] 2010, no pet.).
82
Keogh v. Commissioner, 713 F.2d 496, 499 (9th Cir. 1983)
(emphasis added).
83
Id.
87
Id. at 242-243.
88
Tex. R. Evid. 803(7) (emphasis ours).
89
Bell v. State, 176 S.W.3d 90, 92-93 (Tex.App.-Houston
[1st Dist.] 2004, no pet.).
Azle Manor, Inc. v. Vaden, Not Reported in S.W.3d, 2008
WL 4831408 *6 (Tex.App.—Fort Worth Nov. 6, 2008, no
pet.) (mem.op.).
85
90
84
But see, Martinez v. Midland Credit Mgmt., Inc., 250
S.W.3d 481, 485 (Tex.App.—El Paso 2008, no pet.).
Coleman v. United Sav. Assoc. of Texas, 846 S.W.2d 128,
131 (Tex.App.—Fort Worth 1993, no writ).
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Hearsay - An Exception for Every Objection
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witness who has examined the records and confirms
that no record of the matter (that didn’t occur) exists.
if so, will be admissible only if another hearsay
exception applies.
H. Public Records and Reports
In civil cases, TRE 803(8) provides a hearsay
exception for records, reports, statements, or data
compilations, in any form, of public offices or agencies
which set forth: (A) the activities of the office or
agency; (B) matters observed pursuant to duty imposed
by law as to which matters there was a duty to report,
and (C) factual findings resulting from an investigation
made pursuant to authority granted by law. 91 This
exception is similar to the business records exception,
except that it applies specifically to records maintained
by public entities, such as governmental agencies. By
the very nature of public records, challenges to their
trustworthiness are rare; nevertheless, as with other
hearsay exceptions, admissibility of public records is
not absolute. If the sources of information or other
circumstances indicate lack of trustworthiness, then the
evidence may be excluded. 92
A number of courts have drawn a distinction for
purposes of Rule 803(8)(B) between law enforcement
reports prepared in a routine, non-adversarial setting,
and those resulting from the arguably more subjective
endeavor of investigating a crime and evaluating the
results of the investigation. 93 In the case of documents
recording routine, objective observations, made as part
of the everyday function of the preparing official or
agency, the factors likely to cloud the perception of an
official engaged in the more traditional law
enforcement functions, such as criminal investigations,
are simply not present. Due to the lack of any
motivation on the part of the recording official to go
beyond mechanically registering an unambiguous
factual matter, such records are, like other public
documents, inherently reliable. Rule 803(8) is designed
to permit the admission into evidence of public records
prepared for purposes other than specific litigation.
Adversarial, investigative, or third-party statements
may not fall under this exception.
Another classic example of a statement which
would not fall under this hearsay exception would be
witness statements contained in public records. Just
because such statements can be found in a public
report, they may constitute hearsay-within-hearsay and,
I.
91
TRE 803(9) Records of Vital Statistics
Records or data compilations, in any form, of
births, deaths or marriages are admissible as hearsay
exceptions, if the report thereof was made to a public
office pursuant to requirements of law. 94 There is only
one Texas case interpreting this exception, and it
reiterates a familiar rule, i.e., that the contents of a
record of vital statistics are not automatically
admissible pursuant to Rule 803(9) if the record
contains hearsay-within-hearsay. 95 Even though a
document is admissible pursuant to a hearsay
exception, further objections to hearsay contained
within the document must be examined separately.
J.
TRE 803(10) Absence of Public Record or
Entry
TRE 803(10) is to public records what TRE
803(7) is to business records. It is a converse rule that
if something doesn’t appear in the public records that
should be there, its omission is probative evidence that
the “something” didn’t occur.
Specifically, the rule provides that one may use
“the absence of a record, report, statement, or data
compilation, in any form, or the nonoccurrence or the
nonexistence of a matter of which a record, report,
statement, or data compilation, in any form, was
regularly made and preserved by a public office or
agency,” to prove a nonevent or nonexistence of a
fact. 96 According to the rule, this proof may take the
form of “a certification in accordance with Rule 902,
or testimony, that diligent search failed to disclose the
record, report statement, or data compilation, or
entry. 97
Few, if any, cases exist to guide on what types of
objections can be raised to exclude evidence which
would otherwise fall within this exception, but at least
one is instructive on which objections cannot be
effective to keep this evidence out. The best evidence
rule cannot be an objection to testimony offered under
TRE 803(10), because the best evidence rule, by its
very terms, applies to the contents of a writing - it can
have no application to testimony that written records
have been examined and found not to contain a certain
Tex. R. Evid. 803(8).
94
92
Camp v. Harris Methodist Fort. Worth Hosp., 983 S.W.2d
876, 882 (Tex.App.—Fort Worth 1998, no pet.) (DHHS
finding of EMTALA violations properly excluded as
unreliable because the findings were not made by a
physician as required by EMTALA).
Tex. R. Evid. 803(9).
95
Tex. Workers’ Comp. Comm’n v. Wausau Underwriters
Ins., 127 S.W.3d 50, 61 (Tex.App.—Houston [1st Dist.]
2003, pet. denied).
96
Tex. R. Evid. 803(10).
97
Id.
93
See generally, Cole v. State, 839 S.W.2d 798
(Tex.Crim.App. 1990).
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Hearsay - An Exception for Every Objection
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matter. 98 Likewise, as to any authentication objection,
a nonexistent document or document entry, by
definition, cannot be authenticated. It does not exist,
and, therefore, no authentication is required.99
who performed the ceremony was unavailable (through
lack of memory or even death) to prove the fact that
the marriage ceremony had taken place.
M. TRE 803(13) Family Records
Statements of fact concerning personal or family
history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits,
engravings on urns, crypts, or tombstones, or the like
are admissible to prove the truth of the matter
contained in these statements. 102 The indicia of
trustworthiness of a statement, etching or engraving of
this nature is self-evident since, at the time these
statements were made, they were believed to be so
accurate that they were (sometimes literally) “written
in stone.”
