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.


Use of Prior Testimony

November 6, 2011

When it comes to admissibility, all prior testimony is not created equal. In Texas, different rules apply, depending on how it is offered and under what circumstances the testimony was originally given.  

Although it is important to understand how prior testimony may be used generally, the rules regarding its admissibility become particularly important when a case is re-tried after remand or order of new trial, or if an attorney wants to offer testimony at trial that was previously given at a pre-trial evidentiary hearing.  Before an attorney decides to rely on prior testimony in lieu of calling live witnesses, several questions must be asked.  

What type of testimony is it?  There are three types of prior testimony:  (1) affidavits, (2) depositions, and (3) prior testimony at hearing or trial. 

Affidavits.  Affidavits are generally inadmissible at trial to prove the matter asserted therein unless they fall under a hearsay exception in the rules or statutes (such as §18.001 affidavits).  However, even when an affidavit doesn’t fall within a hearsay exception, it will still be given full probative value if it is admitted into evidence without objection.  (This rule is not limited to affidavit testimony, and applies to all hearsay which is admitted into evidence without objection.)  For that reason, it can’t hurt to at least make the offer.  And certainly the parties could stipulate to the admissibility of affidavit testimony in order to streamline the presentation of evidence at trial (or for any other reason).   Furthermore, certain portions of an affidavit could possibly be admissible under rules regarding admissions and statements against interest.

Depositions.  For deposition testimony, the attorney may need to ask additional questions:   Was the deposition given in the same case or a different case?  Is the witness a party? 

Was the deposition testimony given in the same or a different proceeding?  Rule 801(c)(3) of the Texas Rules of Evidence clearly provides that a deposition taken in the same proceeding in which it is offered is not considered hearsay.  Therefore, assuming a deposition is not subject to exclusion under some other rule (e.g., a discovery rule), a deposition taken in the same proceeding is admissible into evidence.  The substance of the deposition testimony, like any other evidence, however, must also meet the requirements for admissibility under all other evidentiary rules as well. 

If the deposition testimony was taken in a different case, then its admissibility hinges upon the question of whether the witness is a party.

Is the witness a party?  If the deposition witness is a party, then testimony given in a different case may be admissible under TRE 801(e)(2), which defines statements by party opponents as “non-hearsay.”  To be admissible under 801(e)(2), the statement need not be against interest, but it must be made by a party opponent.  (A party’s own deposition testimony in a different proceeding may not be admitted into evidence unless it is admissible under some other rule.) 

If the witness is a non-party, then deposition testimony taken in a different proceeding will be admissible only if the deponent is unavailable to testify.  The requirement for “unavailability” is a hurdle for admissibility in some circumstances, but it is not always insurmountable.  First of all, the definition of “unavailable” includes more than death, illness or disappearance.  For example, a witness’s purported “lack of memory” as to a particular matter is sufficient to deem that witness “unavailable” under TRE 804(b)(1), rendering prior deposition testimony on that particular point which was given in another proceeding admissible.  Other situations which will confer “unavailable” status to a witness include:  the claiming of a privilege, refusal to testify (after being ordered to do so by the trial court) and mental infirmity.

Prior Testimony.  Finally, for prior testimony given in the same or other proceedings, the first thing that needs to be ascertained is whether the witness is a party or a non-party?  If the prior testimony comes from a party, then the analysis further examines whether the prior testimony offered was elicited from a party opponent or the party who is offering the testimony into evidence. 

A party opponent’s prior testimony will be treated the same as if it were a party opponent’s deposition in a different proceeding.  Because TRE 801(e)(2) defines statements by party opponents as “non-hearsay,” the hearsay bar would not preclude its admissibility.  However, a party’s own prior testimony is generally inadmissible.  In order for it to come into evidence, the testimony would have to be admissible under some other rule, e.g., as a prior consistent statement offered to rebut a charge of recent fabrication, under TRE 801(e)(b).  

Prior testimony of a non-party is no different than a non-party’s deposition testimony from a different proceeding.  Before prior testimony of a non-party will be admissible, whether same or different proceeding, the proponent must show that the non-party witness is “unavailable” within the meaning of TRE 804(b)(1) and discussed above.

Even if none of the rules or principles above provide an avenue for admissibility of the prior testimony you want to offer, don’t give up.  Even if the prior testimony is not generally admissible, certain specific portions of the testimony may still be admissible under other theories.  For example, if it’s a statement against interest, it may be admissible as an exception to the hearsay bar, whether made by affidavit, deposition or testimony, by a party or a non-party, in the same or different proceeding.  So keep trying. 

