Let’s Talk Hearsay

November 3, 2012

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 that 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.  In order to constitute inadmissible hearsay, the statement must: (1) fall within the Rule 801(a-d) definition of hearsay and not within the Rule 801(e) definition of “non-hearsay”; (2) not fall within 24 enumerated exceptions which apply no matter whether the declarant is “available” or “unavailable”; (3) not fall within the three other enumerated exceptions which apply when the declarant is “unavailable”;[4] and (4) meet resistance in the form of a timely, specific objection.  The fourth hurdle is especially significant, because if no objection is lodged, hearsay evidence is both competent and probative.[5]

When it comes to hearsay, it is never too ambitious an undertaking to look for an exception for every objection. Even hearsay-within-hearsay is admissible, as long as each offered portion fits a rule or exception.[6]  The next series of posts will examine the hearsay exceptions, but before tackling the exceptions, it might be a good idea to take another quick look at what hearsay is, and what it isn’t.

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.

HEARSAY BASICS

TRE 801 defines hearsay 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. The three terms, “statement,” “declarant,” and “matter asserted” are defined in the rule.

The “declarant” is the person who made the statement. The term “matter asserted” includes any matter explicitly asserted, as well as any matter implied by the statement.  “Statement” means: (1) an oral or written verbal expression, or (2) nonverbal conduct, if it is intended as a substitute for verbal expression. Because hearsay statements encompass both verbal and non-verbal assertions, silent gestures such as pointing, nodding, or headshakes may be subject to challenge if these gestures are used as a substitute for a verbal response such as “over there,” “yes,” and “no.”  However, other non-verbal gestures, such as tears, may not be characterized as hearsay if the declarant did not intend the gesture to be an assertion.

In the hearsay context, an out-of-court “statement” will generally fall within one of six categories, as explained below:

  1. Explicit Verbal Assertion.  Example: The statement – “A section of the bridge collapsed, and I fell into the icy water as I walked across it” used to prove that the bridge collapsed and the declarant fell into the water.  HEARSAY
  2. Implicit Verbal Assertion.  Example: The statement – “Don’t walk on that bridge,” used to prove that the bridge was unsafe. HEARSAY
  3. Explicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – a shake of the head in response to the question, “Is the bridge safe?” used to prove that the bridge was unsafe.  HEARSAY
  4. Implicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – declarant grabs another person’s arm to impede his progress as his approaches the bridge, used to prove that the bridge ahead was unsafe. HEARSAY
  5. Verbal Expression. Example: The question – “Do you have a blanket I could use?” used to prove that the declarant was cold. HEARSAY
  6. Non-Verbal Expression.  Example: The gesture – declarant’s teeth were chattering, used to prove that declarant was cold. NOT HEARSAY

As these six examples demonstrate, “statements” can be assertions or merely expressions, explicit or implicit, verbal or non-verbal.  Only in the latter category, the non-verbal expression, does the statement fall outside the definition of hearsay. The nonverbal expression fails to meet the definition of “statement” because the declarant did not intend it to be an assertion.  (According to the rule, only if the declarant intends for his conduct to be an assertion will nonverbal conduct be considered hearsay.)

THE HEARSAY STATEMENTS THAT AREN’T

Sometimes a statement can look like hearsay and sound like hearsay – heck, it can even meet the very definition of hearsay – and still it isn’t hearsay.  To remember which statements fall within this loophole, one must think like a child.  When is hearsay not hearsay?  Either when someone uses magic words, or when your mother says so, that’s why.

Magic Words:  When the mere making of an out-of-court statement – regardless of its truthfulness – has legal significance, then it is magically transformed into a statement of “operative fact” which is not hearsay.  In this situation, even though the statement itself could provide proof of the truth of the matter asserted therein, it is offered for a more essential purpose. For example, when the words themselves constitute a necessary part of the cause of action or defense, such as when the mere making of the statement forms the basis of a fraud claim or constitutes the offer, acceptance or terms of a contract, then the statement itself is an operative fact and, therefore, not hearsay.

