Exceptions to the Best Evidence Rule

December 12, 2011

Best evidence is a lot like hearsay.  To understand the rule, you must understand the exceptions.  And, although the best evidence rule exceptions certainly aren’t as numerous as the hearsay exceptions, they are significant. 

There are five major exceptions to the best evidence rule, and they are found in Rule 1004 of the Texas Rules of Evidence.  Rule 1004, which codified existing state common law exceptions, specifically authorizes “other evidence” to prove the contents of a document[1] when the document (or its duplicate[2]):

  1. has been lost or destroyed;
  2. cannot be obtained;
  3. cannot be found in Texas;
  4. is in the possession of an opponent who fails to produce it; or
  5. is offered for a collateral purpose

(These Texas exceptions mirror the Federal Rules of Evidence, except that the federal rules contain no geographical exception equivalent to the third exception.)

 The importance of these exceptions can’t be overstated.  If an exception applies, then the best evidence rule no longer bars the use of secondary evidence to prove document contents.  In practical terms, this means that a witness may, through testimony alone, prove up the contents of a memo or a videotape, without ever tendering the memo or the videotape into evidence.  This is why it is so important to understand the exceptions, the applications and the limitations.

Lost or Destroyed:  This exception generally applies to inadvertent loss or destruction.  Under this exception, a claim that despite a reasonable and good faith effort to locate a document, it cannot be located may be sufficient to permit proof of the contents of a document through testimony or other secondary sources.  While the rule envisions accidental loss or destruction, even documents which have been intentionally destroyed may be proved up through secondary sources, assuming no bad faith on the part of the proponent. For example, in one federal case, the I.R.S. was able to use secondary proof of the contents of a taxpayer’s records, even though the agency itself had destroyed the records because the court found the destruction “negligent,” but not in bad faith.    

Not Obtainable:  This exception provides that secondary sources may be used to prove the contents of a document when it can’t be obtained by any available judicial procedure.  The exception is aimed at documents which are not in the possession of any party to the lawsuit which, despite reasonable efforts, simply cannot be obtained, either by informal persuasion or formal process.  Obviously, this exception would not apply to any document which could be obtained through subpoena duces tecum or deposition discovery subpoena. 

Not in Texas:  You don’t have to cross the Red River to look for documents.  As a practical matter, however, it may not be a bad idea to make the trip, since your opponent will not be precluded from doing so.  And if your opponent should obtain the document, then the exception would no longer apply.  In that event, the secondary source of evidence you planned to introduce at trial would now be inadmissible as violative of the best evidence rule, since the document would now be available in Texas.

Opponent Fails to Produce It:  This is an interesting rule which allows one party to put the other party on notice that proof of a particular document under the other party’s control[3] will be a subject of proof.  If, after being put on notice “by the pleadings or otherwise,” the other party does not produce the original, then secondary sources may be used to prove its contents.  One might wonder why this rule is necessary, given all of the discovery tools available today.  Since this exception applies to hearings as well as trials, it could be particularly useful in situations involving time constraints.  For example, when there is no time to obtain discovery prior to a hearing, or when outstanding discovery has been resisted, the contents of a document which has not yet been produced by the other side may be admissible, as long as adequate notice has been given.  Once on notice, then the other side has two choices:  (1) produce the document, or (2) face the secondary proof of its contents. 

Collateral Purposes:  This is perhaps the most important exception to the best evidence rule, and if an attorney can remember only one thing about the best evidence rule, this is it.  The best evidence rule does not apply when evidence is offered to prove something other than the contents of a document or when the contents do not relate to a controlling issue.  For example, the best evidence rule does not apply when the matter sought to be proven is not content, but notice, service or delivery of a document.   Likewise, if a heavy book falls off a shelf and injures a customer standing below, the best evidence doctrine does not require that the book be produced at trial, as the content of the book is a collateral matter. 

Summary: In this last series of three blogs, we have examined what the best evidence rule is and what it is not.  It is a rule which applies only to “documents” and testimony concerning the contents of documents.  It is a rule which allows a duplicate of any document to be just as admissible as the original, with a couple of narrow exceptions. 

What it is not is a rule which requires that the best witness be called or the best proof be offered at trial.  The application of the best evidence rule does not exclude evidence based on any type of qualitative assessment of the evidence as poor, good, better or best.  Its only aim is to insure accuracy of evidence under the premise that proof of the contents of a document should ordinarily come from the document itself.

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


[1] The term “document” includes writings, recordings or photographs.  TRE 1001.

[2] Originals and duplicates are used interchangeably here, because TRE 1003 elevates the status of a duplicate to that of an original, except under two narrow exceptions discussed in the last blog.

[3] Rule 1004 uses the word “control,” not merely possession.


Witness Competency

October 22, 2011

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

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

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

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

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

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

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

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

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

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

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


Judicial Admissions Through Statements by Attorneys

August 2, 2011

Anything you say can and will be used against you in a court of law.  Although the importance of this warning in the criminal law context is well understood, lawyers who venture into the arena of civil litigation would do well to consider how that concept might apply to them.