The Rolling Stones said it best:  “You can’t always get what you want, but if you try sometimes, you just might find you get what you need.”

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


The Running Objection

September 6, 2011

When a trial court commits error in admitting evidence, it’s a lot like the proverbial tree falling in the woods.  If no objection is lodged, it’s as if no one was in the woods to hear the sound.

Texas Rule of Appellate Procedure 33.1(a) requires that in order to preserve error for appellate review, a party must make a timely, specific objection and obtain a ruling on that objection. A corollary is that even if error is preserved by timely objection and ruling, prior or subsequent presentation of essentially the same evidence without objection will cure the error.  Consequently, all good trial lawyers understand the need to object each time objectionable evidence is offered or risk forfeiture of complaint on appeal.

Compare these rules with yet another which has also been generally accepted in the law:  When a party makes a proper objection to the introduction of certain testimony and is overruled, it may be assumed that the judge will make the same ruling as to other offers of similar evidence, and the attorney is not required to repeat the objection.  Sauceda v Kerlin, 164 S.W.3d 892, 920 (Tex App.–Corpus Christi, 2005) (reversed on other grounds in Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008).

How can these seemingly contradictory rules be reconciled?  It may depend on whether the case is being tried to the court or to a jury.  In some cases involving bench trials, appellate courts seem to dispense with the requirement for ongoing objections on a subject once the court has ruled.  Crispi v. Emmott, 337 S.W.2d 314 (Tex. Civ. App. — Houston 1960); Bunnett/Smallwood & Co. v. Helton Oil, 577 S.W.2d 291 (Tex. Civ. App. — Amarillo 1979).  However, in most cases, particularly those involving jury trials, the only way for error to remain preserved – short of continuous and repetitive objections – is to obtain a running objection.

The running objection is a procedural device which permits an attorney to lodge one objection which applies to all testimony relating to a particular line of questioning.  Unfortunately, because the running objection is a creature of common law, there is no specific rule to guide attorneys in the proper procedure for invoking its use.  Traditionally, however, attorneys will request a running objection after one or two objections on a similar subject matter have been lodged and overruled. 

A running objection which has been properly requested will satisfy the TRAP 33.1(a) requirements for preservation of error on appeal.  Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000).  However, the protection afforded by a running objection is limited.  Care should be taken in articulating the running objection, as it will be effective only as to questions which fall squarely within its stated scope.  It should be specific and unambiguous, City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App. — Fort Worth 1988), and should also clearly identify the source and specific subject matter of the expected objectionable evidence.  Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). 

Some courts have held that the scope of a running objection is limited to similar evidence elicited from the same witness.  Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000).  Others allow a broader application, extending it to all testimony pertaining to the same type of evidence, as long as the running objection has been “properly framed” to embrace testimony elicited from other witnesses.  Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194 (Tex. App. — Texarkana 2000). 

The most recent Texas Supreme Court case which addresses the use and limitations of a running objection is the 2004 decision in Volkswagen, 159 S.W.3d 897.  In that case, Volkswagen requested a running objection to the introduction of a television news report interview of an unidentified witness to the collision at issue.  Before trial, Volkswagen lodged a hearsay objection to “showing that videotape and… to any reference to any alleged witness and… any reference to…what he may or may not have seen out there.”  The trial court overruled the objection, but granted a running objection.  Thereafter, the jury viewed a videotape of not only the witness interview, but also of the news reporter’s additional commentary regarding her conversation with the witness. 

The Supreme Court held that Volkswagen’s initial objection to the evidence complied with TRAP 33.1(a) and its requested running objection clearly identified the source and specific subject matter of the expected objectionable evidence. By “plainly identi(fying) the source of the objectionable testimony, the subject matter of the witness’s testimony and the ways the testimony would be brought before the jury,” Volkswagen, through its running objection, “preserved the complaint not only to the unidentified witness’s testimony but also to the reporter’s testimony concerning what the witness said.” Id.at 907.

Three notes of caution:  

  1. Even after a running objection has been granted, an attorney should remain vigilant as to the questions asked and answers given.  If subsequent testimony is objectionable on grounds which weren’t included in the original running objection, then the new grounds for objection must be asserted in a timely manner or they will be waived.
  2. Make sure you receive a ruling on your request for a running objection, or you may waive that, too.  Diversified Energy Products, Inc. v. Texas Development Co., 1999 WL 93265 (Tex.App.-Hous. (14 Dist.) Feb 25, 1999) (not designated for publication); City of Fort Worth, at 113.
  3. When in doubt, re-urge the objection and the request for a running objection. (It can’t hurt.