Because The Rule Says So, That’s Why:  Then there are those statements which fit squarely within the definition of hearsay, but nevertheless Rule 801(e) simply declares them not to be. Rule 801(e) identifies five categories of non-hearsay statements: (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding.  (Some of these non-hearsay statements have been discussed in prior posts. Follow the link provided for a more in-depth look at these.)

Keep in mind that when responding to a hearsay objection lodged against these non-hearsay statements, it may be tempting to respond that these statements are exceptions to the hearsay rule.  But, technically, that is not correct.  These statements don’t fall within a hearsay exception – they are simply not hearsay to begin with.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


[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.

[4] See, Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—San Antonio 1991, pet ref’d).

[5] Unobjected to hearsay statements will not be denied their probative value merely because they are hearsay. Tex. R. Evid. 802.

[6] Tex. R. Evid. 805.

[7] Lewis Carroll, Alice’s Adventures in Wonderland.


Summaries of Evidence

February 26, 2012

Perhaps the best summary ever written appears in the Hitchhiker’s Guide, a fictitious travel guide touted in Douglas Adams’ humorous five-part “trilogy,” Hitchhiker’s Guide to the Galaxy, as the most comprehensive source of information on intergalactic space travel destinations. In the Guide, planet Earth is summed up in two words: “Mostly harmless.”

Summaries are a very efficient means of communication.  They can also be an effective evidentiary tool at trial, especially when a jury, or judge for that matter, would be otherwise overwhelmed with voluminous data necessary to determine a fact issue in dispute.  In recognition of that, the Texas Supreme Court long ago wisely decided that in certain circumstances summaries should be allowed to substitute for voluminous documents at trial and established a three-part test for admission of summaries. Applying this test, a summary of records would be admissible as long as the underlying records on which the summary was based were:  (1) admissible, (2) voluminous, and (3) provided to the opposing counsel for inspection.  

The purpose of this common law rule was convenience and ease in handling of exhibits, a practical solution to the problem presented to the trier of fact who faces massive amounts of documents in evidence. 

Rule 1006 Summaries:

More than a decade later, the Texas Rules of Evidence codified the common law rule on summaries and expanded it to include recordings and photographs.  The three-prong test was also incorporated into the language of the rule.  TRE 1006 now provides: 

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation.  The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place… 

 Under Rule 1006, a summary which meets the original three-prong test has one additional hurdle to admission.  Pursuant to the express language of the rule, a proponent must show that the summary is necessary because the voluminous underlying materials “cannot conveniently be examined in court.”  Trial courts are given broad discretion to decide what is convenient and what’s not. Provided the summary meets the requirements of Rule 1006 and does not convey a false impression of the evidence, it should be admitted into evidence.

The value of a Rule 1006 summary is in the use the jury may make of it.  When a summary is admitted into evidence, it is sent to the jury room as an exhibit, the same as would the underlying records on which it is based.  The jury may rely on the summary as evidence and base a verdict on it.  This is the essential difference between a Rule 1006 summary and the next type of summary, the pedagogical summary. 

Demonstrative (Pedagogical) Summaries:

A demonstrative summary, or as the federal courts often call it, a “pedagogical summary,” is the most common summary used at trial.  Like a Rule 1006 summary, a demonstrative summary also summarizes evidence for the jury to consider.  It may look a lot like a Rule 1006 summary, but it serves a different purpose.  While a Rule 1006 summary is used for convenience, a demonstrative summary is generally used as a tool of persuasion. 

For example, a demonstrative summary chart might be used simply to connect evidence that might otherwise seem disjointed or unrelated, as opposed to summarizing voluminous data, which is the purpose of the Rule 1006 summary. While the demonstrative summary may also have the added benefit of being convenient to the jury in considering the evidence, it is used primarily to highlight or organize certain evidence to aid in persuasion.

