Advanced Trial Handbook

Advanced Trial Handbook
Contents
● Trial Organization
● Jury Selection
● Opening Statement
● Study on Objections
● Prosecutorial Misconduct
● Documentary Foundations
● Demonstrative Evidence
● Direct Examination
● Cross-Examination
● Trial By Ambush
● Closing Argument
● Post Trial Motions
Trial Organization
One of the most important goals a trial attorney should have been the presentation of his or her case in a
clear and orderly manner so that it may be easily understood by the jury. A trial attorney should strive to
appear organized, in control, well prepared, and familiar with all aspects of the case. This is only possible if
the organizational framework is created early in the litigation and well before the actual trial date. Every
stage of the trial should be planned and organized several months earlier and the best way to do this is with
a trial organizational system. There are two types -- a trial notebook or trial folder -- and they enable the trial
lawyer to properly separate, outline and arrange all aspects of the case.
The first step is to create and develop a theme for the case. This is the central story or principle around
which the case must develop and which will be supported by the witnesses and evidence. To that end, the
trial attorney should prepare an outline establishing the theme of the case and setting out how the theme
will be proven during trial. This outline should identify what witnesses and documents will be used, what
issues will be addressed, and what will ultimately be proven at trial. Create a section in the trial notebook or
folder system that includes the theme of the case as the first entry.
Next, prepare an "order of proof outline" which will set out the expected progression of the trial. Include the
order in which each witness will be called to testify, as well as the documentary evidence that will be
introduced at trial. The order of proof should identify all documents that will be introduced and should also
describe how and through which witnesses the documents will be introduced. The order of proof outline
should be flexible, inasmuch as the order of witnesses' testimony may vary; nevertheless, the exercise of
planning out how and when the evidence will be presented to the jury is very important.
The trial notebook or folder system should include sections with outlines for voir dire/jury selection, opening
statement, direct examination for each witness, cross examination for opposing witnesses, legal research,
motions in limine, jury instructions, verdict forms, and closing arguments divided by each issue relevant to
the case. Each section should be separately divided within the trial notebook or folder system.
1
The jury selection section should contain a basic outline of the types of questions you intend to ask in order
to select a fair and impartial jury. It should include a diagram of the jury box so that you may include the
jurors' names and comments about each prospective juror.
The opening statement and closing argument sections should include concise outlines laying out what will
be said and in what order. These outlines will guide you in presenting the opening and closing. Try not to
read from the outlines since reading will detract from the quality of your presentation.
The witness sections of your organization system should include an examination outline for each witness.
These outlines will refer you to areas that you will cover during questioning. Direct examination outlines
should generally highlight the key answers that are sought during questioning. The cross examination
outline should pinpoint the specific areas of questioning where leading questions will be used to attack the
witness' credibility and/or testimony. Additionally, the witness sections should include copies of the
documentary evidence that will be introduced or discussed with each witness, so that the document may be
at your fingertips when needed.
The motions in limine section should contain the actual motions that you will argue at trial as well as
relevant case law and statutes. Similarly, the legal research section should contain relevant case law,
statutes, and memoranda on relevant issues in the trial. In your trial organizational plan, you should arrange
documentary evidence chronologically in the order in which you intend to introduce them at trial. This will
allow you to find what you are looking for when you need it. Having a document that you cannot find during
trial is the same as not having the document at all.
You should also keep in mind that the trial organizational plan should help prove your theme of the case.
The plan should contain everything that you need to successfully present your case.
During the trial, keep your counsel table clear except for a rule book, a legal pad, pen, and the particular
notebook section or folder that pertains to that part of the trial that you are handling at a given time. You
should not have books, papers, and pens thrown all over the table. This will send the wrong message to the
jury. If you limit the materials on the counsel table to a specific folder and note pad, you are sending a clear
message to everyone in the court that you are prepared, organized, and in control of the situation.
Using this system will force you to prepare properly for trial. You should adopt and incorporate an
organizational plan into pretrial preparation. This will allow you to be better prepared, organized, and in
control of your case.
Jury Selection
The Modern Jury Selection Philosophy
The purpose of this article is to discuss the modern jury selection methodology and philosophy used by trial
lawyers and recommended by jury psychologists throughout the country. The days of asking the
prospective jury panel several limited, leading questions about their ability to follow the law and to be fair
and unbiased are gone. The current jury selection process requires an open-ended, free discussion with the
potential jury members about their feelings, life experiences, and opinions regarding the major issues in the
case.
Voir Dire Goals
Jury psychologists have confirmed that the jurors come into the courtroom with preconceived opinions
affecting the way they will view the case. These opinions have been formed as a result of their life
experiences. Attitudes that stem from life experiences will probably not change despite excellent legal
arguments. Accordingly, your primary goal in jury selection should be to properly screen the panel to
2
