TMCEC Bench Book

CHAPTER 16 EVIDENCE
Evidence is something presented at trial to prove or disprove the existence of an alleged fact. Black’s Law
Dictionary. Not all facts, recollections, records, opinions, or physical items are evidence. Each of the
mentioned proofs must meet certain legal standards before they can be called evidence. In determining
whether an offered proof is evidence, the court determines if the proof meets the legal threshold of
admissibility, but not whether the proof is conclusive, credible, believable, or true. The factual credibility
of the evidence is determined by the fact finder after hearing all the evidence. Rule 104, T.R.E.

The most common form of evidence is oral statements of witnesses based on personal knowledge. In
limited circumstance, evidence can be opinions of a witness. Evidence can also be physical items, such as
records, photos, recordings, etc. Demonstrative evidence is proof offered as illustrations or explanations
of the witness’s recollections and perceptions. This includes physical demonstrations by the witness,
drawings created during or before testimony, experiments, lists, items that are introduced that look like
items observed by the witness, or any other item that demonstrates other properly introduced evidence.
1. When Do the Texas Rules of Evidence Apply?
Checklist 16-1 Script/Notes

r 1. The Rules of Evidence apply in all trials before the Art. 45.011, C.C.P.
court or a jury.

r a. They apply in all adversary hearings before

the court except:

r (1) Preliminary hearings to determine Rule 101(e)(3)(B), T.R.E.

if competency is an issue;

r (2) Initial appearance before a Rule 101(e)(3)(C), T.R.E.

magistrate for a hearing and setting
of bail;

r (3) Applications for search or arrest Rule 101(e)(3)(E), T.R.E.

warrants;

r (4) Pre-trial hearings on the Rules 101(e)(1) and 104(a), T.R.E.

admissibility of confessions or
other evidence outside the presence
of the jury; and/or

r (5) Proceedings in a direct contempt Rule 101(e)(3)(F), T.R.E. See

determination. Chapter 14 in this book.

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r 2. The rules of privilege always apply. A right of

privilege is the right to refuse to testify or answer
certain questions. The privileges recognized by the
Rules of Evidence, in addition to the constitutional
privilege against self incrimination, include the
following:

r a. The lawyer-client privilege: Rule 503, T.R.E.

Attorneys, their staff, clients of an attorney,

and representatives of the client, may all
refuse to disclose information concerning
lawyer-client communications made
pursuant to lawful representation.

r b. The marital privilege: Rule 504, T.R.E.

r (1) The spouse has a privilege not to Art. 38.10, C.C.P.

take the stand, except in cases of
domestic violence.

r (2) The spouse can also refuse to

answer questions concerning
communications made during the
marriage, unless they were made in
furtherance of a crime or in cases
of domestic violence. The marital
communications privilege survives
both death and divorce.

r c. The clerical or confessor privilege. Rule 505, T.R.E.

r d. There is no physician-patient privilege Rule 509, T.R.E.

in criminal proceedings, except a limited
privilege for those voluntarily seeking
alcohol or drug abuse treatment.

r e. The journalist’s qualified testimonial Art. 38.11, C.C.P.

privilege in criminal proceedings.

r 3. Certain information as well as certain

communications are privileged:

r a. A person’s vote in any election; and Rule 506, T.R.E.

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r b. Privileges created by statutes that require Rules 502, 507 (Trade Secrets),
certain records be kept, except where the and 508 (Police Informants),
privilege is asserted to conceal fraud. T.R.E.

r 4. Special statutory rules of evidence are used in Art. 38.37, C.C.P. (Evidence of
hearings on sentencing or revocation. Extraneous Offenses or Acts)

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CHAPTER 16 EVIDENCE
2. Ways to Prove a Fact
Checklist 16-2 Script/Notes

r 1. Judicial notice:

r a. Certain matters may be deemed by the Rule 201(c) r (d), T.R.E.

court to be self-evident, well known, or
conclusively proven so that the court
can simply declare them established by
“judicial notice” at the request of a party or
on its own initiative.

r b. The court may take judicial notice when:

r (1) A fact is “generally known in the

jurisdiction;”

r (2) A fact is “capable of accurate and Rule 201(b), T.R.E.

ready determination by resort to
sources whose accuracy cannot
reasonably be questioned;” or

r (3) The fact in issue is the existence Rule 204, T.R.E.

or wording of a municipal or
county ordinance or other such
government regulation, provided
the movant present the court with a
proper copy of such ordinance.

r c. The court must allow both sides to be heard Rules 201(e) and 204, T.R.E.
when taking judicial notice.

r 2. By the testimony of competent witnesses. See Rule 601, T.R.E., concerning

competency of witnesses.

r 3. By the introduction of properly predicated and

introduced records or other physical evidence.

r 4. Arguments by attorneys, parties, witnesses, or any

statements by others not sworn and examined are
not evidence and not to be considered by the fact
finder as evidence.

r 5. Plea bargains, plea negotiations, and plea Rule 410, T.R.E.

discussions are not admissible.