The reality is that any statement, whether oral or in writing, made to the court by an attorney on behalf of his or her client could potentially be used against that client later in court.  And, unfortunately, the more articulate, lucid and straight-forward the statement, the more likely it is to get the client into trouble.

It is well-settled in Texas law that any assertion of fact not pleaded in the alternative which appears in a party’s live pleadings will be regarded as a formal judicial admission.  Houston First American Savings v. Musick, 650 S.W.2d 764 (Tex. 1983).  As long as the admission stands unretracted, the fact admitted is accepted as true.  Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592 S.W.2d 412 (Tex. App. – Tyler 1979).  As with other types of judicial admissions, the statement must be deliberate, clear and unequivocal.  Id.  

Over the years, this rule has expanded beyond live pleadings, to statements made in briefs and other motions, as well as arguments made by attorneys during hearings and at trial, including:

  • Remarks at Charge Conferences:  Attorney’s stated rationale for not lodging an objection to the omission of a separate damage question – that he agreed that the damages already sought under a different legal theory would be the same – was held sufficient to bind his client to that position.  American National Petroleum Co. v. TransContinental Gas Pipeline Corp., 798 S.W.2d 274 (Tex. 1990).
  • Argument at Trial:  Urging the statement-by-agent hearsay exception as one ground for admissibility of declarant’s statement was an admission establishing that the declarant was his client’s agent as a matter of law.  Carroll Instrument Co., Inc. v BWB Controls Inc., 677 S.W.2d 654 (Tex. App. – Houston [1st Dist.] 1984).  
  • Stipulations:  Stipulation by a party that he signed an instrument in the capacity of guarantor is a judicial admission requiring no written evidence of guaranty status, notwithstanding the Statute of Frauds.  Menendez v. Texas Commerce Bank, 730 S.W.2d 14 (Tex. App. – Corpus Christi 1987).

Perhaps the biggest trap for the unwary is in summary judgment proceedings.  While it is elementary that pleadings do not constitute summary judgment proof, an exception is made for the admissions contained therein.  Judicial admissions contained in pleadings may be used to support a summary judgment.  Underhill v. Jefferson County Appraisal District, 725 S.W.2d 301 (Tex. App. – Beaumont 1987).

The easiest trap to avoid is typographical errors.  In De La Fuente v. Home Savings Assn., what appeared to be a typographical error as to a particular date in a live pleading was held to conclusively prove that a note was assigned to a third party on the very same day that it was executed, rendering it void and unenforceable by law.  669 S.W.2d 137 (Tex. App. – Corpus Christi 1984) (providing yet another reason to avoid over-reliance on spell-check).

Fortunately, there are some safe harbors: 

  • Law vs. Fact:  An attorney can’t judicially admit what the law is or a legal conclusion to be drawn from facts pleaded.  Barstow v. Texas, 742 S.W.2d 495 (Tex. App. – Austin 1988); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex. App. – Amarillo 1967).  Keep in mind, however, that while the law itself cannot be judicially admitted, judicial error can. Flores v. Texas Department of Health, 835 S.W.2d 807 (Tex. App. – Austin 1992) (holding that the defendant’s assertion that he agreed with plaintiff that a particular finding of fact was not supported by the evidence was not “mere acquiescence to appellant’s argument” but a judicial admission “amounting to a confession of error.”) 
  • Impressions vs. Facts:  Statements which are merely impressions may not be sufficiently clear and unequivocal to be considered a judicial admission.  National Savings Insurance Co. v Gaskins, 572 S.W.2d 573 (Tex. App. – Ft. Worth 1978).
  • References:  Simple reference to another party’s affidavit will not constitute an admission that the facts contained therein are true.  American Casualty Co. v. Conn, 741 S.W.2d 536 (Tex. App. – Austin 1987).  Take care, however, when you assume for purposes of argument that your opponent’s position is true, to clearly demonstrate the conditional nature of your argument.  Hill v. Steinberger, 827 S.W.2d 58 (Tex. App. – Houston [1st Dist.] 1992) (wherein movant “accepted as true” all the factual allegations contained in his opponent’s original petition, thereby defeating his own summary judgment motion).
  • Damage Control:  By amending, withdrawing or retracting, you can at least eliminate the binding effect of an admission.  However, the pleading will still remain a statement “seriously made” and can be introduced in evidence as an admission against interest.  Kirk v. Head, 152 S.W.2d 726 (Tex. 1941).  This is very tricky business, however.  While a request made in final argument for a court to “overlook” an erroneously pleaded fact will not undo the admission, De La Fuente at 145, pleading the opposite or an inconsistent fact in the same document will.  Texas Processed Plastics at 416.

Finally, in an elegant twist of irony that could find its place only in the law, simple ineptitude may be the one sure thing to keep an attorney out of trouble.  Canales v. Canales, 683 S.W.2d 77 (Tex. App. – San Antonio 1984) (The transcript of the hearing “fails to convey with any degree of lucidity what was actually said or meant by the attorney.  There can be no judicial admission under those circumstances.”)

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


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


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


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