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KINDS OF OBJECTIONS

THE IMPORTANCE OF RULES


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 free-for-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.
[Note: On December 1, 2011 the Federal Rules of Evidence
were restyled. (1 - Federal Objections)]
THE ANALOGY WITH ATHLETIC CONTESTS

I find it helpful to analogize the subject of objections in a


criminal trial to the procedure for enforcing rules in a typical
athletic sporting contest. In each, two sides are pitted
against one another. There is planning, preparing,
gamesmanship, strategy and the desire to win in the
courtroom and on the athletic playing field. Courtroom trials
and sporting contests are each limited by rules that are
enforced by official judges or referees whose word on the
rules is final. But there is a big difference between in the
procedure for enforcing rules in the courtroom vis a vis the
athletic playing field. First, in our game, the courtroom trial,
the referee, i.e., judge, doesn't drop a flag unless you, the
speaker for your team ask her to do so. Second, you, the
lawyer, have the laboring oar to figure out precisely what
rule, many of them have numbers, of the game has been
violated by the alleged foul. Fouls are typically committed by
the opposition, but they may be committed by others, even
the referee-judge. So you've go to be knowledgeable
enough regarding the rules of evidence, criminal procedure,
and criminal law to recognize that you have a valid
objection, and also to know what that specific objection
is. Third, you've go to be experienced, cunning, and wise
enough to be able to decide in a split second if it is
strategically appropriate to make the objection. This calculus
of whether to object or not involves numerous factors. For
example, you may need to ask yourself whether your
otherwise valid objection is to form or substance of an
opponent's question. If the objection is only to the form of
the question, your opponent may be able to correct the error
simply by rephrasing the question. If so, the evidence will
come in and you've emphasized it to the jury by objecting.

Once you decide that you are going to object, you've go to


be ready and able to articulate to the referee-judge the legal
basis for your objection. And, to finally cap it off, you've got
to be so quick on the trigger that you can do all of this in a
couple of seconds or else you risk waiving your objection
because it is not deemed timely by the trial and appellate
court. (Always remember that appellate court are courts of
error correction; they are there to correct error by the trial
court if you have properly "preserved" the error in the
record of the case;typically, you preserve error by objection.)
CONSTITUENT PARTS OF AN OBJECTION TO
ADMISSIBILTY OF EVIDENCE
To exclude evidence, when you object to the admission of
the other side's evidence, your objection must be (1) timely.
It must also be specific as to (2) ground, (3) party, (4) part,
and (5) purpose. This, your objection to the admissibility of
evidence must:

Follow rapidly in a timely manner after the occurrence


of the objectionable act.

State a specific ground of evidentiary inadmissibility.

Identify the party against whom it is inadmissible.

Identify the part of the evidence that is inadmissible.

Object to the opponent's general unrestricted offer of


evidence when it is admissible only for a limited purpose.
PRETRIAL OBJECTIONS AND MOTIONS IN LIMINE

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 FREand 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 "Not
Needing to Renew an Objection or Offer of Proof. 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 "Not Needing to Renew an
Objection. When the court hears a partys objections outside
the presence of the jury and rules that evidence is
admissible, a party need not renew an objection to preserve
a claim of error for appeal." 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.
EVAPORATED AND CONDENSED OBJECTIONS Generic & Texas
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 theTexas Rules of Evidence
(2016), 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 a few resources (1 - 1 page - jury
argument), ( 2 - slide show), (3 - list), (4 - short list without
explanations), (5 - preserving the appeal), (6- the Federal
Rules of Criminal Procedure).
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.

HIP-POCKET LIST OF +70 BASIC GENERIC


OBJECTIONS
(Best for Use in Jurisdictions Using the Federal Rules
of Evidence as a Model)
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,
indirect 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:
AMBIGUOUS (SEE VAGUE)
ANSWER NON-RESPONSIVE
ANSWER EXCEEDS (GOES BEYOND) SCOPE OF
QUESTION AND CONSTITUTES A VOLUNTEERED
STATEMENT BY THE WITNESS
ARGUMENT IMPROPER (E.G., REFERS TO FACTS NOT
IN EVIDENCE, MISSTATES EVIDENCE, MISQUOTES
WITNESS, VOUCHES FOR WITNESS, INDICATES
PERSONAL BELIEF OR OPINION OF COUNSEL,
UNFAIRLY PREJUDICIAL, COMMENT ON DEFENDANT'S
FAILURE TO TESTIFY, INDIRECT ATTACK ON ACCUSED

BY ATTACKING INTEGRITY OF DEFENSE COUNSEL;


[For specific objections to JURY ARGUMENT ]
ARGUMENTATIVE IN CONTENT AND TONE WITHOUT
ASKING FOR NEW INFORMATION; USING HIS/HER
QUESTION TO ARGUE THE CASE
ASKING ONE WITNESS TO COMMENT ON THE
VERACITY OF ANOTHER WITNESS' TESTIMONY
IMPROPERLY INVADES THE PROVINCE OF THE JURY
TO DETERMINE WITNESS CREDIBILITY AND IS
IMPROPER CHARACTER EVIDENCE. (EXAMPLE:
WHERE ONE WITNESS IS ASKED WHETHER ANOTHER
WITNESS LIED OR TOLD THE TRUTH) [Note: There are
lots of cases on this, but prosecutors seem to have a
proclivity for such "war the officer lying" questions on
cross of the defendant, e.g., United States v. Geston,
299 F.3d 1130 (9th Cir. 2002);United States v. Sullivan, 85
F.3d 743 (1st Cir. 1996); United States v. Boyd, 54 F.3d
868 (D.C. Cir. 1995); United States v. Richter, 826 F.2d
206 (2nd Cir. 1987), and for "was the other officer telling
the truth" questions on direct of officers, e.g., United
States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998).]
ASKING A LAY WITNESS TO PROVIDE A PERSONAL
EVALUATION OF EVIDENCE ADDUCED BY ANOTHER
WITNESS, ABOUT WHICH EVIDENCE THE WITNESS
HAS NO PERSONAL OR EXPERT KNOWLEDGE
ASSUMING FACTS NOT IN EVIDENCE (LOADED
QUESTION THAT PREVENTS THE WITNESS FROM
HAVING THE OPPORTUNITY TO DENY THE EXISTENCE
OF THE ASSUMED FACT)

ASKED AND ANSWERED (SEE REPETITIOUS)


AUTHENTICATION LACKING OR IMPROPER (FAILURE
TO IDENTIFY ITEM OF EVIDENCE, E.G., WRITING, AND
SHOW ITS LOGICAL RELEVANCE) (SEE FAILURE TO
LAY PROPER FOUNDATION)
BADGERING THE WITNESS (ALSO, QUARRELING WITH
, ARGUING WITH, SHOUTING AT, BULLYING, LOOMING
OVER, AND THREATENING)
BEST EVIDENCE RULE VIOLATED (SEE ALSO,
"ORIGINAL WRITING" RULE)
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)
BILL OF RIGHTS VIOLATED AND EXCLUSIONARY
RULE APPLICABLE [SUGGESTION: PRINT THE BILL
OF RIGHTS FROM THE CCJA PAGE AND PUT IT IN
YOUR TRIAL NOTEBOOK SO THAT YOU MAY CITE THE
COURT THE LANGUAGE OF A PARTICULAR RIGHT
THAT HAS BEEN VIOLATED BY THE GOVERNMENT IN
OBTAINING EVIDENCE.] (SEE ILLEGAL SEARCH AND
SEIZURE, ILLEGAL IDENTIFICATION, CONFESSION
INVOLUNTARY AND WITHOUT PROPER WARNINGS)
CHAIN OF CUSTODY NOT PROPERLY ESTABLISHED
(PARTICULARLY WHEN ITEM IS FUNGIBLE AND THUS

EASILY ALTERABLE AND NO SINGLE WITNESS CAN


IDENTIFY THE ITEM WITH PERSONAL KNOWLEDGE)
CHARACTER EVIDENCE IMPROPER (E.G., TO
ESTABLISH PROPENSITY)
COMPOUND QUESTION THAT CONTAINS TWO OR
MORE QUESTIONS WITHIN A SINGLE QUESTION
COMMENT ON EVIDENCE BY JUDGE
COMMENT ON DEFENDANT'S POST-ARREST SILENCE
FOR IMPEACHMENT PURPOSES WHEN DEFENDANT
REMAINS SILENT AFTER BEING
GIVEN MIRANDA WARNINGS VIOLATES DUE PROCESS
[Doyle v. Ohio, 426 U.S. 610 (1976);but see Jenkins v.
Anderson, 447 U.S. 231 (1980) okay to impeach accused
with with prior prearrest silence, e.g., delay in reporting
offense; Anderson v. Charles, 447 U.S. 404 (1980) okay
to impeach accused with prior inconsistent statement
after Miranda warning. See Impeachment]
CONFESSION OBTAINED WITHOUT REQUIRED
WARNING AND VOLUNTARY WAIVER OF RIGHTS
UNDER FIFTH AND SIXTH AMENDMENTS
CONFESSION INVOLUNTARY (SEE INVOLUNTARY
CONFESSION)
CONFESSION OF CO-DEFENDANT INADMISSIBLE
[See Bruton v. United States, 391 U.S. 123 (1968); Gray
v. Maryland, 523 U.S. 185 (1998); Motions]

CONFRONTATION CLAUSE OF SIXTH


AMENDMENT VIOLATED BY PROSECUTOR'S OFFER
OF OUT-OF-COURT STATEMENT FOR A HEARSAY
PURPOSE, I.E., FOR THE TRUTH OF THE MATTER
ASSERTED IN THE STATEMENT, NOTWITHSTANDING
THAT THE OUT-OF-COURT STATEMENT MAY APPEAR
TO FIT WITHIN AN EXCEPTION OR EXEMPTION TO THE
HEARSAY RULE [See Crawford v. Washington, 541 U.S.
36 (2004); See also the discussion at Motions]

UNDER THE Crawford Rule YOU ARE LOOKING


FOR 4 CONDITIONS: 1. THE OUT-OF-COURT
STATEMENT OF A WITNESS IS BEING OFFERED BY
THE PROSECUTION AGAINST THE ACCUSED IN A
CRIMINAL CASE FOR THE TRUTH OF THE MATTER
ASSERTED IN THE OUT-OF-COURT STATEMENT; 2.
THERE WAS NO OPPORTUNITY FOR THE DEFENSE TO
CROSS-EXAMINE THE WITNESS AT THE TIME OF THE
STATEMENT; 3.AT THE TIME OF THE TRIAL WHEN THE
OUT-OF-COURT-STATEMENT IS OFFERED, THE
DECLARANT, I.E., THE PERSON WHO MADE THE OUTOF-COURT STATEMENT, IS UNAVAILABLE AS A
WITNESS; AND 4. THE OUT-OF-COURT STATEMENT OF
THE UNAVAILABLE DECLARANT IS CLASSIFIED AS
"TESTIMONIAL" BY THE USSC.

