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)


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


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 Offer of Proof

October 1, 2011

Perhaps the broadest discretion enjoyed by trial judges is in the admitting or excluding of evidence at trial.  Much of the protection afforded a trial court judge in making evidentiary rulings is found in Rule 103 of the Texas Rules of Evidence, which clearly provides that an erroneous evidentiary ruling, standing alone, is not enough to get a case reversed on appeal.

First, as the rule makes clear, a bad evidentiary call isn’t even error unless it affects a “substantial right” of a party.  In other words, even if the appellate court disagrees with the judge’s evidentiary ruling, if the ruling did not affect the “substantial rights” of a party, there will be no error on appeal. The second, and perhaps most significant reason why trial courts are rarely reversed on appeal for evidentiary rulings is because most errors are waived.  Whether admitted or excluded by the court, Rule 103 provides the guideline on how to preserve error on the ruling. 

If the error is one of admitting evidence, then the steps for preserving error are fairly simple.  The party seeking its exclusion must make a timely and specific objection or motion to strike.  The two essential components of this rule are that the objection be timely and include specific grounds, unless apparent from the context. 

If the error is one of excluding evidence, then preservation of error becomes a bit trickier.  In most circumstances, Rule 103 requires that the proponent of excluded evidence make an “offer of proof” in order to preserve any error on appeal. 

An “offer of proof” is an informal bill of exception, and its purpose is two-fold:  (1) to give the trial court a second chance to look at the evidence before finally ruling on its admissibility, and (2) to complete the record on appeal so that it is clear to the appellate court exactly what was excluded at trial.

With offers of proof, timing is key.  Rule 103 provides that an offer of proof must be made before the jury is charged.  This deadline makes sense.  After all, if one rationale for requiring an offer of proof is to give the trial judge a second chance to make the correct ruling, it would make no sense for an offer of proof to occur after the time for introducing evidence has passed.

Trial courts have broad discretion in directing when the offer of proof can be made, but it is the attorney’s duty to make sure it’s timely.  What this means is that if the trial court directs an attorney to wait until lunchtime, or the end of the day, or some other time to make the offer, it will be incumbent upon the attorney to remember to make the offer at the appropriate time.  However, if the trial court refuses to allow an attorney to make the offer prior to the jury being charged, then reversible error has occurred.  4M Linen & Uniform Supply Co. v. Ballard, 793 S.W.2d 320 (Tex. App. – Houston [1st Dist.] 1990). 

Once the jury has been charged, the time for making an offer has passed.  Tempting though it may be, it is inadvisable for the parties to “agree” to postpone the making of offers until after the jury has begun deliberations.  While arguably a valuable time-saving device, this would thwart one of the primary purposes of the offer.  After all, what would happen if the court actually decided to admit the evidence which the parties agreed to offer while the jury was deliberating?

Furthermore, an attorney should never make a late offer when the trial court has refused to allow a timely one.  In this circumstance, the trial court has committed reversible error, and in the event of an adverse verdict, a new trial is guaranteed.  Why make a late offer and risk satisfying the appellate court that the trial court’s ruling was correct after all?  Id.

The mechanics of making an offer of proof are straight-forward.  The proponent simply needs to demonstrate the nature of the evidence with enough specificity so that the appellate court can determine its admissibility.  This can occur in one of two ways, both of which occur outside the presence of the jury. 

The easiest way is for the attorney to summarize the substance of the testimony.  Most attorneys and judges prefer this method because of its simplicity and expediency.  The second method is to call the witness to the stand and elicit the testimony in question-and-answer form.  While this approach is less convenient and more tedious, a question-and-answer format is mandatory if the other side demands it. 

For tangible evidence, simply mark the evidence as an exhibit and request its inclusion in the record on appeal.  (The same thing can be done for deposition testimony which has been excluded.)

Always keep in mind that an offer of proof is just that – an offer.  Therefore, at the conclusion of the recitation or presentation of the evidence, the proponent of the evidence should re-urge its admission.  As with any other offer of evidence, a ruling must be secured in order to preserve error.  In other words, after giving the court a second chance to consider the evidence, the attorney should secure a final ruling on admissibility.

One last pointer for those who successfully argued for exclusion:  If the excluded evidence could have been impeached or discredited through cross-examination, then it is a good idea to request a question-and-answer format during the offer of proof, followed by a request for brief cross-examination.  On appeal, an effective cross-examination may demonstrate that there was no harm in the trial court’s exclusion of the evidence, even if such exclusion was erroneous.