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


Silence as Evidence

August 21, 2011

Earth Day,  1971.  Keep America Beautiful launches a TV ad featuring scene-after-scene of polluted rivers, trash-strewn highways, mountainous landfills and billowing industrial smokestacks, ending with a close-up of an American Indian with a single tear flowing down his cheek.  Not a word was spoken during that 60-second span, yet anyone who saw it is unlikely to ever forget the message.  In fact, even today that commercial is considered one of the most powerful and successful ad campaigns of all time, demonstrating how silence sometimes speaks louder than words.

There are two basic types of silence which are of concern in evidentiary law.  The last blog focused upon mere silence accompanied by no other conduct which would indicate an intention to communicate.  As discussed, under certain circumstances, this type of silence is admissible as an admission.

The second type of silence is nonverbal conduct which substitutes for a verbal expression.  This often involves facial expressions or gestures, such as the single tear rolling down the cheek, the pointing of a finger or the nod of a head.  These forms of nonverbal communication may also, under certain circumstances, be admissible, but because they are meant to substitute for verbal communication, they are admissible only if the hearsay objection can be overcome.

Texas Rules of Evidence 801(d) defines hearsay as “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.”  At first blush, this rule would not encompass nonverbal acts.  However, Rule 801(a)(2) defines “statement” to include “nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.”  Therefore, when nonverbal conduct is intended to substitute for verbal expression, it will be treated as though the words implied by the nonverbal conduct were actually spoken.  If the conduct or gesture was made out of court and is offered for the truth of the matter inferred by it, then it is subject to the hearsay bar.

Take note, however, that a nonverbal expression is not a substitute for verbal expression unless it was intended to be one.  Both the Texas Rules and the Federal Rules of Evidence provide that nonverbal expressions are considered hearsay only when the nonverbal conduct was “intended as a substitute for verbal expression” or “intended as an assertion,” respectively.  TRE 801, FRE 801.  In fact, this may be the proponent’s best response to a hearsay objection, i.e., that the nonverbal act was not intended as a verbal expression. The burden is on the opponent of the evidence to prove intent, and doubts are generally resolved in favor of admissibility.

There are two other ways for the proponent of the evidence to respond to the hearsay objection.  The first is to argue that the nonverbal statement is not, by definition, hearsay.  The three most common non-hearsay situations are:

  1. when it’s not offered for the truth of the matter asserted — TRE (801)(d);
  2. when it is a prior inconsistent statement — TRE 801(e)(1); and
  3. when it is made by a party-opponent — TRE 801(e)(2).

Even if the nonverbal communication does fit within the definition of hearsay, it still may be admissible as a hearsay exception.  Rule 803 provides a laundry list of exceptions, but those most readily-applicable to nonverbal communication are:

  1. present sense impressions — TRE 803(1);
  2.  excited utterances — TRE 803(2);
  3. statements of existing mental, emotional or physical condition — TRE 803(3);
  4.  statements for the purpose of medical treatment — TRE 803(4); and
  5. statements against interest — TRE 803(24).

If a nonverbal communication falls within one of these, or any other, hearsay exceptions, then it is admissible into evidence as a hearsay exception.

From the opponent’s viewpoint, assuming the proponent has articulated one of these grounds to support his theory of admissibility, then the evidence may still be subject to a Rule 403 objection (probative value substantially outweighed by prejudice, confusion, etc.).  However, Rule 403 should be the argument of last resort. After all, the proponent’s theory of admissibility should not necessarily be conceded, even if it appears facially meritorious.

Many proffers of otherwise hearsay statements on either of the two above-mentioned grounds — as non-hearsay or as a hearsay exception — simply cannot withstand close scrutiny.  For example, an attorney shouldn’t be so quick to accept a proponent’s argument that the statement is offered, not for its truth, but to show motive, when motive isn’t a relevant issue in the case.  Nor, for example, should it be conceded that a gesture made immediately after a traumatic event would fall within the excited utterance exception, absent any supporting evidence that the nonverbal gesture was a spontaneous reaction which was actually related to the event itself, two required elements to prove up an excited utterance exception.

