1 EVIDENCE EVIDENCE Keeping It In, Keeping It Out – Keeping It In, Keeping It Out – Preservation of Error Through Making Preservation of Error Through Making and Meeting Objections In Texas Family and Meeting Objections In Texas Family Law Law By: By: John F. Nichols, Sr. John F. Nichols, Sr. Presented To The Presented To The Houston Bar Association Houston Bar Association Family Law Section Luncheon Family Law Section Luncheon November 7, 2012 November 7, 2012 Houston, Texas Houston, Texas
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By: John F. Nichols, Sr. Presented To The Houston Bar Association Family Law Section Luncheon
EVIDENCE Keeping It In, Keeping It Out – Preservation of Error Through Making and Meeting Objections In Texas Family Law. By: John F. Nichols, Sr. Presented To The Houston Bar Association Family Law Section Luncheon November 7, 2012 Houston, Texas. I.Introduction. - PowerPoint PPT Presentation
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EVIDENCEEVIDENCEKeeping It In, Keeping It Out – Preservation of Error Keeping It In, Keeping It Out – Preservation of Error
Through Making and Meeting Objections In Texas Through Making and Meeting Objections In Texas Family LawFamily Law
By:By:John F. Nichols, Sr.John F. Nichols, Sr.
Presented To The Presented To The Houston Bar AssociationHouston Bar Association
Family Law Section LuncheonFamily Law Section LuncheonNovember 7, 2012November 7, 2012
Houston, TexasHouston, Texas
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I.I. IntroductionIntroduction
This article covers the “basics” of evidence, predicates and foundations, and preserving error in the ten (10) phases of a family law case as outlined in O’Conner’s Texas Family Law Handbook.
II.II. Scope of ArticleScope of Article
The article is divided into the ten phases of a Texas family law case:
(1) Pre-trial hearings, motions, and conferences;(2) Jury selection (if applicable);(3) Opening statements;(4) Presentation of evidence;(5) Motion for directed verdict;(6) Charge conference (if applicable);(7) Closing arguments;(8) Receipt of verdict;(9) Post-verdict motions; and(10) Request for findings (non-jury).
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III.III. Library ReferencesLibrary References
The following are “must have” publications in their latest version:
(1) Texas Objections – James Publishing;(2) Family Law Section Tool Kit;(3) Family Law Section Predicates Manual;(4) O’Connor’s – Texas Rules of Evidence;(5) O’Connor’s – Texas Family Law Handbook;(6) Judge Wenke’s – Making and Meeting
Objections;(7) O’Connor’s Texas Civil Trials;(8) Steven Lubet’s Modern Trial Advocacy 3rd
Edition; and(9) ABA’s Electronic Evidence and Discovery
Handbook. 4
IV.IV. Texas Bar CLE ReferencesTexas Bar CLE References
The best deal going!
State Bar of Texas Online Library – 16,000+ articles.
$295.00 per year!!!(subscription)
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V.V. AppendicesAppendices
(1) Common Objections and Comments;(2) Quick Reference Guide to Commonly Used
Predicates and Foundations;(3) Procedure For Making and Meeting
Objections;(4) Tool Kit Objections Checklist;(5) Table of Authorities; and(6) 63 types, kinds, and “phrases” of evidence.
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VI.VI. Basics of EvidenceBasics of Evidence
Page 3 of the outline lists the 63 types, kinds, and phrases of evidence.
See Black’s Law Dictionary, 9th Edition 2011 by Professor Bryan Garner.
5. E-mails between parties to a contract that define the terms of a contract, or prove it’s content are not hearsay they are operative facts.
6. A failure to raise a hearsay objection means that the evidence may be considered for whatever probative value the finder-of-fact chooses to give it.
Rule 1001-1008 – Best Evidence RuleRule 1001-1008 – Best Evidence Rule
1. Printout of e-mails shown to reflect the data accurately, is an original (and not the screen).
2. The question is: Does it accurately reflect the data?
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Rule 403 – Balance of Probative Rule 403 – Balance of Probative Value With Unfair PrejudiceValue With Unfair Prejudice
Electronically stored information has been found to be unduly prejudicial:
1. when it contains offensive or highly derogatory language;
2. when there is substantial danger that a jury might mistake computer animation for actual events;
3. when considering summary evidence; and,
4. when the court is concerned with the reliability of the accuracy of the information.
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D. Examples of Predicates for Admissibility:1. Photographs2. Business records3. Audios4. Videos5. Map6. Financial information statements7. Handwritten letters8. Police reports9. Object of clothing
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10. Bank records11. Deposition excerpts12. Summaries13. Expert reports14. Mental health records15. E-mails16. Summaries of testimony
VIII. Be Judicious in your ObjectionsVIII. Be Judicious in your Objections
Don’t object unless the evidence Don’t object unless the evidence
will hurt your case.will hurt your case.
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IX. There are two (2) kinds of Evidence:IX. There are two (2) kinds of Evidence:
1.1. Direct Evidence – See, hear, touch, or smell – Direct Evidence – See, hear, touch, or smell – lipstick on collar.lipstick on collar.
2.2. Circumstantial Evidence – Logical and legal Circumstantial Evidence – Logical and legal inferences from facts proved – bucket of inferences from facts proved – bucket of paint on car.paint on car.
