Hearsay Exception #3 – Then-Existing Mental, Emotional or Physical Condition

February 2, 2014

The third hearsay exception – TRE’s 803(3) then existing mental, emotional or physical condition – is also similar to the first hearsay exception, the present sense impression.  As its name implies, this exception applies to statements about a declarant’s state of mind at the time the statement is made.  Included within this exception are statements about thoughts, emotions, sensations and physical condition.

Texas courts have held that the type of statement contemplated by this rule would include a statement which, on its face, expresses or exemplifies the declarant’s state of mind, e.g., fear, hate, love, pain. What isn’t included in the exception are statements of memory or belief.*  As with the excited utterance, this exception includes an element of contemporaneity. Once the subject matter sensation has passed, a declarant’s statement about it no longer falls within this exception.

Likewise, while a statement regarding the existence of a mental, emotional or physical condition falls within this exception, its cause does not. One federal court has explained this distinction this way:

A (declarant may say) “I am scared,” but not “I am scared because the defendant threatened me.” The first statement indicates an actual state of mind or condition, while the second statement expresses belief about why the declarant is frightened. The phrase “because the defendant threatened me” is expressly outside the state-of-mind exception because the explanation for the fear expresses a belief different from the state of mind of being afraid.

That being said, don’t let the inquiry stop there.  In the above example a creative lawyer still might manage to get both statements into evidence by looking to other hearsay exceptions.  Depending upon the circumstances under which the statement “the defendant threatened me” was made, the latter statement, while not falling within the state of mind exception, might constitute an excited utterance discussed in the last post.

Most understand the notion of objecting to evidence on the grounds of “double hearsay” (hearsay-within-hearsay); don’t forget the possibility of offering evidence under a “double hearsay exception” as well.

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

*(unless the statement is related to the execution, revocation, identification or terms of a declarant’s will)


Hearsay Exception #2 – The Excited Utterance Exception

September 8, 2013

Hearsay exception number two – the excited utterance exception – is often confused with previously-discussed hearsay exception number one, the present sense impression.  And while they are similar, and even on occasion, simultaneously applicable, the excited-utterance exception is significantly broader in scope.  One way to differentiate between these first two hearsay exceptions is to identify the rationale underlying each of them.  As discussed in the prior post, the rationale for the present sense impression exception stems from the statement’s contemporaneity.  The rationale for the excited utterance exception, on the other hand, is rooted in its spontaneity.

Texas Rules of Evidence 803(2) defines the excited utterance as a statement relating to a startling event or condition made while the declarant was under stress or excitement caused by the event or condition. So, unlike the present sense impression statement which must have been made at or near the time the declarant was perceiving the event or condition, the excited utterance may occur at any time – hours or even days later.  The test in determining whether a statement is an excited utterance is not when the statement was made, but whether the declarant was still dominated by the emotions, excitement, fear or pain of the event when the words were uttered. Of course, the amount of time which has elapsed between the occurrence of the startling event and the utterance is a factor considered in determining the admissibility of the hearsay statement, but it is not the only consideration.

Another key difference between the present sense impression and the excited utterance is the type of testimony which can be elicited using these exceptions.  The subject matter restriction of the excited utterance exception is considerably more liberal than that of the present sense impression.  Statements of present sense impression are limited to statements “describing or explaining an event or condition,” whereas, excited utterances need only “relat(e) to a startling event or condition.”

For the excited utterance exception to apply, three conditions must be met:

  1. the statement must be a product of a startling occurrence that produces nervous excitement in the declarant and renders the utterance spontaneous and unreflecting,
  2. the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and
  3. the statement must relate to the circumstances of the occurrence preceding it.

These first two exceptions – the present sense impression and the excited utterance – often occur at the same time, and when they do the hearsay statement will fall within both exceptions.  However, it is important to recognize the differences between them.  Especially when too much time has passed between the occurrence and the statement, or when the statement delves into matters beyond mere description or explanation of the event, the proponent should move to hearsay exception number two, the excited utterance exception, to find a basis for admissibility.