WHAT IS A "TESTIMONAL" OUT-OF-COURT


STATEMENT? Crawford, A MURDER PROSECUTION,
DIDN'T TELL US MUCH, OTHER THAN THE FACT THAT
MRS. CRAWFORD'S STATEMENTS TO POLICE THAT
WERE CONTRADICTORY TO HER DEFENDANT
HUSBAND'S STORY WERE "TESTIMONIAL"; BECAUSE

SHE ASSERTED HER MARITAL PRIVILEGE AND DID


NOT TESTIFY AT TRIAL, IT WAS CONSTITUTIONAL
ERROR FOR THE COURT TO RECEIVE HER OUT-OF
-COURT STATMENT OVER THE DEFENSE
CONFRONTATION CLAUSE OBJECTION. THE COURT
SUGGESTED THAT AFFIDAVITS, DEPOSITIONS, PRIOR
TESTIMONY THAT THE DEFENDANT WAS UNABLE TO
CROSS-EXAMINE, AND "STATEMENTS THAT WERE
MADE UNDER CIRCUMSTANCES WHICH WOULD
LEAD AN OBJECIVE WITNESS REASONABLY TO
BELIEVE THAT THE STATEMENTS WOULD BE
AVAILABLE FOR USE IN A LATER TRIAL" WOULD BE
CLASSIFIED AS "TESTIMONIAL" OUT-OF -COURT
STATEMENTS.

LITTLE BY LITTLE, WE ARE FINDING OUT WHAT IS


AND ISN'T TESTIMONIAL. WE CAN SURMISE
FROM Crawford THAT DYING DECLARATIONS AND
STATEMENTS OF CO-CONSPIRATORS WILL NOT BE
VIEWED BY THE USSC AS TESTIMONIAL.
SINCECrawford, THE USSC HAS ENLIGHTENED US
WITH THESE CASES: Davis v. Washington,547 U.S. 813
(2006) HOLDING THAT AN OUT-OF-COURT STATEMENT
MADE FOR THE PRIMARY PURPOSE OF SECURING
HELP IN AN ONGOING EMERGENCY, E.G., A 911 CALL
REPORTING AN ONGOING ASSAULT, WAS NOT
TESTIMONIAL; Hammon v. Indiana, DECIDED AS A
COMPANION CASE TO Davis INVOLVED A STATEMENT
BY A DOMESTIC ASSAULT VICTIM UNDER
CIRCUMSTANCES VERY SIMILAR TO Crawford; THE
STATEMENT OF MS. HAMMON WAS HELD TO MEET
ALL OF THE Crawford REQUIREMENTS AS WAS

THEREFORE INADMISSIBLE. SEE ALSO Hammon v.


Indiana, 829 N.E.2D 444 (IND 2005); Michigan v. Bryant,
__ U.S. __, 131 S.CT. 1143 (2011), ANOTHER ONGOING
EMERGENCY CASE WITH A NONTESTIMONIAL OUTOF-COURT STATEMENT, THIS ONE WHERE A
MORTALLY WOUNDED VICTIM MADE THE STATEMENT
TO A COP DESCRIBING THE SHOOTER, ID'ING THE
SHOOTER, AND THE LOCATION OF THE
SHOOTING; Wharton v. Bockting, 549 U.S. 406 (2007)
HOLDING THAT CRAWFORD WAS NOT
RETROACTIVE; Giles v. California, 554 U.S. 353 (2008)
WHICH SEEKS TO CLARIFY THE FORFEITURE RULE,
WHEREBY A DEFENDANT FORFEITS HIS SIXTH
AMENDMENT RIGHT TO CONFRONT A WITNESS
AGAINST HIM WHEN A JUDGE DETERMINES THAT A
WRONGFUL ACT BY THE DEFENDANT MADE THE
WITNESS UNAVAILABLE TO TESTIFY AT
TRIAL; Melendez-Diaz v. Massachusetts, 557 U.S. 1256
(2009) (KENNEDY, ROBERTS, BREYER AND ALITO
DISSENTING) WHICH HELD THAT A FORENSIC
LABORATORY REPORT IN THE FORM OF AN
AFFIDAVIT STATING THAT A SUSPECT SUBSTANCE
WAS COCAINE RANKED AS TESTIMONIAL; THE
PROSECUTION REPORT HAD BEEN CREATED
SPECIFICALLY TO SERVE AS EVIDENCE IN A
CRIMINAL PROCEEDING AND ABSENT STIPULATION,
THE PROSECUTION COULD NOT INTRODUCE SUCH A
REPORT WITHOUT OFFERING A LIVE WITNESS
COMPETENT TO TESTIFY TO THE TRUTH OF THE
STATEMENTS MADE IN THE REPORT; THE COURT
SAID "DOCUMENTS KEPT IN THE REGULAR COURSE
OF BUSINESS MAY ORDINARILY BE ADMITTED AT

TRIAL DESPITE THEIR HEARSAY STATUS. BUT THAT IS


NOT THE CASE IF THE REGULARLY CONDUCTED
BUSINESS ACTIVITY IS THE PRODUCTION OF
EVIDENCE FOR USE AT TRIAL"; Bullcoming v. New
Mexico, __ U.S. __, 131 S.CT. 2705 (2011) (KENNEDY,
ROBERTS, BREYER, ALITO DISSENTING) WHERE THE
QUESTION PRESENTED WAS WHETHER THE
CONFRONTATION CLAUSE PERMITS THE
PROSECUTION TO INTRODUCE A FORENSIC
LABORATORY REPORT CONTAINING A TESTIMONIAL
CERTIFICATION - MADE FOR THE PURPOSE OF
PROVING A PARTICULAR FACT - THROUGH THE INCOURT TESTIMONY OF A SCIENTIST WHO DID NOT
SIGN THE CERTIFICATION OR PERFORM OR OBSERVE
THE TEST REPORTED IN THE CERTIFICATION; THE
USSC HELD THAT SURROGATE TESTIMONY OF THAT
ORDER DOES NOT MEET THE CONFRONTATION
REQUIREMENT, I.E., THE ACCUSED IS ENTITLED TO
BE CONFRONTED WITH THE ANALYST WHO MADE
THE CERTIFICATION, UNLESS THAT ANALYST IS
UNAVAILABLE AT TRIAL AND THE ACCUSED HAD A
PRETRIAL OPPORTUNITY TO CROSS-EXAMINE THAT
PARTICULAR SCIENTIST. [Note: Keep an eye out for the
decision in Williams v. Illinois, cert granted 131 S. Ct.
3090 (2011), (1) where a DNA expert who did not
perform the DNA test testified at trial and relied upon
the forensic opinion/results of the non-testifying analyst
in arriving at an in-court opinion.]

NOTE THAT UNDER Crawford EVEN THOUGH AN


OUT-OF-COURT STATEMENT FITS INTO A
RECOGNIZED HEARSAY EXCEPTION,

THE CONFRONTATION CLAUSE OF THE SIXTH


AMENDMENT BARS USE OF TESTIMONIAL OUT-OFCOURT STATEMENT BY AN UNAVAILABLE WITNESS
WHOM THE DEFENDANT HAS NOT HAD THE
OPPORTUNITY TO CROSS-EXAMINE, IRRESPECTIVE
OF WHETHER THE STATEMENT IS DEEMED
RELIABLE; THE STATEMENT IS INADMISSIBLE AS
UNCROSSEXAMINED. SEE Crawford v.
Washington, 541 U.S. 36 (2004)

NOTE: Here is a 164-page pdf compendium


containing summaries of state and federal cases
addressing the Confrontation Clause decided
after Crawford v. Washington; these summaries include
every Supreme Court case since Crawford and the state
and federal cases granting relief on Confrontation
Clause grounds through January 1, 2011.
CONFRONTATION, FACE-TO-FACE DENIED WHEN
WITNESS OR DEFENDANT IS BLOCKED OR
SCREENED FROM LIVE CONFRONTATION [Coy v. Iowa,
487 U.S. 1012 (1988) holding that use of closed-circuit
live TV to block the child witness' view of the defendant
was a confrontatin clause violation; but see, Maryland
v. Craig, 497 U.S. 836 (1990) which permitted use of
blocking or screening the witness from seeing the
defendant provided there is a particularized showing
that such blockageis likely to avoid trauma to the
witness.]
CONFUSION OF ISSUES