K. TRE
803(11)
Records
of
Religious
Organizations
Under TRE 803(11), statements of births,
marriages, divorces, deaths, legitimacy, ancestry,
relationship by blood or marriage, or other similar facts
of personal or family history, contained in a regularly
kept record of a religious organization are admissible
as a hearsay exception. 100 While this rule may seem
redundant to the Rule 803(6) (records of regularly
conducted activity), it is distinguishable by the absence
of a requirement that the person reporting the
information has a business duty to do so. Therefore, it
provides a more relaxed standard for admissibility than
does the business records exception and should be used
in lieu of TRE 803(6) when applicable.
N. TRE 803(14) Records of Documents Affecting
an Interest in Property
TRE 803(14) relates to recitals or statements
made in recorded deeds, leases, mortgages and other
real estate documents. This rule excepts from hearsay
the “record of a document purporting to establish or
affect an interest in property, as proof of the content of
the original recorded document and its execution and
delivery by each person by whom it purports to have
been executed, if the record is a record of a public
office and an applicable statute authorizes the
recording of documents of that kind in that office.” 103
By virtue of this exception, the proponent of evidence
of a recorded document may elect to offer his own
copy of the document under Rule 803(14) in lieu of an
official version of the same document under the selfauthenticating provisions of TRE 902.
Caveat: With regard to probate practice, despite
the broad language used in the rules, neither Rule
803(14) nor 803(15) that follows are available to admit
statements which are tantatmount to an affidavit of
heirship. Because Rule 804 specifically addresses
affidavits of heirship, case law is clear that attempts to
introduce affidavits of this type must meet the
requisites of Rule 804(b)(3), not 803(14) or (15). 104
The most significant difference between the Rule 803
exceptions and those found in Rule 804 is that the
latter require a showing of “unavailability” of the
declarant. (Whether or not the declarant is available is
immaterial to the application of Rule 803 exceptions.)
L.
TRE 803(12) Marriage, Baptismal, and Similar
Certificates
This exception provides a loophole when a record
cannot be proven either through Rule 803(10) as a
public record or Rule 803(11) as a record of a religious
organization. This hearsay exception permits
“statements of fact contained in a certificate that the
maker performed a marriage or other ceremony or
administered a sacrament,” if the statements were
“made by a member of the clergy, public official, or
other person authorized by the rules or practices of a
religious organization or by law to perform the act
certified.” In order to ensure some indicia of
trustworthiness for these certificates – and perhaps to
avoid the temptation of revisionist history – the rule
also requires that the certificate purport to be issued “at
the time of the act or within a reasonable time
thereafter.” 101
So, for example, this rule could be invoked to
prove the existence of a formal marriage in a situation
wherein a ceremony was performed outside of a church
or other religious setting and the executed license was
never filed with the county clerk. If the authorized
official signed a separate certificate or an
acknowledgement of the event in a wedding album, the
contents of that acknowledgement could be offered to
prove that the marriage took place, even if the official
98
Mega Child Care, Inc. v. Texas Dep’t of Protective and
Regulatory Servs., 29 S.W.3d 303, 311-12 (Tex.App.—
Houston [14th Dist.] 2000, no pet.) (emphasis theirs).
99
Id.
100
101
Tex. R. Evid. 803(11).
102
Tex. R. Evid. 803(13).
103
Tex. R. Evid. 803(14).
104
Compton v. WWV Enterprises, 679 S.W.2d 668, 671
(Tex.App.—Eastland 1984, no writ).
Tex. R. Evid. 803(12).
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Hearsay - An Exception for Every Objection
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to bear fruit so many years after a document’s
creation. 111
Nevetheless, some courts have added layers of
additional proof not found in the language of the rule
itself which must be shown in order to invoke this
exception:
O. TRE 803(15) Statements in Documents
Affecting an Interest in Property
This exception is similar to 803(14), except that
this rule applies to documents which have not been
recorded in a public office. Rule 803(15) provides for
admissibility of statements “contained in a document
purporting to establish or affect an interest in property
if the matter stated was relevant to the purpose of the
document.” 105 Although every hearsay exception
carries with it an implied requirement that the
statement offered possess an indicia of trustworthiness,
Rule 803(15), unlike its counterpart Rule 803(14),
explicitly addresses this requirement. Perhaps because
the veracity is more dubious with unrecorded
documents than with documents which have been
properly recorded, 803(15) adds a second threshold for
admissibility with this in mind. If “dealings with the
property since the document was made have been
inconsistent with the truth of the statement or the
purport of the document,” 106 then this hearsay
exception will not apply.
Examples of statements which courts have held
properly admitted under TRE 803(15) are sworn
inventories filed in a divorce proceeding107 and a handwritten list of property (to be used for insurance
purposes in the event of loss or theft) 108 to prove
ownership of the property listed therein.
To qualify for this exception, the document
must be shown (1) in such condition as to
create no suspicion concerning its
authenticity; (2) that it was in a place where
it would likely be if it were authentic; and (3)
that it has been in existence 20 years or more
at the time it is offered. 112
Under a well-recognized exception to the
hearsay rule, the recitals in an ancient
document are admissible as evidence of the
facts recited, provided that the instrument (1)
is over twenty years old, (2) comes from
proper custody, and (3) is not suspicious in
appearance. 113
At least one court has found a document inadmissible
under Rule 803(16), finding that the document was
found and produced under suspicious circumstances to
support its conclusion that the document should be
excluded. 114
P.
TRE 803(16) Statements in Ancient Documents
If you don’t let the word “ancient” fool you, this
exception is simple and straight-forward, applying to
“statements in a document in existence twenty years or
more, the authenticity of which is established.” 109
Although all hearsay exceptions require a showing of
trustworthiness, the justification for the exception itself
has been held to provide circumstantial evidence of
trustworthiness. 110 As legal scholars point out, “(f)raud
and forgery are unlikely to be perpetrated so patiently,
105
Tex. R. Evid. 803(15).
106
Id.
Q. TRE 803(17) Market Reports, Commercial
Publications
Rule 803(17) provides an exception to the hearsay
rule for “market quotations, tabulations, lists,
directories, or other published compilations, generally
used and relied upon by the public or by persons in
particular occupations.” 115 When a predicate is
established that a publication is generally recognized as
reliable and regularly used in a trade or specialized
activity by persons so engaged, such publication is
admissible for the truth of the matter published.116
111
107
112
Guidry v. State, 9 S.W.3d 133, 146-47 (Tex.Crim.App.
1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d
57 (2000).