Trial courts generally permit the use of demonstrative aids, including summaries, during trial, especially during closing argument, because they are useful to the jury in considering the evidence.  However useful they may be, though, demonstrative summaries have no place in the jury room during deliberations.  This is the primary difference between the Rule 1006 summary and the demonstrative summary – a Rule 1006 summary is evidence in and of itself, a demonstrative summary is not.

Business Record Summaries:

There is yet a third type of summary which is frequently offered into evidence at trial.  Like a Rule 1006 summary, it may be received as actual evidence and considered by the jury during deliberations as evidence, yet it doesn’t have to satisfy the Rule 1006 requirements for admissibility.  These are summaries of voluminous business records which are normally maintained in summary format.  If a summary is the format in which business records are normally kept, then they can be admitted under the rules of evidence providing for the admission of business records, such as Rule 902(10), instead of Rule 1006.

To determine whether the summary may be admissible as an exception to hearsay, rather than a Rule 1006 summary, one should look to its purpose.  Rule 1006 summaries (and demonstrative summaries) are prepared for the purpose of litigation.  In contrast, the business summary is prepared for use by the company who keeps the record.  If they are business record summaries, then their admission is governed by TRE 803(6), the business record exception to the hearsay rule.  None of the requirements of Rule 1006 will be a predicate to admissibility.              

As a practice pointer, don’t limit the use of summaries to jury trials.  Even in a bench trial, a well-organized demonstrative summary can be a surprisingly effective persuasive technique.  Perhaps even more helpful, however, is the Rule 1006 summary, which can save a judge countless hours of sorting through records, data or other information necessary to make a decision in a case.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Duplicates and the Best Evidence Rule

November 25, 2011

Your client has a perfectly legible photocopy of a deed, contract or other document, but despite a diligent effort to locate the original, it simply cannot be found.  In order to prevail, you know that that the contents of the original document must be proved at trial.  Can you overcome a “best evidence” challenge to the photocopy?  “Not bloody likely,” would have been the answer of the day in merry olde England.  In modern times, however, the prospects are substantially improved. 

For centuries, the common law best evidence rule provided that in order to prove the contents of a document, the original document must be produced in evidence at trial.  While this basic tenet still exists in Rule 1002 of the Texas Rules of Evidence, the codified version of the best evidence rule, perhaps the most important aspect of the modern version appears in the last ten words of the rule:

To prove the content of a writing…the original…is required except as otherwise provided in these rules or by law.

And one need only look to the very next rule – TRE 1003 – to find an exception that some would argue swallows the rule. 

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

As codified, the best evidence rule provides no bar to the use of a duplicate instead of an original, except under two narrow circumstances: 

  1. when the original’s authenticity is questioned, or
  2. when unfairness would result.  

In practical terms, this means that any objection to the introduction of a duplicate in lieu of an original should either raise a question of authenticity or unfairness. 

A bare-bones “best evidence” objection would not be proper, as it would not apprise the court of the reason why the duplicate should be excluded. 

Allowing duplicates makes sense.  With modern-day reliance on highly-accurate document reproduction technology, including faxes and scanners, and in an era when even record custodians don’t necessarily retain records in their original form, the contents of most documents should be able to be satisfactorily proved without anyone having to actually touch the original.  Only when there is a legitimate question of whether the underlying document is authentic or whether it’s fair to rely on a duplicate should the original be required. 

Authentication:  Up until the end of the 20th century, authentication could pose a legitimate concern to an attorney who sought admission of a document at trial which had been obtained from the other side in discovery.  However, with the promulgation of Rule 193.7 of the Texas Rules of Civil Procedure in 1999, which provides that any document produced by a party in response to a discovery request is automatically authenticated for use against the producing party, these authentication problems have disappeared.  Now the only documents which need formal authentication are the documents which are obtained from other sources. 

Keep in mind, however, that the issue is not whether there’s a question as to the duplicate’s authenticity.  Only when a question is raised as to the authenticity of the original will the duplicate be disallowed.  At least one court has held that a duplicate of a self-authenticated document is admissible under Rule 1003.  Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997) (holding a facsimile of a certified copy of a court record was admissible).   Englund was decided on a peculiar set of facts (the fax was sent from the office which also provided the authentication), and the court certainly did not go so far as to hold that authenticity could never be challenged as to all duplicates of self-authenticated documents.  However, a very strict reading of Rule 1003 would support such an argument.

