Contents
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, 2006, Federal Rules of Evidence 404, 408, 606 and 609 were revised; Federal Rules of Criminal Procedure 5, 6, 32.1, 40, 41 and 58 were also revised. See also revised Federal Appellate Rule 25 and new Appellate Rule 32.1. (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 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(a) FRE says that "Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before 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 a 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.
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 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. 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 - 13 pages), (2 - 1 page - jury argument), ( 3 - slide show), (4 - list), (5 - list from criminal justice college course), (6 - short list without explanations), (7 - a brief law review article), (8 - making the record), (9 - preserving the appeal), (10 - 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 or your opponent 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, 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:
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)
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, 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);Motions]
CONFRONTATION, FACE-TO-FACE DENIED [Coy v. Iowa, 487 U.S. 1012 (1988); but see, Maryland v. Craig, 497 U.S. 836 (1990)]
CONFUSION OF ISSUES
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]
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 see Martinez 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)) 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
HEARSAY, EVEN THOUGH THE STATEMENT FITS INTO A RECOGNIZED HEARSAY EXCEPTION, THE CONFRONTATION CLAUSE (APPLIES ONLY WHEN THE PROSECUTION OFFERS HEARSAY AGAINST THE ACCUSED) BARS USE OF A TESTIMONIAL OUT-OF-COURT 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)]
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, IMPROPER PROOF OF PRIOR CONVICTION, IMPROPER FOUNDATION FOR PROOF OF WITNESS' PRIOR INCONSISTENT STATEMENT, IMPROPER PROOF OF UNTRUTHFULNESS, IMPEACHMENT WITH AN IRRELEVANT OR COLLATERAL MATTER)
INCOMPETENCY OF WITNESS (E.G., LACK OF PERCEPTION, LACK OF MEMORY, INABILITY TO UNDERSTAND NATURE AND OBLIGATION OF OATH, INABILITY TO COMMUNICATE IN LANGUAGE OF COURT)
IRRELEVANT IN THE SENSE THAT IT DOES NOT MAKE A FACT OF CONSEQUENCE TO THE LAWSUIT ANYMORE OR LESS LIKELY
JUDICIAL NOTICE IMPROPER
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)
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)
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 (SUGGESTS OR COAXES DESIRED ANSWER)
LEGAL CONCLUSION (QUESTIONS CALLS FOR OR ANSWER CONTAINS)
LIMITED PURPOSE, ADMISSIBLE ONLY FOR A (AND OFFERED GENERALLY)
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) [OPENING STATEMENT 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
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., ATTORNEY-CLIENT; DOCTOR-PATIENT (IF ANY); CLERGY; INFORMANT'S IDENTITY; SPOUSAL CAPACITY; SPOUSAL OR MARITAL COMMUNICATION; SELF-INCRIMINATION)
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 CRIIMINAL 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 (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.]
Objections to the Form of the Question
+ ARGUMENTATIVE QUESTION - Rule 611(a) TRE, FRE.
+ ASKED AND ANSWERED (See Duplicitous) - Rules 403 611(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).FRE.
+ DUPLICITOUS (See Asked and Answered and Needlessly Cumulative) - Rules 403, 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 Rules 607, 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 OR VICTIM - Rule 404(a) TRE.
- NOT A PERTINENT CHARACTER TRAIT. Rule 404(a) TRE.
- PROSECUTION OFFERING EVIDENCE OF DEFENDANT'S PERTINENT CHARACTER TRAIT BEFORE DEFENDANT OFFERED EVIDENCE OF SUCH CHARACTER TRAIT; THEREFORE, THE EVIDENCE IS NOT IN REBUTTAL. Rule 404 (a) (1) TRE.
- PROSECTION OFFERING EVIDENCE OF VICTIM'S PERTINENT CHARACTER TRAIT BEFORE DEFENSE 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 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.
- INQUIRY TOO BROAD BECAUSE RULE 608 REFERS ONLY TO TRAIT OF A WITNESS FOR TRUTHFULNESS OR UNTRUTHFULNESS AND NOT CHARACTER GENERALLY - Rule 608 (a)(1) TRE.
- MAY NOT BOLSTER YOUR WITNESS WITH POSITIVE EVIDENCE OF TRUTHFUL CHARACTER BEFORE 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 ONLY WHEN 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 AND 403, NOT 608 (B) ]
+ CHARACTER EVIDENCE, IMPROPER EFFORT TO IMPEACH WITNESS WITH PROOF OF PRIOR 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.] SEE THEUS V. STATE, 845 SW2D 874 (Tex. Crim. App. 1992) SETTING OUT THE 4 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, AND (4) IMPORTANCE OF DEFENDANT'S TESTIMONY AND CREDIBILITY - 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. [ BALANCING EXCEPTION: THE 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 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.
+ 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 LIMITED PURPOSE, 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. SEE MONTGOMERY V. STATE, 810 SW2D 372 (TEX. CRIM. APP. 1991) WHICH IS THE SEMINAL CASE ON RULE 4049(b) 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 SATE'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. FINALLY, REMEMBER THAT THERE IS A PRETRIAL NOTICE REQUIREMENT ON THE PROSECUTION TO REVEAL "OTHER CRIMES, WRONGS, OR ACTS" EVIDENCE THAT THE PROSECUTION INTENDS TO INTRODUCE IN ITS CASE-IN-CHIEF, PROVIDED THAT THERE IS A TIMELY DEFENSE REQUEST FOR SUCH NOTICE.]
+ HABIT, INADMISSIBLE - CONDUCT NOT SUFFICIENTLY SHOWN TO BE ROUTINE - Rule 406 TRE.
+ HEARSAY - AN OUT-OF-COURT STATEMENT 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 & 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 BASED ON OPINION (OR REPUTATION) - CHARACTER WITNESS NOT SHOWN TO HAVE SUFFICIENT KNOWLEDGE OF SUBJECT WITNESS' (REPUTATION FOR) PERTINENT CHARACTER TRAIT. - (TRUTHFULNESS) - Rule 608(a) TRE.
- PRIOR INCONSISTENT STATEMENT OF WITNESS - (1) WITNESS NOT INFORMED OF CONTENTS 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 TRE ABOVE 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. [HINTS: 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.
+ 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.