Guthrie v. Suiter, 934 S.W.2d 820 (Tex.App.—
Houston [1st Dist.] 1996, no writ); offered. Fibreboard
Corp. v. Pool, 813 S.W.2d 658, 694 (Tex.App.—
Texarkana 1991, writ denied).
108
Madden v. State, 799 S.W.2d 683, 698 (Tex.Crim.App.
1983).
109
Goode et al. § 901.10, at 288.
113
Aguillera v. John G. and Marie Stella Kenedy Memorial
Foundation, 162 S.W.3d 689, 694 (Tex.App.—Corpus
Christi 2005, pet. denied).
Tex. R. Evid. 803(16) (emphasis ours).
110
Walton v. Watchtower Bible and Tract Society of
Pennsylvania, Not Reported in S.W.3d, 2007 WL 64442
(Tex.App.—Waco 2007) (memo. op.), citing with approval
2 Steven Goode, Olin Guy Wellborn III, & M. Michael
Sharlot, Texas Practice: Guide to the Texas Rules of
Evidence § 901.10 at 288 (3d ed.2002).
114
Id. at 695.
115
Tex. R. Evid. 803(17).
116
Patel v. Kuciemba, 82 S.W.3d 589, 594 (Tex.App.—
Corpus Christi 2002, pet. denied).
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Hearsay - An Exception for Every Objection
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This exception was developed for information that
is readily ascertainable and about which there can be
no real dispute. Because of this, some courts have
refused to apply this exception to publications which
go beyond objective facts and include information on
which there could be good faith disagreement among
professionals. 117 Instead, those types of publications
may be more properly considered under the learned
treatise exception. (For a discussion of the difference
between this exception and the learned treatise
exception, see below.)
However, as to evidence which is genuinely
objective and uncontroverted, the burden of
establishing a predicate for its admissibility can often
be eased. As stated above, proof that the publication is
generally recognized as reliable and regularly used in a
trade or specialized activity by persons so engaged is
required. However, given the objective and readilyascertainable nature of this evidence, the necessary
foundation may often be laid through the use of
judicial notice under TRE 201, rather than an offer of
testimonial evidence.
Survey results are not specifically enumerated in
Rule 803(17), and it is questionable whether they are
admissible under this exception. A fair reading of what
appears to be the only case on point lends itself to two
possible, yet opposite, conclusions. In that case, the
court discussed the admissibility of the survey at issue
under Rule 803(17), but then applied the common law
exception (which permits survey results to be admitted
into evidence, but requires that the party opposing
admission be provided the opportunity to crossexamine the person who had conducted the survey),
holding that the trial court erred in admitting it into
evidence under TRE 803(17). 118 Left unclear in the
court’s opinion is whether the court determined that all
survey results fall outside Rule 803(17), or only the
particular survey at issue in that case:
The first two sentences indicate that the Court was
open to the notion that a survey could come within the
ambit of the rule, but because of the particular use
which was being made of the survey in question this
survey did not. Yet, through the third sentence - the
second articulated reason why the survey didn’t fit
within “the rule” - the Court clearly did not analyze the
requisites to admissibility under the exception provided
by rule, but instead applied the exception that exists in
common law. (The TRE 803(17) exception, if it applies
to surveys, does not require an opportunity for crossexamination as a pre-requisite to admissibility.)
However, if both uses of the word “rule” in the first
sentence refer to the common law rule, rather than
TRE 803(17), then the court clearly rejected the notion
that any surveys fall within the TRE 803(17)
exception, but instead ruled that the admissibility of
surveys should be considered within the context of the
common law exception. Thus, the applicability of TRE
803(17) to survey results is still unclear.
R. TRE 803(18) Learned Treatises
If “called to the attention of an expert witness
upon cross-examination or relied upon by the expert in
direct examination,” learned treatises fall within the
Rule 803(18) exception to hearsay. This exception
includes “statements contained in published treatises,
periodicals, or pamphlets on a subject of history,
medicine, or other science or art established as a
reliable authority by the testimony or admission of the
witness or by other expert testimony or by judicial
notice.” 119 If admitted, the statements may be read into
evidence but may not be received as exhibits.120
The Rule 803(18) learned treatise and the
commercial reports exempted under TRE 803(17)
share many similarities, but they differ in significant
ways. The commercial report exception applies to
information that is readily ascertainable and about
which there can be no real dispute. Some legal scholars
even believe that this exception should be limited to
situations involving facts for which there exists a
business duty to transmit. 121 Learned treatises, on the
other hand, involve information beyond the
compilation of objective information. Learned treatises
are often complex and technical bodies of work
containing the opinions of experts on which there
could be good faith disagreement. 122
Examples of documents admitted under the
commercial publication exception include growth
From our review of the rule, we do not
consider this article to come within the rule's
exception. First, IHOP did not use the results
of the survey but instead the survey's
characterization of both Cracker Barrel and
IHOP as family restaurants and coffee shops.
Second, IHOP did not make available for
cross-examination the party who conducted
the survey.
117
Kahanek v. Rogers, 12 S.W.3d 501, 504 (Tex.App.—San
Antonio 1999, pet denied) (refusing to admit a Physician’s
Desk Reference under 803(17), but instead treating it as a
learned treatise under 803(18)).
119
Tex. R. Evid. 803(18).
120
Id.
121
31 Michael H. Graham, Federal Practice and Procedure:
Evidence § 6768 (2d interim ed.1997).
118
New Braunfels Factory Outlet Ctr., Inc. v. IHOP Realty
Corp., 872 S.W.2d 303, 310 (Tex.App.—Austin 1994, no
writ).
