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


The Non-Responsive Objection

June 14, 2011

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

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

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

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

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

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

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

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

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

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

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

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


The Rule of Optional Completeness

June 9, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


The Limitations on Admissibility of Prior Consistent Statements

June 7, 2011

There are few pieces of evidence that attorneys love to lay their hands on more than an opponent’s prior inconsistent statement. Admissibility of these statements is rarely in doubt, and they provide attorneys with a golden opportunity to ask the ever-popular cross-examination question: Were you lying then, or are you lying now?

More troublesome, however, are those pesky prior consistent statements. What should be done when a witness keeps telling the same story, the same way, over and over again?

Offered for the truth of the matter asserted, a prior consistent statement is blatantly inadmissible hearsay. It’s an out-of-court statement offered for the truth of the matter asserted, and no matter how many times a witness has said it before, frequency will not change that basic analysis.

Setting aside the hearsay problem for a moment, most prior consistent statements won’t even meet a threshold test of relevancy, because most prior consistent statements do not tend to prove or disprove a material fact in issue. This is because at best, the probative value of a prior consistent statement requires a leap of faith. In order for a prior consistent statement to be relevant, one must believe that if a person has said something enough times, it’s probably true. Common sense and experience tells us that just because grandpa’s been spinning that same yarn for the last fifty years, doesn’t make the tale any less dubious. Luckily, the Texas Rules of Evidence reflect that basic reality. Otherwise, that’s-my-story-and-I’m-sticking-to-it would become the test for admissibility under the rules.

So, for reasons of relevancy and hearsay, the general rule is that a prior consistent statement is inadmissible:

TRE 613 (c): A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).

However, there may be circumstances when a prior consistent statement may become admissible, providing an exception to the general rule:

TRE 801(e)(1)(B): A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Some may argue that Rule 801(e)(1)(B) opens the barn door to admission of virtually all prior consistent statements. It does no such thing. Rule 801(e)(1)(B) narrowly tailors an exception unique to particular factual circumstances. In order to be admissible, there must be: (1) an express or implied charge, (2) against the declarant, (3) of recent fabrication or improper influence or motive. If the other side doesn’t open the door to this testimony by making such a charge, then Rule 801(e)(1)(B) never comes into play, and the statement remains inadmissible.

The language of the rule is highly restrictive. For example, merely impeaching a witness or calling into question a witness’s veracity will not in and of itself invoke the Rule 801(e)(1)(B) exception. Furthermore, a prior consistent statement will remain inadmissible, even under a charge of recent fabrication, if the statement was made shortly before trial, in anticipation of trial, or after a motive to fabricate existed. Beaver v. State, 736 S.W.2d 212 (Tex. App. – Corpus Christi 1987).

Even when there has been an express or implied charge against the declarant of improper influence or motive, a predicate must be laid for the admission of the prior consistent statement. As a general rule, appellate courts will not require a trial judge to be a mind-reader. Unless it is painfully obvious from the context, rules of procedure and evidence require that an attorney, when faced with an objection, articulate to the judge the purpose of any offer of evidence. Under Rule 801(e)(1)(B), an attorney seeking the admission of a prior consistent statement over objection should be prepared to educate the judge as to the reason why the exceptions embraced in Rule 801(e)(1)(B) apply. It is not the judge’s burden to read between the lines and figure out that the statement would rebut the opponent’s charge. The statement must be “offered” into evidence for that purpose. If the attorney fails to lay the proper predicate for the prior consistent statement’s admissibility, then the judge may rightfully reject it.

Likewise, when challenging an opponent’s attempt to offer a prior consistent statement into evidence, an attorney needs to clearly articulate the basis for the objection. Simply saying, “Rule 801, hearsay” in opposition to a prior consistent statement has been held insufficient to put the trial court on notice as to the particular objection being lodged. Meyers v. State, 865 S.W.2d 523 (Tex. App. – Houston [14th] 1993). A concise statement that (1) the statement offered is a prior consistent statement, (2) which does not fall within the exceptions of Rule 801(e)(1)(B), should be adequate both to make clear your objection and to preserve error on the point, if necessary.

I’ve said all of this before, and now I’m saying it again. It’s just got to be true. And admissible. Well, maybe not.

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


About Judge Bonnie Sudderth

June 7, 2011

Judge Bonnie Sudderth, at age 30, was the youngest judge ever appointed as Chief Judge of the Fort Worth Municipal Courts. Six years later, in 2006, she ran in a contested Republican primary for election to the 352nd District Court bench, winning the seat for a term commencing on January 1, 1997. Because the bench was vacant at the time of her primary election, then-Governor George W. Bush appointed her to fill the vacancy for the remainder of 1996.  She has been re-elected three times to the district court bench, and is now serving her fourth term in office. All combined, Judge Sudderth brings more than 20 years of judicial experience to the bench. Judge Sudderth is also Board Certified in both Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization.

On the bench, Judge Sudderth is generally known for three qualities – a gentle and patient temperament, a common-sense approach to problem solving and a solid understanding of the law, evidence and procedure. “Despite what we see on T.V. and in the movies,” Judge Sudderth explains, “the Texas Code of Judicial Conduct requires that judges be ‘patient, dignified and courteous’ while on the bench. I take my ethical obligations very seriously.”

In 2000, she was elected President of the American Judges Association.  In the 2010-2011 term, she served as President of the Eldon B. Mahon Inn of Court. In 2010, her peers – the district judges of Tarrant County – elected her to serve as the Chair of the Tarrant County Juvenile Board.She currently serves on the Court Rules Committee of the State Bar of Texas.

Judge Sudderth also takes time from her duties as a judge to serve as a mentor to young lawyers. In 2008, Judge Sudderth was awarded the Outstanding Mentor Award by the Tarrant County Young Lawyers Association. That same year, she went on to win the statewide award, receiving the Texas Outstanding Mentor Award by the 24,000 member-strong Texas Young Lawyers Association.

Judge Sudderth is a legal scholar and teacher. For more than 10 years, she has served as an Adjunct Law Professor at the Texas Wesleyan School of Law, where Judge Sudderth teaches Texas Trials & Appeals to upper level law students. She also volunteers as a judge for Mock Trial and Moot Court intramural comopetitions. Between the fall and spring semesters, she also teaches a one-week intensive practicum on civil motion practice. Judge Sudderth has received the Distinguished Faculty Award for her service.

Judge Sudderth is well-known for her high ethical standards and her expectation that lawyers who appear before her exhibit the highest standards of ethics and professionalism. In the 1990s, Judge Sudderth served as a Commissioner on the state Judicial Conduct Commission, which is the disciplinary agency for all judges throughout Texas. She is a frequent lecturer on legal and judicial ethics and other topics related to the practice of law.

Judge Sudderth is an award-winning writer, having received the “Outstanding Series of Articles” award by the State Bar of Texas on two separate occasions. She has contributed more than 30 articles to the Tarrant County Bar Bulletin from 2005 to 2008 on topics related to the Texas Rules of Evidence.  “Five Adages for Advocates,” a series of five articles Judge Sudderth authored for young lawyers on  professionalism and the law appeared on the Texas Wesleyan Law School Board of Trial Advocates website in 2008. Judge Sudderth’s articles also appear in the In Chambers magazine, Court Review magazine and the Municipal Court Recorder.


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