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


Using Judicial Notice to Determine Foreign Law

May 3, 2012

For a native Texan like me, folks don’t have to live outside the 50 states to be considered foreigners.  After all, just because we share a national government doesn’t mean that Texans have anything more in common with New Yorkers than we do with New Zealanders.  The Texas Rules of Evidence recognize this, at least with regard to the laws of other places, and establish judicial notice as the vehicle to determine the substance of applicable law anytime you step across the Texas border.

While they are both considered “foreign,” there are only two essential differences between the process of taking judicial notice of the laws of Georgia the country and Georgia the state.  According to Rule 203 of the Texas Rules of Evidence, applying foreign country law may require (1) translations from foreign text into English text, and (2) reliance on informal evidence, such as affidavits and treatises, to “prove” what the foreign law is.  Otherwise, both require some sort of notice to the other side and an opportunity to be heard, and in both situations, it is a decision for the judge, not the jury, and reviewable as an issue of law. 

Foreign State Law:  To request that judicial notice be taken of the laws of another state, TRE 202 basically requires a party to do two things:  (1) furnish the court sufficient information to make a determination of what the law is, and (2) notify the other side that judicial notice is being requested so that they may invoke their right to be heard on the propriety of taking judicial notice.  Normally, it is sufficient to provide copies of relevant statutes and case law in order to satisfy the first step.  Adequate notice to the other side is a matter to be determined by the court, and the rule contemplates that no notice may sometimes suffice, provided that if no advance notice is given, the opposing party be given an opportunity to be heard on the matter after notice has been taken.

Foreign Country Law:  Requesting judicial notice of foreign law is also a relatively simple procedure.  At least 30 days prior to trial, notice of a party’s desire for the court to take judicial notice of a foreign law must be given, along with copies of all materials and sources it intends to use as proof of the foreign law.  If translated materials and sources are used, the original foreign-language text must also be provided.  Proof of foreign law may be informal, including materials which are in otherwise inadmissible form, such as affidavits and treatises.  A judge may also refer to sources which are not provided by either side, provided, however, that both sides are given notice of the use of outside sources and an opportunity to be heard on the matter.

There is one important reason why attorneys should know how to invoke the court’s authority to take judicial notice of non-Texas law:  If it isn’t done correctly, the appellate courts will presume that the law of the other jurisdiction is the same as Texas law.  UTICA v. Mutual Ins. Co. v. Bennett, 492 S.W.2d 659 (Tex. Civ. App. — Houston [1st Dist.] 1973) (failure to make proper request); Pittsburg Corning Corp. v. Walters, 1 S.W.3d 759 (Tex. App. — Corpus Christi 1999) (failure to provide adequate proof of the other law).    And the easiest way to seek judicial notice of non-Texas law is through a summary judgment proceeding.  By doing so, the issue may be decided efficiently and summarily while ensuring that the notice requirements are satisfied.  (Practice tip:  For foreign law, to allay concerns that a summary judgment hearing is considered a “trial” for purposes of TRE 203, provide 30 days’ notice of the hearing instead of 21, and add 15 more days if using a translation of foreign documents, in order to comply with TRE 1009).

When opposing a summary judgment of this type, take care not to assume that the traditional summary judgment standards will apply, and avoid the temptation to try to raise a fact issue to defeat the motion.  Judicial notice of non-Texas law has been recognized as a “hybrid” rule, in that it requires the presentation of evidence, yet is a legal determination.  When there is disagreement over the content of the law, based on evidence presented from various sources, it will not be treated as a fact issue which will preclude summary judgment.  Instead, the proper inquiry is whether the trial court, in reviewing the conflicting evidence about the foreign law, reached a proper legal conclusion as to its content.  CPS International, Inc. v  Dresser Industries, Inc., 911 S.W.2d 18 (Tex. App. — El Paso, 1995). 

Whether from India or Indiana, our evidentiary and procedural rules create a fairly straight-forward mechanism to determine what the law is anytime we need to apply the law of another jurisdiction, such as when parties to a contract agree that the law of another state will govern a particular dispute.  Of course, this begs the question of why anyone would ever do this.  After all, if the law’s good enough for Texas, shouldn’t it be good enough for the rest of the world?

