Professional Documents
Culture Documents
The old bromide says, "The rookie lawyer knows the rules; the veteran knows the
exceptions." In truth, you don't know the rules unless you also know all of the
exceptions, e.g., there are some thirty exceptions to the rule against hearsay.
Criminal trials are about speeches, evidence, and objections. Objections allow you
to limit the speeches and the evidence of the opponent. If you don't know how and
when to object, your opponent will have free rein. For you, trial degenerates to freefor-all mud wrestling. In the same vein, if you are the proponent, you must know the
boundaries that limit what you can do and say. Otherwise, your presentation is in
constant danger of being sabotaged by your opponent's well-timed and accurate
objection. Every prosecutor and defender must develop a working knowledge of the
applicable rules of evidence and criminal procedure, as well as being versed in the
skill of effective legal research and writing. Your ability to litigate in a courtroom
includes the requirement of being able to explain the application of the rules
evidence, practice, and procedure to the trial court in such a manner that the judge
understands and trusts your knowledge of the law.
In criminal defense practice, you will often want to obtain admissibility rulings
through pretrial motions to suppress or exclude evidence and other motions in
limine. The idea behind a pretrial objection or motion in limine is to keep the jury
from being exposed to inadmissible evidence. It is always preferable to present your
motion in limine in writing. The judge has three choices in ruling on your pretrial
objection or motion in limine - she may grant it, deny it, or defer (reserve) ruling. In
some instances the subject of the motion in limine is such that the trial court cannot
issue a definitive pretrial ruling without actually hearing the background evidence.
Time constraints prevent the judge from hearing all the evidence prior to trial. So in
these cases the judge puts off ruling on the motion in limine until the juncture in the
trial when it will be offered. In such cases, the trial judge will, if asked by the
proponent-movant of the motion in limine, issue a preliminary order to the opposing
party directing that, before the evidence in question is presented to the jury, the
opposing party must approach the bench and announce its intention to introduce
the disputed evidence, giving the movant the opportunity to make an objection.
Even if the trial judge will not grant your motion in limine, you can usually get one
of these "approach the bench before offering the proof" orders. These motions in
limine are particularly valuable in situations involving uncharged misconduct (prior
acts of misconduct) under Rule 404(b) FRE and TRE and prior convictions for
impeachment under Rule 609 FRE and TRE.
If the trial judge rules on your pretrial objection, how definitive is the court's ruling?
For example, if the ruling is against you, do you have to renew the objection at trial
when your opponent seeks to introduce the evidence you objected to prior to trial.
Rule 103(b) FRE says that "Once the court rules definitively on the record either
before or at trial a party need not renew an objection or offer of proof to preserve
a claim of error for appeal." Rule 103 TRE is not as clear when it states "When the
court hears objections to offered evidence out of the presence of the jury and rules
that such evidence be admitted, such objections shall be deemed to apply to such
evidence when it is admitted before the jury without the necessity of repeating
those objections." My advice to Texas defenders is to always renew your objection at
trial to the offer of evidence that you objected to in a pretrial motion in limine. Do
not rely on the trial court's overruling of your pretrial motion.
Here are two lists of basic condensed grounds for objections The first is simply a list
of generic objections that can be used to assist practitioners across the country. The
second is a list of a few basic objections for defenders and prosecutors in Texas
criminal cases. Neither list is exhaustive. You may find one or the other useful as a
quick ready reference guide. Each ground of the Texas list is linked to its source in
the Texas Rules of Evidence, and in some instances to the Federal Rules of Evidence.
