ARTICLE VI. WITNESSES
Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an. element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determ.ined in accordance with State law.
A witness may not testify to a matter unless evidence il;l introduced sufficient to support a finding that the witness has persorwl knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703,
(a) Opinion and reputation evidence of character. The credibility of a witness may he attacked or supported by evidence in the. form of opinion,. or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness . . .
(h) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supJ>orting th,e witness' character for truthfulness, otber than conviction of crime as provided in rule 609, may, not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness. be inquired into on croRs•examination of the witness,( J J concerning the witness' cha!'acter for truthfulness or untruthfolnes,;, or (2) concerning the character for tl'ut.hful. ness or untruthfulness of another witnei;s as to which character the witness being cross•examined has tcstHied.
The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.
For our purposes, the most important procedural rule is that the proponent of an item of evidence must ordinarily lay the foundation before formally offering the item into evidence. For example, the proponent of a letter must present proof of its authenticity before offering the letter into evidence. Proof of the letter’s authenticity is part of the letter’s “foundation” or “predicate.” Substantive Evidence law makes proof of authenticity a condition precedent to the letter’s admission into evidence. Whenever Evidence law makes proof of a fact or event a condition to the admission of an item of evidence, that fact or event is part of the foundation for the evidence’s admission.
In most jurisdictions, the trial judge has discretion to deviate from this procedural rule; the judge may vary the order of proof and admit the evidence subject to the subsequent proof of the foundation. However, judges are reluctant to use this discretion. Proof of the foundation before the evidence’s admission is usually the more logical order of presentation. Moreover, if the judge admits the evidence subject to subsequent proof of the foundation and the proponent later fails to present the proof, the judge will be in an awkward position. At the very least, the judge will have to instruct the jurors to disregard the evidence they have already heard.1 If the judge believes that the instruction will be ineffective and the jurors will be unable to put the evidence out of mind, the judge may have to grant a mistrial. Hence, whenever possible, the proponent should lay the foundation or predicate before formally offering the item of evidence.
There are three cardinal rules for drafting a line of questioning: simplicity, brevity, and preparation.
First, always use the simplest, most easily understood term. R. Wydick, Plain English for Lawyers Ch. 7 (5th ed. 2005). The trial attorney must communicate effectively with lay witnesses and jurors. Effective communication with laypersons requires that the trial attorney use lay diction. Jonathan Swift quite properly condemned the attorneys of his day for using “a peculiar Cant and Jargon of their own that no other mortal can understand.” Sadly, many modern trial attorneys are guilty of the same literary sin. There is no need to resort to “prior” and “subsequent” if “before” and “after” will do quite nicely. There is no need to refer to “motor vehicle” when the word “car” is available. There is no justification for using “altercation” when the attorney could say “fight.” Trial attorneys should realize that the examination of witnesses is a test of communicative skill rather than vocabulary.
Second, always make each question as short as possible. Rudolph Flesch has pointed out that there is an inverse relation between the length of a sentence and its comprehensibility; the longer the sentence is, the lower the level of reader or hearer comprehension. Leading psychology studies document that the maximum length of a written sentence should be 25 words; if the sentence is any longer, reader comprehension drops off markedly. It is more difficult for a hearer to absorb a spoken sentence than it is for a reader to absorb a written sentence. Consequently, many experienced trial attorneys strive to limit their questions to 10 or 15 words in length. If the spoken question exceeds 15 words, it can be very difficult for the witness and jurors to follow.
The third cardinal rule is preparation. Both the attorney and the witness must be well prepared for trial. If the attorney falters or pauses too long during direct examination, the examination loses its flow and rhythm. If the witness appears uncertain during questioning, at the very least the jurors will doubt the quality of the witness’s memory. The attorney must review the contemplated testimony with the witness before trial; the attorney should have the witness review the witness’s deposition and other pretrial statements to refresh the witness’s recollection.
The general rules for laying foundations apply to direct examination. The direct examiner should lay a foundation before offering the evidence, and the examiner should observe the cardinal rules of simplicity and brevity. However, there are some additional rules the direct examiner must be familiar with.