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


The Dead Man’s Rule

April 11, 2012

It is said that dead men tell no tales.  But in Texas, sometimes they do.  It all depends on whether the Dead Man’s Rule applies.

Although reference to the Dead Man’s Statute is still fairly common in legal practice, the former Article 3716 Dead Man’s Statute, which was enacted in the 1870′s was actually repealed by the Texas Legislature in the early 1980′s.  The current law is found in Texas Rules of Evidence 601(b), and is now called the Dead Man’s Rule:

“Dead Man Rule” in Civil Actions: In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement…

Although the Dead Man’s Rule is similar to the former Dead Man’s Statute, it is less restrictive.  Thus, much of the case law decided prior to 1983 dealing with the admissibility of statements made by decedents is inapplicable because the language of the statute interpreted by those cases was considerably broader in scope.  The statute applied to all testimony, not just testimony at trial, and it applied to all transactions with a decedent, not just transactions based on oral statements made by a decedent.  

The purpose of the doctrine remains the same, however, and that is to prevent a party in litigation from offering testimony attributed to a deceased person when that person is no longer available to refute it.  Once death has sealed the decedent’s lips, the rule works to seal the lips of any other party who might benefit from fabricating conversations or statements.  Without such a rule, it is feared that a fraud could be more easily perpetrated either on behalf of or against a decedent’s estate.

While the former Dead Man’s Statute barred evidence of a decedent’s oral statements as to any transactions involving the decedent, the Dead Man’s Rule applies only to civil actions[1] when one party to the lawsuit is the executor, administrator, heir or legal representative of the decedent’s estate[2].  Unless the oral statement can be corroborated by a disinterested witness, it is excluded from evidence under the rule.  The Rule applies only in cases involving parties in their representative capacity, and does not apply when a party is suing in his own individual capacity.  For that reason, while the Dead Man’s Rule would apply to survival actions, it would have no applicability in a wrongful death action.[3]

Corroboration.  If any disinterested witness offers testimony as to prior statements made by a decedent, then such testimony will corroborate the testimony of the executor, administrator, heir or legal representative as to those same statements.  In that event, the executor, administrator, heir or legal representative is no longer barred from providing testimony about the statements.  Generally speaking, for purposes of this Rule, a disinterested witness is any person who is not an executor, administrator, heir or legal representative.  This may include relatives and close friends, as long as they do not have a financial interest in the decedent’s estate or the outcome of the lawsuit.  The corroboration may also come in the form of a document.

It is not necessary that the corroborating witness provide direct testimony about the decedent’s oral statement, so the corroborating witness need not actually have heard the words spoken.  All that is required is that the corroborating witness provide testimony that tends to prove the truthfulness of the testimony that would otherwise be barred.  For example, proof that a decedent subsequently acted in conformity with the decedent’s alleged oral statement would suffice as corroboration and render an executor’s testimony as to the statement admissible.

Waiver.  The applicability of the Dead Man’s Rule can be waived by calling the adverse party to the stand and eliciting testimony about statements which would otherwise be barred under the rule.  Unlike the Dead Man’s Statute, however, there is no waiver in the eliciting of these statements during discovery.  As with virtually all evidence that may be offered at trial, waiver can also occur by failing to object when testimony is offered in violation of the Dead Man’s Rule.

Jury Instruction.  In cases where a witness’s testimony has been excluded under the Dead Man’s Rule, the trial court is required to instruct the jury as to the application of the rule.  The last sentence of Rule 601(b) provides that a trial court shall “instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.”  The purpose of this instruction is to prevent one party from improperly suggesting to the jury that because there is no evidence at trial about decedent’s statements, the decedent must not have made any.

So, the bottom line is that dead men do tell tales inTexas.  Was there ever really any doubt?

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


[1] The Dead Man’s statute never applies in criminal cases.

[2] The rule also applies to guardians of estates.  In this circumstance, prior oral statements by a person later declared incompetent are treated the same as prior oral statements made by a decedent.

[3] But where the two causes of action are intertwined, the Rule would be applicable unless the claims are severable. 