122
15
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Hearsay - An Exception for Every Objection
Chapter 17
charts of turkeys, daily stock price quote sheets, a
newspaper publication of the market prices of
chickens, a baseball guide indicating the beginning and
ending dates of the baseball season, and a travel guide
showing railroad timetables. Examples of learned
treatises include safety codes and the compilation of
drug information embodied by the Physician’s Desk
Reference. 123 A warning label printed on the outside
cover of an over-the-counter drug falls within the
market report exception, 124 while the admissibility of
drug study data, findings and analysis for that same
over-the-counter drug would be determined under the
learned treatise exception.125
Because of these differences, the treatment in the
law of these two exceptions also differs in a significant
way. Under the commercial publication exception, a
document is received for the truth of the matter
asserted and admitted into evidence as an independent
document. The admissibility of a learned treatise is not
an independent document, but dependent upon expert
testimony and used only in conjunction therewith – a
learned treatise cannot be read from outside the context
of direct or cross-examination.126 This difference has a
significant practical consequence, i.e., a commercial
publication is marked as an exhibit and taken into the
jury room, while a learned treatise may only be read
into evidence and may not be included in exhibits
provided to the jury during deliberations. 127
statements by family members about family affairs
when the statements by deceased persons regarding
family history were made at a time when no pecuniary
interest or other biased reason for the statements were
present.” 129 While the foundation of the exception may
be rooted in the reliability of statements made in the
past, the language of the rule itself and cases
interpreting it clearly indicate that this exception is
limited to reputation evidence and would not include
specific hearsay statements dealing with personal or
family history. 130 However, some cases applying this
rule have not so limited its applicability. 131
One aspect of this rule for which there seems to be
no dispute is the requirement that the source of this
evidence, if not an actual family member, must at least
be a close enough family associate as to be intimately
familiar with the family history. 132
T.
TRE
803(20)
Reputation
Concerning
Boundaries or General History
TRE 803(20) exempts hearsay evidence of
“reputation in a community, arising before the
controversy, as to boundaries of or customs affecting
lands in the community, and reputation as to events of
general history important to the community or state or
nation in which located.” 133 The basic rationale for the
admissibility of boundary or other community historiy
evidence mirrors that of TRE 803(19), and both rules
share the limitation that such evidence be offered as to
reputation only – not specific statements offered for the
truth thereof. 134 For example, in one case, proposed
testimony relating to an individual’s family assertion of
an easement was held not admissible pursuant to this
exception. Without any indication of the community’s
interest in or knowledge of the family’s claim to access
the property or any indication of a general reputation
within the community of his right of access, evidence
of the specific assertion would not fall within this
hearsay exception. 135
S.
TRE 803(19) Reputation Concerning Personal
or Family History
This exception permits reputation evidence to be
admitted for the purpose of proving a fact regarding
personal or family history. TRE 803(19) applies to
evidence of “reputation among members of a person’s
family by blood, adoption, or marriage, or among a
person’s associates, or in the community, concerning a
person’s birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or
family history.” 128
Legal scholars have commented that this hearsay
exception, as well as the one found in TRE 803(20)
below, are “founded on the general reliability of
129
Akers v. Stevenson, 54 S.W.3d 880, 885 (Tex.App.—
Beaumont 2001, pet. denied).
130
123
Roberts v. Allison, 836 S.W.2d 185, 191 (Tex.App.—
Tyler 1992, writ denied).
Id.
124
Shaffer v. State, 184 S.W.3d 353, 362 (Tex.App.—Fort
Worth 2006, pet ref’d).
131
Johnson v. State, 737 S.W.2d 901, 905 (Tex.App.—
Beaumont 1987).
125
132
In re Richardson–Merrell, Inc. Bendectin Prods., 624
F.Supp. 1212, 1230–1232 (S.D.Ohio 1985), aff'd, 857 F.2d
290 (6th Cir.1988).
Jones v. State, 950 S.W.2d 386, 388 (Tex.App.—Fort
Worth 1997, pet. ref’d, untimely filed) (involving a friend
who had actually lived in the family’s home for several
years).
126
Zwack v. State, 757 S.W.2d 66, 68-69 (Tex.App.—
Houston [14th Dist.] 1988, pet. ref’d).
127
128
133
Tex. R. Evid. 803(20).
Kahanek v. Rogers, at 504.
134
Roberts v. Allison, at 191.
Tex. R. Evid. 803(19).
135
Roberts v. Allison, at 190-91.
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Hearsay - An Exception for Every Objection
Chapter 17
contendere pleas do not apply, and (2) the exception
applies only to felonies – not misdemeanors, and (3)
the exception does not apply to judgments pending an
appeal.
U. TRE 803(21) Reputation as to Character
Use of character evidence is limited, but, if
relevant and not otherwise prohibited by rule or law,
TRE 803(21) provides a vehicle for such proof. The
rule exempts from hearsay the “reputation of a
person’s character among associates or in the
community.” 136
With regard to civil cases, generally speaking,
evidence of a party’s good character is simply
inadmissible. 137 The philosophical basis for this
general prohibition is that character evidence tends to
inject into trial unwanted baggage of prejudice,
distraction from the issues, time consumption and
hazard of surprise. 138 However, testimony of a party’s
good character is admissible where a party’s character
is directly at issue, such as when a party is accused of
fraud. 139
A character witness is not required to reside or
work in the same “community” as the one about whom
the testimony is related. 140 For example, the testimony
of a person who knew a defendant’s reputation in
Dallas was admissible even though the witness did not
know his reputation in Richardson, where the
defendant lived. 141
1.
Pleas of Nolo Contendere.
The use of this exception most often arises in the
context of whether convictions for traffic citations are
admissible in a subsequent personal injury lawsuit
involving a collision. As to the first limitation, courts
seem uniform in their approach. If a judgment is based
upon a plea of nolo contendere, neither the plea nor the
judgment itself will be admissible under this hearsay
exception.
2.
Application in Misdemeanor Cases.
With regard to the inapplicability of this rule to
misdemeanors, however, most often this limitation
results in nothing more than a distinction without a
difference. After all, an admission (the plea of guilty)
by a party opponent, whether in answer to a serious
crime or just a minor one is not, by rule, hearsay to
begin with. 142 Even if it were, it would still qualify as
an exception to hearsay as a statement against interest
(TRE 803(24), discussed below). 143 In addition, TRE
803(8) would allow a copy of the misdemeanor
conviction into evidence for the truth of the matter
asserted therein as a public record. 144 Those three rules
combine to render TRE 803(22) ineffective as a bar to
evidence of misdemeanor convictions.
Some scholars frown upon the idea of allowing
evidence of convictions for minor traffic violations into
evidence, even if based upon a guilty plea, arguing that
the relatively insignificant consequences of a class C
misdemeanor conviction may factor heavily into a
defendant’s decision to not to vigorously defend
against the charge.145 Hence, the trustworthiness of
such a result is more suspect than would exist with
regard to felony accusations. Nevertheless, except with
regard to nolo pleas, most Texas civil courts exhibit no
hesitation in allowing evidence of misdemeanor
convictions, as long as that evidence is otherwise
relevant to prove disputed facts in the civil action.