The general rules for laying a foundation also apply here. Most of the general rules apply with even greater force on cross-examination. On cross-examination, many judges are very reluctant to permit the examiner to introduce an item of evidence before presenting the foundational proof. On cross-examination, the witness is often hostile to the examiner; and the judge is more skeptical of the examiner’s assurance that the witness will give favorable testimony at a later point in the examination. The norms of simplicity and brevity also apply with greater force on cross-examination. The hostile witness will often strain to misinterpret the question. The cross-examiner wants to frame questions that are so clear and so short that they cannot be misinterpreted. Box the witness in; the witness’s only options should be to give you the concession you want or to commit perjury. However, in addition to knowing the general rules for laying foundations, the cross-examiner must be cognizant of several special legal rules for cross.
CHAPTER 2 RELATED PROCEDURES
If the judge denies the motion, there is a split of authority over the question of whether the moving party must renew the objection at trial to preserve the issue for appeal. As amended effective December 1, 2000, Federal Rule of Evidence 103(a)(2) stated that “[o]nce the court makes a definitive ruling on the record admitting … evidence, either at or before trial, a party need not renew an objection … to preserve a claim of error for appeal.” Restyled Rule 103(b) reads: “Once the court rules definitively on the record—either before or at trial—a party need not renew an objection … to preserve a claim of error for appeal.” The Advisory Committee Note accompanying the 2000 amendment indicates that the moving party has the burden to ensure that the judge makes it clear on the record that the ruling is final in nature. However, some states take a contrary view; according to this view, even if the ruling purports to be final, the opponent must renew the objection at trial in order to preserve the appellate issue. There is an additional requirement to preserve the objection when the objection challenges convictions offered as impeachment evidence under Federal Rule of Evidence 609. The requirement was announced in Luce v. United States, 469 U.S. 38, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984). In that case, the defense moved in limine to exclude the defendant’s conviction on the ground that the prejudicial character of the evidence outweighed its probative value. The defense argued that the prospect of the admission of the conviction would deter the accused from even testifying and thereby deprive the jury of the accused’s valuable testimony. The trial judge denied the motion, and the accused elected not to testify. On appeal, the defense challenged the denial of the motion. The Court held that the alleged error will not be reviewed unless the accused actually testifies at trial. Writing for the majority, former Chief Justice Burger asserted that without the benefit of the accused’s trial testimony, “[a]ny possible harm flowing from a district court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative.” Under Luce, in order to preserve the issue for purposes of appeal, the accused must both move in limine (or object at trial) and testify. Although the original Luce case involved conviction impeachment under Federal Rule of Evidence 609, many lower courts have extended Luce to other types of evidence such as untruthful acts impeachment under Rule 608(b), uncharged misconduct offered under Rule 404(b), and testimony from the accused’s witnesses.
The following are the elements of a motion in limine to exclude evidence:
After the proponent’s response, the judge rules.
A proper objection includes the following elements:
Some of the opponent’s objections will claim violations of substantive evidentiary doctrines. These objections are illustrative.
However, most of the objections made during the typical trial relate to matters of form rather than substance. The following are examples of form objections:
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None recommended.
Cross-Reference to Texas Rule 611(a)
No Texas rule specifically covers forms of questions. The court has discretion to sustain the objection pursuant to Rule 611(a).
This objection should only be made when, in the judgment of objecting counsel, the question will mislead the jurors or witness to the detriment of counsel’s client. This type of objection seems to encourage a speaking objection about the nature of the defect (Objection. The question is ambiguous because ...). The usual effect of such an objection is to make the opponent a better lawyer by forcing a more precise question. If the question seems designed to confuse the jurors, objecting may communicate to the jurors that objecting counsel is concerned with clarity and truth-finding in the trial process.
A judge may well respond to this objection by asking the witness if the witness understands the question. If the witness understands the question, the question will be allowed to stand. Otherwise, questioning counsel will be required to rephrase the question.