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


The Best Evidence Rule – Its Origins in Common Law

November 19, 2011

It’s a doctrine as old as the Middle Ages, yet it still lingers in the law.  Codified, modified, expanded almost beyond all recognition, the Best Evidence Rule remains the source of one of the most frequently misused objections at trial.  In the next series of posts, we will examine this most misunderstood doctrine, from common law to the codified rule, and its applicability to the modern-day practice of law.

It is often true that the best place to start in explaining what something is, is to explain what it is not.  What the best evidence doctrine is not is a rule which measures the value of evidence.  The law does not demand that an attorney produce the very best evidence to prove a fact in dispute.  Anything less than best – good, better or even poor evidence – if it tends to prove or disprove a material fact at issue, may be given probative value at trial without necessarily being subject to a best evidence objection.

For example:  A person makes a statement against interest in the presence of three people – the local constable, the parish priest and the village idiot.  Later at trial, the lawyer calls the village idiot to the stand to prove up the contents of the statement made.  Even though most would agree that testimony from either of the other two witnesses – the constable or the priest – would be better, the village idiot’s testimony can’t be stricken on the basis of a best evidence objection.  Just because better evidence exists, or a better source of evidence is available, doesn’t necessarily invoke the best evidence rule.[1]  The best evidence rule was not designed to be used as a method to critique an opponent’s evidence, but instead was developed for the purpose of insuring that evidence received has reliability.

At its inception, the common law best evidence rule was directed to disputes involving written documents.  To understand the source and rationale of this rule, perhaps it would help to understand its historical context.  The best evidence doctrine finds its roots in the same era as that of Johannes Gutenberg.  It was developed at a time when documents were rarely reproduced, and if they were, they were reproduced by hand.[2] 

Oftentimes the rights asserted by parties in court are derived from a written document, such as a will or a deed, and, historically speaking, reproductions or oral testimony regarding the content of such documents was simply not reliable.  Because of these circumstances, a best evidence rule emerged, requiring that if a document was the source of the rights, duties or responsibilities of a party, the original document itself should be examined to determine its contents.  Hand-written reproductions, or someone’s mere recollection or belief as to the contents of a document, were considered fraught with too much potential for human error or outright fraud. 

Texas courts continue to examine the purpose for this age-old doctrine.  Even in the modern era, four somewhat overlapping reasons have been advanced to justify a rule preferring production of the original: 

  1. The nature of documents is often such that the exact words are “of more than average importance, particularly in the case of operative or dispositive instruments … where a slight variation of words may mean a great difference in rights.”
  2. Secondary evidence — whether parol testimony or copies — is susceptible to both human and mechanical error.  The rule, therefore, enhances the probability of accuracy.
  3. The rule promotes the prevention of fraud because it allows the parties to examine documents for any defects or alterations, and it dampens any desire to color testimony as to the contents of documents, since any testimony is subject to immediate corroboration.
  4. The appearance of the original may furnish information as to its authenticity and significance that may be lacking in a copy, such as handwriting, paper and the like.

As with most new rules, the best evidence rule was for many years strictly enforced.  However, as courts began to realize the harsh consequences that sometimes resulted from such a strict application of the rule, exceptions developed.  Courts slowly began to accept some secondary evidence to prove contents of writings, especially in circumstances where the original had been lost or destroyed.  Over time, as technology continued to advance, even more flexibility was permitted in the substitution of copies for the original.

Given the fact that the best evidence doctrine was developed in an era as foreign to us today as is life on other planets, one may wonder whether it should have any place in our current body of law.  In modern times, where even the smallest businesses, and many private homes, are equipped with scanners and photocopiers, it is surprising that the doctrine hasn’t gone the way of the dinosaurs.  But the doctrine has survived, primarily because, unlike the dinosaurs, it has adapted to the changing world.   

Many would argue that the modern, codified version of the best evidence rule, which is found in Article 10 of the Texas Rules of Evidence, bears little resemblance to its ancestor in common law.  It is true that the best evidence rule has been liberalized considerably, but its primary purpose remains intact – to assist in the search for truth by minimizing opportunities for mistake and fraud in the introduction of evidence at trial.