determine which potential jurors are prejudiced against your case and your client. This will allow you to
eliminate the problem jurors.
Your second goal should be to educate the potential jury on the issues in the case. This will allow you to
determine if a juror is well suited to decide the case before him or her. It is obvious that some jurors,
because of their personal experiences, are better suited to sit on certain juries than others. For example, if
one juror is a businessman who has been repeatedly sued for breach of contract, he may not be the best
juror in a commercial breach of contract case. Similarly, if a potential juror has been the victim of numerous
crimes, she may not be well suited to judge a case involving conversion.
In educating the jury, incorporate your case theme into your voir dire and introduce it at the first logical
opportunity. Define the main issues that will be considered during the trial.
Explain the weaknesses in your case to the jury. This will prove to the jury that you are being completely
honest with them. This also takes away the “shock” value of the problems with your case when your
opposition raises it.
Your third jury selection goal should be to establish rapport with the jury. This will be the only time where the
jury will be able to interact and speak with you. Use a conversational tone when addressing the jury. Make
sure that your body language is sending the right message. Try to keep your hands out of your pockets.
Prevent crossing your arms or rolling your eyes at any potential juror’s response. This type of body
language may be interpreted by the jury members as an attack upon them.
Use The Open Forum Approach
In order to maximize the chances of achieving an open, honest discussion with the prospective jury, ask
open-ended questions. The old voir dire questions that simply require the jury to follow along nodding their
heads and saying “yes, we will be fair,” “no, we will not discriminate,” “yes, we will follow the law,” should be
thrown away. Instead, approach jury selection as an open forum for discussion about the issues that will be
presented in the case. Use the selection process to probe the jury’s feelings regarding those issues. Make
sure to ask the jury how they feel about the matters raised. Find out what their personal feelings are.
Remind the jurors that there are no right or wrong answers in voir dire. Explain that you are seeking candid
and complete responses. Encourage the jury to speak openly about their feelings and sincerely thank them
when they are honest with you, even when you do not agree with them.
Do not be afraid that a potential juror will contaminate the rest of the panel by answering your questions in
such a negative way that it will pollute the entire panel. You want to hear how the juror really feels about the
things that will be addressed in the trial before that juror is actually empaneled. Make sure to allow the
jurors to do the talking. This will be your only opportunity to hear what the jury has to say. You will be doing
the talking the rest of the trial. Learn to become a very good listener when it comes to voir dire.
Once a juror candidly states his or her position on a matter, ask the rest of the panel, “How many of you
agree with that juror?” Have the jurors that agree raise their hands, and then have them each explain what
they believe. By going through this process, you will identify all jurors that have strong feelings about the
important aspects of your case. You will then be able to ask the necessary questions to have the biased,
prejudiced, or inappropriate potential jurors eliminated for cause without having to use one of your precious
peremptory strikes.
To put yourself in the proper state of mind for this type of open forum jury selection, visualize yourself as a
talk-show host discussing important matters that will be coming up in the show with the audience before the
show begins. The discussion should invite the audience to comment about the topics that will be
considered on the show. Go from audience member to audience member reinforcing the issues and seeking
their opinions and beliefs.
Determine which audience members raise their hands, talk the most, and seem most informed. Take note
of who looks mad, who looks at peace. Evaluate all of this information before exercising your peremptory
strikes on the audience.
3
The Presentation
You will probably be somewhat nervous in the beginning of your voir dire. This is normal. If you are feeling
exceptionally nervous, admit it, and explain that you are feeling nervous because the case is very important
to your client. By being honest with the jury, you will give them an opportunity to reciprocate and be honest
with you.
Consider using an outline that has all the key points you wish to discuss with the jury. This will prevent you
from reading to them. Try not to deliver your entire voir dire presentation from behind the podium. Instead,
use the podium only when you need to review your outline. The rest of the time, you should have nothing
that is physically between you and the jury. Maintain a safe distance from the jury so that they do not feel
that you are encroaching upon their space.
Many experienced trial attorneys and judges recommend that attorneys memorize the jurors’ last names
before they address them. This is certainly very impressive. Nevertheless, if you feel you are too nervous,
or you are unable to memorize all potential jurors’ last names before questioning them, create a chart where
you place each juror’s name in the box that corresponds to the seat he or she has in the jury panel. This
will allow you to look down occasionally at your jury chart and determine the correct name for each juror.
Trust your gut feeling. Many times, you will look at a juror and, for whatever reason, feel that you are not
comfortable with that potential juror. Chances are good that the juror is not feeling comfortable with you,
either. In that case, strongly consider using one of your peremptory strikes to eliminate that potential juror
from being a decisionmaker in your case.
Jury selection is very challenging. During voir dire, you must ask proper questions, be a good listener, take
note of relevant answers, keep track of what every juror said, evaluate the jurors’ body language, notice
how the jurors interact with each other, consider how the jurors act towards your client, and then evaluate
who may be the most dangerous to keep on the panel. Once that is complete, you must then prepare