CONTINUING (RUNNING) OBJECTION


COUNSEL AT TRIAL, RIGHT TO PROCEED WITHOUT
[See Faretta v. California, 422 U.S. 806 (1975); McKaskle
v. Wiggins, 465 U.S. 168 (1984) cannot refuse stand-by
counsel; but seeMartinez v. Court of Appeal of
California, 528 U.S. 152 (2000) no constitutional right to
self-representation on appeal. ]
CROSS-EXAMINATION TO SHOW BIAS IMPROPERLY
DENIED [See Davis v. Alaska, 415 U.S. 308 (1974).]
CROSS-EXAMINATION DENIED BY TRIAL COURT
LIMITING COUNSEL'S CONTACT WITH WITNESS
[See Delaware v. Van Arsdall, 475 U.S. 673 (1986); Perry
v. Leeke, 488 U.S. 272 (1989)]
CUMULATIVE EVIDENCE, NEEDLESSLY, IN THAT IT
FAILS TO ADD TO THE PROBITY OF PREVIOUSLY
ADMITTED EVIDENCE
DISCOVERY VIOLATION [Brady v. Maryland, 373 U.S. 83
(1963);United States v. Agurs, 427 U.S. 97 (1976); United
States v. Bagley, 473 U.S. 667 (1985); Kyles v.
Whitley, 514 U.S. 419 (1995);Strickler v. Greene, 527 U.S.
263 (1999) materiality, i.e., reasonable probability of
different result, required; See Pretrial Practice]
DISPLAYING EVIDENCE PRIOR TO ITS INTRODUCTION
OR CONTINUING TO DISPLAY EVIDENCE AFTER IT
HAS BEEN USED

EXPERT TESTIMONY NOT ADMISSSIBLE (E.G.,


UNDERLYING FACTS OR DATA INSUFFICIENT; FIELD
OF SCIENTIFIC, TECHNOLOGICAL OR OTHER
SPECIALTY OF EXPERTISE NOT RELIABLE AND/OR
RELEVANT BASED ON DAUBERT FACTORS SUCH AS:
(1) WHETHER THE PRINCIPLE HAS BEEN TESTED, (2)
THE RESULTS OF PUBLISHED PEER REVIEW, (3)
ERROR RATES AND (4) GENERAL ACCEPTANCE;
OLD FRYE - United States v. Frye, 293 F. 1013 (D.C.
1923) (1) RULE REQUIRES GENERAL ACCEPTANCE)
[See Expert]
EXPERT WITNESS NOT COMPETENT
FAILURE TO LAY PROPER FOUNDATION FOR
ADMISSION OF TESTIMONY, EXHIBIT, OR DOCUMENT
(PREDICATE) (SEE LACK OF EVIDENTIARY
PREDIATE)
FINAL ARGUMENT IMPROPER (SEE ARGUMENT
IMPROPER; OBJECTIONS TO ARGUMENT)
GOADING THE DEFENSE INTO MOVING FOR A
MISTRIAL, PROSECUTORIAL CONDUCT INTENDED TO
AND IN FACT SUCCEEDING IN [Note: Oregon v.
Kennedy, 456 U.S. 667 (1982) established that where the
prosecutor's conduct is intended to "goad" the defense
into moving for a mistrial, the defense may successfully
claim that a retrial is barred by the Fifth Amendment
protection against double jeopardy. The idea behind
this ground for objection is that prosecutors shouldn't
be permitted by intentional misconduct to force a
mistrial that will allow them to retry the accused when

conditions are better, e.g., a missing witness may be


found, a more conviction-oriented jury may be
empanelled, etc. In my home state, Texas, the rule also
applies by case law to "reckless" goading.]
HABIT NOT ESTABLISHED, IMPROPER HABIT
EVIDENCE BECAUSE
HEARSAY, QUESTION CALLS FOR OR ANSWER
CONTAINS (1 - HISTORY OF THE RULE AGAINST
HEARSAY - TREASON TRIAL OF SIR WALTER
RALEIGH), (2 - VARIOUS EXCEPTIONS TO RULE
AGAINST HEARSAY DISCUSSED)
HEARSAY WITHIN HEARSAY
HEARSAY, EVIDENCE CONTAINS
HEARSAY, EVIDENCE IS THE RESULT OF AND IS
BASED UPON
ILLEGAL SEARCH AND SEIZURE IN VIOLATION
OF FOURTH AMENDMENT
ILLEGAL IDENTIFICATION
INVOLUNTARY CONFESSION IN VIOLATION OF DUE
PROCESS OR LAW
IMMATERIAL IN THAT IT IS OF NO CONSEQUENCE TO
ANY ISSUE IN THE CASE (COUPLE WITH IRRELEVANT)

IMPEACHMENT IMPROPER ( IMPROPER OPINION OR


REPUTATION CHARACTER EVIDENCE - RULE 404 FRE,
IMPROPER PROOF OF PRIOR CONVICTION - RULE
609 FRE, IMPROPER FOUNDATION FOR PROOF OF
WITNESS' PRIOR INCONSISTENT STATEMENT - RULE
613FRE,IMPROPER PROOF OF UNTRUTHFULNESS
-RULE 608FRE, IMPEACHMENT WITH AN IRRELEVANT
OR COLLATERAL MATTER - RULE 403 FRE)
INCOMPETENCY OF WITNESS (E.G., LACK OF
PERCEPTION, LACK OF MEMORY, INABILITY TO
UNDERSTAND NATURE AND OBLIGATION OF OATH RULE 603 FRE, INABILITY TO NARRATE OR
COMMUNICATE IN LANGUAGE OF COURT, LACK OF
PERSONAL KNOWLEDGE - RULE 602FRE, LACK OF
EXPERTISE TO TESTIFY AS AN EXPERT - RULE
702 FRE ) [Note that thecompetency under RULE
601 FRE is that "every person is competent to be a
witness unless these rules provide otherwise. But in a
civil case, state law governs the witnesss competency
regarding a claim or defense for which state law
supplies the rule of decision." So children, retarded
persons, insane persons, etc., are not automatically
disqualified to testify in federal criminal cases.]
IRRELEVANT IN THE SENSE THAT IT DOES NOT MAKE
A FACT OF CONSEQUENCE TO THE LAWSUIT
ANYMORE OR LESS LIKELY - RULE 401 FRE
JUDICIAL NOTICE IMPROPER - RULE 201 FRE
JUDGE ASKING QUESTION THAT IMPROPERLY
INFLUENCES THE JURY AND/OR INTERFERES WITH

COUNSEL'S PRESENTATION OF CASE ( SEE


COMMENT ON WEIGHT OF EVIDENCE - TOLERATED IN
SOME JURISDICTIONS, E.G., FEDERAL COURT - SEE
RULE 614FRE)
LACK OF EVIDENTIARY PREDICATE (FOUNDATION)
FOR ADMISSION OF TESTIMONY, EXHIBIT, OR
DOCUMENT
LACK OF PERSONAL KNOWLEDGE (WITNESS, OTHER
THAN EXPERT, DOES NOT HAVE FIRST-HAND
INFORMATION) - RULE 602 FRE
LAY WITNESS OPINION AND/OR INFERENCE
IMPROPER; NOT HELPFUL TO CLEAR
UNDERSTANDING OF WITNESS' TESTIMONY OR
DETERMINATION OF FACT IN ISSUE, NOT RATIONALLY
BASED ON PERCEPTION OF WITNESS (E.G., SEE RULE
701 FRE)
LEADING QUESTION ON DIRECT EXAMINATION
(QUESTION SUGGESTS OR COAXES DESIRED
ANSWER) - RULE 611(C) FRE
LEGAL CONCLUSION (QUESTIONS CALLS FOR OR
ANSWER CONTAINS) - RULE
LIMITED PURPOSE OR PARTY, EVIDENCE ADMISSIBLE
ONLY FOR A LIMITED PURPOSE OR LIMITED TO A
PARTICULAR PARTY (AND OFFERED GENERALLY OR
AGAINST ALL PARTIES) - RULE 105 FRE
MISLEADING THE JURY

MISSTATEMENT (MISCHARACTERIZATION) OF
EVIDENCE BY COUNSEL (OR WITNESS)
NON-RESPONSIVE ANSWER
OFFER TO PLEAD GUILTY OR NOLO CONTENDERE
INADMISSIBLE (SEE RULE 410 FRE)
OPENING STATEMENT IMPROPER ( E.G.,
ARGUMENTATIVE, INVADES PROVINCE OF COURT BY
PROVIDING INSTRUCTIONS ON LAW, STATES
PERSONAL OPINION OR BELIEF OF COUNSEL,
PROSECUTOR SPECULATING ABOUT DEFENSE
EVIDENCE) [The CCJA OPENING STATEMENT page will
provide a longer list of possible objections.]
OPINION ON ULTIMATE ISSUE
PRIOR BAD ACTS, MISCONDUCT, WRONGS, OR
OTHER CRIMES (UNCHARGED MISCONDUCT,
EXTRANEOUS OFFENSES) IMPROPER TO SHOW
PROPENSITY/DISPOSITION (SEE RULE 404(B) FRE)
PRIOR CONVICTION INADMISSIBLE
PRIOR SEXUAL BEHAVIOR IMPROPER
PERSONAL KNOWLEDGE OF LAY WITNESS LACKING
(SEE LACK OF PERSONAL KNOWLDGE)
POST-ARREST SILENCE AGAINST THE DEFENDANT,
USE OF DEFENDANT'S - [See above re Comment on
Post-Arrest Silence; see also Doyle v. Ohio, 426 U.S.
610 (1976); Fletcher v. Weir, 455 U.S. 603 (1982)]