Unfairness.  Assuming no authentication issues, a claim of unfairness will provide the only remaining hurdle to admissibility of a duplicate in lieu of an original.  Unfortunately, this evidentiary point is rarely raised on appeal, so there is little to guide in its application.  In Ladd v. State, a criminal defendant did argue that poor-quality photos of a crime scene were unfair due to their failure to accurately depict the scene.  This argument did not meet with success, however.  The sponsoring witness’ testimony that the photos did fairly depict the scene was held sufficient to satisfy Rule 1003.  3 S.W.3d 547 (Tex. Crim. App. 1999).

Scope of RuleLadd v. State also demonstrates that when it comes to modern-day application of the best evidence rule, it’s not just about documents anymore.  Pursuant to Rule 1001, the best evidence rule applies to:

  • Writings and Recordings – consisting of “letters, words, or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation;” and
  • Photographs – consisting of “photographs, x-ray films, videotapes and motion pictures.” 

Given the broad scope of Rule 1001, using duplicates in lieu of originals pursuant to Rule 1003, would encompass using photocopies of original photographs, duplicate recordings of original DVDs, videotapes and audiotapes, and scanned images of x-ray films, etc.

Allowing for duplicates to be used instead of originals provides a significant exception to the original doctrine of best evidence.  But the exceptions don’t stop there.  Next time we’ll take a look at what to do when your client can’t even manage to find a duplicate.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Witness Competency

October 22, 2011

Long before Robinson and Daubert subjected expert witnesses to a judicial pre-screening process, Texas judges were acting as gate-keepers as to fact witnesses on the basis of competency. In fact, legal history inTexas is replete with many grounds to exclude witnesses due to incompetency, most of which have long-since been abandoned or repealed, such as religion, race and criminal convictions. Two exclusionary grounds remain, however, in the current rules of evidence – witnesses who are mentally incompetent and children.

According to Rule 601(a) of the Texas Rules of Evidence, the following witnesses shall be incompetent to testify in any proceeding: (1) persons “in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify,” and (2) children “who appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.”   

The Burden of Proof:  The mandatory prohibitory language of the rule would suggest that before a party may offer a child or mentally challenged adult as a witness, testimonial competency must first be proven.  This approach would be consistent with the burden of proof required in expert witness gate-keeping, i.e., that the burden lies with the party proffering the witness. However, with regard to witness competency, the rule has been applied in quite the opposite manner. With one exception, the burden of proof belongs to the objecting party, not the offering party, to prove incompetency to testify at trial. The only exception occurs when the witness has previously been declared insane or incompetent. In that situation, a presumption against competency exists, which may be rebutted with evidence of competency (but the mere fact that a witness has previously been declared insane or incompetent will not automatically render the witness’ testimony incompetent).

The Standard:  The three elements to consider when determining testimonial competency are:  (1) the competence of the witness to observe intelligently the events in question at the time of the occurrence; (2) the capacity of the witness to recollect the events, and (3) the capacity of the witness to narrate the facts.  With regard to the third element, a witness must be able: (1) to understand the questions that are asked, (2) to frame intelligent answers to those questions, and (3) to understand the moral responsibility to tell the truth. 

Notably missing from this analysis is any requirement that the testimony be consistent, and it is important to keep that in mind.  Inconsistencies in testimony will not render a witness incompetent.  For example, in Rodriguez v. State, even though the witness, an Alzheimer’s patient, couldn’t remember her own age, the day of the week she was testifying, or that she had been attacked with a knife instead of a pistol, she was still held competent to testify because in other ways her testimony provided a “lucid and purposeful” account of the events surrounding the robbery and assault. Furthermore, all of the witness’s testimony was independently corroborated by either circumstantial or direct evidence. Most frequently, this issue arises in the context of young child witnesses whose testimony can often be inconsistent and confusing. The fact that a child’s testimony is confusing and inconsistent may make it less credible, but it does not render the testimony incompetent. 