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


Limine Motions – Their Uses And Limitations

July 9, 2011

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

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

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

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

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

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


Using Judicial Notice to Prove Facts

June 25, 2011

Rooted in the ancient maxim, manifesta non indigent probatione (that which is known need not be proved)  judicial notice is believed to be one of the oldest doctrines of common law.  Although archaic,  judicial notice today remains an extremely useful, yet often under-utilized, method of proof  in Texas courts.    

Not only is judicial notice an enormous time-saving device, it also carries with it strong evidentiary value, especially in the civil context, where a jury is instructed to accept as conclusive any fact judicially noticed and will hear no evidence to rebut it.  Texas Rules of Evidence 201(g), Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269 at 279 (1944).  (In criminal cases, noticed facts are probative, but not conclusive.)

Judicial notice may be used to prove adjudicative facts (Rule 201), the laws of other states and foreign countries (Rules 202 & 203), as well as city ordinances and administrative agency rules and regulations (Rule 204).  In appropriate circumstances, the court is mandated to take judicial notice, and in many instances, judicial notice may occur sua sponte.  But in all circumstances, the rules require that the opposing side be given notice and an opportunity to be heard on the issue.

With regard to adjudicative facts, there are two types of judicial notice available:  notice of generally-known facts (TRE 201b[1]), and notice of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (Rule 201b[2]).  These two types of facts are quite different and distinguishable from one another.  For example, if the question at trial was whether the earth is round, as opposed to flat (as Flat Earth Society members still contend today), a court could take judicial notice under Rule 201b(1) that the earth is, in fact, round, because it is a fact generally known by persons of average intelligence and knowledge.  However, if more precision was necessary under the facts of a case, Rule 201b(2) would permit judicial notice to be taken that, in fact, the earth is NOT round, but an oblate spheroid, a fact not generally known, but nevertheless capable of accurate and ready determination by resort to reliable sources.

Even when judicial notice is employed, its scope and depth often remain untapped.  For example, few would hesitate to request judicial notice that the city of Fort Worth is located within Tarrant County.  But judicial notice can extend much further – certainly to the fact that a Starbucks is located in downtown Fort Worth on the west side of Houston Street between 3rd and 4th Streets, perhaps even to the fact that they sell beverages in three sizes:  tall, grande and venti.  Bender v. State, 739 S.W.2d 409 at 413 (Tex. App. — Houston [14th], 1987) (permitting judicial notice of the location of an MBank at a particular intersection inHouston).  The scope of judicial notice is not limited by level of detail, but by general knowledge and objective verifiability.

Another example of facts to which judicial notice should be taken are mathematical formulas, the laws of physics and other principles of natural forces, when supplied with necessary computations or information.  Drake v. Holstead, 757 S.W.2d 909 at 911 (Tex. App. — Beaumont 1988) (error found in a trial court’s refusal to take judicial notice of calculations of rates of speed, when supplied with mathematical computations to support it).  By invoking judicial notice in lieu of formal proof in these matters, an attorney can avoid at least two potentially unpleasant scenarios:  (1) putting a jury to sleep with tedious technical or scientific testimony, and, worse yet, (2) subjecting otherwise irrefutable evidence to debate, perhaps outright rejection, behind closed doors during jury deliberations. 

While judicial notice will cover matters such as the fact that there are twelve inches in a foot, it is not available for facts which are subject to reasonable dispute, such as the length of particular objects.  Brune v. Brown Forman Corp., 758 S.W.2d 827 (Tex. App. — Corpus Christi 1988).  This is a general rule, however.  Certainly the length of a football field or the dimensions of a 2005 Hummer H2 would both be ripe for judicial notice, because, again, they are capable of accurate and ready determination (or, in the case of the football field, generally known, at least within our own territorial jurisdiction). 

As a practical pointer, when judicial notice is sought on matters requiring reference to calculations, scientific treatises or the like, this is best heard in pretrial conference.  This will give the court an opportunity to consider whether these facts are the type to which judicial notice may be properly taken and/or whether necessary and adequate supporting information has been provided.  By scheduling the matter for hearing, all parties will be provided the requisite notice and an opportunity to be heard before the court takes judicial notice of the matter.  A ruling at the pretrial stage will also streamline case preparation and trial time by alleviating the burden of gathering and presenting evidence on matters which can be proved (conclusively!) through judicial notice.