challenges for cause, decide who you will strike using your peremptory challenges, and preserve the record
for appeal. Needless to say, jury selection requires proper preparation and thorough execution. Take
whatever time is necessary to prepare physically and mentally to conduct a proper voir dire examination
using the modern method of questioning. This will greatly increase the likelihood of your deselecting the
right jury.
Assistance with Jury Selection
Always have someone assisting you in the jury selection process. Consider using an associate, paralegal,
secretary, or friend to sit in the audience taking notes about how the jury reacts to you, your client, and the
questions that you are asking. It may be difficult for you to evaluate the entire panel when you are
questioning a particular juror. By having another person assisting you in observing the jury, you will be able
to monitor the entire panel’s response and reaction to your questions.
Make sure to confer with your co-counsel or assistant before you move to strike a potential juror for cause
or before you use your peremptory strikes. Speak with your client about his or her feelings regarding the
jury. Many times a client will have strong feelings for or against individuals that you should take into
consideration before making your final decision to exclude certain individuals from the jury.
Conclusion
Use the modern method of jury selection to improve your success rate at trial. Make sure to prepare for jury
selection as thoroughly as you would for an opening statement or closing argument. By taking the voir dire
selection process seriously, you will greatly enhance your performance in jury selection.
4
Opening Statement
A good opening statement paves the way for a successful trial. It represents the attorney's first opportunity
to persuade the jury in the client's favor. A trial attorney should develop the entire case during the opening
and show that the evidence will prove that his or her client should win the case. Many have described the
opening as the most important part of the case.
First and foremost, prepare your opening so that it tells a complete and interesting story. Do your best to
avoid a bland, boring discussion of what the evidence will show. The opening should be "alive," well
organized, and persuasive. The theme of the case should be clearly and concisely presented. Highlight who
the important witnesses are and what they will say. Further, you should identify the important documents
and demonstrate what they will prove.
Demonstrative evidence should be used during the opening. This will greatly increase the jury's
understanding of what the evidence will actually show. Moreover, it directs the jury's attention to important
evidence and allows them to recognize it once it is introduced during trial. For example, in a breach of
contract case, you should blow up the relevant portion of the contract around which the dispute developed.
Show that portion of the contract to the jury and read it to the jury during the opening statement. The
opposition has no valid basis to object to your doing this provided that the portion of the contract that you
are showing to the jury will be accepted in evidence.
In a personal injury case, you should use diagrams, charts, and/or photo enlargements showing how the
incident occurred and what injuries were sustained by your client. Use the charts to explain the complex
engineering and medical terms that will be heard throughout the case.
The opening is limited to what the evidence will show. It cannot be argumentative; however, this does not
mean that you are prohibited from being interesting, persuasive or from having a little fun during your
presentation. Quite the contrary, a successful opening statement should be entertaining and should leave
the jury with a feeling that you are right and that your client should win. Deliver the opening with enthusiasm
and conviction. Use rhetorical questions to make the jury think about your case. Bring the key issues in the
case to the forefront by placing the jury in the controversy through the use of descriptive words and well-
developed thoughts by painting a verbal picture of your case.
Fully develop the players in the case. Tell the jury who your clients are and what they are all about. Develop
their personalities so that the jury will get to know them and understand them.
In organizing the opening statement, remember that jurors tend to remember best what they hear first and
last. Thus, present the strongest evidence in that order. Near the end of your presentation, make
statements that will leave the jury with an understanding of what your clients have gone through and what
the jury may do to remedy the situation.
The opening statement should also be used to introduce the weak portions of your case and to defend
against your opponent's case. This will take the wind out of the opposition's sail and will enhance your
credibility because you are being open and honest with the jury. Use the opening to expose your opponent's
weaknesses. If you know that your opposition will call a witness whose credibility is questionable, you
should mention the credibility problems during the opening. Once the tainted witness takes the stand, the
jury will be ready to question the validity of that witness's testimony even before your cross-examination
begins. The "defensive" aspect of your opening statement should be sandwiched in the middle of your
opening and should not take up more than 10% of your presentation.
If possible, move away from the podium and try to talk to the jury as if you were speaking to a group of
friends. This will allow you to speak more freely, openly and relaxed. Do not read your opening. Use as few
notes as possible. The opening statement should not resemble a scientific or academic forum. Speak to
the jury about your case using easy to understand language.
The opening statement is one of the most crucial aspects of the trial. Accordingly, it should be fully
5
developed and adequately prepared. Do not rush through the opening. Instead, speak in a manner that is
relaxed, easy to understand, entertaining, and persuasive. A great opening statement may not win the case
by itself; however, it will certainly set the stage for a successful verdict.
Study on Objections
LEGAL OBJECTIONS
USED in
COURTROOM TRIALS
"I object, Your Honor. This trial is a travesty of a mockery of a sham of a travesty of two mockeries of a
sham! "
Woody Allen as Fielding Mellish

