By: John F. Nichols, Sr. Presented To The Houston Bar Association Family Law Section Luncheon

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EVIDENCEEVIDENCEKeeping It In, Keeping It Out – Preservation of Error Keeping It In, Keeping It Out – Preservation of Error

Through Making and Meeting Objections In Texas Through Making and Meeting Objections In Texas Family LawFamily Law

By:By:John F. Nichols, Sr.John F. Nichols, Sr.

Presented To The Presented To The Houston Bar AssociationHouston Bar Association

Family Law Section LuncheonFamily Law Section LuncheonNovember 7, 2012November 7, 2012

Houston, TexasHouston, Texas

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I.I. IntroductionIntroduction

This article covers the “basics” of evidence, predicates and foundations, and preserving error in the ten (10) phases of a family law case as outlined in O’Conner’s Texas Family Law Handbook.

II.II. Scope of ArticleScope of Article

The article is divided into the ten phases of a Texas family law case:

(1) Pre-trial hearings, motions, and conferences;(2) Jury selection (if applicable);(3) Opening statements;(4) Presentation of evidence;(5) Motion for directed verdict;(6) Charge conference (if applicable);(7) Closing arguments;(8) Receipt of verdict;(9) Post-verdict motions; and(10) Request for findings (non-jury).

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III.III. Library ReferencesLibrary References

The following are “must have” publications in their latest version:

(1) Texas Objections – James Publishing;(2) Family Law Section Tool Kit;(3) Family Law Section Predicates Manual;(4) O’Connor’s – Texas Rules of Evidence;(5) O’Connor’s – Texas Family Law Handbook;(6) Judge Wenke’s – Making and Meeting

Objections;(7) O’Connor’s Texas Civil Trials;(8) Steven Lubet’s Modern Trial Advocacy 3rd

Edition; and(9) ABA’s Electronic Evidence and Discovery

Handbook. 4

IV.IV. Texas Bar CLE ReferencesTexas Bar CLE References

The best deal going!

State Bar of Texas Online Library – 16,000+ articles.

$295.00 per year!!!(subscription)

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V.V. AppendicesAppendices

(1) Common Objections and Comments;(2) Quick Reference Guide to Commonly Used

Predicates and Foundations;(3) Procedure For Making and Meeting

Objections;(4) Tool Kit Objections Checklist;(5) Table of Authorities; and(6) 63 types, kinds, and “phrases” of evidence.

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VI.VI. Basics of EvidenceBasics of Evidence

Page 3 of the outline lists the 63 types, kinds, and phrases of evidence.

See Black’s Law Dictionary, 9th Edition 2011 by Professor Bryan Garner.

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VII.VII. Documentary & Demonstrative EvidenceDocumentary & Demonstrative Evidence

A. The Basics.

M - Mark

I - Identify

A - Authenticate

O - Offer

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VIII.VIII. Documentary & Demonstrative EvidenceDocumentary & Demonstrative Evidence

B. The “Evidentiary Tree” -- Overview1. Preliminary questions – Rule 1042. Relevance – Rule 4013. Authenticity – Rule 9014. Self authentication – Rule 9025. Hearsay & exceptions – Rule 801, 8036. Best evidence rule – Rule 1001-10087. Probative value vs unfair prejudice – Rule

403

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Rule 104 – Preliminary Questions Rule 104 – Preliminary Questions For AdmissibilityFor Admissibility

1. Qualifications to be a witness.

2. Existence of privilege.

3. Admissibility of evidence determined by the court.

4. Relevancy conditioned on fact – “connecting it up.”

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Rule 401 - RelevanceRule 401 - Relevance

1. Does it have the tendency to make the existence of any fact “more or less probable?”

2. Relevance does not have to carry any particular weight.

3. The question is: “Does it have any tendency to prove or disprove a consequential fact in the litigation?”

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Rule 901 - AuthenticityRule 901 - Authenticity

1. Testimony of witness with knowledge: Rule 901(b)(1).

2. Comparison by the trier of fact, or by expert witnesses, with a specimen which has been

authenticated: Rule 901(b)(3).

3. Circumstantial proof of the evidence itself: Rule 901(b)(4).

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Rule 901 - AuthenticityRule 901 - Authenticity

4. Public records. Rule 901(b)(1).

5. Evidence produced as a result of an accurate process or system. Rule 901(b)(9).

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Rule 902 – Self AuthenticationRule 902 – Self Authentication

1. Official publications: Rule 902(5).

2. Self authentication by inscriptions, signs, tags or labels: Rule 902(7).

3. Authentication of regularly conducted business: Rule 902(11).

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Rule 801 & 803– Hearsay & ExceptionsRule 801 & 803– Hearsay & Exceptions

Rule 801 – Hearsay – Electronic Evidence

1. Is an electronic writing a statement by a declarant within the meaning of 801(a)?

2. A computer generated printout does not involve a person, so it cannot be hearsay.

3. The “header” on a fax is not hearsay.

4. Email offered to prove that a relationship existed between two parties to the conversation is not hearsay, it is an “operative fact.”