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


Prior Bad Acts – What Happens in Vegas May Have to Stay in Vegas

June 20, 2011

We all know that the Texas Rules of Evidence (TRE 404) generally prohibit us from using evidence of prior bad acts to show that our opponent acted in conformity therewith.  So what do you do when your investigation turns up the 500-pound skeleton in your opponent’s closet?  Look to the exceptions.

Rule 404 itself provides the first exception.  When offered for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, prior bad acts may be admissible. For example, while prior fires of suspicious origin would be generally inadmissible to prove arson in a particular case, they may be used to prove plan, scheme or design.  Payne v. Hartford Fire Ins. Co., 409 S.W.2d 591 (Tex.Civ.App. 1966) (Each of the previous fires destroying plaintiff’s houses occurred in the early morning, when no one was home, after personal effects of substantial value had been removed from the house, at a time when the plaintiff was in dire financial circumstances, and resulted in the collection of substantial money under fire insurance policies.)

If the exceptions in Rule 404 don’t apply, Rule 406 provides another exception for habit or routine:

Evidence of the habit of a person or of the routine practice of an organization … is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 

When prior bad acts rise to the level of habitual behavior, then these bad acts will be admissible to show action in conformity therewith.  This is because the law recognizes that a person is far more likely to act in conformity with established habit than to act in conformity with a perceived general character or disposition.  Isolated instances of bad conduct, however, will not invoke the Rule 406 exception.  Rule 406 applies only to highly repetitious conduct, along the lines of smoking cigarettes or reading the morning newspaper.  

Another significant exception to the rule comes into play with regard to punitive damages.  While prior bad conduct is generally not admissible to prove liability for an underlying tort, a jury is often allowed to consider prior bad acts at the punitive damage stage of trial.  For example, while evidence that a defendant regularly smoked marijuana while driving a car could not be used to prove negligent driving, it would be relevant to the determination of punitive damages for negligent driving.  Castro v. Sebesta, 808 S.W.2d 189, 193 (Tex. App. — Houston [1st Dist.] 1991).   

In the landmark decision of BMW of North America, Inc. v. Gore, the U.S. Supreme Court instructs that not only can prior bad acts be used as evidence within the punitive damage context, they should be admissible in assessing the degree of culpability of conduct at that point. 517 U.S. 559 (1996).  According to BMW, one of the factors which should be considered in determining the reasonableness of a punitive damage award is whether the conduct was an isolated incident or whether the conduct involved repeated bad behavior. Later, however, the Supreme Court took a second look at the use of this evidence, specifically in the context of out-of-state bad conduct, and limited the use of prior bad acts in two fairly significant ways.  State Farm Mutual Automobile Insurance Co. v Campbell, 538 U.S. 408 (2003). 

First, not just any bad acts will do.  Although prior transgressions need not be identical to the act being adjudicated, the prior act occurring out of state must “replicate” the conduct in question in order to be admissible at trial.      

Second, while bad acts occurring out of state may be probative as to deliberateness and culpability, if the conduct was lawful in the state where it occurred, the amount of punitive damages assessed cannot be based upon those lawful, out-of-state bad acts.  Declaring that states do not have a legitimate concern in imposing punitive damages to punish a defendant for acts committed in other jurisdictions, the Court held that an exemplary damage award cannot be based on conduct which is lawful in the state where it occurred, no matter how similar, no matter how bad.

In order to reconcile the two Supreme Court decisions – BMW and State Farm – it appears that while a jury may consider evidence of bad-yet-lawful out-of-state conduct in evaluating the egregious nature of a tortfeasor’s conduct during the exemplary damages phase of trial, the jury may not consider that same evidence to punish the tortfeasor (by way of assessment of exemplary damages) during that same phase of trial.  In other words, the jury may use the evidence to determine whether the conduct was really, really, bad, but when deciding how much money to assess for the really, really, bad conduct, the jury must disregard all of the bad-yet-lawful out-of-state conduct it heard and consider only in-state bad conduct and bad-and-unlawful out-of-state conduct in arriving at a proper amount to award in punitive damages.  

Confusing?  Let’s just hope that 500-pound skeleton you found is wearing cowboy boots firmly planted in the Lone Star State.  Otherwise, what happened in Vegas may have to stay in Vegas.

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


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