Bananas (1971)
I object. The exhibit is confusing, unfairly prejudicial, misleading, irrelevant, barred by the exclusionary rule,
and not a fair and accurate representation of what it purports to represent.
I don't make the rules. I just play by 'em.
If you want to play the game, you had better know the rules of the game.
And if you want your opponent to play by the rules, you'll not only have to recognize the infraction, you'll
have to complain to the referee and tell him/her exactly which rule was violated by the opposition.
Contents
Evaporated and Condensed Objections
Hip-Pocket List of +70 Generic Objections
Quik Reference Guide to Objections in Texas Criminal Cases
Chart of Sources of Individual Rights
Practice Tips for Making Objections
Practice Tips For Meeting and Defeating 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
6
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
7
offered. In such cases, the trial judge will, if asked by the proponent-movant of the motion in limine, issue a
preliminary order to the opposing party directing that, before the evidence in question is presented to the
jury, the opposing party must approach the bench and announce its intention to introduce the disputed
evidence, giving the movant the opportunity to make an objection. Even if the trial judge will not grant your
motion in limine, you can usually get one of these "approach the bench before offering the proof" orders.
These motions in limine are particularly valuable in situations involving uncharged misconduct (prior acts of
misconduct) under Rule 404(b) FRE and TRE and prior convictions for impeachment under Rule 609 FRE
and TRE.
If the trial judge rules on your pretrial objection, how definitive is the court's ruling? For example, if the ruling
is against you, do you have to renew the objection at trial when your opponent seeks to introduce the
evidence you objected to prior to trial. Rule 103(b) FRE says that "Once the court rules definitively on the
record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim
of error for appeal." Rule 103 TRE is not as clear when it states "When the court hears objections to offered
evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be
deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating
those objections." My advice to Texas defenders is to always renew your objection at trial to the offer of
evidence that you objected to in a pretrial motion in limine. Do not rely on the trial court's overruling of your
pretrial motion.
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 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, 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:
8