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Rule 801 & 803 – Hearsay & ExceptionsRule 801 & 803 – Hearsay & Exceptions

5. E-mails between parties to a contract that define the terms of a contract, or prove it’s content are not hearsay they are operative facts.

6. A failure to raise a hearsay objection means that the evidence may be considered for whatever probative value the finder-of-fact chooses to give it.

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Rule 803 – Hearsay Exceptions and ElectronicallyStored Information.

1. Rule 803(1) – Present sense impression.

2. Rule 802(2) – Excited utterance.

3. Rule 803(3) – Then existing state of mind or condition.

4. Rule 803(6) – Business records.

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5. Rule 803(8) – Public records.

6. Rule 803(17) – Market reports, commercial publications.

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Rule 1001-1008 – Best Evidence RuleRule 1001-1008 – Best Evidence Rule

1. Printout of e-mails shown to reflect the data accurately, is an original (and not the screen).

2. The question is: Does it accurately reflect the data?

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Rule 403 – Balance of Probative Rule 403 – Balance of Probative Value With Unfair PrejudiceValue With Unfair Prejudice

Electronically stored information has been found to be unduly prejudicial:

1. when it contains offensive or highly derogatory language;

2. when there is substantial danger that a jury might mistake computer animation for actual events;

3. when considering summary evidence; and,

4. when the court is concerned with the reliability of the accuracy of the information.

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D. Examples of Predicates for Admissibility:1. Photographs2. Business records3. Audios4. Videos5. Map6. Financial information statements7. Handwritten letters8. Police reports9. Object of clothing

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10. Bank records11. Deposition excerpts12. Summaries13. Expert reports14. Mental health records15. E-mails16. Summaries of testimony

VIII. Be Judicious in your ObjectionsVIII. Be Judicious in your Objections

Don’t object unless the evidence Don’t object unless the evidence

will hurt your case.will hurt your case.

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IX. There are two (2) kinds of Evidence:IX. There are two (2) kinds of Evidence:

1.1. Direct Evidence – See, hear, touch, or smell – Direct Evidence – See, hear, touch, or smell – lipstick on collar.lipstick on collar.

2.2. Circumstantial Evidence – Logical and legal Circumstantial Evidence – Logical and legal inferences from facts proved – bucket of inferences from facts proved – bucket of paint on car.paint on car.

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X. There are three (3) Forms of Evidence:X. There are three (3) Forms of Evidence:

1.1. Testimonial – Oral of written (depositions)Testimonial – Oral of written (depositions)

2.2. Nontestimonial Evidence:Nontestimonial Evidence:

A.A. Documentary – paper:Documentary – paper:(1)(1)Business RecordsBusiness Records

(2)(2)Medical RecordsMedical Records

(3)(3)Computer RecordsComputer Records

(4)(4)Government RecordsGovernment Records

(5)(5)PublicationsPublications

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X. There are three (3) Forms of X. There are three (3) Forms of Evidence: (con’t)Evidence: (con’t)

B.B. Demonstrative – things: Demonstrative – things: (1)(1) ClothingClothing(2)(2) ChartsCharts(3)(3) VideosVideos(4)(4) PhotographsPhotographs(5)(5) Body languageBody language

3.3. Electronic Evidence (Hybrid):Electronic Evidence (Hybrid):A.A. TestimonialTestimonialB.B. NontestimonialNontestimonial

(1)(1) WiretapsWiretaps(2)(2) E-MailsE-Mails(3)(3) VideosVideos(4)(4) AudiotapesAudiotapes 26

XI. Predicates/Foundations:XI. Predicates/Foundations:

1.1. AdmissionsAdmissions(1)(1) Party opponentParty opponent(2)(2) Implied admissionImplied admission(3)(3) Judicial admissionJudicial admission

2.2. AuthenticationAuthentication(1)(1) WritingWriting(2)(2) Voice (telephone calls)Voice (telephone calls)(3)(3) Physical items clothingPhysical items clothing(4)(4) PhotographsPhotographs(5)(5) Tape recordingsTape recordings

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XI. Predicates/Foundations: (con’t)XI. Predicates/Foundations: (con’t)

3.3. Self AuthenticationSelf Authentication(1)(1) Public documentsPublic documents(2)(2) Certified copiesCertified copies(3)(3) Official publicationsOfficial publications(4)(4) Public documentsPublic documents(5)(5) Newspapers / periodicalsNewspapers / periodicals(6)(6) Business records affidavitBusiness records affidavit(7)(7) Attorneys fees affidavitAttorneys fees affidavit

4.4. Best Evidence RuleBest Evidence Rule(1)(1) Original required (Auth Q’ed)Original required (Auth Q’ed)(2)(2) Original not requiredOriginal not required

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5.5. Character EvidenceCharacter Evidence(1)(1) ReputationReputation(2)(2) Truthful / untruthfulTruthful / untruthful