Child witnesses are also frequently scrutinized for their ability to understand the moral responsibility to tell the truth.  Because there is no absolute cut-off as to the age in which a child is deemed incompetent to testify as a matter of law, many child witnesses may be too young to articulate or even understand the meaning of a legal oath. Nevertheless, a child may demonstrate competency if he or she has an understanding that it is wrong to lie and is impressed with the need to be truthful. (In those circumstances, a child witness would not be required to take a formal oath prior to testifying.)

Applicability of the Rule:  While at first blush, TRE 601(a) may seem to apply only to the mentally disabled and youngsters, the rule actually has a broad range of applicability, including the physically disabled, the elderly and those suffering from chemical dependency. For example, the capacity of a witness to narrate the facts, including the ability to frame “intelligent answers” to questions, may form the basis of challenge to the testimony of a stroke victim. In one such case, the testimony from the witness who seemingly understood the questions but could respond only with the expression “uh-huh,” which, according to his caretaker/interpreter, meant both “yes” and “no,” depending upon other gestures used at the time he uttered the phrase, was excluded on competency grounds. 

While the capacity to “recollect events” could form the basis of a competency challenge to an elderly witness, infirm memory is not an absolute bar.  For example, one court has held an 80-year old witness with memory deficits competent to testify even though he could not recall the current month or any current events in the news.  In that case, the court held that the witness’s failure to recall certain events should not preclude him from testifying about matters that he could recall.

Finally, while alcoholism or drug dependency does not automatically render a witness incompetent, intoxication may give rise to two grounds for a competency challenge:  (1) a challenge based upon the witness’s inability to observe, recollect or narrate the events at the time of the occurrence due to the witness’s intoxication at the time the events occurred, or (2) a challenge based upon the witness’s inability to observe, recollect or narrate the events in court due to the witness’s intoxication at the time the testimony is offered. Either situation would provide sufficient grounds to exclude testimony on the basis of incompetency.

Texas has come a long way from the days when a witness would be considered legally incompetent based on his or her race, gender, ethnicity or religious beliefs.  Nevertheless, modern day concerns, such as the aging population (and medical issues associated therewith) and society’s struggle with problems of chemical dependency and addiction, raise new questions regarding witness competency at trial.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Proof of Jury Misconduct During Deliberations

September 20, 2011

Texas jury verdicts are a lot like Las Vegas. Even the law recognizes that what happens in the jury room needs to stay in the jury room. 

With one exception (the “outside influence” exception), Texas Rules of Evidence 606 expressly prohibits jurors from testifying, either live or by affidavit, as to any matters that occurred during deliberations. In practical terms, this rule means that after the last argument is made and the door closes behind the twelfth juror entering the jury room, most anything that jurors say or do from that point until the verdict is returned to the courtroom is protected from disclosure. Whether jurors speculated as to liability insurance, tossed coins, drew straws, or conducted themselves in any other manner prohibited by law during deliberations, the only eye-witnesses who could testify about it are expressly prohibited from doing so.

Though two decades old, Daniels v. Melton Truck Lines, Inc. perhaps still provides the best example of the incredible reach of this rule. In that case, the trial court struck a motion for new trial’s supporting affidavits which outlined the following jury misconduct: 

(Juror Hamilton) kept repeating that she was a police officer…and her duties included patrolling, investigating … and issuing tickets…  She left the distinct impression that if we did not answer the questions as she thought they should be answered, that we would see her later and could suffer the consequences…  (S)he was angry and shouted down those who disagreed with her… She never directly threatened anyone but … indicated those disagreeing with her could see her later in the patrol car…  It is my opinion that the emphasis on her right to make arrests… had an influence on some of the jurors changing and siding with her…

Five other jurors came forward with similar testimony regarding Hamilton’s conduct during deliberations.  Nevertheless, the Court of Appeals agreed that the testimony fell squarely within the prohibition of Rule 606 and the trial court did not err in disregarding it.  704 S.W.2d 142 (Tex. App. — Eastland 1986), explaining:

Rule 606(b) bars testimony by any juror as to all matters or statements occurring during the course of their deliberations, except for testimony that “any outside influence was improperly brought to bear upon any juror.” As we read this rule, the statements by Juror Hamilton do not come within the exception and, consequently, proof of her statements and their effect is barred by the rule.