For those who prefer a step-by-step approach to the process of offering and objecting to nonverbal communication:

  1.  The nonverbal act or gesture is offered into evidence.
  2. An objection is lodged that the nonverbal communication was intended as a substitute for verbal expression and is, therefore, inadmissible hearsay. (Without a timely hearsay objection, the evidence is admissible with full probative value, pursuant to TRE 802.)
  3. The proponent of the evidence argues that the nonverbal statement:  (a) was not made with an intention to substitute for verbal expression; (b) is, by definition, not hearsay; or (c) is admissible under one of the hearsay exceptions.
  4. The opponent challenges the proponent’s theory of admissibility, or makes a 403 objection, if applicable.
  5. Await the trial court’s ruling on the matter.

(Practice Note:  As for Step 5, be careful to avoid any nonverbal communication on your own  part.  Neither the dramatic rolling of eyes when you lose nor high-fives when you win are tolerated in most courtrooms.)

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


Use of Admissions at Trial

July 16, 2011

Admissions are powerful evidence.  Properly used, they not only conclusively establish the admitted fact, but they also serve to bar any evidence to the contrary.  The bar may be short-lived, however, if vigilance is not exercised to prevent inadvertent waiver.

Rule 198 of the Texas Rules of Civil Procedure addresses two types of admissions:  (1) admissions and (2) deemed admissions.  Of course, admissions respond to a request for admission by admitting the facts sought.  Deemed admissions occur when no response, or a late response, is made.  Deemed admissions are considered admissions without the necessity of a court order.

Both admissions and deemed admissions will retain their status as admissions until they have been withdrawn or amended by court order.  Hence, untimely denials, even if only a day or two late, are ineffective to negate deemed admissions.  Deemed admissions remain admissions until and through the date of trial, unless their withdrawal is sought and obtained by the trial court.

Most often admissions are read into evidence at trial.  However, this is not necessary if they have been filed with the court.  Admissions which are on file are effective without being introduced into evidence and will support a finding of that fact on final judgment.  Welch v. Gammage, 545 S.W.2d 223, 226 (Tex. App. — Austin 1977) (“[Although] the better practice is to introduce the requests for admissions and the responses into evidence… [nevertheless, they] may be considered as a part of the record if they were filed with the clerk of the court at trial time.”)

Whether admissions are read into evidence or simply filed with the papers of the court, no evidence which contradicts the admission may be introduced at trial over an objection.  In other words, the court should sustain any objection made to evidence which attempts to controvert the admitted fact.  The key, of course, is in lodging a timely objection.  Marshall v. Vise, 767 S.W.2d 699, 699 (Tex. 1989) (“a party waives the right to rely upon an opponent’s deemed admissions unless objection is made to introduction of evidence contrary to those admissions”).

Absent timely objection, however, evidence which controverts the admission may be properly received into evidence.  And once this happens, the admission is automatically downgraded from its status as a conclusively-proven fact and is relegated to mere evidence to be considered by the trier of fact.  Should this occur during a jury trial, then it becomes important that the admissions actually be formally received into evidence as well (as opposed to being on file with the clerk of the court).  Although there appears to be no case law on point, it is logical to assume that admissions which are of mere evidentiary value, i.e., admissions which simply furnish evidence on a fact in dispute, must be heard by a jury (as with any other piece of evidence), or they would not support a jury’s finding of fact consistent with them.

The treatment of admissions at the summary judgment stage, however, differs dramatically from that at trial on the merits.  Notwithstanding whether an objection is lodged, it seems well-established in case law that for purposes of summary judgment, the trial court cannot consider evidence which contradicts admissions.  Controverting evidence of this type will not create a fact issue to preclude summary judgment.  Instead, any evidence which controverts an admission is simply barred.  Beasley v. Burns, 7 S.W.3d 768 (Tex. App. — Texarkana 1999).

Beware, however, the Texas Supreme Court case which reversed a summary judgment based entirely upon deemed admissions.  Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam).  In Wheeler, the Supreme Court held that basing a summary judgment on deemed admissions alone was tantamount to a “merits-preclusive sanction” violative of due process. (“When a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due process concerns [addressed in TransAmerican Natural Gas. Corp.] arise.”)

While Rule 198 places no limits on a party seeking any number of admissions of fact, opinion or application of law to facts, which, when combined, may serve to admit away an entire cause of action or defense, Wheeler cautions that admissions were “never intended to be used as a demand upon a (party) to admit that he had no cause of action or ground of defense.”  In light of this holding, one might expect that summary judgment motions based solely upon deemed admissions would be frowned upon by both trial courts and appellate courts upon review.