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CHAPTER 16 EVIDENCE
3. How Objections are Made and Ruled on by the Court
Checklist 16-3 Script/Notes

r 1. Objections:

r a. Objections must be made by a party. A defendant cannot object if

Objections can never be made by a witness represented by counsel.
or the court.

r b. The objection is made to the court and not

to the opposing party, witness, or jury.

r c. The objection should be respectful and not State the legal basis for objection
argumentative. to the proffered question or answer

r d. The objection should be timely made. Rule 103(a), T.R.E. Proper

The objection must be made when the objection:“Your Honor, I object to
objectionable question or answer is made or that question/answer because it
given. is hearsay/not relevant/a leading
question/ etc. ”

r e. Objections must be made every time a Ethington v. State, 819 S.W.2d 854
matter is raised to preserve the matter for (Tex. Crim. App. 1991).
review on appeal unless the court grants a
“running objection” on the record, outside
the presence of the jury.

r f. Objections that raise matters important to Rule 103(c), T.R.E.

the court’s ruling, but not appropriate for
the jury to hear, should be made outside the
earshot or presence of the jury.

r (1) Removal may be made at either

party’s request or on the court’s
own suggestion.

r 2. Responses:

r a. The court has broad discretion in ruling on Rule 103, T.R.E.

objections.

r b. The court has no obligation to listen to Proper response: “Your Honor,

responses, but should do so if hearing the may I respond to the objection?”
response would aid the court in making a
proper ruling.

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r c. Remember that responses are often best

made outside of the jury’s hearing.

r 3. Offers of proof:

r a. To properly consider excluded evidence on

appeal, the reviewing court must be able to
study that evidence.

r b. The party tendering the excluded evidence

is responsible for getting the excluded
evidence into the record.

r c. The offer of proof is always made outside

the presence of the jury.

r d. The party making the offer of proof may be Dopico v. State, 752 S.W.2d 212
granted substantial latitude in the means of (Tex. App.— Houston [1st Dist.]
producing said evidence. 1988, pet. ref’d); and Rule 103(a)
(2), T.R.E.

r e. The offer of proof may be made by:

r (1) Sworn statement;

r (2) Placement in the record of a

physical object not admitted into
evidence;

r (3) Questions to and answers of a This is obligatory if requested.

witness; or Rule 103(b), T.R.E.

r (4) A summary by counsel of the

questions and answers expected.

r f. Offers of proof do not have to be made

at the time of the objection and may be
made at any time during the trial, so as
to facilitate an orderly presentation of the
evidence at trial.

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CHAPTER 16 EVIDENCE
4. Hearsay
Checklist 16-4 Script/Notes

r 1. Hearsay is a statement, other than one made by the Rule 801(d), T.R.E.
declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted.

r 2. Hearsay testimony is not admissible unless it falls Rule 802, T.R.E.

under an exception to the hearsay rule.

r 3. Hearsay includes non-verbal conduct if intended as Rule 801(a), T.R.E.

a substitute for verbal expression.

r 4. To be hearsay, the statement must be offered to

prove the content of the statement. If the statement
is offered to prove that the statement was made and
not that the statement is true, it is not hearsay.

r 5. Statements defined by the rules as not hearsay: Rule 801(e), T.R.E.

r a. Prior statements by the witness.

r b. Statements by a party offered against that

party.

r 6. Statements that are hearsay, but admissible under an

exception to the hearsay rule:

r a. A present sense impression. Rule 803(1), T.R.E.

r b. Excited utterances. Rule 803(2), T.R.E.

r c. A statement of the declarant’s then existing Rule 803(3), T.R.E.

state of mind, emotion, sensation, or
physical condition.

r d. A statement made for the purpose of Rule 803(4), T.R.E.

medical diagnosis or treatment.

r e. A prior written record by the witness about Rule 803(5), T.R.E.

matters that he or she once had personal
knowledge, but now is unable to recall if
such a record was reliably created when the
matters were fresh in his or her mind.