V. TRE 803(22) Judgment of Previous Conviction
TRE 803(22) provides the parameters and
limitations applicable to admitting evidence of a prior
criminal conviction for purposes of offensive use of the
principle of collateral estoppel. For civil cases (the
rules differ in the criminal context), the rule provides
that “evidence of a judgment, entered after a trial or
upon a plea of guilty, judging a person guilty of a
felony,” is admissible “to prove any fact essential to
sustain the judgment of conviction.” So, for example, if
a defendant were convicted of intoxication
manslaughter, that judgment would be admissible to
prove not only the fact that the defendant was driving
while intoxicated at the time of the impact but also the
element of causation in a wrongful death action
resulting from the accident fatality.
As it applies to civil cases, this rule contains three
primary limitations: (1) the exception applies only to
findings of guilt after a trial or plea of guilty – nolo
3.
137
Collateral Estoppel Concerns.
Unlike the common-law application of collateral
estoppel, which applies notwithstanding the fact that in
138
142
136
Tex. R. Evid. 803(21).
Commonwealth Lloyd’s Ins. Co. v. Thomas, 678 S.W.2d
278, 294 (Tex.App.—Fort Worth 1984, writ ref’d n.r.e.).
Matter of S.G., Jr., 935 S.W.2d 919.924 (Tex.App.—San
Antonio 1996, writ dism’d w.o.j.).
139
Johnston v. American Medical Intern., 36 S.W.3d 572,
578 (Tex.App.–Tyler, 2000, pet. denied); Tex. R. Evid.
801(e)(2).
Commonwealth Lloyd’s Ins. Co. v. Thomas, at 294.
143
140
Siverand v. State, 89 S.W.3d 216, 221 (Tex.App.—
Corpus Christi 2002, no pet.).
144
Id.
Carrick v. Hedrick, 351 S.W.2d
(Tex.Civ.App.—Amarillo 1961, no writ).
141
Jordan v. State, 163 Tex.Crim. 287, 290 S.W.2d 666, 667
(1956).
145
17
659,
Fed. R. Evid. 803(22), advisory committee’s note.
662
Hearsay - An Exception for Every Objection
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the underlying action has not yet been resolved on
appeal, this exception does not apply to judgments for
which an appeal has been taken. 146
If admitted under this exception, the party against
whom the prior judgment is being used may also be
prohibited from explaining the circumstances of his
previous conviction. Whether such explanatory
evidence will be prohibited is subject to a threepronged test. If (1) the issue at stake is identical to that
in the criminal case, (2) the issue had been actually
litigated, and (3) determination of the issue was a
critical and necessary part of the prior judgment, then a
party is estopped from attacking the judgment or any
issue necessarily decided by the guilty verdict.147 In
such circumstances, the judgment is established by
offensive collateral estoppel, and a trial court does not
err in refusing to permit a party to explain the
circumstances of his criminal conviction. 148 To allow a
party to present evidence of inadequate representation
by counsel, for example, would impugn the validity of
the judgment which is incompatible with the doctrine
of collateral estoppel.
proprietary interest, or so far tended to subject the
declarant to civil or criminal liability, or to render
invalid a claim by the declarant against another, or to
make the declarant an object of hatred, ridicule, or
disgrace, that a reasonable person in declarant’s
position would not have made the statement unless
believing it to be true.” 150 This hearsay exception,
unlike TRE 801(e)(2) admissions by parties, extends to
non-parties as well.
This rule is limited in application - only those
specific statements that were actually against interest
are admissible, not the entire conversation.151 Selfinculpatory statements and blame-sharing statements
are admissible but self-exculpatory and blame-shifting
statements are not. 152
Unlike the Federal Rule, the Texas Rule is not
limited to statements against pecuniary or penal
interests. TRE 803(24) also includes statements against
social interest. If a declarant is aware that his statement
would subject him to ridicule, disgrace or hatred by a
person who is important to him or to the community in
general, then that statement will ordinarily fall within
this exception. As with all hearsay exceptions,
however, the admissibility of such statements is not
unfettered.
Circumstances
surrounding
the
trustworthiness of the statement should be taken into
consideration in determining whether the statement
should be admitted into evidence under this exception.
W. TRE 803(23) Judgment as to Personal, Family
or General History or Boundaries
Rule 803(23) allows judgments to be used as
“proof of matters of personal, family or general
history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.” 149
Basically this rule provides that any fact that can be
proved through reputation evidence under TRE
803(19) or (20) can also be proved by a judgment
which establishes such facts. This rule incorporates one
aspect of common law collateral estoppel, i.e., that the
fact contained in the judgment must have been
“essential” to the judgment. Otherwise, this rule
applies to any judgment – civil and criminal, state and
federal, from small claims courts to district courts.
VI. EXCEPTIONS TO THE HEARSAY RULE –
DECLARANT UNAVAILABLE
Contrasted with the twenty-four TRE 803 hearsay
exceptions previously discussed, the exceptions
available under TRE 804 are relatively sparce. The
difference between these two rules is a simple one – as
the heading suggests, exceptions under TRE 804 are
available only if the declarant is unavailable.
Unavailability is broadly defined under the rule,
extending well beyond traditional notions of
unavailability, such as illness and death. A witness
sitting on the witness stand at trial may be
“unavailable” for purposes of TRE 804 if the witness
testifies to a lack of memory of the subject matter of
the declarant’s statement or persists in refusing to
testify on the subject, despite a court order to do so.
Likewise, refusal to testify through a valid claim of
privilege will render a witness unavailable. Of course,
death, physical illness, mental illness or infirmity
which prevents a witness from attending court will
suffice to make a witness unavailable. Finally, a
X. TRE 803(24) Statement Against Interest
This hearsay exception is grounded upon common
sense, which tells us that people do not ordinarily make
harmful or damaging statements about themselves
unless they believe what they’re saying is true. With
regard to civil cases, TRE 803(24) exempts from
hearsay any statement, “which was at the time of its
making so far contrary to the declarant’s pecuniary or
146
Tex. R. Evid. 803(22).