6.6. Charts/DiagramsCharts/Diagrams

7.7. DepositionsDepositions

8.8. Foreign LawForeign Law(1)(1) StateState(2)(2) Country 30 day notice / translationCountry 30 day notice / translation

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9.9. GoodwillGoodwill(1)(1) PersonalPersonal(2)(2) BusinessBusiness

10.10. HearsayHearsay(1)(1) Operative factsOperative facts(2)(2) Hearsay exceptionsHearsay exceptions

11.11. Impeachment (Credibility)Impeachment (Credibility)(1) Live Testimony(1) Live Testimony

(2) Deposition(2) Deposition

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12.12. Judicial NoticeJudicial Notice(1) Adjudicative Facts (TRE 201)(1) Adjudicative Facts (TRE 201)

- generally known- generally known- easily determined- easily determined- relevance- relevance- request must be made- request must be made

(2) Legislative Facts(2) Legislative Facts- helps court determine legal reasoning and - helps court determine legal reasoning and

law law making process making process(3) Law (Foreign State – TRE 202)(3) Law (Foreign State – TRE 202)

- motion- motion- copy of law attached- copy of law attached- fair notice to opposing party- fair notice to opposing party- request must be made- request must be made

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(4) Law (Foreign Country – TRE 203)(4) Law (Foreign Country – TRE 203)

- 30 days notice- 30 days notice

- translation to English- translation to English

(5) Law (Ordinances, Agencies, Register)(5) Law (Ordinances, Agencies, Register)

- same requirements as TRE 202- same requirements as TRE 202

13.13. Shorthand RenditionShorthand Rendition

(1) TRE 611 & 1006(1) TRE 611 & 1006

- court controls mode of interrogation- court controls mode of interrogation

- use of summaries - use of summaries

(2) Summaries prepared by witness(2) Summaries prepared by witness

(3) Witness reviewed underlying data(3) Witness reviewed underlying data

(4) Witness describes underlying data(4) Witness describes underlying data

(5) Summary is fair compilation of exhibits(5) Summary is fair compilation of exhibits32


14.14. SummariesSummaries

(1) TRE 1006

(2) Voluminous data otherwise admissible

(3) Not conveniently examined by court

(4) Underlying data available for inspection

(5) Court has discretion to relax best evidence rule

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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence:of Evidence:

1. Relevance(1) Does it make the evidence on a material point more or

less probable?

(2) Do pleadings raise the issue?

(3) Exclusion on special grounds its probative value is out weighed by:

a. Danger of unfair prejudice

b. Confusing the issues

c. Undue delay

d. Cumulative

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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)

2. Illegally Obtained EvidenceQ. It is admissible or inadmissible in a civil proceeding.

3. Rulings on Evidence – Must have a ruling:(1) Express; or(2) Inferred or implied.

4. Effect of Erroneous Ruling – no error unless a substantial right of the party is affected.

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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)5. Exclusion of Evidence

(1) Make substance of excluded evidence known to court.(2) Make offer of proof:

(a) What(b) When

- Testimonial- Documentary- Demonstrative

6. Mode of Interrogation of Witnesses(1) It has reasonable control over mode and order of

interrogation of witnesses.(2) Can avoid needless consumption of time.(3) Protect witnesses from harassment and undue embarrassment. 36


7. Scope of Cross-Examination(1) Restricted(2) Wide Open – any matter relevant to any issue in the case, including credibility.

8. Leading Questions(1) Adverse witness, party(2) Hostile witness

9. Opinion Testimony(1) Expert opinion(2) Lay opinion

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10. Expert Qualifications(1) Hard science(2) Soft science

11. Remainder of Related Writings – When in fairness, it should be considered contemporaneously.

12. Piggyback Objections(1) General(2) Specific(3) Joinder

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13. Settlement (Objection) Negotiations(1) “Opening the door”(2) TRE 408

14. Criminal Prosecutions(1) Conviction (timing)(2) Punitive damages

15. Rules for Preservation of Error on Trial Objections(1) You must object(2) You must object timely, in the first instance

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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)16. Mode of Making Objections

(1) Written Objections- Before trial- During trial

(2) Oral Objections- Running- Repetitive

(3) Specific, not general

17. Common Objections(1) Asked and answered(2) Argumentative(3) Assumes facts not in evidence(4) Best evidence(5) Compound 40


(6) Demonstrative evidence lacks foundation (7) Hearsay(8) Immaterial(9) Incompetence – no personal knowledge(10) Judicial notice – court file(11) Leading and suggestive(12) Misstates former testimony(13) Non-responsive(14) Calls for opinion / conclusion(15) Violates parole evidence rule(16) Privilege(17) Call for general narrative(18) Refresh recollection (mind is evidence)(19) Speculation / conjecture

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

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Documents

By: John F. Nichols, Sr. Presented To The Houston Bar Association Family Law Section Luncheon