The Texas Supreme Court has upheld strict application of the rule, enunciating four public policy reasons which justify the prohibition against a losing party “putting the jury on trial.” Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). They are: 

  1. The need for jurors to be able to candidly discuss the evidence and issues without fear that their deliberations will be held up to public scrutiny; 
  2. The need to protect jurors from post-trial harassment or tampering;
  3. The need to protect proper verdicts from disgruntled jurors who might seek an avenue of vindication by attempting to overturn them, and
  4. The need for finality to promote public confidence in judgments.   

Given the huge evidentiary hurdle, what is an attorney to do when faced with allegations of jury misconduct which occurred during the deliberative phase of trial? 

  • Look to the exception in the rule:  Jurors are permitted to testify whether “any outside influence was improperly brought to bear upon any juror.”  (Note that this exception will also permit one juror to speculate as to influences on other jurors, not just on themselves.)  Although the Texas Supreme Court has never defined what kind of “outside influence” a juror may testify about, they have indicated that they consider an outside influence as something that must “originate from sources other than the jurors themselves.”  24 S.W.3d at 370.
  • Consider the obvious:  Judges, bailiffs and any other member of the court staff who have access and contact with members of the jury can be “outside influences” for the purpose of this rule.
  • Know what “deliberation” is (and isn’t):  While older cases defined deliberation as “any conversation regarding the case occurring between or among jurors … regardless of the time and place where it occurs,” the Supreme Court has expressly refused to accept such a broad definition.  Informal discussions among jurors during breaks are not part of deliberations, the Court has held, especially since jurors are specifically admonished not to engage in informal discussions.  In many charges, the jury is instructed only to deliberate “in the jury room when all members of the jury are present.”  If an attorney learns of misconduct which occurred in the jury room, a further inquiry as to how many jurors were present at the time could prove fruitful.  If jurors were missing from the room when the misconduct occurred, then the jury should not have been “deliberating” under the instructions of the judge.  Perhaps, then, the misconduct didn’t occur during “deliberations,” rendering Rule 606 inapplicable.
  • Look for other sources of evidence:  Sometimes competent evidence of juror misconduct can be proved using sources other than the jurors themselves.  Mayo v. State, 708 S.W.2d 854 (Tex. Crim. App. 1986) (testimony from a witness contacted by a juror).
  • Whatever you do, though, act quickly:  Assuming the evidentiary hurdles can be overcome, time is of the essence.  Complaints of jury misconduct must be raised by motion for new trial, giving an attorney a narrow window of opportunity to preserve error.  Thirty days after the judgment is signed, any right to raise a complaint of jury misconduct on appeal is lost. 

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Limine Motions – Their Uses And Limitations

July 9, 2011

I can’t think about that right now.  If I do, I’ll go crazy.  I’ll think about that tomorrow.
- Scarlett O’Hara

Limine motions use a Scarlett O’Hara approach to evidentiary problem-solving  –  at best, the most they accomplish is putting off the ultimate decision for another day.  No matter whether a limine motion is granted or denied, no final ruling has been made on the admissibility of any evidence whatsoever.  A limine order simply establishes the ground rules by which an offer of evidence can later be made.  Because of this, no limine ruling will ever be considered error or grounds for reversal on appeal.  Understanding this concept is a key component to learning how to most effectively use this evidentiary tool.