147
McCormick v. Texas Commerce Bank Nat’I Ass’n, 751
S.W.2d 887, 889-90 (Tex.App.—Houston [14th Dist.] 1988,
writ denied), cert. denied, 491 U.S. 910, 109 S.Ct. 3199, 105
L.Ed.2d 706 (1989).
148
Id.
149
Tex. R. Evid. 803(23).
150
Tex. R. Evid. 803(24).
151
Walter v. State,
(Tex.Crim.App. 2008).
152
18
Id.
267
S.W.3d
883,
886,
894
Hearsay - An Exception for Every Objection
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witness’s unexplained absence after reasonable means
of procuring the witness’s attendance have been
attempted will also qualify to deem a witness
“unavailable” for purposes of TRE 804.153 One court
summed it up like this:
testimony is offered (or a person with a similar interest
and motive), had an opportunity to examine the
witness. 158 If a witness is available to testify at trial,
then this exception will not provide a vehicle for the
introduction of former testimony – even if given in the
same proceeding. So, for example, if a case is
remanded for new trial by an appellate court, the
testimony from the prior trial cannot simply be read
into evidence in lieu of calling live witnesses, unless
each witness is unavailable to provide live testimony.
Furthermore, assuming unavailability, former
testimony can only be considered if formally
offered. 159 In other words, a trial court cannot simply
take judicial notice of the content of testimony from a
previous proceeding. In order for testimony at a prior
hearing or trial to be considered at a subsequent
proceeding, the transcript of that testimony must be
properly authenticated and entered into evidence.160
It may seem incongruous that deposition
testimony is admissible without a showing of
unavailability but former testimony given in open court
is not. Legal scholars find little distinction between the
two. Indeed, from the fact-finder’s perspective, there is
no distinction, at least insofar as the lack of personal
observation of the witness is concerned. However, the
Texas Supreme Court has noted what it believes are
important differences between the two:
Unavailability of a witness means the witness
is dead, has become insane, is physically
unable to testify, is beyond the jurisdiction of
the court, is unable to be found after a
diligent search, or has been kept away from
the trial by the adverse party. 154
One example of a unique situation in which the court
held that a witness was “unavailable” within the
meaning of the rule involved an elderly witness who
lived in Cuba. The proof offered included the existence
of restrictions imposed on U.S.-Cuba travel and the
lack of subpoena power over Cuban residents. 155
Examples which do not rise to the level of
“unavailability” include: A witness being merely
uncooperative, refusing to attend trial, having a history
of illness, or being beyond the subpoena power of the
court. (Even though beyond the subpoena range of the
court, a witness’s deposition can be taken in advance
of trial, so this circumstance, standing alone, will not
always suffice.) As for physical ailments, a showing
that the witness has been ill does not necessarily mean
that his physical ailment continues and would prevent
him from testifying at the time of trial.156
The party offering a statement under an 804
hearsay exception must prove the unavailability of the
declarant. 157 And, just in case there was ever
temptation to harm or secrete a witness to avail oneself
of the advantages of TRE 804, the rule expressly
addresses this. If any of the permissible reasons for
unavailability have been brought about through wrongdoing (or procurement thereof) by the proponent of the
evidence, the witness will not be considered
“unavailable” and the exceptions will not apply.
There is a difference to the adversary in his
preparation for trial and in his meeting the
adverse testimony. The contesting attorney is
not so likely to have ready reference to
transcribed testimony given at a former trial
as he is to have available a copy of a
deposition. There may be no written
transcription of the former testimony; the
rule has not required its proof to be by a
method of that reliability. Furthermore, the
deposition rules now require that the witness
supplement his testimony if, after the giving
of the deposition, he discovers that he has
testified incorrectly or that the facts have
changed. In the taking of a deposition the
attention of a witness may be called to this
duty to supplement, and further obligation of
this nature may be placed upon the witness
by agreement of the parties. No such duty
A. Former Testimony
In civil cases, if a witness is unavailable, prior
testimony given at another hearing of the same or a
different proceeding, or in a deposition taken in a
different proceeding, will be admissible as a hearsay
exception provided that the party against whom the
153
Tex. R. Evid. 804(a)(1)-(5).
154
Hall v. White, 525 S.W.2d 860, 862 (Tex. 1975).
158
155
Valle v. State, 109 S.W.3d 500, 505 (Tex. Crim.App.
2003).
Tex. R. Evid. 804(b)(1).
159
Fuller-Austin Insulation Co. v. Bilder, 960 S.W.2d 914,
921 (Tex.App.—Beaumont 1998, no writ).
Paradigm Oil, Inc. v. Retamco Operating, Inc., 161
S.W.3d 531, 539-540 (Tex. App–San Antonio 2004, pet.
denied).
157
160
156
Hall v. White, at 862.
19
Id.
Hearsay - An Exception for Every Objection
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may be imposed with respect to testimony at
a former trial. 161
anticipation of death, including extraneous statements
contained in suicide notes, are not “dying declarations”
within the meaning of this rule.166
Practice Note: Just because former testimony is not
independently admissible without a showing of
unavailability of the witness does not mean that former
testimony doesn’t have very strong persuasive power
for impeachment purposes (nor does it mean that
former testimony cannot be independently admissible
under some other theory or exception).
C. Statement of Personal or Family History
TRE 804(b)(3) exempts from hearsay certain
statements of personal or family history when the
declarant is unavailable to testify. Two types of
statements are included in the rule: (1) statements
concerning the declarant’s own birth, adoption,
marriage, divorce, legitimacy, relationship by blood,
adoption, or marriage, ancestry, or other similar fact of
personal or family history even though declarant had
no means of acquiring personal knowledge of the
matter stated, and (2) statements concerning the
foregoing matters, and death also, of another person, if
the declarant was related to the other by blood,
adoption, or marriage or was so intimately associated
with the other’s family as to be likely to have accurate
information concerning the matter declared. 167
This rule is similar to 803(19), which allows
reputation testimony regarding personal or family
history. The rule, and its dispensation with the
requirement of personal knowledge – is rooted in
practical reality. For example, even though a witness
cannot testify with competent personal knowledge as to
the place of his or her own birth, generally the witness
would be the very best source for this information.