For a complete explanation of criminal evidence and much more comprehensive
explanation of objections, consult the 200 page CCJA monograph, Making and
Meeting Objections in Criminal Cases on the CCJA DVD. The book contains a
comprehensive discussion of several hundred objections, all of which are keyed to
different stages of the trial and to specific rules in the Texas Rules of Evidence. For
those who are looking for a little free web-based help with their objections, there are
Never lose sight of the fact that there will be no ruling by the court excluding or
admitting evidence unless you or opposing counsel objects. Your join issue by
objecting or filing a pre-objection motion in limine when you want to keep
opposition evidence out and by making an offer of proof when your evidence is
excluded. In cases where you anticipate that you will need to make an offer of proof,
consider putting the court on notice in advance with a motion in limine proffering
evidence that says basically that you are going to offer such-and-such as evidence
at the trial and that you anticipate the opposition will object; explain to the court in
your motion in limine proffering evidence that you think the evidence is admissible
and why. Ask the court to allow you to make an offer of proof for the record.(Note
that the FRE and TRE allow you to make a witness offer or a lawyer offer; however,
the court (federal) or the court or your opponent (Texas) can force you to make a
witness (Q&A) offer rather than a lawyer offer.) For more on the law and techniques
of making an offer of proof (proffer), see the Making and Meeting Objections
monograph.
Note: There are many more potential objections than the ones listed below, e.g.,
during jury voir dire, you might object to opponent impermissibly attempting to
commit or pledge a prospective juror to a particular result, in opening statement,
you might object to counsel arguing the case, in direct or cross-examination, you
might object to the opponent making disparaging sidebar remarks, not addressed to
the court, while you are questioning a witness, in jury argument you might object to
the opponent arguing facts that are not supported by evidence, expressing her
personal opinion, etc. That said, here's a list of some basic objections that recur in
criminal trials across the country:
ANSWER NON-RESPONSIVE
BEYOND SCOPE OF DIRECT (IN JURISDICTIONS THAT LIMIT THE SCOPE OF CROSS TO
THE SUBJECT MATTER OF THE DIRECT AND MATTERS AFFECTING CREDIBILITY OF
THE WITNESS)
CONFUSION OF ISSUES
ILLEGAL IDENTIFICATION
LACK OF PERSONAL KNOWLEDGE (WITNESS, OTHER THAN EXPERT, DOES NOT HAVE
FIRST-HAND INFORMATION) - RULE 602 FRE
NON-RESPONSIVE ANSWER
OFFER TO PLEAD GUILTY OR NOLO CONTENDERE INADMISSIBLE (SEE RULE 410 FRE)
QUESTION HAS BEEN ANSWERED BY WITNESS AND IS NOW GIVING AN ANSWER THT
GOES BEYOND THE QUESTION POSED (SEE WITNESS HAS ANSWERED)
UNDUE DELAY
VAGUE
WASTE OF TIME
WEARING PRISON GARB VIOLATES DUE PROCESS [See Estelle v. Williams, 425 U.S.
501 (1976)]
Here are some useful trial objections that can be made in criminal trials under the
Texas Rules of Evidence (TRE). The TRE are similar in many respects to the Federal
Rules of Evidence (FRE), however, they do differ in some significant respects, e.g.,
Rule 609 impeachment of a witness with prior conviction, the presence of a Texas
rule of "optional completeness," etc. Because our TRE are to some extent a rip-off
of the FRE, reading the history of the FRE provides the courtroom warrior with a
valuable perspective in understanding the rules of the game. Texas criminal lawyers
should be aware of the Texas Rules of Appellate Procedure and the Texas Uniform
Court Reporters Manual.
[This criminal defense lawyer's 26-page paper on the subject of evidence for
Texas defenders is worth a look. Texas defenders who practice in both state and
federal court will find it useful to study this frame-by-frame comparison of the FRE
and the TRE put together by a Texas law professor.]
+ ASKED AND ANSWERED (See Duplicitous) - Rule 403 TRE, FRE; 611(a) TRE, FRE.
+ DUPLICITOUS (See Asked and Answered and Needlessly Cumulative) - Rule 403
TRE, FRE ; Rule 611(a) TRE, FRE.
+ BOLSTERING WITH IMPROPER CHARACTER EVIDENCE Rule 607 TRE Rule 608 TRE, FRE;
WITH PRIOR CONSISTENT STATEMENT Rule 801(e)(1)(b) TRE. Rule 801(d)(1)(b) FRE.
