Motions and
Challenges to Evidence
Court Systems and Practices
Copyright and Terms of Service
Copyright © Texas Education Agency, 2011. These materials are copyrighted © and trademarked
™ as the property of the Texas Education Agency (TEA) and may not be reproduced without the
express written permission of TEA, except under the following conditions:
1) Texas public school districts, charter schools, and Education Service Centers may reproduce
and use copies of the Materials and Related Materials for the districts’ and schools’ educational
use without obtaining permission from TEA.
2) Residents of the state of Texas may reproduce and use copies of the Materials and Related
Materials for individual personal use only, without obtaining written permission of TEA.
3) Any portion reproduced must be reproduced in its entirety and remain unedited, unaltered and
unchanged in any way.
4) No monetary charge can be made for the reproduced materials or any document containing
them; however, a reasonable charge to cover only the cost of reproduction and distribution may
be charged.
Private entities or persons located in Texas that are not Texas public school districts, Texas
Education Service Centers, or Texas charter schools or any entity, whether public or private,
educational or non-educational, located outside the state of Texas MUST obtain written approval
from TEA and will be required to enter into a license agreement that may involve the payment of a
licensing fee or a royalty.
Contact TEA Copyrights with any questions you may have.
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
2
Motions
• Motion – a formal request made to a court for
it to do something
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
3
Motions (continued)
• Motions can be oral in nature, which are most
common kind in trials and hearings
• Any evidence obtained in an unconstitutional
manner may not be used at trial. Motions
serve to enforce this rule
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
4
Motion to Dismiss or Quash
• This occurs when the defendant believes that
the indictment or information is fatally flawed
• Examples would include
– The court lacks jurisdiction
– The facts alleged do not amount to a crime
– An essential element is not charged
– The defendant has a legal defense such as double
jeopardy
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
5
Motion to Dismiss or Quash
(continued)
• If the court agrees with the defendant,
prosecutors are oftentimes allowed to amend
the charge instead of dismissing it
• Dismissing the charge does not mean the
defendant cannot be recharged with it later
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
6
Motion to Suppress
• The purpose of this hearing is to
determine if evidence was
obtained in an unconstitutional
manner or not
• If it is found that evidence was
obtained in an unconstitutional
manner, the motion to suppress
is granted and the evidence is
not allowed in trial
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
7
Motion to Suppress
(continued)
• Defendants may testify at suppression
hearings, and their testimony may not be used
against them at trial
• This occurs in a separate hearing before the
trial
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
8
Motion for Change of Venue
• Venue means the place for the trial
• A defendant may ask for their trial to be
moved to another location if a defendant
receives considerable negative media coverage
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
9
Motion for Severance
• Defendants may be tried together for the same
crime
• The defense may be antagonistic which means
the jury must disbelieve one to believe another
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
10
Motion for Severance (continued)
• In this situation, the defendant may want to file
a motion of severance to have his or her own
trial to assure a fair trial
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
11
Motion in Limine
• This can be done by the defendant or the
prosecution
• This is a request that they court order the other
party not to mention or attempt to question a
witness about some matter
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
12
Motion in Limine (continued)
• This is similar to a motion to suppress except
that it can apply to more than illegally seized
evidence
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
13
Motion for a Protective Order
• This can be filed if the prosecution fears that
revealing information required under a
discovery rule will endanger the case or a
person’s life
• If this applies, the court will review the
evidence in camera (in private) and decide if it
is necessary to keep it from the defendant or
not
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
14
Motions for Continuance
• Attorneys can request that hearings or the trial
be delayed for various reasons, including
providing more time to prepare for the trial or
gather witnesses
• Courts must be careful not to violate speedy
trial requirements
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
15
Motion for Mental Examination
• If the defense counsel believes that the
defendant is not competent to stand trial, they
can request a mental examination
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
16
Invoking the Rule
• Invoking the rule is a request by either party to
have all of the witnesses leave the courtroom
unless they are in the process of testifying
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
17
Objections
• An objection is another form of challenging
evidence
• Objections are made by either party in court
that contests the legality of the other side’s
questions
• There are numerous objections. Some of the
most common will now be covered
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
18
Lack of Personal Knowledge
• A witness may not testify on any
matter about which he or she has
no personal knowledge. Nor may
an exhibit be offered into
evidence without the necessary
facts showing its relevance and
background being established.
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
19
Lack of Personal Knowledge
(continued)
• OBJECTION: “The witness has no personal
knowledge that would enable him or her to
answer this question.”
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
20
Opinion Testimony by Non-Experts
• Witnesses who are not testifying as experts
may give opinions which are based on what
they saw or heard and are helpful in explaining
their stories. However, other commonly
known facts (such as the speed of a car or the
clumsiness of a person), witnesses should state
only facts – not opinions.
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
21
Assuming Facts Not in Evidence
• An attorney shall not ask a question that
assumes unproved facts.
• EXAMPLE: “When did you stop beating your
spouse?”
• OBJECTION: “The question assumes facts not
in evidence.”
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
22
Questions Calling
for a Narrative Answer
• Questions should be asked so as to call for a
specific answer, and should not be too broad.
• EXAMPLE: “Tell us what you know about
this case.”
• OBJECTION: “Counsel is calling for a
narrative answer.”
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
23
Hearsay
• Asking a witness about a statement made by
someone else is hearsay and is not usually
permitted.
• EXAMPLE: “Did the police officer say the
defendant was speeding?”
• OBJECTION: “Counsel’s question is seeking a
hearsay response.”
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
24
Relevance of Evidence
 Only relevant testimony and evidence may be
presented during a trial. This means that the
only physical evidence and testimony allowed
is that which tends to make a fact important to
the case more or less probable than the fact
would be without the evidence.
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
25
Relevance of Evidence
(continued)
 EXAMPLE: The defense asks on crossexamination, “What is your job?”
 OBJECTION: “I object, Your Honor. The
evidence (or testimony) is not relevant to the
facts of this case.”
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
26
Character
• Evidence about the character of a party or
witness (other than his or her character for
truthfulness or untruthfulness) may not be
introduced unless the person’s character is at
issue in the case.
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
27
Character (continued)
• EXAMPLE: Have you ever received a
speeding ticket?
• OBJECTION: “This question calls for
improper character assumptions.”
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
28
Leading Question
• A leading question is one that suggests to the
witness under direct examination the answer
desired by the questioner, or suggests a “yes”
or “no” answer.
• EXAMPLE: “Sergeant Jeans, you really
couldn’t see the defendant very well, could
you?”
• OBJECTION: “Counsel is leading the
witness.”
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
29
Leading Question (continued)
• An attorney may ask leading questions when
cross-examining the opponent’s witnesses, and
in fact, that is the desired form for crossexamination questions.
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
30
Resources
• 0766818314, Criminal Law and Procedure (5th
Edition) by Daniel E. Hall, J.D., Ed.D.
• Driving on the Right Side of the Road by Law
Related Education
http://www.texaslre.org/lre_drsr.html
• Do an Internet search for lawwebtv
Copyright © Texas Education Agency 2011. All rights reserved.
Images and other multimedia content used with permission.
31