None recommended.
No Texas rule specifically covers forms of questions. The court has discretion to sustain the objection pursuant to Rule 611 (a).
This objection applies to questions on both direct and cross-examination. It may be appropriate where counsel attempts, in question form, to summarize the testimony of the witness, comment on the evidence, or draw inferences from the evidence, essentially making an argument to the jurors during the questioning process. This objection may also be proper when the witness has answered the question, but counsel continues to make the same inquiry, usually in louder or more strident tones. An alternative objection may be “asked and answered.”
Deciding whether counsel is arguing with the witness via question is subjective and will depend on the judge’s perception and counsel’s demeanor and prior conduct, and it may vary significantly from court to court. The line between good, aggressive cross-examination and improper argumentative interrogation is a fine one.
Practice Tip
Research your judge by asking other attorneys who have tried cases in that court about the judge’s preferences, patience, and tolerance for argument in questions.
While “asked and answered” is technically not grounds for exclusion, it may have practical juror appeal. Use this objection when a witness is being badgered on a topic on which the witness has already testified. It can also be effectively used to point out that the questioning attorney is wasting the court’s and the jurors’ time by asking needlessly repetitive questions.
Practice Tip
Adopting a world-weary tone of voice can add to the jury appeal of this objection: “Your Honor, we have heard this same question over and over and over. It has been asked and answered.”
Cross-Reference to Texas Rule 611(c)
This objection should be made when objecting counsel is confident that the witness cannot testify to the assumed fact and that the fact has not been established through an admitted exhibit. If the witness can testify to the assumed fact and questioning counsel knows how to ask the question, the objection may highlight an unfavorable fact or diminish the credibility of the objecting attorney. In addition, the objection may have the unintended effect of making the opponent a better lawyer or providing a firmer foundation for the fact.
The vice of a multifarious question lies in its tendency to cause the jurors to be confused by the testimony. A “yes” answer to a two-part question leaves the jurors (and record) unclear about whether the witness is affirming the first query, the second, or both. The potential for confusion is obvious. Not only are the jurors confused, the appellate record may be unclear as well.
As with many objections to the form of a question, the effect may be to sharpen the question into a clearer and more effective one for the questioner. Because the question is easily rephrased, the objection often gives the appearance that objecting counsel is being hypertechnical. The objection, then, is best made only when the multifarious question is likely to mislead the jurors to the detriment of the objecting party or when failing to clarify creates proof problems.
Leading questions are not only permitted, but expected on cross-examination. However, if the direct examination has been conducted by leading questions under the adverse party or hostile witness rule, then the cross-examiner may be required to refrain from leading.
Texas does not limit cross-examination to the scope of the subject matter of direct examination as do the Federal Rules of Evidence. Cross-examination is wide open, limited only by concepts of relevance. Although no rule specifically addresses recross-examination, a judge has the discretion to limit recross-examination to the scope of the redirect. However, just as redirect is rarely limited to the scope of the cross-examination, so too is recross generally free from restraint. The biggest constraint tends to be exhausting the jurors by asking repetitive questions already covered in earlier examination. At this point, the objection “asked and answered” or a “cumulative” objection under Tex. R. Evid. 403 may be appropriate.
the original was shown to be lost (or destroyed); or
the original cannot be obtained by any available judicial process (or procedure); or
no original is located in Texas; or
the original is in the possession of (opposing party against whom the contents are offered), and they have failed to produce it though on notice by the pleadings (or otherwise) that the content of the document would be the subject of proof at trial; or
the content of the writing is not closely related to a controlling issue and so is collateral.
it is a counterpart intended by (a person executing or issuing the exhibit) to have the same effect as an original; or
it is a negative (or print) of an original photograph; or
it is a printout from data stored in a computer and has been shown to reflect accurately the data stored.
The original document rule, commonly known as the Best Evidence Rule, requires the proponent to offer the original of a document, photograph, or recording into evidence when the proponent seeks to prove its content, unless production of the original is excused under the terms of the rule.