CHARACTER TRAIT INQUIRY TOO BROAD BECAUSE RULE 608 REFERS ONLY TO TRAIT
OF A WITNESS FOR TRUTHFULNESS OR UNTRUTHFULNESS AND NOT CHARACTER
GENERALLY OR ANY OTHER SPECIFIC CHARACTER TRAITS - Rule 608 (a)(1) TRE.
PROOF NOT ELICITED FROM THE WITNESS OR BY PUBLIC RECORD. - Rule 609 (a)
TRE.
App. 1992) SETTING OUT THE 5 FACTORS IN THE BALANCING TEST, I.E., (1)
IMPEACHMENT VALUE OF THE PRIOR, (2) TEMPORAL PROXIMITY OF PAST CRIME TO
THE PRESENT CRIME CHARGED.AND WITNESS' SUBSEQUENT HISTORY, (3)
SIMILARITY OF PAST CRIME AND OFFENSE BEING TRIED, (4) IMPORTANCE OF
DEFENDANT'S TESTIMONY, AND (5) IMPORTANCE OF THE CREDIBILITY ISSUE [Note:
The first factor attributes greater impeachment value to prior convictions involving
deception or moral turpitude than crimes involving violence because violent crimes
are more likely to have a prejudicial effect. The second factor favors admission of
the prior conviction if the past crime is recent and if the witness has demonstrated a
propensity for running afoul of the law. The third factor. similarity between an
offense and the current offense. militates against admissibility, whereas
dissimilarity between the prior offenses and the current offense favors admissibility.
The fourth factor focuses on the importance of the defendant's testimony; when the
evidence presented in a case involves only the defendant's testimony versus the
testimony of the prosecution's witnesses, the importance of the defendant's
testimony escalates; as the importance of the defendant's credibility escalates, the
need to allow the prosecution an opportunity to impeach the defendant's credibility
also escalates. The fifth factor, which is very similar to the fourth factor, focuses on
the importance of the credibility issue; for example, when the evidence presented in
a case involves only the defendant's testimony versus the testimony of the State's
witnesses, the importance of the defendant's credibility escalates; as the
importance of the defendant's credibility escalates, the need to allow the
prosecution an opportunity to impeach the defendant's credibility also escalates.
With regard to obtaining a reversal for error in the trial courts application of the
Theus balancing test the cases say that "A trial court abuses its "wide discretion"
when its decision to admit a prior conviction lies outside the zone of reasonable
disagreement."
(1) Rule 609 (a) TRE.
;
A PERIOD OF MORE THAN TEN YEARS HAS ELAPSED SINCE THE DATE OF THE
CONVICTION OR THE RELEASE OF THE WITNESS FROM THE CONFINEMENT IMPOSED
FOR THAT CONVICTION WHICHEVER IS THE LATER DATE. [INTERNAL BALANCING
EXCEPTION: THE OTHERWISE REMOTE PRIOR CONVICTION MAY BE ADMISSIBLE IN
THE INTERESTS OF JUSTICE IF THE PROPONENT OF THE IMPEACHMENT INTRODUCES
FACTS AND CIRCUMSTANCES THAT PROVE THAT THE PROBATIVE VALUE OF THE
REMOTE CONVICTION SUBSTANTIALLY OUTWEIGHS ITS PREJUDICAL EFFECT.] - Rule
609 (b) TRE.
+ CROSS-EXAMINATION, DENIAL OF THE RIGHT OF - Rule 611 (a) and (b) TRE.
+ IMPEACHMENT, IMPROPER
JUDICIALLY NOTICE FACT WAS NEITHER: (1) GENERALLY KNOWN WITHIN THE
TERRITORIAL JURISDICTION OF THE TRIAL COURT, NOR (2) CAPABLE OF ACCURATE
THE OBJECTING PARTY, AFTER MAKING A TIMELY REQUEST, HAS NOT BEEN GIVEN
AN OPPORTUNITY TO BE HEARD AS TO THE PROPRIETY OF THE TRIAL COURT
TAKING JUDICIAL NOTICE. - Rule 201 (e) TRE.