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 OUT-OF-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. SINCE Crawford,
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
10

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); Bryant v. Michigan,
__ U.S. __, 131 S.CT. 1143 (2011), ANOTHER ONGOING EMERGENCY CASE WITH A
NONTESTIMONIAL OUT-OF-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 IN-COURT 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-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)
● NOTE: Here is a marvelous 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.]
11

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 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) (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
12

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 613 FRE,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 602 FRE,
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 witness’s 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 614 FRE)
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)

13

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., 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

14

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
(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
15

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) - 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 OR VICTIM -

Rule 404(a) TRE.
● NOT A PERTINENT CHARACTER TRAIT OF DEFENDANT/VICTIM. 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 PROPER 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)
16

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

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 TRE
AND 403 TRE, 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 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
17

defendant's credibility escalates, the need to allow the prosecution an opportunity to impeach the
defendant's credibility also escalates. The fifth factor, which is very similar to the fourth factor,
focuses on the importance of the credibility issue; for example, when the evidence presented in a
case involves only the defendant's testimony versus the testimony of the State's witnesses, the
importance of the defendant's credibility escalates; as the importance of the defendant's credibility
escalates, the need to allow the prosecution an opportunity to impeach the defendant's credibility
also escalates. With regard to obtaining a reversal for error in the trial courts application of the
Theus balancing test the cases say that "A trial court abuses its "wide discretion" when its
decision to admit a prior conviction lies outside the zone of reasonable disagreement." (1) Rule 609
(a) TRE.
;
● A PERIOD OF MORE THAN TEN YEARS HAS ELAPSED SINCE THE DATE OF THE
CONVICTION OR THE RELEASE OF THE WITNESS FROM THE CONFINEMENT IMPOSED
FOR THAT CONVICTION WHICHEVER IS THE LATER DATE. [INTERNAL BALANCING
EXCEPTION: THE OTHERWISE REMOTE PRIOR CONVICTION MAY BE ADMISSIBLE IN THE
INTERESTS OF JUSTICE IF THE PROPONENT OF THE IMPEACHMENT INTRODUCES FACTS
AND CIRCUMSTANCES THAT PROVE THAT THE PROBATIVE VALUE OF THE REMOTE
CONVICTION SUBSTANTIALLY OUTWEIGHS ITS PREJUDICAL EFFECT.] - Rule 609 (b) TRE.
● 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 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 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
18

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 CASE-IN-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 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. [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
19

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.)
20

+ RELEVANT, NOT - Rule 402 TRE SEE THE DISCUSSION UNDER "IRRELEVANT."
+ SEQUESTRATION OF WITNESSES, VIOLATION OF "THE RULE" OF - Rule 614 TRE, RULE 615 FRE
+ 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 State Constitution State Code of Procedure

Bill of Rights (Example - TX) (Example - TX)
Speech and Press First Amendment Texas - Art. 1, Sec. 8 Art. 1.16
Illegal Search Fourth Amendment Texas - Art. 1, Sec. 9 Arts. 1.06,

Arts. 14.01-14.06
Arts. 15.01-15.17
Arts. 16.01-16.21
21

Arts. 18.01-18.21
Self-Incrimination Fifth Amendment Texas - Art. 1, Sec. 10 Arts. 1.05,