There are three other points which merit brief mention.  First, while admissions may be used by all parties in a case, they may only be used against the party who answered (or failed to answer).  This is true even in multi-party cases involving related persons and entities — an admission by one party cannot be used against another party, no matter how similar their interests.  Second, admissions may only be used in the case in which they were made.  And, finally, denials to requests for admissions are not admissible (although erroneous admission into evidence has been held to be harmless error).

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

Update October 27, 2011:  See the recent Texas Supreme Court case reaffirming the holding in Wheeler regarding the use of admissions as a “merits preclusive sanction.”  http://www.supreme.courts.state.tx.us/historical/2011/oct/100854.pdf


The Non-Responsive Objection

June 14, 2011

One of the most common trial objections is “Objection, non-responsive,” an objection which is often followed up by a motion to strike or to instruct the jury to disregard.  Yet, conspicuously absent from the Texas Rules of Evidence is any rule providing that non-responsive answers are inadmissible or subject to exclusion. 

The fact is, many non-responsive answers may be properly received into evidence, and when a court declines to exclude or strike a non-responsive answer, oftentimes no error is committed.  Because there is no wholesale bar to admissibility of non-responsive answers, one must look to other rules for guidance to determine admissibility in specific circumstances.

Texas Evidence Rule 402 provides that relevant evidence is generally admissible.  Rule 103(a)(1) provides that if the ground for objection is not apparent from the context, an attorney has the duty to enlighten the court as to why it is inadmissible.  Reading the two rules together suggests that a court may allow non-responsive testimony into evidence if it is relevant and no other objection is lodged or apparent from the context.  However, TRE 611(a) confers authority to the court to exclude that evidence as well:

“The court shall exercise reasonable control over the mode and order of interrogating a witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

Provided the court’s exercise of control is “reasonable,” in the quest for truth, efficiency and fairness, whether to admit or exclude non-responsive answers is left to the discretion of the trial court when no other ground of objection is lodged or apparent from the context.

In practical terms, when an attorney makes a “non-responsive” objection to evidence which otherwise appears to be admissible, the trial court has several permissible options.  If an answer is completely non-responsive to the question posed, then a judge is very likely to sustain the objection.  After all, attorneys are entitled to receive answers to questions properly propounded. 

However, the outcome becomes less predictable if, after responding to the question, the testimony takes a non-responsive turn.  In that situation, a judge might sustain a non-responsive objection on the basis that the additional testimony is repetitious.  An objection might also be sustained to avoid a rabbit trail which the judge believes would result in ineffective presentation of the evidence.  But a judge might also overrule the objection, especially if the testimony, albeit non-responsive, serves to clarify, explain or provide further details about the responsive portion of the answer in an effective and efficient manner.  Finally, there is nothing to prevent a judge from applying a very rigid approach, requiring strict adherence to responsive answers in Q & A form at all times, sustaining all valid non-responsive objections raised.  All of these approaches are well within the discretion of the trial court.

For that reason, a trial attorney should not rely on a “non-responsive” objection, especially when considering the preservation of error.  Instead, attorneys should focus on whether non-responsive answers are objectionable on other grounds.  Assuming other grounds exist to exclude the evidence, then the trial court’s discretion to admit or exclude the non-responsive answer can be substantially limited by combining another valid objection with the non-responsive objection. 

If a non-responsive answer contains hearsay, for example, then a hearsay objection should be included, e.g., “Objection — non-responsive, hearsay,” or simply “Objection — hearsay.”  Either objection will apprise the court of the true reason why the answer should not be admitted into evidence, i.e., that it is objectionable hearsay.  By so doing, the court’s attention is focused toward a particular rule which would require, as opposed to simply permit, exclusion under the circumstances. 

What does this mean for trial testimony?  There is nothing inappropriate about making a non-responsive objection.  It’s a great objection when an attorney wants the court to rein in a witness who is either evading questions or simply won’t shut up.  But the court is not bound to do so.  If the real problem is what is being said, as opposed to when it is being said, then the objection needs to identify that ground of objection, e.g., “Objection — irrelevant,”  “Objection — hearsay,” “Objection — best evidence,” etc.  By so doing, the court is forced to make an evidentiary ruling which carries with it far less discretion on review.

