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


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


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.


The Non-Responsive Objection

June 14, 2011

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

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

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

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

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

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

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

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

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

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

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

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


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