+ PRIVILEGED COMMUNICATION
+ RELEVANT, NOT - Rule 402 TRE SEE THE DISCUSSION UNDER "IRRELEVANT."
+ SUMMARY, INADMISSIBLE -
State courts must enforce federal constitutional rights that apply to state court
proceedings. A state court also has power to construe state constitutional provisions
in a manner that more broadly protects individual rights than the federal
constitution. Of course, a state court may construe the state constitution in lockstep (complete harmony) with the federal constitution; or it can look first (primacy)
to the state constitution; or it can address the federal constitutional claim first; or it
can look at both the state and federal rights. One possible effect of the sharp
curtailment of constitutional due process by the United States Supreme Court and
crime-control oriented federal judges is the revitalization of state supreme courts
concern for individual rights. In making objections, defense lawyers may find it
efficacious to rely on state constitutions and bills of rights as well the Bill of Rights
of the United States Constitution.
Use this model to make yourself a chart that references your state constitution and
procedural code. This model is one that I put together many years ago
Protected Right
Procedure
Federal Constitution
Bill of Rights
State Constitution
State Code of
(Example - TX)
(Example -
TX)
Illegal Search
First Amendment
Fourth Amendment
Art. 1.16
Arts. 1.06,
Arts.
14.01-14.06
Arts.
15.01-15.17
Arts.
16.01-16.21
Arts.
18.01-18.21
Self-Incrimination
Fifth Amendment
38.21, 38.22
Grand Jury
1.141
Fifth Amendment
20, 21
Double Jeopardy
1.11, 36.33
Due Process
Fifth Amendment
Fifth Amendment
(Federal Cases)
Due Process
Speedy Trial
Sixth Amendment
Jury Trial
1.12, 1.13,
Sixth Amendment
Arts. 1.05,
1.15,
36.19, 36.29
Public Trial
Sixth Amendment
Accusation
Sixth Amendment
Art. 1.05
Confrontation &
1.15, 1.25,
Sixth Amendment
Arts. 1.05,
Cross-Examination
Art. 1.24
38.071
Compulsory
Sixth Amendment
Art. 1.05
Process
Assistance of
Sixth Amendment
Art. 1.05
Eighth Amendment
Counsel
Excessive Bail
17.01-17.38
& 13
Eighth Amendment
Arts. 1.09,
Punishment
Equal Protection
Fourteenth Amendment
Proof Beyond A
In re Winship
Art. 1.08
Mapp v. Ohio
Art.
Reasonable Doubt
Exclusionary Rule
38.23
Habeas Corpus
Art. 1.08
AWARE THAT RULE 107 TRE CREATES AN ADDITIONAL RULE OF EVIDENCE FOR
TEXAS TRIALS - THE RULE OF OPTIONAL COMPLETENESS (ROC) NOT CONTAINED IN
THE FRE. THE ROC IS BROADER THAN THE REMAINDER RULE OF RULE 106 FRE &
TRE. THE ROC APPLIES TO ACTS, DECLARATIONS, AND CONVERSATIONS, AS WELL
AS TO WRITINGS AND RECORDED STATEMENTS; HOWEVER, THE ROC DOES NOT
ALLOW CONTEMPORANEOUS INTRODUCTION OF SUCH UNWRITTEN OR RECORDED
ACTS, DECLARATIONS, AND CONVERSATIONS, ASSUMING THEY ARE OTHERWISE
ADMISSIBLE.]
THE RULE 403 FRE & TRE PROHIBITION AGAINST UNFAIR PREJUDICE AND ARGUE
THAT THE PROBATIVE VALUE OF SUCH EVIDENCE IS SUBSTANTIALLY OUTWEIGHED
BY THE FACT THAT SUCH A QUESTION UNFAIRLY PLACES THE WITNESS IN SUCH AN
UNFLATTERING LIGHT AS TO POTENTIALLY UNDERMINE HIS ENTIRE TESTIMONY.
