EVIDENCE Keeping It In Keeping It Out Preservation

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 1

I. Introduction 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. 2

II. Scope of Article The article is divided into the ten phases of a Texas family law case: (1) conferences; (2) (3) (4) (5) (6) (7) (8) (9) (10) Pre-trial hearings, motions, and Jury selection (if applicable); Opening statements; Presentation of evidence; Motion for directed verdict; Charge conference (if applicable); Closing arguments; Receipt of verdict; Post-verdict motions; and Request for findings (non-jury). 3

III. Library References The following are “must have” publications in their latest version: (1) (2) (3) (4) (5) Handbook; (6) Objections; (7) (8) Edition; (9) Texas Objections – James Publishing; Family Law Section Tool Kit; Family Law Section Predicates Manual; O’Connor’s – Texas Rules of Evidence; O’Connor’s – Texas Family Law Judge Wenke’s – Making and Meeting O’Connor’s Texas Civil Trials; Steven Lubet’s Modern Trial Advocacy 3 rd and 4 ABA’s Electronic Evidence and Discovery

IV. Texas Bar CLE References The best deal going! State Bar of Texas Online Library – 16, 000+ articles. $295. 00 per year!!! (subscription) 5

V. Appendices (1) (2) (3) (4) (5) (6) Common Objections and Comments; Quick Reference Guide to Commonly Used Predicates and Foundations; Procedure For Making and Meeting Objections; Tool Kit Objections Checklist; Table of Authorities; and 63 types, kinds, and “phrases” of evidence. 6

VI. Basics of Evidence Page 3 of the outline lists the 63 types, kinds, and phrases of evidence. See Black’s Law Dictionary, 9 th Edition 2011 by Professor Bryan Garner. 7

VII. Documentary & Demonstrative Evidence A. The Basics. M - Mark I - Identify A - Authenticate O - Offer 8

VIII. Documentary & Demonstrative Evidence B. The “Evidentiary Tree” -- Overview 1. Preliminary questions – Rule 104 2. Relevance – Rule 401 3. Authenticity – Rule 901 4. Self authentication – Rule 902 5. Hearsay & exceptions – Rule 801, 803 6. Best evidence rule – Rule 1001 -1008 7. Probative value vs unfair prejudice – Rule 403 9

Rule 104 – Preliminary Questions For Admissibility 1. Qualifications to be a witness. 2. Existence of privilege. 3. Admissibility of evidence determined by the court. 4. Relevancy conditioned on fact – “connecting it up. ” 10

Rule 401 - Relevance 1. Does it have the tendency to make the existence of any fact “more or less probable? ” 2. Relevance does not have to carry any particular weight. 3. The question is: “Does it have any tendency to prove or disprove a consequential fact in the litigation? ” 11

Rule 901 - Authenticity 1. Testimony of witness with knowledge: Rule 901(b)(1). 2. Comparison by the trier of fact, or by expert witnesses, with a specimen which has been authenticated: Rule 901(b)(3). 3. Circumstantial proof of the evidence itself: Rule 901(b)(4). 12

Rule 901 - Authenticity 4. Public records. Rule 901(b)(1). 5. Evidence produced as a result of an accurate process or system. Rule 901(b)(9). 13

Rule 902 – Self Authentication 1. Official publications: Rule 902(5). 2. Self authentication by inscriptions, signs, tags or labels: Rule 902(7). 3. Authentication of regularly conducted business: Rule 902(11). 14

Rule 801 & 803– Hearsay & Exceptions Rule 801 – Hearsay – Electronic Evidence 1. Is an electronic writing a statement by a declarant within the meaning of 801(a)? 2. A computer generated printout does not involve a person, so it cannot be hearsay. 3. The “header” on a fax is not hearsay. 4. Email offered to prove that a relationship existed between two parties to the conversation is not hearsay, it is an “operative fact. ” 15

Rule 801 & 803 – Hearsay & Exceptions 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. 16

Rule 801 & 803 – Hearsay & Exceptions Rule 803 – Hearsay Exceptions and Electronically Stored Information. 1. Rule 803(1) – Present sense impression. 2. Rule 802(2) – Excited utterance. 3. Rule 803(3) – Then existing state of mind or condition. 4. Rule 803(6) – Business records. 17

Rule 801 & 803 – Hearsay & Exceptions 5. Rule 803(8) – Public records. 6. Rule 803(17) – Market reports, commercial publications. 18

Rule 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? 19

Rule 403 – Balance of Probative Value 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 20 of the accuracy of the information.