PRIVILEGED COMMUNICATION (E.G., ATTORNEYCLIENT; DOCTOR-PATIENT (IF ANY); CLERGY;


INFORMANT'S IDENTITY; SPOUSAL CAPACITY;
SPOUSAL OR MARITAL COMMUNICATION; SELFINCRIMINATION)
QUESTION HAS BEEN ANSWERED BY WITNESS AND
IS NOW GIVING AN ANSWER THT GOES BEYOND THE
QUESTION POSED (SEE WITNESS HAS ANSWERED)
QUESTION ON CROSS-EXAMINATION GOES BEYOND
SCOPE OF DIRECT AND ISSUES OF WITNESS
CREDIBILITY (APPLIES ONLY IN JURISDICTIONS, E.G.,
FEDERAL COURT, WHERE SCOPE OF CROSS IS
LIMITED TO SUBJECT OF DIRECT AND ISSUES
RELATED TO WITNESS CREDIBILITY)
REMAINDER RULE, EVIDENCE OF WRITING OR
RECORDED STATEMENT SHOULD NOT IN FAIRNESS
BE CONSIDERED CONTEMPORANEOUSLY UNDER
THE
RELEVANCE LACKING (SEE IRRELEVANT) ( E.G., HAS
NO TENDENCY TO MAKE EXISTENCE OF ANY FACT OF
CONSEQUENCE TO THE CASE MORE OR LESS
PROBABLE THAN IT WOULD BE WITHOUT THE
EVIDENCE)
RELIGIOUS BELIEFS OR OPINIONS OF WITNESS
INADMISSIBLE TO SHOW WITNESS' CREDIBILITY
IMPAIRED OR ENHANCED (E.G., SEE RULE 610 FRE)

REPETITIOUS (SEE ASKED AND ANSWERED)


REQUIREMENT OF ORIGINAL VIOLATED ( SEE BEST
EVIDENCE RULE, ORIGINAL DOCUMENT RULE)
SENTENCE INCREASE BY THE TRIAL JUDGE ABOVE
STATUTORY MAXIMUM VIOLATES SIXTH AMENDMENT
RIGHT TO TRIAL BY JURY [ See Blakely v. Washington,
542 U.S. 296 (2004)]
SEQUESTRATION OF WITNESSES ("THE RULE" OF
WITNESSES) VIOLATION (AS WHEN EVIDENCE THAT
ANOTHER WITNESS HAS MADE NOTATIONS UPON IS
PRESENTED TO A TESTIFIYING WITNESS)
SHACKLING, BINDING , GAGGING, NOT APPROPRIATE
UNDER CIRCUMSTANCES [See Illinois v. Allen, 397 U.S.
337 (1970)]
SIDEBAR REMARK ( SIDEBAR REMARKS ARE
STATEMENTS OF COUNSEL FOR ONE PARTY NOT
ADDRESSED TO THE COURT AND TYPICALLY MADE
WHILE COUNSEL FOR ANOTHER PARTY IS EXAMINING
A WITNESS, ARGUING A QUESTION TO THE COURT OR
ADDRESSING THE JURY.)
SPECULATION (CONJECTURE, GUESS)
SUPPRESSION HEARING TESTIMONY OF ACCUSED
NOT ADMISSIBLE AT TRIAL
[Simmons v. United
States, 390 U.S. 377 (1968), e.g., testimony given by
defendant at suppression hearing to establish
"standing" may not be used against her at trial on the

issue of guilt; but see Harris v. New York, 401 U.S. 222
(1971) which allows the use of statements obtained in
violation of Miranda for impeachment purposes.]
TRIAL IN ABSENTIA NOT PERMITTED WHERE
DEFENDANT NOT PRESENT AT BEGINNING OF TRIAL;
ACCUSED HAS RIGHT TO BE PRESENT [See Crosby v.
United States, 506 U.S. 255 (1993); United States v.
Gagnon, 470 U.S. 522 (1985)]
UNDUE DELAY
UNFAIRLY PREJUDICIAL (E.G. RULE 403 FRE POTENTIAL DANGER OF "UNFAIR" PREJUDICE
SUBSTANTIALLY OUTWEIGHS PROBATIVE VALUE OBJECTING PARTY HAS BOP; OBJECT THAT THE
OTHERWISE ARGUABLY RELEVANT EVIDENCE
UNFAIRLY EXAGGERATES THE TRUTH AND TENDS TO
IMPROPERLY STIR THE PASSIONS OR SYMPATHY OF
THE JURORS) EVEN THOUGH ARGUABLY RELEVANT
VAGUE
WASTE OF TIME
WEARING PRISON GARB VIOLATES DUE PROCESS
[See Estelle v. Williams, 425 U.S. 501 (1976)]
WITNESS HAS ANSWERED THE QUESTION AND IS
NOW VOLUNTEERING AN ANSWER TO A QUESTION
THAT HASN'T BEEN ASKED

QUIK REFERENCE GUIDE


to

OBJECTIONS IN TEXAS CRIMINAL


TRIALS
copyright Ray Moses 2000
all rights reserved

Here are some useful trial objections that can be made


in criminal trials under the Texas Rules of Evidence
(2016) (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 FREprovides 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 (2016)and the Texas Uniform Court
Reporters Manual.

Objections to the Form of the Question


+ ARGUMENTATIVE QUESTION - Rule 611(a) TRE, FRE.
+ ASKED AND ANSWERED (See Duplicitous) - Rule
403 TRE, FRE; 611(a) TRE, FRE.

+ ASSUMING FACTS NOT IN EVIDENCE - Rule


611(a) TRE, FRE.
+ BADGERING THE WITNESS (See Harassing) - Rule
611(a) TRE, FRE.
+ COMPOUND QUESTION Rule 611(a)TRE - Rule
611(a) TRE, FRE.
+ DUPLICITOUS (See Asked and Answered and
Needlessly Cumulative) - Rule 403 TRE, FRE ; Rule
611(a) TRE, FRE.
+ HARASSING THE WITNESS - Rule 611(a) TRE, FRE.
+ LEADING AND SUGGESTIVE - Rule 611(c) TRE, FRE.
+ NARRATIVE RESPONSE, INVITES A - Rule
611(a) TRE, FRE.
+ REPETITIOUS - Rule 611(a) TRE, FRE.
+ UNINTELLIGIBLE - Rule 611(a) TRE, FRE.
+ VAGUE - Rule 611(a) TRE, FRE.

Objections to the Substantive Admissibility of


Evidence
+ AUTHENTICATION, INSUFFICIENT AND IMPROPER Rule 901 TRE, FRE.

+ BEST EVIDENCE (ORIGINAL WRITING) RULE, NOT


THE ORIGINAL WRITING, RECORDING, OR
PHOTOGRAPH Rule 1002 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 EVIDENCE, IMPROPER PROOF OF
CHARACTER TRAIT OF DEFENDANT ORVICTIM - Rule
404(a) TRE.

NOT A PERTINENT CHARACTER TRAIT OF


DEFENDANT/VICTIM. Rule 404(a) TRE.

PROSECUTION OFFERING EVIDENCE


OF DEFENDANT'S PERTINENT CHARACTER
TRAITBEFORE DEFENDANT OFFERED EVIDENCE OF
SUCH CHARACTER TRAIT; THEREFORE, THE
EVIDENCE IS NOT IN PROPER REBUTTAL. Rule 404 (a)
(1) TRE.

PROSECTION OFFERING EVIDENCE OF VICTIM'S


PERTINENT CHARACTER TRAIT BEFOREDEFENSE
OFFERED EVIDENCE OF SUCH TRAIT [HOMICIDE/SELF
DEFENSE EXCEPTION:ALSO, THIS IS NOT
PROSECUTION EVIDENCE OF THE PEACEABLE
CHARACTER OF THE VICTIM OFFERED BY THE
PROSECUTION IN A HOMICIDE CASE TO REBUT
PREVIOUS DEFENSE EVIDENCE THAT THE VICTIM
WAS THE FIRST AGGRESSOR.] Rule 404 (a) (2)TRE.

SPECIFIC INSTANCES OF DEFENDANT'S


CHARACTER TRAIT NOT ADMISSIBLE BECAUSE THE
TRAIT IS NOT AN ESSENTIAL ELEMENT OF THE
CHARGE OR DEFENSE. Rule 405(b)TRE.
+ CHARACTER EVIDENCE, IMPROPER PROOF
OF WITNESS' CHARACTER FOR TRUTHFULNESS OR
UNTRUTHFULNESS - Rule 608 TRE.

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.

MAY NOT BOLSTER YOUR WITNESS WITH


POSITIVE EVIDENCE OF TRUTHFUL

CHARACTERBEFORE WITNESS' CHARACTER FOR


TRUTHFULNESS HAS BEEN ATTACKED BY
REPUTATION, OPINION, OR OTHERWISE. - Rule 608
(a) (2) TRE.