In the next post, we will discuss the best evidence rule in the 21st century.

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


[1] At least one legal scholar has cited Young v. Young as an example of a Texas case which misapplies the best evidence rule in a similar way.  In that case, the court held, albeit in a footnote, that the court clerk’s file marks were “the best evidence” of when a document was filed.  854 S.W.2d 698 (Tex. App. – Dallas 1993).  Although the court clerk’s file marks might be the best evidence in a qualitative sense, the best evidence rule, applied correctly, shouldn’t bar other evidence to prove the date of filing. 

[2] Even with the invention of Gutenberg’s revolutionary printing press, Bibles could only be printed six pages at a time, and required 100,000 pieces of type.  The making of the type alone was a two-year process, and the setting up of pages prior to printing took at least a half a day per page. 


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


Use of the Fifth Amendment Privilege in a Civil Case

September 26, 2011

According to a 2006 survey, while almost 25% of Americans cannot name a single right guaranteed by the First Amendment, 38% erroneously believe that the right against self-incrimination is one of them.[1] Thanks in part to television crime shows, a third of all Americans at least understand that they have the right to remain silent, even if they don’t know exactly where that right can be found in the Constitution.

Of course, a witness’s right not to self-incriminate is found in the Fifth Amendment. (Article I, Section 10 of the Texas Constitution contains a similar provision as well.)  This Constitutional right includes a defendant’s right to: (1) remain silent, (2) not be called as a witness for the prosecution, and (3) not have the fact that he exercised his right against self-incrimination used against him. This principle is well-established in the criminal context where juries are instructed that the defendant cannot be compelled to testify, and that if he exercises his right not to testify, the jury cannot use this as any evidence of guilt whatsoever.

In civil cases, however, the juries receive no such instruction.  First of all, any party or witness in a civil case may be called to testify, whether they are facing criminal charges or not.  Second, witnesses in civil actions do not enjoy an unfettered right to refuse to answer questions on Fifth Amendment grounds. Finally, in a civil case it is perfectly permissible for a judge or jury to infer that a witness is guilty of wrongdoing if they invoke the Fifth Amendment privilege against self-incrimination in response to a question. (Of course, civil juries can’t send witnesses to jail for invoking the Fifth Amendment; they can only find them civilly liable.)

The Right to Refuse to Answer:

Just because a witness can been called to testify in a civil case doesn’t mean that the witness must answer every question posed.  Witnesses still enjoy their federal and state Constitutional rights against self-incrimination, even though they are not testifying in a criminal proceeding. If a question calls for an answer that might cause the witness to self-incriminate, then the witness may invoke the Fifth Amendment privilege against answering that question. Even in the civil context, this right against self-incrimination is an important one, because if a witness fails to invoke the Fifth Amendment and thereafter provides an incriminating answer, that answer can be used against the witness in a subsequent criminal case.

Unlike criminal cases, however, when a witness in a civil case invokes the protections of the Fifth Amendment, the inquiry does not simply stop there. It is well-settled law in Texas that when a witness in a civil case invokes the Fifth Amendment, the assertion of this privilege is subject to scrutiny by the judge, who will determine whether the refusal to answer is made in good faith and is justifiable under the circumstances.  Such an inquiry is a delicate undertaking, because the witness cannot be compelled to disclose the very information that the privilege protects, but in order to uphold the privilege, it must be shown that answering the question is “likely to be hazardous” to the witness.

As the Texas Supreme Court pointed out in Ex Parte Butler, the witness must be in potential jeopardy of prosecution under criminal law. 522 S.W.2d 196 (Texas 1975). For example, the threat of civil penalties and forfeitures – even if considerable in scope and amount – will not give rise to Fifth Amendment protections, since the conduct does not subject a witness to criminal prosecution. Likewise, for example, a witness may be compelled to testify as to the facts surrounding his committing insurance fraud (a crime), if it occurred more than five years earlier and hence beyond the criminal statute of limitations. (In that situation, further inquiry might be required to determine any applicable tolling provisions before the testimony is compelled.)  If after careful inquiry and consideration of all the circumstances of the case, the judge is perfectly clear that the witness is mistaken and that the answer cannot possibly have a tendency to incriminate, then the judge can compel the witness to answer the question.  Failure to answer at that point will subject the witness to possible contempt of court, which, ironically enough, may involve assessment of jail time.