It is also important to understand the two basic ground rules which a limine order puts into play.  They are simply this:  If the limine motion is granted, the proponent of evidence must first approach the bench for a ruling outside the jury’s presence before referring to the matter in front of the jury.  If the limine motion is denied, the proponent of the evidence may offer that particular evidence at trial just like any other piece of evidence.

Keeping these broad concepts in mind, when making or responding to a limine motion, here are the basic guidelines:

  • Rules:  Limine motions are creatures of common law.  Because in Texas there are no procedural rules which govern their use, attornneys should generally look to case law for guidance on substantive issues concerning limine rulings, and look to local rules for guidance on deadlines and other procedural aspects of getting them filed and heard.
  • Purpose:   Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.  It is an exceptionally good method of identifying in advance evidentiary situations which invoke Rule 404 of the Texas Rules of Evidence – evidence, which although relevant, may be excluded because its probative value is outweighed by the risk of unfair prejudice.  A limine order keeps the skunk out of the jury box until the court has made a TRE 404 determination on whether the evidence can come in.  Because this is the essential purpose of the rule, many judges are disinclined to waste time considering limine requests on more mundane matters, absent an agreement between the parties which can be enforced without argument on the point.
  • Preserving Error:  Never rely on a limine ruling to preserve error — it doesn’t.  If the judge denies a motion in limine, then the objecting party must act just as though the limine motion were never filed at all.  At the time the objectionable evidence is offered, a timely, specific objection must be made and a ruling must be obtained thereon.  If the judge grants the motion, the proponent of the evidence must approach the bench outside the hearing and presence of the jury, make an offer of the evidence and get a ruling on the offer.  Oftentimes these offers are made during a bench conference or during a break when the court reporter is not recording the proceedings.  No error is preserved if no record is made of the offer and ruling.  It is also important to remember that error is not preserved unless this offer is made before the jury is charged (even if the parties agree otherwise).  
  • Violations:  The appropriate remedy for a limine violation is contempt of court, which is punishable by up to a $500 fine, a 6-month imprisonment, or both.   Because contempt (of court order) is the appropriate remedy for a limine violation, it is important to have a limine order actually entered.  Therefore, a prudent attorney will provide the judge with an order to sign immediately after the court rules on the limine motion.  Without a written order, contempt may not be available as a remedy.  However, a judge may also grant a mistrial in response to a limine order violation. 
  • Persuading the Court to Grant the Motion:  Given the fact that many courts don’t allocate much time to hear limine arguments, don’t bury an important limine issue among voluminous boilerplate requests.  Pick the most important issues and focus on them.  Don’t wait until the last minute to file the limine motion.  Absent a local rule governing their use, limine motions may be filed at any time, even after a trial has commenced.  But waiting that late is not advisable.  If a limine motion is important enough to file, then it’s important enough to be filed early and heard well in advance of voir dire.  This is especially important if the admissibility issue is unique or complex.  The chances of having a limine motion granted increase if the judge has had ample time to consider the issue, arguments and perhaps briefing.  Finally, since many limine issues cut both ways, obtaining agreement from opposing counsel on limine issues which are clearly appropriate and mutually beneficial is the easiest way to ensure that your motion is granted. 
  • Persuading the Court to Deny a Motion:  Most judges frown on conducting jury trials in piecemeal or disjointed fashion.  If an opponent’s limine motion would require frequent bench conferences outside the jury’s presence on non-inflammatory issues, an attorney may argue that this would impair the effective and efficient presentation of evidence in the case.  So, if the matters raised in the limine motion aren’t potentially prejudicial or inflammatory (such as an attempt to call a non-disclosed witness), then it may be argued that these matters are the type which would best be ruled upon in the ordinary course of trial.
  • When Not to File:  In a bench trial, for obvious reasons, although, believe it or not, I’ve actually seen that attempted a few times.