SPECIFIC INSTANCES OF
WITNESS' CREDIBILITY ["CREDIBILITY" PROBABLY
MEANS "CHARACTER FOR TRUTHFULNESS"] OR LACK
OF IT NOT ADMISSIBLE ON CROSS OR BY EXTRINSIC
EVIDENCE. - Rule 608 (b) TRE. [NOTE: I BELIEVE THAT
THIS PORTION OF THE RULE IS MEANT TO BE AN
ABSOLUTE BAR ON CROSS OR EXTRINSIC
EVIDENCE ONLYWHEN THE SOLE REASON FOR
PROFFERING THAT EVIDENCE IS TO ATTACK OR
SUPPORT THE WITNESS' CHARACTER FOR
TRUTHFULNESS; ANY RIGHT TO CROSS ON OR
INTRODUCE EXTRINSIC EVIDENCE FOR OTHER
GROUNDS OF IMPEACHMENT, E.G., BIAS,
CONTRADICTION, PRIOR INCONSISTENT STATEMENT,
IS LEFT TO RULES 402 TRE AND 403TRE, NOT 608 (B) ]
+ CHARACTER EVIDENCE, IMPROPER EFFORT TO
IMPEACH WITNESS WITH PROOF
OFPRIOR CONVICTION - Rule 609 TRE.

PROOF NOT ELICITED FROM THE WITNESS OR BY


PUBLIC RECORD. - Rule 609 (a) TRE.

CRIME IN QUESTION NOT A FELONY OR A


MISDEMEANOR INVOLVING MORAL TURPITUDE. Rule
609 (a) TRE. [WHAT CONSTITUTES "MORAL
TURPITUDE" MISDEMEANOR DETERMINED BY CASE
LAW.]

PROPONENT OF IMPEACHMENT DID NOT SUSTAIN


THE BURDEN OF PROVING THAT THE PROBATIVE
VALUE OF ADMITTING THE PROOF OF THE PRIOR
CONVICTION OUTWEIGHS ITS PREJUDICIAL EFFECT
TO THE DEFENSE (OR PROSECUTION). [NOTE: THE
BALANCING TEST HERE, UNLIKE RULE
403 TRE, PREVENTS IMPEACHMENT OF A WITNESS
WITH A PRIOR CONVICTION, UNLESS THE PARTY
SEEKING TO IMPEACH CAN SUSTAIN THE BURDEN OF
PROVING THAT THE PROBATIVE VALUE OF THE
IMPEACHMENT WITH THE OTHERWISE ADMISSIBLE
PRIOR OUTWEIGHS ITS PREJUDICIAL EFFECT TO A
PARTY.] SEETHEUS V. STATE, 845 SW2D 874 (Tex. Crim.
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 THECONVICTION 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.

THE CONVICTION WAS PROBATED AND THE


WITNESS SATISFACTORILY COMPLETED THE
PROBATION AND THE WITNESS HAS NOT BEEN
CONVICTED OF A SUBSEQUENT FELONY OR
MISDEMEANOR INVOLVING MORAL TURPITUDE. Rule 609 (c) (2) TRE.

THE PROPONENT OF THE CONVICTION WAS


ASKED BY THE OPPONENT IN A TIMELY WRITTEN
REQUEST TO PROVIDE WRITTEN NOTICE OF INTENT
TO USE EVIDENCE OF A PRIOR CONVICTION TO
IMPEACH THE WITNESS AND THE PROPONENT FAILED
TO GIVE THE OPPONENT SUFFICIENT ADVANCE
NOTICE THAT WOULD ALLOW THE OPPONENT A FAIR
OPPORTUNITY TO CONTEST THE USE OF SUCH PRIOR
CONVICTION TO IMPEACH THE WITNESS. - Rule 609
(f) TRE.

+ COMPETENCE, WITNESS' LACK OF - Rule 601 TRE.


+ CONFUSING THE ISSUES - Rule 403 TRE.
+ CROSS-EXAMINATION, DENIAL OF THE RIGHT OF Rule 611 (a) and (b) TRE.
+ CUMULATIVE EVIDENCE, NEEDLESS PRESENTATION
OF - Rule 403 TRE.
+ EXPERT IS NOT QUALIFIED BY KNOWLEDGE, SKILL,
EXPERIENCE, TRAINING OR EDUCATION - Rule
703 TRE, FRE.
+ EXPERT'S CLAIMED FIELD OF EXPERTISE IS NOT
GENERALLY RECOGNIZED AS A SCIENTIFIC,
TECHNICAL, OR OTHERWISE SPECIALIZED
DISCIPLINE - Rule 702 TRE.
+ EXTRANEOUS OFFENSE (UNCHARGED
MISCONDUCT; PRIOR BAD ACTS, CRIMES, OR
WRONGS; IMPROPER PROPENSITY EVIDENCE),
IMPROPER CHARACTER EVIDENCE IN THE FORM OF
PROOF OF - EVIDENCE OF OTHER CRIMES,
WRONGS, OR BAD ACTS IS NOT ADMISSIBLE TO
PROVE THE CHARACTER OF A PERSON IN ORDER TO
SHOW CONFORMITY THEREWITH; HOWEVER. PROOF
OF PRIOR BAD ACTS MAY BE ADMISSIBLE FOR
SOME LIMITEDPURPOSE, SUCH AS PROOF OF (1)
motive, (2) opportunity, (3) intent, (4) preparation, (5) plan,
(6) knowledge, (7) identity, (8) absence of mistake of fact or
accident or (9) other unlisted reason.
SEEMONTGOMERY V. STATE, 810 SW2D 372 (TEX.

CRIM. APP. 1991) WHICH IS THE SEMINAL CASE


ON RULE 404(b) TRE PROOF OF UNCHARGED
MISCONDUCT (EXTRANEOUS OFFENSES) - Rule
404(b) TRE. [NOTE: THIS RULE SEEMS TO ALLOW THE
PROPONENT TO OFFER PROOF OF PRIOR BADS ACTS
OF A PERSON FOR ANY RELEVANT AND PROPER
PURPOSE OTHER THAN PROPENSITY. FURTHER, IF
THE PROSECUTION'S PROOF OF THE PRIOR BAD ACT
IS WEAK, I SUGGEST THAT THE DEFENSE TRY TO
KEEP SUCH EVIDENCE FROM THE JURY AND OBJECT
TO IT PRIOR TO ITS INTRODUCTION BEFORE THE
JURY ON THE GROUND THAT THE PROSECUTION'S
PROOF OF THE PRIOR BAD ACT IS INSUFFICIENT TO
SUPPORT A REASONABLE JUROR FINDING THE
EXISTENCE OF SUCH PRIOR BAD ACT BEYOND A
REASONABLE DOUBT. REMEMBER ALSO THAT THERE
IS A PRETRIAL NOTICE REQUIREMENT IMPOSED ON
THE PROSECUTION TO REVEAL "OTHER CRIMES,
WRONGS, OR ACTS" EVIDENCE THAT THE
PROSECUTION INTENDS TO INTRODUCE IN ITS CASEIN-CHIEF, PROVIDED THAT THERE IS A TIMELY
DEFENSE REQUEST FOR SUCH NOTICE. FINALLY,
ALWAYS REMEMBER THAT IF YOUR RULE
404(b) TRE OBJECTION TO PROOF OF EXTRANEOUS
OFFENSES (UNCHARGED MISCONDUCT, PRIOR BADS
ACTS) IS OVERRULED, YOU SHOULD ALSO OBJECT TO
THE PROOF AS BEING INADMISSIBLE UNDER RULE
403 TRE. ]
+ HABIT, INADMISSIBLE - CONDUCT NOT
SUFFICIENTLY SHOWN TO BE ROUTINE PRACTICE Rule 406 TRE.

+ HEARSAY - AN OUT-OF-COURT STATEMENT BY A


DECLARANT OFFERED FOR THE TRUTH OF THE
MATTER ASSERTED - Rule 802 TRE.
+ HEARSAY WITHIN HEARSAY - ONE PART OF THE
COMBINED HEARSAY STATEMENTS DOES NOT
CONFORM TO AN EXCEPTION TO THE HEARSAY
RULE - Rules 802 TRE & RULE 805 TRE.
+ IMPEACHMENT, IMPROPER

STATEMENT OR CIRCUMSTANCES
SHOWING BIAS OR INTEREST OF WITNESS - (1)
WITNESS NOT INFORMED OF CONTENTS AND WHERE,
WHEN, AND TO WHOM STATEMENT SHOWING BIAS OR
INTEREST WAS MADE, OR (2) WITNESS NOT GIVEN AN
OPPORTUNITY TO EXPLAIN OR DENY STATEMENT OR
CIRCUMSTANCES ON CROSS-EXAMINATION -- Rule
613 (b) TRE.

CHARACTER TRAIT OF A WITNESS FOR VERACITY


(UNTRUTHFULNESS/TRUTHFULNESS) BASED
ON OPINION (OR REPUTATION) - VERACITY
CHARACTER WITNESS NOT SHOWN TO HAVE
SUFFICIENT KNOWLEDGE OF SUBJECT WITNESS
UPON WHICH TO FORM A PERSONAL OPINION
CONCERNING THE CHARACTER TRAITOF SUBJECT
WITNESS' VERACITY OR VERACITY CHARACTER
WITNESS NOT SHOWN TO HAVE SUFFICIENT
KNOWLEDGE OF SUBJECT WITNESS' REPUTATION IN

THE RELEVANT COMMUNITY FOR CHARACTER TRAIT


OF VERACITY. Rule 608(a) TRE

PRIOR INCONSISTENT STATEMENT OF WITNESS (1) WITNESS NOT INFORMED


OFCONTENTS AND WHERE, WHEN,
AND TO WHOM ALLEGED PRIOR INCONSISTENT
STATEMENT WAS MADE, OR (2) WITNESS NOT GIVEN
AN OPPORTUNITY TO EXPLAIN OR DENY STATEMENT
ON CROSS-EXAMINATION. - Rule 613 (a) TRE.

PRIOR CONVICTION OF WITNESS - REFER


TO CHARACTER EVIDENCE RE RULE
609 TREABOVE FOR AN EXPLANATION OF WHEN
PROOF OF A WITNESS' PRIOR CONVICTION MAY BE
INADMISSIBLE) - Rule 609 TRE.