It is also important to note that judicial scrutiny of the legitimacy of the Fifth Amendment invocation does not occur automatically. A court is not required to perform this inquiry sua sponte – opposing counsel must seek the trial court’s intervention through a motion to compel or other procedural tool. If counsel fails to raise this issue and provide the trial court with the opportunity to consider the issue, then any complaint as to improper use of the privilege is waived on appeal.

The Evidentiary Value of Invoking the Fifth:

Once it has been established that the witness has a right to refuse to answer a question, what happens next?  Simply stated, the judge or jury can infer that a witness committed the very crime that he was protected from testifying about.[2] But infer is all they can do. Invoking the Fifth Amendment does not give rise to a presumption of culpable conduct nor is it, standing alone, sufficient evidence to prove wrongdoing. Courts have routinely held that a Fifth Amendment claim of privilege will not substitute for other relevant evidence, pointing to the language of the U.S. Supreme Court case which first recognized the negative inference concept, that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” 

The failure to offer probative evidence in addition to the assertion of the Fifth Amendment privilege leaves the fact-finder with only an inference, and because an inference is considered nothing more than a mere suspicion, the inference in and of itself does not constitute more than a scintilla of evidence. Therefore, without more evidence, the negative inference which is permitted in these circumstances will not support a finding of fact or raise a fact issue which precludes summary judgment.

Consequently, while the negative inference associated with a Fifth Amendment claim of privilege is an important tool in a civil attorney’s arsenal, it is important that other evidence be discovered and presented both in summary judgment proceedings and at trial. When faced with a no-evidence challenge, either by motion for summary judgment or directed verdict, it will be important that the record contain additional probative evidence of the culpable conduct. Reliance on the inference of guilt alone simply will not overcome the evidentiary hurdle.

One might ask if the very person, perhaps the only person, who can testify as to essential evidentiary facts refuses to testify, how then can a party obtain probative evidence sufficient to defeat a no-evidence challenge?  In a recent appeal involving a hit-and-run fatality, an attorney raised this very point, arguing that public policy and the interests of justice are not served by allowing a wrongdoer to conceal all evidence, frustrate the discovery process, and evade civil liability through use of the Fifth Amendment. Unfortunately, because the attorney failed to raise these public policy arguments before the trial court, the issue was deemed waived and not considered on appeal.  Webb v. Maldonado, 331 S.W.3d 879 (Tex. App. — Dallas 2011).

The bottom line is that in a civil case, the invoking of the Fifth Amendment is powerful evidence – juries instinctively understand that in order for a person to claim the right not to self-incriminate, there must have been incriminating conduct to begin with. When instructed by the court that they may consider this as evidence of guilt, most juries do not hesitate to do so.  So, while the Fifth Amendment claim may be used as the nail in the coffin of your opponent’s case, there will be no burial without something more.

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

(For more information about the use of the Fifth Amendment privilege and Miranda warnings regarding its use in the criminal context, see http://blog.amjudges.org/?p=110.)


[1] The First Amendment recites five basic freedoms – freedom of speech, freedom of the press, freedom of religion, freedom to assemble and freedom to petition for redress from the government.

[2] This inference is recognized in both federal and state case law as well as Rule 513(c) of the Texas Rules of Evidence.


Judicial Admissions in Testimony

July 24, 2011

It is a generally-understood principle that a statement of fact contained in a motion or pleading may constitute a formal judicial admission which is accepted as true by the court and jury and binds the party making it.  What is less understood are the circumstances under which this rule may be extended to in-court statements and testimony and when these statements may be held to be equally conclusive.

Although formal judicial admissions may look like the quasi-judicial admissions found in Rule 801 of the Texas Rules of Evidence (statements made during judicial proceedings which are exceptions to the hearsay rule and constitute some evidence, but not conclusive evidence), they actually work more like the discovery admissions of Rule 198 of the Texas Rules of Civil Procedure, because they do constitute conclusive evidence.  The main difference is that they aren’t governed by any rule or statute, and we must look to case law for guidance on their application.