Because the presumed accuracy of this type of
statement rests on the assumption that a witness would
not a make a statement, such as a date of a marriage or
the existence of a ceremony, unless it is trustworthy,
this rule is limited to testimony regarding basic
personal data. 168 Rule 804(b)(3) does not apply where
the matter asserted by the declarant involves nontrustworthy “facts,” such as state of mind 169 or family
history with regard to human struggles and
experiences. 170
B.
Dying Declarations
A dying declaration is a statement made by
someone who, at the time of the statement believed
that his own death was imminent. If the substance of
the statement concerned the cause or circumstances of
what the declarant believed to be impending death,
then that statement is an exception to the hearsay
rule. 162
When the Court of Criminal Appeals originally
adopted this rule, it repealed Article 38.20 of the Texas
Code of Criminal Procedure. Article 38.20 required
that the declarant actually be dead at the time the
statement was proffered and that the declaration not be
made in response to leading questions. 163 These
requirements were not included in the Texas Rule of
Criminal Evidence, nor were they added to the nowunified Texas Rules of Evidence. The omission of the
requirement that the declarant actually die, along with
the plain language of the rule make it clear that the
declarant doesn’t actually have to die in order for a
dying declaration to come into evidence. Nevertheless,
the declarant must be unavailable in some manner in
order to invoke this hearsay exception.
While the declarant need not actually die to make
the declaration admissible, the proponent of the
evidence does need to demonstrate with sufficient
evidence, direct or circumstantial, that the declarant
believed that he was at death’s door at the time that he
spoke. 164 Indeed, it is this very awareness that provides
the indicia of trustworthiness for the statement that
follows. The solemnity of the occasion – the speaker
peering over the abyss into the eternal – is said to
substitute for the necessity of an oath. 165
Finally, the statement itself must concern the
cause or circumstances of the potentially impending
death. Other matters contained in statements made in
161
162
VII. IMPEACHMENT
Tex. R. Evid. 607 permits the impeachment of any
witness, including by the party calling the witness. 171
Impeachment evidence is generally hearsay and does
166
Thomson v. Mayes, 707 S.W.2d 951, 953 (Tex.App.—
Eastland 1986, writ ref’d n.r.e.).
Hall v. White, 525 S.W.2d 860, 862 (Tex. 1975).
167
Tex. R. Evid. 804(b)(2).
168
Henderson v. State, 77 S.W.3d 321, 326 (Tex.App.—
Fort Worth 2002, no pet.).
163
Johnson v. State, 770 S.W.2d 72, 76 (Tex.App.—
Texarkana 1989).
164
Gardner v. State,
(Tex.Crim.App. 2009).
165
306
S.W.3d
274,
Tex. R. Evid. 804(b)(3).
290-291
169
Id.
170
Valle v. State, at 505.
171
Truco Properties, Inc. v. Charlton, 749 S.W.2d 893, 896
(Tex.App.–Texarkana 1988, writ denied).
Id.
20
Hearsay - An Exception for Every Objection
Chapter 17
not have probative value.172 Prior inconsistent
statements offered to impeach the witness’s credibility
do not constitute hearsay because they are not offered
for the truth of the matter asserted.173 If the
impeachment evidence meets a hearsay exception or
exemption, however, it may be admitted as probative
evidence.
As the court in Michael 174 explains, there are five
major forms of impeachment - two are specific, and
three are nonspecific. The two specific forms of
impeachment are impeachment by prior inconsistent
statements and impeachment by another witness. The
three non-specific forms of impeachment are
impeachment through bias or motive or interest,
impeachment by highlighting testimonial defects, and
impeachment by general credibility or lack of
truthfulness. Specific impeachment is an attack on the
accuracy of the specific testimony (i.e., the witness
may normally be a truth-teller, but she is wrong about
X), while non-specific impeachment is an attack on the
witness generally (the witness is a liar, therefore she is
wrong about X).
being confronted about it. However, upon request, it
must be shown to opposing counsel before the
impeachment process begins. If a proper predicate is
not laid, the inconsistent statement may be excluded
and further cross-examination on the subject blocked.
These procedural steps and restrictions do not
apply to admissions of a party-opponent as defined in
Rule 801(e)(2). 175 No confrontation is required, and no
opportunity to explain need be given, if the witness
being impeached is the opposing party.
B.
Impeaching Hearsay Statements
Tex. R. Evid. 806 provides that when a hearsay
statement, or a non-hearsay statement defined by Rule
801(e), has been admitted into evidence, the credibility
of the out-of-court declarant may be attacked.
Evidence of a statement or conduct by the declarant at
any time may be offered to impeach the out-of-court
declarant. There is no requirement that the declarant be
afforded an opportunity to deny or explain. If the
credibility of the out-of-court declarant is attacked, it
may be supported by any evidence which would be
admissible if the declarant had testified as a witness. If
the party against whom a hearsay statement has been
admitted then calls the declarant as a witness, the party
is entitled to examine the declarant on the statement as
if under cross-examination.
A. Prior Inconsistent Statement.
A prior inconsistent statement used for
impeachment of a witness cannot simply be offered
into evidence. The rules provide a step-by-step process
which should be followed when attempting to impeach
a witness concerning a prior inconsistent statement,
whether oral or written. Before cross-examination
concerning the statement may be allowed, the witness
must be properly confronted with the prior inconsistent
statement. This is accomplished by informing the
witness of the contents of the statement and the time
and place and the person to whom it was made. The
witness must also be afforded an opportunity to explain
or deny the statement. As an example, this could be
accomplished by simply asking the witness, “Two
weeks ago, didn’t you post a message on your
Facebook page that said …?”
If, upon such confrontation, the witness
unequivocally admits to having made such statement,
then the impeachment is complete, the inquiry stops
there, and the statement itself cannot be admitted into
evidence. But if the witness denies having made the
statement, or tries to explain it away, then the
statement can be introduced into evidence.
With regard to written statements, witnesses are
not entitled to be shown a copy of the statement before
VIII.
OBJECTIONS AND PRESERVATION OF
ERROR.
The trial court’s ruling which admits or
excludes evidence will not be reversed on appeal
unless a substantial right of the complaining party is
affected. 176 Accordingly, it is imperative that the
objecting party make certain that a record of the
objection, the ruling, and the evidence excluded or
omitted is before the higher court.
A.