PROOF OF EXTRANEOUS OFFENSE, UNCHARGED


MISCONDUCT INCLUDING CRIMES, WRONGS, AND OR
ACTS - REFER TO EXTRANEOUS OFFENSE RE RULE
404(b) TRE ABOVE FOR AN EXPLANATION OF THE
OBJECTION TO IMPROPER EVIDENCE OF PROPENSITY
TO COMMIT CRIME IN AN EFFORT TO SHOW THE
PERSON'S CONDUCT IN THE INSTANT CASE WAS IN
CONFORMITY TO SUCH PRIOR MISCONDUCT.

+ IRRELEVANT - HAS NO TENDENCY TO MAKE THE


EXISTENCE OF ANY FACT OF CONSEQUENCE TO THE
DETERMINATION OF THE CRIMINAL ACTION MORE
PROBABLE OR LESS PROBABLE THAN IT WOULD BE
WITHOUT THE EVIDENCE - Rule 402 TRE. [HINT: YOU
MAY HAVE AN OUT-OF-COURT STATEMENT THAT
QUALIFIES AS ADMISSIBLE HEARSAY , BUT WHICH IS
INADMISSIBLE BECAUSE IT IS NOT RELEVANT; ALWAYS
ASK YOURSELF IF THE OUT-OF-COURT STATEMENT IS
RELEVANT. ALSO, BE CAREFUL IN YOUR OPENING AND
QUESTIONS NOT TO "OPEN THE DOOR" (EXPAND THE
ADMISSIBILITY) TO DAMAGING EVIDENCE THAT
OTHERWISE WOULD BE IRRELEVANT.]
+ JUDICIAL; NOTICE , IMPROPER - Rule 201 TRE.

JUDICIALLY NOTICE FACT WAS NEITHER: (1)


GENERALLY KNOWN WITHIN THE TERRITORIAL
JURISDICTION OF THE TRIAL COURT, NOR (2)
CAPABLE OF ACCURATE AND READY DETERMINATION
BY RESORT TO SOURCES WHOSE ACCURACY
CANNOT BE REASONABLY DISPUTED. - Rule 201
(b) TRE.

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.

+ KNOWLEDGE. LACK OF PERSONAL - Rule 602 TRE,


FRE. SEE "PERSONAL KNOWLEDGE, LACK OF "
BELOW.
+ LAY OPINION, IMPROPER - Rule 701 TRE.
+ LEADING QUESTION - Rule 611(c) TRE.
+ MISLEADING THE JURY - Rule 403 TRE.
+ MISQUOTING THE RECORD - Rule 611(a) TRE.
+ NARRATIVE ANSWER - Rule 611(a) TRE.
+ PERSONAL KNOWLEDGE, NON-EXPERT WITNESS'
LACK OF - Rule 602 TRE. [ NOTE THAT THE LACK OF
PERSONAL KNOWLEDGE OBJECTION APPLIES TO THE
HEASAY (OUT-OF-COURT) DECLARANT AS WELL AS TO
THE IN-COURT DECLARANT. SO, THIS OBJECETION IS
VALID UNLESS THE FACTS WOULD SUPPORT A
FINDING THAT THE OUT OF COURT DECLARANT HAD
PERSONAL KNOWLEDGE OF HIS ASSERTION OF FACT
WHEN THE OUT-OF-COURT ASSERTION IS OFFFERED
FOR THE TRUTH OF THE MATTER ASSERTED.]
+ PLEAS, PLEA DISCUSSIONS, AND RELATED
STATEMENTS, INADMISSBILE - Rule 410 TRE.
+ PRIVILEGED COMMUNICATION

ATTORNEY-CLIENT PRIVILEGE - Rule 503 TRE.

HUSBAND- WIFE (MARITIAL) PRIVILEGE - RIGHT


OF THE PERSON MAKING AND/OR THE PERSON TO
WHOM A CONFIDENTIAL COMMUNICIATION IS MADE
PRIVATELY BY THE PERSON TO THE PERSON'S
SPOUSE TO REFUSE TO DISCLOSE AND PREVENT
ANOTHER FROM DISCLOSING SUCH STATEMENT. Rule 504 (a) TRE.

SPOUSAL CAPACITY OF ONE SPOUSE TO


TESTIFY AGAINST ANOTHER - SPOUSE HAS A
PERSONAL PRIVILEGE NOT TO BE CALLED BY
PROSECUTION AS A WITNESS AGAINST OTHER
SPOUSE, EXCEPT, THE PRIVILEGE OF A PERSON'S
SPOUSE NOT TO BE CALLED AS A WITNESS FOR THE
PROSECUTION DOES NOT APPLY IN PROCEEDINGS IN
WHICH THE PERSON IS CHARGED WITH A CRIME
AGAINST THE PERSON'S SPOUSE, A MEMBER OF THE
HOUSEHOLD OF EITHER SPOUSE, OR ANY MINOR. Rule 504(b) TRE.

COMMUNICATION TO ANY PERSON INVOLVED IN


THE TREATMENT OR EXAMINATION OF ALCOHOL OR
DRUG ABUSE BY A PERSON BEING TREATED
VOLUNTRILY OR BEING EXAMINED FOR ADMISSION TO
TREATMENT FOR ALCOHOL OR DRUG ABUSE. - Rule
509 (b) TRE (NOTE: THERE IS NO GENERAL
PHYSICIAN-PATIENT PRIVILEGE IN TEXAS CRIMINAL
PROCEEDINGS.)

+ RELEVANT, NOT - Rule 402 TRE SEE THE


DISCUSSION UNDER "IRRELEVANT."
+ SEQUESTRATION OF WITNESSES, VIOLATION OF
"THE RULE" OF - Rule 614 TRE, RULE 615FRE
+ SUMMARY, INADMISSIBLE

UNDERLYING WRITINGS, RECORDINGS, AND/OR


PHOTOGRAPHS NOT SHOWN TO BE ADMISSIBLE. Rule 1006 TRE.

NO ADEQUATE SHOWING THAT SUCH ITEMS


CANNOT BE CONVENIENTLY EXAMINED IN COURT. RULE 1006 TRE.

ORIGINALS OR DUPLICATES NOT MADE


AVAILABLE FOR EXAMINATION OR COPYING BY
OTHER PARTIES AT REASONABLE TIME AND PLACE. Rule 1006 TRE.
+ UNDUE DELAY - Rule 403 TRE.
+ UNFAIR PREJUDICE, DANGER OF SUBSTANTIALLY
OUTWEIGHS THE PROBATIVE VALUE OF THE
EVIDENCE (OBJECTING PARTY HAS BURDEN OF
PROOF TO EXCLUDE OTHERWISE RELEVANT
EVIDENCE) - Rule 403 TRE. YOUR "FALLBACK"
OBJECTION WHEN EVIDENCE IS RELEVANT AND

OTHERWISE ADMISSIBLE IS UNFAIRLY PREJUDICIAL;


REMEMBER THAT PROBATIVE EVIDENCE IS
SUPPOSED TO BE PREJUDICIAL IN PROVING A FACT
OF CONSEQUENCE, JUST NOT "UNFAIRLY" SO. [HINT:
THINK ABOUT THE USEFULNESS OF OFFERING TO
STIPULATE TO A FACT THAT YOUR OPPONENT MUST
PROVE; CAN YOU ARGUE COGENTLY TO THE TRIAL
JUDGE THAT BY AN AGREED STIPULATION YOUR
OPPONENT CAN PROVE HIS ESSENTIAL FACT BUT IN
THIS LESS UNFAIRLY PREJUDICIAL WAY WITHOUT ANY
APPRECIABLE LOSS OF PROBATIVE VALUE OF HIS
PROOF, I.E., ARGUE THAT THE OPPOSITION WILL GET
EVERYTHING IT NEEDS FROM THE LESS UNFAIRLY
PREJUDICIAL STIPULATION, SEE TIP 6 BELOW. [Note: A
Rule 403 TRE analysis by the trial court should include, but
is not limited to, the following factors: (1) the probative value
of the evidence; (2) the potential of the evidence to impress
the jury in some irrational but nevertheless indelible way; (3)
the time the proponent needs to develop the evidence; and
(4) the proponent's need for the evidence.]

CHART OF SOURCES OF
INDIVIDUAL RIGHTS
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 lock-step (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
Federal Constitution
Constitution State Code of Procedure
Bill of Rights
- TX)
(Example - TX)
Speech and Press First Amendment
1, Sec. 8 Art. 1.16
Illegal Search
Fourth Amendment
1, Sec. 9
Arts. 1.06,
Arts. 14.01-14.06
Arts. 15.01-15.17
Arts. 16.01-16.21
Arts. 18.01-18.21

State
(Example
Texas - Art.
Texas - Art.

Self-Incrimination
Fifth Amendment
1, Sec. 10 Arts. 1.05,

Texas - Art.

Arts. 38.21, 38.22


Grand Jury
Fifth Amendment
1, Sec. 10 Arts. 1.05, 1.141

Texas - Art.

Chs. 19, 20, 21


Double Jeopardy
Fifth Amendment
1, Sec. 14 Arts. 1.10, 1.11, 36.33

Texas - Art.

Due Process
Fifth Amendment
1, Sec. 19 Art. 1.04
(Federal Cases)

Texas - Art.

Due Process
Fourteenth Amendment Texas - Art.
1, Sec. 19 Art. 1.04
(State Cases)
Speedy Trial
Sixth Amendment
1, Sec. 10 Art. 1.05

Texas - Art.