The general rule is that any formal declaration against interest made in open court by a party has the potential for being construed as a judicial admission.  Davidson v. State of Texas, 737 S.W.2d 942 (Tex. App. — Amarillo 1987).  At first blush, it may appear that such a broad rule would carry enormous risk that an unsophisticated or imprudent client might just talk himself right out of court.  Fortunately, the law provides certain safeguards to protect those who lack requisite wordsmithing skills to avoid the heartburn associated with a meal of their own words.

First, courts have clarified that this rule should be applied with caution.  United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex. App. — San Antonio 1951).  Second, courts seem to indulge an initial presumption that such statements are quasi-admissions, not true judicial admissions, and, as such, some evidence, but not conclusive of the facts admitted.  Mendoza v. Fidelity & Guaranty Insurance Underwriters, Inc., 606 S.W.2d 6924 (Tex. 1980).  Only when a party’s statement satisfies each prong of the Texas Supreme Court’s five-prong test will a quasi-admission be elevated to the status of a formal judicial admission and bind the party making it:

1.  The declaration relied upon was made during the course of a judicial proceeding.  This appears to include deposition testimony, Adams v. Tri-Continental Leasing Corp., 713 S.W.152 (Tex. App. — Dallas 1986) (deposition testimony in that case held not to be a judicial admission due to conflict in the testimony), but not out-of-court statements made after suit was filed but prior to trial. American Baler Co. v. SRS Sys, Inc., 748 S.W.2d 243 (Tex. App. — Houston [1st Dist.] 1988).

2.  The statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony.  The prong is fairly self-explanatory.  What it seems to suggest is that a party shouldn’t be put in peril of testifying himself out of court on matters that are merely tangential or non-essential.  Therefore, unless the admission goes to the heart of a party’s cause of action or defense, the statement will not bar a party from offering evidence contrary to their own testimony.

3.  The statement is deliberate, clear and unequivocal, and the hypothesis of mere mistake or slip of the tongue has been eliminated.  Most cases focus on this prong.  Unfortunately, they are few in number and most are decades old.  Nevertheless, these cases do provide some good examples of the type of testimony which has been held to be insufficiently “deliberate, clear and unequivocal”:

*          Opinion testimony by a party on matters which a lay person would not be qualified or competent to testify.  Mendoza at 694 (a plaintiff’s opinion about his own physical limitations).

*          Facts which are not peculiarly within the declarant’s own knowledge, but are mere impressions of a transaction or an event as a participant or an observer, especially when there is evidence to the contrary.  Gevinson v. Manhattan Construction Co., 449 S.W.2d 458, 466 (Tex. 1969) (a party’s sworn statement that the other party “foreclosed” on property).

*          Inexactitude in testimony.  Cranetex, Inc. v. Precision Crane & Rigging, 760 S.W.2d 298, 304 (Tex. App. — Texarkana, 1989) (“on or about” a certain date was equivocal as to the date); Bray v. McNeely, 682 S.W.2d 615 (Tex. App. — Houston [1st Dist.] 1984) (“I think so” was ambiguous).

4.  The giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based.  There is little to no case law which addresses the application of this prong.  However, the Supreme Court has clearly articulated the public policy which underlies this rule, to wit:  that it would be unjust to permit a party to recover after he has sworn himself out of court by clear, unequivocal testimony.  Mendozaat 694.

5.  The statement is not also destructive of the opposing party’s theory of recovery.  This final prong simply embraces the general rule that applies to all admissions, i.e., that one party’s admissions cannot be used against other parties. Griffin v. Superior Insurance Co., 338 S.W.2d 415 (Tex. 1960).

Given the potential for a party testifying himself out of court, most attorneys should feel at least some degree of trepidation anytime they see their clients raise their hands to take the oath.  Worrisome as that may be, however, there is one thing that is even worse than having your client talk himself out of court.  And that’s when you do it for him.  In the next post, we’ll take a closer look at that.

–Judge Bonnie Sudderth, 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


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