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


Using Judicial Notice for Ordinances, Rules and Regulations

July 2, 2011

When ordinances, administrative rules or regulations are at issue in a case, the Texas Rules of Evidence provide the vehicle by which a court may take judicial notice of their content.  TRE 204 permits courts to take judicial notice of municipal and county ordinances, the contents of the Texas Register and agency rules and regulations in the Administrative Code.  Unlike other types of judicial notice, a court has discretion to judicially notice these matters sua sponte, but upon proper motion, the taking of judicial notice is mandatory, rather than discretionary.             

Like other rules of judicial notice, this rule incorporates two basic requirements: (1) the providing sufficient information to the court so that judicial notice can be taken, and (2) the providing of fair notice and opportunity for all parties to be heard on the matter.  Depending upon which type of law is at issue, different approaches may be used in finding the law, but none present much difficulty, especially now when most lawyers consider the information superhighway a vital part of their daily commute.

Despite the mandatory language of the rule, trial courts have in the past demonstrated considerable unwillingness to take judicial notice when it came to city and county ordinances.  This reluctance was rooted in the fact that, historically speaking, ordinances were often very difficult to research and to verify.  Many ordinances were not codified or even maintained in a bound form, rendering the task of locating particular provisions, tracking amendments and determining the applicable law during a relevant time period challenging, if not impossible.  Consequently, most courts would accept nothing less than a certified copy of the ordinance from the custodian of the record (usually the city secretary) in order to satisfy the “sufficient information” requirement of the rule, and appellate courts would affirm refusals to take judicial notice of ordinances when unauthenticated or unverified copies were presented.  Hollingsworth v. King, 810 S.W.2d 772 (Tex. App. – Amarillo 1991); City of Houston v Southwest Concrete Construction, Inc., 835 S.W.2d 728 (Tex. App. – Houston [14th Dist.] 1992).

With the advent of the internet, those days are now behind us.  More and more cities and counties are publishing their codes and charters on official websites, and access to this information is usually just a click or two away.  Virtually all municipalities in Tarrant County, for example, have both their city charters and city codes available to be downloaded from their websites.  More trial courts are willing to accept official website versions as at least presumptively reliable, given the safeguards of the fair notice and hearing requirements built into Rule 204, which allow the other side an opportunity to “meet the request,” i.e., challenge the accuracy of the status, wording or content of the version submitted to the court.

Rule 204 likewise allows, and, upon motion, mandates the taking of judicial notice of the contents of the Texas Register.  For those attorneys who are unfamiliar with this tome, the Texas Register is a weekly publication considered to be the “official journal” of state agency rulemaking in Texas.  It contains a treasure trove of regulatory information – attorney general opinions and opinion requests, all proposed, adopted, withdrawn and emergency rule actions, notices of any state agency reviews of agency rules, and a host of other miscellaneous information.  For example, one version contained a proposed rule change for the Texas Department of Insurance’s Prohibited Trade Practices regarding restrictions of claims in residential property insurance, including the text of the proposed change and information about the public comment process.  The Register is available on-line through the Texas Secretary of State’s website at www.sos.state.tx.us.

Any rulemaking actions become codified with other agency rules and regulations in the Texas Administrative Code, which is also maintained by the Secretary of State and may be downloaded from his website.  As with ordinances and codes, TRE 204 mandates that judicial notice be taken of both the Register and the Administrative Code when properly requested by any party.  Perhaps more persuasive than the mandatory language of TRE 204, however, is the judicial notice mandate found in the Government Code.  Tex. Gov’t Code §§2002.022(a) & 2002.054(1) provide that the contents of both the Register and the Administrative Code “are to be judicially noticed,” and at least one appellate court has interpreted this statutory language to require a court to take judicial notice of the Register and the Administrative Code even when no request has been made for the court to do so.  Eckman v. Des Rosiers, 940 S.W.2d 394, 399 (Tex. App. – Austin 1997) (lower courts owe obedience to these regulations, “like statutes or the decisions of a higher court…under the doctrine of stare decisis,” and have a mandatory duty to judicially notice them).

Obtaining judicial notice of codes, ordinances, rules or regulations is no longer the tedious task of days’ past, especially if you make the internet your first stop.  All the information you need may be only a mouse click or two away.

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


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