ARGUE THAT OPPOSING COUNSEL SHOULD BE ARTICULATE ENOUGH TO SHOW THE
JURY WHERE THE TESTIMONY OF WITNESSES DIFFER WITHOUT HAVING THE
WITNESS COMMENT ON THE CREDIBILITY OF ANOTHER WITNESS.
+ TIP 10: RULE 602 FRE & TRE REQUIRING PERSONAL KNOWLEDGE OF ALL FACT
WITNESSES OTHER THAN EXPERTS APPLIES TO HEARSAY DCLARANTS AS WELL AS
IN-COURT DECLARANTS. YOU MAY OBJECT TO LACK OF KNOWLEDGE ON THE PART
OF THE HEARSAY DECLARANT.
+ TIP 13: BE ZEALOUS IN REQUIRING THE COURT TO ENFORCE THE RULES OF THE
GAME, BUT BE CONSISTENTLY CIVIL WITH THE COURT IN MAKING YOUR OBJECTIONS.
DON'T BE A HYPERCRITICAL, CARPING CENSOR TOO READY TO RAISE OBJECTIONS
TO TRIVIAL MATTERS. JUDGES USUALLY HAVE WIGGLE ROOM WITH REGARD TO
EVIDENCE. YOUR OVERALL ATTITUDE IN MAKING AND RESPONDING TO OBJECTIONS
CAN INFLUENCE THE TRIAL JUDGE TO WIGGLE TOWARD YOU OR AWAY FROM YOU.
YOUR REPUTATION AS AN ADVOCATE KNOWLEGEABLE OF THE RULES MAY PRECEDE
YOU. RUMOR HAS IT THAT JUDGES GOSSIP ABOUT LAWYERS LIKE OLD MAIDS DO
ABOUT ROUGH SEX.
+ TIP 19: AS A GENERAL RULE, DURING THE TRIAL, DON'T GO "OFF THE RECORD."
THIS MEANS THAT YOU SHOULD NOT ACCEDE TO THE COURT'S REQUEST TO
DISCUSS THE CASE OFF THE RECORD. IF THE COURT INSISTS THAT ITS WORDS BE
OFF THE RECORD AND ORDERS THE COURT REPORTER NOT TO TRANSCRIBE ITS
COMMENTS, WAIT UNTIL THE COURT IS FINISHED. DO NOT INTERRUPT THE COURT,
AND DO NOT MAKE ANY OFF THE RECORD RESPONSE OR COMMENT. IF THE
COURT'S OFF THE RECORD COMMENTS ARE OF SUFFICIENT CONTENT, WAIT UNTIL
TESTIMONY RESUMES, AND STATE INTO THE RECORD WHAT THE COURT SAID IN ITS
"OFF THE RECORD" COMMENTS TO YOU. [NOTE: THIS WILL NOT ENDEAR YOU TO
THE COURT, BUT WILL PROTECT YOUR CLIENT AND SERVE AS NOTICE THAT YOU
WON'T SUBMIT TO BULLYING TACTICS BY THE JUDGE.]
+ TIP 20: REMEMBER THAT YOU STILL HAVE A GOOD HEARSAY OBJECTION WHEN
YOUR OPPONENT ASKS A WITNESS TO PARAPHRASE OR SUMMARIZE WHAT A
DECLARANT SAID. THE CUNNING OPPONENT MAY TRY THIS PARLOR TRICK BY
SAYING, "WITHOUT TELLING US EXACTLY WHAT WAS SAID, TELL US THE GIST OF
WHAT YOUR INVESTIGATION REVEALED."
+ TIP 22: WHEN YOU ARE OBJECTING TO YOUR OPPONENT'S FAILURE TO ESTABLISH
AN EVIDENTIARY FOUNDATION OR PREDICATE THROUGH A WITNESS' ANSWERS,
REMEMBER THAT THE PROPONENT OF THE EVIDENCE MUST GENERALLY CONVINCE
THE TRIAL JUDGE BY A PREPONDERANCE OF THE EVIDENCE THAT THE FOUNDATION
FACTS ARE TRUE.