What does this mean for deposition testimony?  Ironically, the only objection permitted to deposition answers under Texas Rules of Civil Procedure 199.5(3)(e) is “Objection, non-responsive.”  Nonetheless, since non-responsive deposition answers, if otherwise admissible, may be received into evidence, an attorney cannot rely on the “non-responsive” objection alone as a basis for exclusion of the testimony at the time of trial.  At the time of challenge to the admissibility of deposition testimony for use at trial, the attorney should focus on the substantive objection.  As with live testimony, such an objection will serve to both apprise the court as to why the evidence needs to be excluded and preserve error for later review.

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


The Rule of Optional Completeness

June 9, 2011

How many times have you made the following objection in the middle of your opponent’s examination of a witness:  “Your honor, under the rule of optional completeness, may I read the remaining portion of that sentence?”  By making this objection, you are requesting permission to complete the record contemporaneously without having to wait until your turn to examine the witness.

It’s a common enough request that occurs in civil courtrooms every day.  After all, everyone knows that’s what the rule of optional completeness provides.  Right?  Wrong.

Texas Rules of Evidence 107, the Rule of Optional Completeness, provides:

“When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence…”

Contrary to popular belief and practice, nothing in Rule 107, the rule of optional completeness, provides for a right to have the additional statement placed into evidence immediately.  It simply provides that such evidence is admissible.  And, while most judges would liberally permit a contemporaneous offer of the additional statement, it would not be error for a judge to require that such evidence be placed into evidence when the objecting party cross-examines or re-directs the witness, as with any other piece of additional evidence. 

But, wait!  Can this be right?  Isn’t there a rule allowing evidence to be admitted contemporaneously? 

Yes, there is such a rule, but it’s not found in Rule 107, the rule of optional completeness.  The rule which permits contemporaneous admission of evidence is Rule 106, Remainder of or Related Writings or Recorded Statements.  It provides:

“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it… “

So, even though the rule of optional completeness does not contemplate a contemporaneous offer, the evidence may be admissible contemporaneously under Rule 106.  But beware — even under Rule 106, there is no guaranteed right to have every sentence read to completion, or any deposition answer fully read contemporaneously with an initial offer. 

Rule 106 provides for contemporaneous admission of evidence only when, in fairness, it ought to be considered contemporaneously with the portion previously admitted.  In other words, contemporaneous admission operates only to prevent unfairness.  Whether fairness necessitates a contemporaneous offer under the circumstances is a factual determination to be made by the trial court and reviewed under an abuse of discretion standard. 

Furthermore, case law suggests that even when fairness predominates in favor of a contemporaneous offer, Rule 106 does not actually mandate it.  Because Rule 106 was not written in mandatory terms, it would not be error for a court to require (as with Rule 107) that such evidence be placed into evidence at the time when opposing counsel is directing the witness.  Gilmore v. State, 744 S.W.2d 630 (Tex. App. — Dallas 1987).   (“Rule 106 is a narrow modification of the doctrine of optional completeness, controlling the time an adversary can introduce certain kinds of remainder evidence, [but] the language of the rule is a permissive grant and not a requirement.” Id. at 631.)

So the next time you want to have the remainder of a written document admitted contemporaneously after a partial offer has been made, forget the rule of optional completeness.  Instead, focus on the rule of remainder of writings.  A proper request should include a brief statement as to why the remainder of the statement ought, in fairness, be considered contemporaneously with the previous statement, tracking the language of the rule.  

Finally, don’t feel bad that you’ve been misstating the rule for years.  You’re in good company.  At least one frequently-cited appellate decision has confused the two.  Jones v. Colley, 820 S.W.2d 863 (Tex. App. — Texarkana 1992) (“Rule of optional completeness is that if one party introduces part of statement or doctrine, opposing party may contemporaneously introduce as much of the balance as is necessary to explain the first part,” citing Travelers Insurance Co. v Creyke, 446 S.W.2d 954 [Tex. App. — Houston {14th} 1969].  Travelers, however, makes no mention of contemporaneousness in its explanation of the rule.)

And the next time your opponent interrupts your examination of a witness, demanding a contemporaneous reading of the remainder of a document under the rule of optional completeness, feel free to respond, “Your honor, counsel’s request is improper.  Rule 107, the Rule of Optional Completeness, does not require a contemporaneous introduction of evidence.”

If you want to be so kind as to clue your opponent in that the provisions of Rule 106 might apply, that’s your call.  Or you might decide to let your opponents read the rules for themselves.

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


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