The Best Evidence Rule is only, however, a rule of preference. There are many qualifications to this rule. First, the rule applies only where the proponent seeks to prove the contents of the document. The key phrase is “to prove the contents,” because it is only when one seeks to prove the contents of a document that the best evidence rule applies. Thus, when the document and its contents are only collaterally related to the controlling issues, the best evidence rule does not apply (Bains v. Parker, 143 Tex. 57, 182 S.W.2d 397 (1944)). Moreover, the collateral issue exception to the best evidence rule has been held applicable when the ownership of property is only collaterally related to the cause of action (Bains, 143 Tex.; Fannin Bank v. Johnson, 432 S.W.2d 138 (Tex. Civ. App.—Houston [1st Dist.] 1968); Prudential Ins. Co. of America v. Black, 572 S.W.2d 379 (Tex. Civ. App.—Houston [14th Dist.] 1978)).
Second, an “original” includes a counterpart intended by the executing persons to have the same effect as the original. Third, a duplicate (for example, a photocopy) is generally considered the equivalent of an original. Fourth, digital media makes it easy to have multiple originals, printed or produced from the same computer or file, as long as the document is an accurate print of the data stored in the computer.
Because the rule is merely a rule of preference, the original need not be produced where the original is lost or destroyed (not at the behest of the proponent of the document); where the original cannot be obtained by judicial process; where no original is located within the state; or where the original is in the control of the opponent and the opponent has been put on notice, by the pleadings or otherwise, that the contents of the document, recording, or photograph would be the subject of proof at trial and the opponent has not released the original.
A deed or other document is not made ineffective by its destruction or loss (Bennett v. Romos, 252 S.W.2d 442, 445 (Tex. 1952) (“that the loss or destruction of a valid deed does not reverse or invalidate the transfer of title made by the deed is, of course, well settled.”); Lott v. Van Zandt, 107 S.W.2d 761, 765 (Tex. Civ. App.—Amarillo 1937)). Production of the original document is excused when it is established that the document has been lost or destroyed (Travis Cty. Water Control & Improvement Dist. No. 12 v. McMillen, 414 S.W.2d 450, 452–53 (Tex. 1966)). Other evidence of the contents of a writing is admissible if the original has been lost or destroyed (Tex. R. Evid. 1004(a)). Loss or destruction of the document is established by proof of search for this document and inability to find it (McMillen, 414 S.W.2d at 453).
The proponent of secondary evidence (that is, something other than the original) bears the burden of persuading the trial judge, pursuant to Rule 104, that the prerequisite for excusing nonproduction of the original is met. For example, the proponent can lay a predicate for the loss of the original by offering evidence of a diligent, but unavailing, search for the document (Gause v. Gause, 496 S.W.3d 913, 917 (Tex. App.—Austin, 2016, no pet.)).
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The elements of a motion to strike are roughly the same as those of an objection:
If the improper evidence was highly inflammatory, the opponent should seriously consider moving for a mistrial. If the evidence is likely to leave an indelible impression on the jurors, a curative instruction will be ineffective. Realistically, the instruction might be ineffective if the stricken evidence is directly relevant to a key issue in the case and the jury will probably assume that the source of the evidence had firsthand, personal knowledge of the facts.
An offer of proof contains the following elements:
When you move to sidebar, make certain that the court reporter is in a position to hear the conference. Unless the court reporter records the conference, the appellate court will never learn the tenor of the offer of proof at trial.
Why should the proponent make an offer of proof? There are several reasons. When the proponent makes the offer of proof, the judge may reconsider and change the ruling. The judge may have little familiarity with the facts of the case. Until the offer of proof, the judge may not have realized where the line of questioning was leading. The offer of proof is also important if there is an appeal. If there is no offer of proof, the appellate court will have a difficult time evaluating the propriety and effect of the judge’s ruling. With an offer of proof in the record of trial, the appellate court can make much more intelligent decisions whether there was error, whether the error was prejudicial, and whether the appropriate disposition of the case is to simply remand or enter judgment for a party.