Right to Object.
Every litigant has a right to object to the
introduction of improper evidence, and the attorney has
a duty to the client to ensure that only competent
evidence is introduced against his client. 177
B.
Time for Objection.
The party opposing the admission of evidence
must object at the time the evidence is offered and not
after it has been received. 178 When an objection is
175
Lewis v. Merrill, 295 S.W.2d 920, 923 (Tex.Civ.App.
1956).
Tex. R. Evid. 613(a) (emph. added).
176
Tex. R. Evid. 103(a).
173
See Flores v. State, 48 S.W.3d 397, 404 (Tex.App.—
Waco 2001, pet. ref’d).
177
174
178
172
TEIA v. Drayton, 173 S.W.2d 782, 788 (Tex.Civ.App.–
Amarillo 1943, writ ref’d w.o.m.).
Michael v. State, 235 S.W.3d 723, 726 (Tex.Crim.App.
2007).
Fort Worth Hotel Ltd. Partnership v. Enserch Corp., 977
S.W.2d 746, 756 (Tex.App.–Fort Worth 1998, no writ).
21
Hearsay - An Exception for Every Objection
Chapter 17
the improper purpose is waived. 184 Evidence may also
be admitted, conditioned upon the representation of
counsel that “it will be connected up at a later time.” If
it is not connected up at a later time, the opposing party
must request the prior testimony be stricken and
request an instruction from the court to disregard the
unconnected testimony. 185
sustained as to testimony which has been heard by the
jury, a motion to strike should be made to preserve
error. 179
C. Sufficiency of Objection.
To properly preserve error, the objection must be
specific enough to enable the trial court to understand
the precise nature of the objection and to make an
intelligent ruling affording the offering party the
opportunity to remedy the defect if possible. 180 To
preserve an issue for appellate review, a party must
make a timely, specific objection and obtain a ruling
on that objection. 181 Additionally, any excluded
evidence must be properly preserved for review (a
necessity for consideration of whether a party’s rights
are substantially affected), which is normally
accomplished through an offer of proof.
F.
Necessity of Obtaining Ruling on Objection.
The objecting party must secure a ruling on
objections in order to complain on appeal or else error
is waived. 186 Even if a ruling is obtained, error cannot
be predicated on a ruling admitting or excluding
evidence unless a substantial right is affected and the
substance of the excluded evidence is made known to
the court. 187
G. Estoppel or Waiver-Similar Evidence.
Error created by the admission of improper
evidence is waived when testimony to the same effect
has been admitted without objection. 188
D. Running Objections.
Under the proper circumstances a running
objection may preserve error, but case law tells us this
is a highly risky proposition. The appellate court may
consider the proximity of the objection to the
subsequent testimony, the nature and similarity of the
subsequent testimony as compared to the prior
testimony and objection, whether the subsequent
testimony was elicited from the same witness, whether
a running objection was requested and granted, and any
other circumstance which might suggest why the
objection should not have been urged. A running
objection can satisfy the Tex. R. App. P. 33.1(A)
requirement of a timely objection. 182 The party
requesting the running objection runs the risk of
waiving it if cross examination goes deep into the
objectionable information. 183
H. Offer of Proof.
If evidence is excluded, the proponent has the
burden to make an offer of proof, also referred to as an
informal bill of exceptions. Even if exclusion is
erroneous, error is not preserved for appellate review
unless the offer of proof is made. 189 The offer of proof
is sufficient if it apprises the court of the substance of
the testimony that would have been offered and may be
presented in the form of a concise statement 190 or by
question and answer (which method must be used if the
opponent demands question-and-answer format). An
offer of proof is complete after tendering the substance
of the evidence and receiving a ruling excluding the
evidence.
E.
Limited and Conditional Admissibility.
Where evidence is admissible for one purpose and
inadmissible for another, it may be admitted for the
proper purpose. The court must, upon motion of a
party, limit the evidence to its proper purpose, and in
the absence of such motion, the right to complain of
184
M.L. Rendleman v. Clark, 909 S.W.2d 56, 58 (Tex.App.–
Houston [14th Dist.] 1995, writ dism’d).
185
Galveston H & S.A. Ry. Co. v. Janert, 107 S.W. 963, 967
(Tex.Civ.App. 1908, writ ref’d).
179
Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86,
90 (Tex.App.–El Paso 1995, writ denied).
186
Cusack v. Cusack, 491 S.W.2d 714, 718 (Tex.Civ.App.–
Corpus Christi 1973, writ dism’d).
180
Dalworth Trucking Co. v. Bulen, 924 S.W.2d 728, 736
(Tex.App.–Texarkana 1996, no writ).
187
Hood v. Hays County, 836 S.W.2d 327, 328 (Tex.App.—
Austin 1992, no writ).
181
Tex.R.App.P. 33.1(a); In re M.D.S., 1 S.W.3d 190, 202
(Tex.App.–Amarillo 1999, no pet.).
188
Mollinedo v. Texas Employment Com’n, 662 S.W.2d 732,
739 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).
182
See, Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 242243 (Tex.App.–Corpus Christi 1994, writ denied).
189
Porter v. Nemir, 900 S.W.2d 376, 383 (Tex.App.—
Austin 1995, no writ).
183
190
Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691
(Tex.App.–Waco 2000, pet. denied).
Ludlow v. Deberry, 959 S.W.2d 265, 269-270 (Tex.App.–
Houston [14th Dist.] 1997, no writ).
22
Hearsay - An Exception for Every Objection
Chapter 17
I.
The Contents of Limine Orders Do Not
Preserve Error.
Limine orders do not preserve error. The granting
of a motion in limine merely means that an attorney
must seek permission outside the presence of the jury
before pursuing the prohibited questions. Regardless
of a ruling on motion in limine, an objection should
also be made at the time evidence is offered or the
error will be deemed waived. 191
IX. CONCLUSION
When examining evidence from a hearsay
perspective, consider the wisdom of the Rolling
Stones:
You can’t always get what you want, but if
you try sometimes, you just might find … you
get what you need.
When faced with a hearsay problem, look for the
exceptions. You may not find exactly what you want,
but if you try, you just might find what you need.
191
Hartford Accident and Indemnity Co. v. McCardell, 369
S.W.2d 331, 335-336 (Tex. 1963).
23