Arts. 38.21, 38.22
Grand Jury Fifth Amendment Texas - Art. 1, Sec. 10 Arts. 1.05, 1.141
Chs. 19, 20, 21
Double Jeopardy Fifth Amendment Texas - Art. 1, Sec. 14 Arts. 1.10, 1.11, 36.33
Due Process Fifth Amendment Texas - Art. 1, Sec. 19 Art. 1.04

(Federal Cases)
Due Process Fourteenth Amendment Texas - Art. 1, Sec. 19 Art. 1.04

(State Cases)
Speedy Trial Sixth Amendment Texas - Art. 1, Sec. 10 Art. 1.05

Jury Trial Sixth Amendment Texas - Art. 1, Sec. 10 Arts. 1.05, 1.12, 1.13,
1.15, 36.19, 36.29
Public Trial Sixth Amendment Art. 1.24
Accusation Sixth Amendment Texas - Art. 1, Sec. 10 Art. 1.05
Confrontation & Sixth Amendment Texas - Art. 1, Sec. 10 Arts. 1.05, 1.15, 1.25,
Cross-Examination 38.071
Compulsory Sixth Amendment Texas - Art. 1, Sec. 10 Art. 1.05

Process
Assistance of Sixth Amendment Texas - Art. 1, Sec. 10 Art. 1.05

Counsel
Excessive Bail Eighth Amendment Texas - Art. 1, Secs. 11 Arts. 1.07, 17.01-
17.38
& 13
Cruel & Unusual Eighth Amendment Texas - Art. 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
Habeas Corpus Texas - Art. 1, Sec. 12 Art. 1.08
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
22

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 SO-CALLED "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 OF OPTIONAL COMPLETENESS (ROC) NOT CONTAINED IN THE FRE. THE ROC IS
BROADER THAN THE REMAINDER RULE OF RULE 106 FRE & TRE. THE ROC APPLIES TO ACTS,
DECLARATIONS, AND CONVERSATIONS, AS WELL AS TO WRITINGS AND RECORDED
STATEMENTS; HOWEVER, THE ROC DOES NOT ALLOW CONTEMPORANEOUS INTRODUCTION OF
SUCH UNWRITTEN OR RECORDED ACTS, DECLARATIONS, AND CONVERSATIONS, ASSUMING
THEY ARE OTHERWISE ADMISSIBLE.]
+ 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. UNITED
STATES, 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 &
23

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 BE
SUBSTANTIALLY 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
24

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 NON-VERBAL 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 THE
RECORD, IT DIDN'T HAPPEN!
+ 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
25

"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 NON-WITNESS CO-CONSPIRATOR DECLARANT, WHOSE STATEMENT IS OFFERED AGAINST
YOUR CLIENT, BY ANY EVIDENCE THAT WOULD BE ADMISSIBLE FOR SUCH PURPOSE IF THE
DECLARANT HAD ACTUALLY TESTIFIED AS A WITNESS. THIS INCLUDES YOUR RIGHT TO
IMPEACH THE NON-TESTIFYING DECLARANT WITH PROOF OF: (1) ADMISSIBLE PRIOR
CONVICTIONS UNDER RULE 609 FRE & TRE; (2) LACK OF PERCEPTION; (3) BIAS OR ANIMUS OR
INTEREST; (4) PRIOR INCONSISTENT STATEMENT UNDER RULE 613 FRE & TRE WITHOUT THE
NECESSITY OF AFFORDING THE DECLARANT AN OPPORTUNITY TO DENY OR EXPLAIN; (5) BAD
CHARACTER EVIDENCE RE TRUTHFULNESS UNDER RULE 608 FRE & TRE, ETC. [NOTE: IT MAKES
SENSE THAT THE RULES ALL0W YOU TO MAKE THIS ATTACK ON A NON-WITNESS. OTHERWISE,
YOUR OPPONENT COULD WALL OFF IMPEACHING EVIDENCE SIMPLY BY INTRODUCING THE CO-
CONSPIRATOR'S OUT-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
26

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 CROSS-EXAMINE 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.
27

Advanced Trial Handbook

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Advanced Trial Handbook

Încărcat de

Drepturi de autor:

Formate disponibile

Advanced Trial Handbook