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r f. Regularly kept business, public, official, Rule 803(6)-(15), and (17), T.R.E.
medical, commercial, or family records
must:

r (1) Be kept in the regular course of

these other enterprises;

r (2) Be recorded by persons with

personal knowledge; and

r (3) Have some indicia of

trustworthiness.

r g. Authenticated documents over 20 years old. Rule 803(16), T.R.E.

r h. Learned treatises when used to question Rule 803(18), T.R.E.

experts.

r i. Reputation testimony. Rule 803(19)-(21), T.R.E.

r j. Judgments of previous conviction against Rule 803(22), T.R.E.

the defendant.

r k. Statements made by the declarant that were Rule 803(24), T.R.E.

against his or her monetary, legal, or social
interest.

r l. Statements made exposing the declarant to Rule 803(24), T.R.E.

criminal liability must be corroborated.

r 7. Some hearsay statements are admissible only if Rule 804, T.R.E.

the declarant is not available as a witness due to
privilege, refusal to testify, lack of memory, death
or infirmity, or lack of the witness’s attendance
at trial due to no fault of the party seeking the
testimony. The following are not excluded from
evidence if the declarant is unavailable as a witness:

r a. Former testimony where both parties were Rule 804(b), T.R.E.

able to fully cross-examine the witness.

r b. Dying declarations of the declarant.

r c. Statement of personal or family history. Rule 804(b), T.R.E.

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r 8. If a hearsay statement comes into evidence, the Rule 806, T.R.E.

credibility of the declarant of the hearsay statement
is put at issue and may be challenged by other
evidence.

r 9. Hearsay within hearsay is not excluded if an Rule 805, T.R.E.

exception is provided for each part of the combined
statement.

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CHAPTER 16 EVIDENCE
5. Objections Concerning Nature of Questions, Answers, or Courtroom Behavior

Checklist 16-5 Script/Notes

r 1. Leading questions are questions that suggest the Rule 611(c), T.R.E.
answer desired by the questioner. Leading questions
are proper and preferred during cross-examination
or during any examination of a hostile witness.

r 2. Scope of cross-examination: A witness may be Rule 611(b), T.R.E.

cross-examined on any matter relevant to any issue
in the case, including credibility.

r 3. Narrative answers - All examinations should be

done in a question and answer format. Failure to
follow this format causes opposing counsel to be
unable to object to particular matters. Testimony
that moves from topic to topic without interspersed
questions is narrative and improper. However, in
some situations, the court may permit narrative
responses.

r 4. Badgering the witness: A trial should be a formal Rule 611(a), T.R.E.

and civilized proceeding. Undue dramatics,
improper aggression, or just plain bad manners may
be controlled by the court on a proper objection.
The court, if necessary, may act on its own to stop
certain conduct.

r 5. Sidebar comments and arguing with the witness: An example of sidebar comments
During testimony, the attorney’s and/or pro se would include: “Oh, I’m sure
defendant’s role is to ask questions; they are not that is what you saw.” “Please,
sworn and they may not testify. Counsel and pro se Your Honor, that is such a stupid
defendants should not be allowed to comment on question.” “Objection . . . Like he’s
witness’ answers, opposing counsel’s questions, or never going to sustain one of my
the court’s rulings in a verbal or non-verbal fashion. objections.”
Counsel and pro se defendants must convey the
ideas they wish to express to the jury through
proper questions and during closing arguments.
Objections, as noted earlier, should be addressed to
the court and not to the witness, opposing counsel,
pro se defendant, or jury.

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r 6. Non-responsive answers: The court should require To properly make this objection,
witnesses to answer proper, clearly stated questions counsel must ask clear, simple
as asked. During cross-examination, witnesses questions that do not call for an
should be limited to answering questions as asked. explanation.

r 7. The court shall exercise reasonable control over Rule 611, T.R.E.
witnesses and the presentation of evidence. The
efficient presentation of evidence and actual
ascertainment of the truth should be the constant
goals of the court.

r 8. Ethically, the court must require order and decorum Canon 3B(3), Texas Code of
in all proceedings. These objections are all based Judicial Conduct
on conduct rather than content and may provide the
court with a tool to control courtroom behavior.

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CHAPTER 16 EVIDENCE
6. Objections to the Introduction of Physical Evidence

Checklist 16-6 Script/Notes

r 1. Predicate: Before introduction of a piece of For a quick and complete listing of

physical evidence, the party offering the evidence proper predicates, please refer to
must establish certain preliminary facts: Predicates published by the Texas
District and County Attorneys
Association (512.474.2436).

r a. The item is authentic; and

r b. If the item is perishable or alterable, the

party offering the evidence must show
either that the evidence has been in a secure
“chain of custody” or that the item has
not been altered or changed since it was
gathered.

r 2. Photographs and recordings must be shown

to accurately reflect what the witness initially
observed. If such testimony is not available,
photographs and recordings are admissible under
the rules in Step 1 above.

r 3. Demonstrative evidence need only be shown to be

helpful to the jury, and be explained by the witness.

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