+ TIP 23: CERTAIN FRONT END PREFATORY WORDS, E.G., "SO," OR PHRASES, E.G.,
"WOULD YOU SAY," ARE GIVEAWAYS THAT A QUESTION WILL BE LEADING.
QUESTIONS THAT CONTAIN PHRASES LIKE "COULD YOU, " "WHAT IF," "DO YOU
SUPPOSE," ETC., OFTEN PRESAGE A QUESTION THAT ASKS THE WITNESS TO
SPECULATE.
+ TIP 24: THE RULES OF EVIDENCE APPLY TO JURY ARGUMENT. THERE ARE A
NUMBER OF SPECIFIC OBJECTIONS YOU CAN MAKE TO THE OPPOSITION'S JURY
ARGUMENT. OBJECT TO THE OPPOSITION'S ARGUMENT SPARINGLY, E.G., WHEN YOU
ARE CERTAIN THAT YOU HAVE A GOOD SUBSTANTIVE OBJECTION FOR APPEAL.
REMEMBER THAT THE PROSECUTION HAS NO APPEAL FROM AN IMPROPER DEFENSE
JURY ARGUMENT, BUT "WHEN YOU STRAY, YOU MAY HAVE TO PAY" UNDER THE
"REPLY DOCTRINE," THE "INVITED ARGUMENT RULE," OR THE "OPENING THE DOOR"
THEORY. THESE ARE THREE LABELS FOR THE RULE OF JURY ARGUMENT,
RECOGNIZED IN SOME CASES, THAT ALLOWS ONE SIDE TO REPLY TO IMPROPER
ARGUMENT OF THE OTHER SIDE.
+ TIP 1: RULE 404(b) FRE & TRE UNCHARGED MISCONDUCT EVIDENCE CAN BE
OFFERED FOR ANY PROPER PURPOSE OTHER THAN PROOF OF ACTION IN
CONFORMITY THEREWITH (WE CALL THIS IMPROPER PURPOSE "PROPENSITY
EVIDENCE."); NOTE THAT THE STATED EXAMPLES, I.E., MOTIVE, OPPORTUNITY,
INTENT, PREPARATION, PLAN, KNOWLEDGE, IDENTITY, ABSENCE OF MISTAKE, OR
ACCIDENT, ARE NOT EXCLUSIVE; RATHER, THEY ARE SIMPLY EXAMPLES OF PROPER
PURPOSES FOR PROOF OF UNCHARGED MISCONDUCT.
+ TIP 5: REMEMBER THAT RULE 806 FRE & TRE ALLOWS YOU TO IMPEACH THE
CREDIBILITY FOR A NON-WITNESS CO-CONSPIRATOR DECLARANT, WHOSE
STATEMENT IS OFFERED AGAINST YOUR CLIENT, BY ANY EVIDENCE THAT WOULD BE
ADMISSIBLE FOR SUCH PURPOSE IF THE DECLARANT HAD ACTUALLY TESTIFIED AS A
WITNESS. THIS INCLUDES YOUR RIGHT TO IMPEACH THE NON-TESTIFYING
DECLARANT WITH PROOF OF: (1) ADMISSIBLE PRIOR CONVICTIONS UNDER RULE
609 FRE & TRE; (2) LACK OF PERCEPTION; (3) BIAS OR ANIMUS OR INTEREST; (4)
PRIOR INCONSISTENT STATEMENT UNDER RULE 613 FRE & TRE WITHOUT THE
NECESSITY OF AFFORDING THE DECLARANT AN OPPORTUNITY TO DENY OR
EXPLAIN; (5) BAD CHARACTER EVIDENCE RE TRUTHFULNESS UNDER RULE 608 FRE
& TRE, ETC. [NOTE: IT MAKES SENSE THAT THE RULES ALL0W YOU TO MAKE THIS
ATTACK ON A NON-WITNESS. OTHERWISE, YOUR OPPONENT COULD WALL OFF
IMPEACHING EVIDENCE SIMPLY BY INTRODUCING THE CO-CONSPIRATOR'S OUT-OFCOURT STATEMENTS AND KEEPING THE CO-CONSPIRATOR OFF THE STAND.]