D. Examples of Predicates for Admissibility: 1. Photographs 2. Business records 3. Audios 4. Videos 5. Map 6. Financial information statements 7. Handwritten letters 8. Police reports 9. Object of clothing 21

10. Bank records 11. Deposition excerpts 12. Summaries 13. Expert reports 14. Mental health records 15. E-mails 16. Summaries of testimony 22

VIII. Be Judicious in your Objections Don’t object unless the evidence will hurt your case. 23

IX. There are two (2) kinds of Evidence: 1. Direct Evidence – See, hear, touch, or smell – lipstick on collar. 2. Circumstantial Evidence – Logical and legal inferences from facts proved – bucket of paint on car. 24

X. There are three (3) Forms of Evidence: 1. Testimonial – Oral of written (depositions) 2. Nontestimonial Evidence: A. Documentary – paper: (1) (2) (3) (4) (5) Business Records Medical Records Computer Records Government Records Publications 25

X. There are three (3) Forms of Evidence: (con’t) B. Demonstrative – things: (1) (2) (3) (4) (5) Clothing Charts Videos Photographs Body language 3. Electronic Evidence (Hybrid): A. Testimonial B. Nontestimonial (1) (2) (3) (4) Wiretaps E-Mails Videos Audiotapes 26

XI. Predicates/Foundations: 1. Admissions (1) (2) (3) 2. Party opponent Implied admission Judicial admission Authentication (1) (2) (3) (4) (5) Writing Voice (telephone calls) Physical items clothing Photographs Tape recordings 27

XI. Predicates/Foundations: (con’t) 3. Self Authentication (1) (2) (3) (4) (5) (6) (7) 4. Public documents Certified copies Official publications Public documents Newspapers / periodicals Business records affidavit Attorneys fees affidavit Best Evidence Rule (1) Original required (Auth Q’ed) (2) Original not required 28

XI. Predicates/Foundations: (con’t) 5. Character Evidence (1) Reputation (2) Truthful / untruthful 6. Charts/Diagrams 7. Depositions 8. Foreign Law (1) State (2) Country 30 day notice / translation 29

XI. Predicates/Foundations: (con’t) 9. Goodwill (1) Personal (2) Business 10. Hearsay (1) Operative facts (2) Hearsay exceptions 11. Impeachment (Credibility) (1) Live Testimony (2) Deposition 30

XI. Predicates/Foundations: (con’t) 12. Judicial Notice (1) Adjudicative Facts (TRE 201) - generally known - easily determined - relevance - request must be made (2) Legislative Facts - helps court determine legal reasoning and law making process (3) Law (Foreign State – TRE 202) - motion - copy of law attached - fair notice to opposing party - request must be made 31

XI. Predicates/Foundations: (con’t) (4) Law (Foreign Country – TRE 203) - 30 days notice - translation to English (5) Law (Ordinances, Agencies, Register) - same requirements as TRE 202 13. Shorthand Rendition (1) TRE 611 & 1006 - court controls mode of interrogation - use of summaries (2) Summaries prepared by witness (3) Witness reviewed underlying data (4) Witness describes underlying data (5) Summary is fair compilation of exhibits 32

XI. Predicates/Foundations: (con’t) 14. Summaries (1) TRE 1006 (2) (3) (4) (5) Voluminous data otherwise admissible Not conveniently examined by court Underlying data available for inspection Court has discretion to relax best evidence rule 33

XII. General Rules in the Presentation 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 34

XII. General Rules in the Presentation of Evidence: (con’t) 2. Illegally Obtained Evidence Q. It is admissible or inadmissible in a civil proceeding. 3. Rulings on Evidence – Must have a ruling: (1) (2) 4. Express; or Inferred or implied. Effect of Erroneous Ruling – no error unless a substantial right of the party is affected. 35

XII. General Rules in the Presentation 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 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 9. Opinion Testimony (1) Expert opinion (2) Lay opinion 37

XII. General Rules in the Presentation of Evidence: (con’t) 10. Expert Qualifications (1) Hard science (2) Soft science 11. Remainder of Related Writings – When in fairness, it should be considered contemporaneously. 12. Piggyback Objections (1) General (2) Specific (3) Joinder 38

XII. General Rules in the Presentation of Evidence: (con’t) 13. Settlement (Objection) Negotiations (1) “Opening the door” (2) TRE 408 14. Criminal Prosecutions (1) Conviction (timing) (2) Punitive damages 15. Rules for Preservation of Error on Trial Objections (1) You must object (2) You must object timely, in the first instance 39

XII. General Rules in the Presentation 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) (2) (3) (4) (5) Asked answered Argumentative Assumes facts not in evidence Best evidence Compound 40

XII. General Rules in the Presentation of Evidence: (con’t) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) Demonstrative evidence lacks foundation Hearsay Immaterial Incompetence – no personal knowledge Judicial notice – court file Leading and suggestive Misstates former testimony Non-responsive Calls for opinion / conclusion Violates parole evidence rule Privilege Call for general narrative Refresh recollection (mind is evidence) Speculation / conjecture 41

XII. General Rules in the Presentation of Evidence: (con’t) 18. Conduct of Counsel (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) Prompting the witness Attempting to intimidate witness Side bar remarks Arguing with witness Testifying Allusive language Failure to maintain place at bar Privileged communication Assumes facts not in evidence Collateral source rule Disqualified / violation of “The Rule” Hypothetical assumes fact / not in evid. 42