Jury Trial
1, Sec. 10

Texas - Art.

Sixth Amendment
Arts. 1.05, 1.12, 1.13,
1.15, 36.19, 36.29

Public Trial

Sixth Amendment
Art. 1.24

Accusation
Sixth Amendment
1, Sec. 10 Art. 1.05

Texas - Art.

Confrontation &
Sixth Amendment
1, Sec. 10 Arts. 1.05, 1.15, 1.25,
Cross-Examination
38.071

Texas - Art.

Compulsory
Sixth Amendment
1, Sec. 10 Art. 1.05
Process

Texas - Art.

Assistance of
Sixth Amendment
1, Sec. 10 Art. 1.05
Counsel

Texas - Art.

Excessive Bail
Eighth Amendment
1, Secs. 11 Arts. 1.07, 17.01-17.38

Texas - Art.
& 13

Cruel & Unusual


Eighth Amendment
1, Sec. 13 Arts. 1.09, 16.21, 43.24
Punishment
Equal Protection

Fourteenth Amendment

Proof Beyond A
In re Winship
Art. 1.08
Reasonable Doubt
Exclusionary Rule
Mapp v. Ohio
Art. 38.23

Texas - Art.

Habeas Corpus
Art. 1, Sec. 12 Art. 1.08

Texas -

PRACTICE TIPS FOR MAKING


OBJECTIONS
+ TIP 1: IF YOU ANTICIPATE THAT OBJECTIONABLE
MATERIAL WILL BE OFFERED OR INTRODUCED BY THE
OPPOSITION, CONSIDER USING A MOTION IN LIMINE TO
BRING THIS TO THE ATTENTION OF THE COURT WELL
BEFORE THE JURY EVER HEARS ANY REFERENCE TO
THE OBJECTIONABLE MATTER. YOUR GOAL IS TO
SHIELD THE JURY FROM EXPOSURE TO INADMISSIBLE
EVIDENCE. (1 - PRESERVING ERROR IN FEDERAL COURT;
13 PAGES)
+ TIP 2: IF YOU MOVE TO EXCLUDE OR SUPPRESS
EVIDENCE AND YOUR MOTION TO EXCLUDE OR
SUPPRESS IS NOT GRANTED, BE SURE THAT YOU
OBTAIN A SPECIFIC PRETRIAL RULING THAT THE TRIAL
JUDGE STATES IS DEFINITIVE. OTHERWISE, TO
PRESERVE ERROR, YOU WILL HAVE TO OBJECT TO THE
ADMISSION OF THE EVIDENCE AGAIN AT THE TIME IT IS
OFFERED AT TRIAL. SEE RULE 103 (a) FRE AND TRE.
+ TIP 3: IF YOU HAVE TRIED UNSUCCESSFULLY TO KEEP
THE GOVERNMENT FROM IMPEACHING THE
DEFENDANT WITH A PRIOR CONVICTION PURSUANT TO
THE INTERNAL BALANCING TEST OF RULE 609, YOU

WILL NOT BE ALLOWED TO APPEAL THE COURT'S


DECISION TO ALLOW THE IMPEACHMENT, UNLESS
YOUR CLIENT TAKES THE STAND AND EXPOSES
HIMSELF TO THE IMPEACHMENT. SEE LUCE V. UNITED
STATES, 469 U.S. 38 (1984).
+ TIP 4: BE VERY CAREFUL WHEN YOU MAKE A SOCALLED "RUNNING OBJECTION"; BE CERTAIN THAT
YOUR ORIGINAL OBJECTION IS AS PERFECTLY FORMED
AS POSSIBLE; DO NOT TREAT YOUR RUNNING
OBJECTION AS CARRYING OVER TO ALL WITNESSES;
WITH EACH NEW WITNESS WITH WHOM THE
OBJECTIONABLE SUBJECT IS RAISED, EXPRESSLY STATE
YOUR OBJECTION INTO THE RECORD AND ASK FOR A
RUNNING OBJECTION TO ANY SUCH INQUIRIES OF THAT
WITNESS. TEXAS LAWYERS - SEE THIS 4
PAGE ARTICLE
+ TIP 5: THE REMAINDER RULE AND THE RULE
OF OPTIONAL COMPLETENESS DO NOT MAKE
OTHERWISE INADMISSIBLE EVIDENCE ADMISSIBLE.
REMEMBER THAT THE REMAINDER RULE OF RULE 106
TRE AND FRE ONLY APPLIES TO WRITINGS OR
RECORDED STATEMENTS; IF YOU OFFER EVIDENCE
OTHER THAN A WRITING OR RECORDED STATEMENT,
THE OPPOSITION DOES NOT HAVE A RIGHT AT THE
TIME OF THAT OFFER TO INTRODUCE ANOTHER PART OF
THAT EVIDENCE, EVEN IF IT IS ADMISSIBLE. THE
REMAINDER RULE DOES NOT APPLY UNLESS THE
EVIDENCE YOU ARE OFFERING IS A WRITING OR
RECORDED STATEMENT. [TEXAS LAWYERS: BE AWARE
THAT RULE 107 TRE CREATES AN ADDITIONAL RULE OF

EVIDENCE FOR TEXAS TRIALS - THE RULE OFOPTIONAL


COMPLETENESS (ROC) NOT CONTAINED IN THE FRE. THE
ROC IS BROADER THAN THEREMAINDER 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.]
+ TIP 6: IN LIEU OF ACTUAL EVIDENCE, OFFER TO
STIPULATE TO OTHERWISE ADMISSIBLE PRIOR
CONVICTIONS ALLEGED FOR ENHANCEMENT. ARGUE
THAT THIS WILL PREVENT UNFAIR PREJUDICE, E.G.,
UNDER RULE 403 FRE & TRE; CITE THE USSC CASE
OF OLD CHIEF V. UNITEDSTATES, 519 U.S. 172 (1997). IF
THE COURT DENIES YOUR REQUEST FOR AN AGREED
STIPLATION OF THE PRIORS, OBJECT THAT THE RULING
IS UNFAIRLY PREJUDICIAL IN THAT THE DANGER OF
UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHS THE
PROBATIVE VALUE OF ALLOWING INTRODUCTION OF
REAL EVIDENCE OF THE PRIORS.
+ TIP 7: IF YOUR OPPONENT TRIES TO INTRODUCE A
SUMMARY WITHOUT MAKING ARRANGEMENTS FOR
YOU TO SEE THE UNDERLYING MATERIALS AT A
REASONABLE TIME AND PLACE OUT OF COURT, OBJECT
TO THE SUMMARY UNDER RULE 1006 FRE & TRE.
+ TIP 8: OBJECT IF YOUR OPPONENT TRIES TO REQUIRE
YOUR WITNESS TO CHARACTERIZE THE TESTIMONY OF

ANOTHER WITNESS, E.G., AS WHERE A PROSECUTOR


ASKS A DEFENDANT TESTIFYING IN HIS OWN BEHALF
WHETHER A POLICE OFFICER WITNESS WAS LYING
WHEN THE OFFICER SAID SOMETHING INCRIMINATING
ABOUT THE DEFENDANT. YOUR OBJECTION SHOULD
BE THAT THE QUESTION CALLS FOR IMPROPER
CHARACTER EVIDENCE. YOU CAN ALSO ADD THAT THE
QUESTION IS ARGUMENTATIVE. YOU CAN ALSO ARGUE
THAT IT CALLS FOR IMPROPER OPINION EVIDENCE. THE
REASON WHY SUCH A QUESTION CALLS FOR IMPROPER
CHARACTER EVIDENCE IS THAT IT ASKS ONE WITNESS
TO COMMENT ON THE CREDIBILITY OF ANOTHER
WITNESS IN AN IMPROPER FORM. THE RULES OF
EVIDENCE, E.G., RULE 608 FRE & TRE, MAY ALLOW ONE
WITNESS TO VENTURE AN OPINION REGARDING THE
TRUTH AND VERACITY OF ANOTHER WITNESS WHEN A
SUFFICIENT SHOWING OF FAMILIARITY IS SHOWN; BUT
THE RULES DO NOT ALLOW THE OPINION CHARACTER
WITNESS TO VENTURE AN OPINION ON THE TRUTH OF
THE TESTIMONY OF ANOTHER WITNESS. NEITHER LAY
NOR EXPERT WITNESSES SHOULD BE ALLOWED TO
TESTIFY THAT ANOTHER WITNESS IS LYING OR FAKING.
THAT DETERMINATION IS FOR THE JURY. IN SUPPORT
OF THE OBJECTION, ALSO CITE 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 9: EVIDENCE OF UNCHARGED CONDUCT
ADMISSIBLE UNDER RULE 404(b) FRE & TRE STILL MAY
BE EXCLUDED UNDER RULE 403 FRE & TRE IF ITS
PROBATIVE VALUE IS SHOWN TO
BESUBSTANTIALLY OUTWEIGHED BY THE DANGER
OF UNFAIR PREJUDICE; NOTE THAT THE BURDEN OF
PROOF IS ON THE OPPONENT OF THE EVIDENCE, I.E.,
THE OBJECTING PARTY, NOT THE PARTY, PROPONENT,
SEEKING TO INTRODUCE THE UNCHARGED CONDUCT
EVIDENCE.
+ 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 11: BE WARY OF DYING DECLARATIONS BY THE
PROSECUTION IN JURISDICTIONS WHERE LAW
ENFORCEMENT OFFICERS HAVE BEEN TRAINED TO
TELL VICTIMS OF HOMICIDAL VIOLENCE, "IT DOESN'T
LOOK GOOD, BUDDY. I DON'T THINK YOU'RE GONNA
MAKE IT. IS THERE ANYTHING YOU'D LIKE TO SAY
ABOUT WHO HURT YOU OR WHY?" SEE THE
EXPLANATION OF CRAWFORD ON THE MOTIONS PAGE.
[NOTE: UNDER RULE 804(B)(2) FRE, DYING
DECLARATIONS ARE ADMISSIBLE IN FEDERAL