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X. There are three (3) Forms of Evidence:X. There are three (3) Forms of Evidence:
1.1. Testimonial – Oral of written (depositions)Testimonial – Oral of written (depositions)
XI. Predicates/Foundations: (con’t)XI. Predicates/Foundations: (con’t)
3.3. Self AuthenticationSelf Authentication(1)(1) Public documentsPublic documents(2)(2) Certified copiesCertified copies(3)(3) Official publicationsOfficial publications(4)(4) Public documentsPublic documents(5)(5) Newspapers / periodicalsNewspapers / periodicals(6)(6) Business records affidavitBusiness records affidavit(7)(7) Attorneys fees affidavitAttorneys fees affidavit
4.4. Best Evidence RuleBest Evidence Rule(1)(1) Original required (Auth Q’ed)Original required (Auth Q’ed)(2)(2) Original not requiredOriginal not required
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XI. Predicates/Foundations: (con’t)XI. Predicates/Foundations: (con’t)
5.5. Character EvidenceCharacter Evidence(1)(1) ReputationReputation(2)(2) Truthful / untruthfulTruthful / untruthful
6.6. Charts/DiagramsCharts/Diagrams
7.7. DepositionsDepositions
8.8. Foreign LawForeign Law(1)(1) StateState(2)(2) Country 30 day notice / translationCountry 30 day notice / translation
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XI. Predicates/Foundations: (con’t)XI. Predicates/Foundations: (con’t)
- generally known- generally known- easily determined- easily determined- relevance- relevance- request must be made- request must be made
(2) Legislative Facts(2) Legislative Facts- helps court determine legal reasoning and - helps court determine legal reasoning and
law law making process making process(3) Law (Foreign State – TRE 202)(3) Law (Foreign State – TRE 202)
- motion- motion- copy of law attached- copy of law attached- fair notice to opposing party- fair notice to opposing party- request must be made- request must be made
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XI. Predicates/Foundations: (con’t)XI. Predicates/Foundations: (con’t)
(4) Law (Foreign Country – TRE 203)(4) Law (Foreign Country – TRE 203)
- 30 days notice- 30 days notice
- translation to English- translation to English
(5) Law (Ordinances, Agencies, Register)(5) Law (Ordinances, Agencies, Register)
- same requirements as TRE 202- same requirements as TRE 202
13.13. Shorthand RenditionShorthand Rendition
(1) TRE 611 & 1006(1) TRE 611 & 1006
- court controls mode of interrogation- court controls mode of interrogation
- use of summaries - use of summaries
(2) Summaries prepared by witness(2) Summaries prepared by witness
(3) Witness reviewed underlying data(3) Witness reviewed underlying data
(4) Witness describes underlying data(4) Witness describes underlying data
(5) Summary is fair compilation of exhibits(5) Summary is fair compilation of exhibits32
XI. Predicates/Foundations: (con’t)XI. Predicates/Foundations: (con’t)
14.14. SummariesSummaries
(1) TRE 1006
(2) Voluminous data otherwise admissible
(3) Not conveniently examined by court
(4) Underlying data available for inspection
(5) Court has discretion to relax best evidence rule
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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence:of Evidence:
1. Relevance(1) Does it make the evidence on a material point more or
less probable?
(2) Do pleadings raise the issue?
(3) Exclusion on special grounds its probative value is out weighed by:
a. Danger of unfair prejudice
b. Confusing the issues
c. Undue delay
d. Cumulative
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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)
2. Illegally Obtained EvidenceQ. It is admissible or inadmissible in a civil proceeding.
3. Rulings on Evidence – Must have a ruling:(1) Express; or(2) Inferred or implied.
4. Effect of Erroneous Ruling – no error unless a substantial right of the party is affected.
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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)5. Exclusion of Evidence
(1) Make substance of excluded evidence known to court.(2) Make offer of proof:
(a) What(b) When
- Testimonial- Documentary- Demonstrative
6. Mode of Interrogation of Witnesses(1) It has reasonable control over mode and order of
interrogation of witnesses.(2) Can avoid needless consumption of time.(3) Protect witnesses from harassment and undue embarrassment. 36
XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)
7. Scope of Cross-Examination(1) Restricted(2) Wide Open – any matter relevant to any issue in the case, including credibility.
8. Leading Questions(1) Adverse witness, party(2) Hostile witness
15. Rules for Preservation of Error on Trial Objections(1) You must object(2) You must object timely, in the first instance
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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)16. Mode of Making Objections
(1) Written Objections- Before trial- During trial
(2) Oral Objections- Running- Repetitive
(3) Specific, not general
17. Common Objections(1) Asked and answered(2) Argumentative(3) Assumes facts not in evidence(4) Best evidence(5) Compound 40
XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)
(6) Demonstrative evidence lacks foundation (7) Hearsay(8) Immaterial(9) Incompetence – no personal knowledge(10) Judicial notice – court file(11) Leading and suggestive(12) Misstates former testimony(13) Non-responsive(14) Calls for opinion / conclusion(15) Violates parole evidence rule(16) Privilege(17) Call for general narrative(18) Refresh recollection (mind is evidence)(19) Speculation / conjecture
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XII. General Rules in the Presentation XII. General Rules in the Presentation of Evidence: (con’t)of Evidence: (con’t)
18. Conduct of Counsel(1) Prompting the witness(2) Attempting to intimidate witness(3) Side bar remarks(4) Arguing with witness(5) Testifying(6) Allusive language(7) Failure to maintain place at bar(8) Privileged communication(9) Assumes facts not in evidence(10) Collateral source rule(11) Disqualified / violation of “The Rule”(12) Hypothetical assumes fact / not in evid.