CRIMINAL CASES ONLY WHEN THE PROSECUTION IS


FOR SOME FORM OF CRIMINAL HOMICIDE. ON THE
OTHER HAND, TRE 804(B)(2) DOES NOT RESTRICT THE
ADMISSIBILITY OF DYING DECLARATIONS TO
CRIMINAL HOMICIDE CASES, BUT IT DOES REQUIRE
THAT THE DECLARANT BE UNAVAILABLE. THERE IS NO
CAUSE OF ACTION RESTRICTION AS TO THE
ADMISSIBILITY OF DYING DECLARATIONS IN FEDERAL
OR TEXAS CIVIL CASES.]
+ TIP 12: IF YOU WANT TO INTRODUCE EVIDENCE THAT
MAY BE CONTROVERSIAL, ANTICIPATE THE
EVIDENTIARY PROBLEMS IN ADVANCE AND CONSIDER
ALERTING THE JUDGE THAT YOU WISH TO MAKE AN
OFFER OF PROOF; YOU CAN FILE A MOTION TO ADMIT
IN WHICH YOU EXPLAIN THAT YOU PLAN TO
INTRODUCE CERTAIN EVIDENCE AND ANTICIPATE A
POSSIBLE OBJECTION TO SUCH EVIDENCE; LET THE
COURT KNOW THAT IF THE OPPOSITION'S OBJECTION IS
SUSTAINED, YOU WISH TO MAKE AN OFFER OF PROOF
OR PROFFER; BE READY TO MAKE WITNESS OFFER OF
PROOF, RATHER THAN A LAWYER OFFER, IF THE OTHER
SIDE DEMANDS IT; BE CERTAIN TO GET A RULING ON
YOUR OFFER OF PROOF (PROFFER); SOMETIMES JUDGES
WILL CHANGE THEIR RULINGS AFTER HEARING THE
OFFER OF PROOF AND KNOWING IT MAY NOW BE A
GROUND FOR APPEAL.
+ 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 14: OBJECT IF OPPOSING COUNSEL EXCUSES A
SUBPOENAED WITNESS, BEFORE OR DURING TRIAL,
WITHOUT THE COURT'S APPROVAL. ONLY THE COURT
CAN EXCUSE A SUBPOENAED WITNESS.
+ TIP 15: IF YOU CALL AN ADVERSE PARTY OR A
WITNESS ALIGNED OR IDENTIFIED WITH THE
OPPOSITION, REMEMBER THAT YOU CAN OBJECT TO
THE OPPOSITION LEADING THE ADVERSE WITNESS ON
CROSS. (IN THIS SITUATION, YOU ALSO HAVE THE
RIGHT TO LEAD THE ADVERSE WITNESS ON DIRECT.)
+ TIP 16: OBJECT BEFORE THE DAMAGE IS DONE.
+ TIP 17: LEARN TO WEAVE THE PHILOSOPHICAL
PURPOSE OF THE EVIDENTIARY RULES INTO THE
SUBSTANCE OF YOUR OBJECTION.
+ TIP 18: BE SURE TO CLARIFY THE IMPROPER NONVERBAL GESTURES OF YOUR OPPONENT (OR THE
JUDGE) FOR THE RECORD BY DICTATING A VERBAL
DESCRIPTION OF WHAT HAPPENED. NEVER FORGET

THAT AS FAR AS THE APPELLATE COURT IS


CONCERNED IF IT ISN'T IN THERECORD, IT DIDN'T HAPPE
N!
+ 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 21: DON'T FORGET TO ASSERT YOUR RIGHT TO A
LIMITING INSTRUCTION WHEN THE OPPOSITION'S

EVIDENCE IS ADMISSIBLE ONLY FOR A LIMITED


PURPOSE. BECAUSE THE LIMITING INSTRUCTION
EMPHASIZES THE EVIDENCE IN QUESTION, YOUR
DISCRETION MUST GOVERN WHETHER IT IS IN YOUR
BEST INTEREST TO RAISE THE ISSUE OF A LIMITING
INSTRUCTION. IF YOU ARE ENTITLED TO A LIMITING
INSTRUCTION ON A CRUCIAL ITEM OF EVIDENCE AND
THE TRIAL JUDGE REFUSES TO GIVE IT, YOU MAY HAVE
A GOOD POINT FOR APPEAL.
+ 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 25: SHARPEN YOUR OBJECTING SKILLS BY
PLAYING EVIDENCE/OBJECTION GAMES. HARVARD
EVIDENCE PROFESSOR NESSON'S WEB SITE HAS A LONG
LIST OF EVIDENCE PROBLEMS. HOW DO YOU GET IT IN,
AND HOW DO YOU KEEP IT OUT? WHAT IS THE PROPER
OBJECTION AND RESPONSE? NOTE THAT THE HARVARD
PROFESSOR HAS A LINK TO THE FEDERAL RULES OF
EVIDENCE AT THE BOTTOM OF THE PROBLEM PAGE.
USE THE RULES AS A RESOURCE IN TRYING TO SOLVE
THE EVIDENCE PROBLEMS.

PRACTICE TIPS FOR MEETING AND


DEFEATING OBJECTIONS
+ 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 2: WHEN INTRODUCING BUSINESS RECORDS, VET
THEM IN ADVANCE TO BE CERTAIN THEY DON'T
INCLUDE MATERIALS RECEIVED FROM OUTSIDE
SOURCES THAT DON'T COMPLY WITH THE PREDICATE
REQUIREMENTS, E.G., NOT WITHIN THE KNOWLEDGE
OF THE RECORD MAKER.
+ TIP 3: THE EXCEPTION ALLOWING HEARSAY
STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS
OR TREATMENT CAN BE A STATEMENT MADE TO THE
"LITIGATION" DOCTOR AS WELL AS TO THE "TREATING"
DOCTOR. SEE RULE 803(4) FRE & TRE.
+ TIP 4: AN ADOPTIVE ADMISSION (STATEMENT) UNDER
RULE 801(d)(2)(B) FRE & RULE 801(e)(2)(B)TRE DOES NOT
HAVE TO BE MADE IN THE PRESENCE OF THE
DEFENDANT; ALL THAT IS NECESSARY IS PROOF THAT
THE DEFENDANT HAS MANIFESTED AN ADOPTION OF
BELIEF IN ITS TRUTH.
+ TIP 5: REMEMBER THAT RULE 806 FRE & TRE ALLOWS
YOU TO IMPEACH THE CREDIBILITY FOR A NONWITNESS 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 609FRE & 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-OF- COURT
STATEMENTS AND KEEPING THE CO-CONSPIRATOR OFF
THE STAND.]
+ TIP 6: IF YOU PLAN TO INTRODUCE A SUMMARY OF
VOLUMINOUS WRITINGS, RECORDINGS, AND/OR
PHOTOGRAPHS THAT CANNOT BE CONVENIENTLY
EXAMINED IN COURT, BE SURE TO MAKE
ARANGEMENTS FOR THE OPPOSITION TO VIEW THE
DOCUMENTS UNDERLYING THE SUMMARY MATERIALS
AT A REASONABLE TIME AND PLACE. BEND OVER
BACKWARDS TO ACCOMMODATE THE OPPOSITION
BECAUSE THE COURT HAS THE POWER TO ORDER THAT
THE MATERIALS BE PRODUCED IN COURT. SEE RULE
1006 FRE & TRE. ALSO, IF YOUR SUMMARY INCLUDES
BUSINESS RECORDS, SAVE YOURSELF THE TROUBLE OF
HAVING TO CALL A LIVE AUTHENTICATING WITNESS BY
USING A SELF-AUTHENTICATION CERTIFICATE TO
ESTABLISH THE NECESSARY PREDICATE FOR THE

EXCEPTION. SEE RULE 902 FRE & TRE, CONTAINING THE


FORM FOR THE CERTIFICATE.
+ TIP 7: IF YOUR OBJECTION TO EVIDENCE IS
SUSTAINED AND THE OPPOSING COUNSEL MAKES AN
OFFER OF PROOF, REQUEST THAT THE OFFER OF PROOF
BE IN WITNESS FORM, I.E., THAT THE OFFER OF PROOF
BE IN Q & A OF THE WITNESS. YOU HAVE THIS RIGHT
UNDER RULE 103(B) TRE. HOWEVER, FRE 103(C) VESTS
THE TRIAL JUDGE WITH THE DECISION OF WHETHER
THE OFFER OF PROOF IS TO BE IN Q & A FORM. DURING
THE PROFFER (OFFER OF PROOF), WHEN THE OPPONENT
IS FINISHED WITH HIS DIRECT QUESTIONS OF THE
WITNESS YOU SHOULD BE ENTITLED TO CROSSEXAMINE THE WITNESS DURING THE OFFER OF PROOF
RE THE ADMISSIBILITY OF THE DISPUTED EVIDENCE.
BLUNT THE FORCE OF THE OPPONENT'S OFFER OF
PROOF BY SHOWING ITS EVIDENTIARY FALLIBILITY.
OTHERWISE, THE OPPONENT'S LAWYER OFFER OF
PROOF MAY BE SO WHOLLY ONE-SIDED THAT THE
COURT WILL REVERSE ITS RULING AND ADMIT THE
HARMFUL EVIDENCE.

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