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LEGAL OBJECTIONS
USED in
COURTROOM TRIALS

copyrightRayMoses20002016
allrightsreserved

"I object, Your Honor. This trial is a travesty of a mockery of a sham of a

travesty of two mockeries of a sham! "
WoodyAllenasFieldingMellish
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 FederalBillofRights
Evaporated and Condensed Objections
Hip-Pocket List of +70 Generic Objections FederalRulesofEvidence
(asrestyledinDecember2012)
Quik Reference Guide to Objections in Texas Criminal Cases
Chart of Sources of Individual Rights FederalRulesofCriminalProcedure
Practice Tips for Making Objections TexasBillofRights
Practice Tips For Meeting and Defeating Objections
TexasRulesofEvidence

TexasRulesofCriminalProcedure
THE IMPORTANCE OF RULES
GOOGLEScholar

Theoldbromidesays,"Therookielawyerknowstherulestheveteranknowstheexceptions."Intruth,
you don't know the rules unless you also know all of the exceptions, e.g., there are some thirty
exceptionstotheruleagainsthearsay.

Criminal trials are about speeches, evidence, and objections. Objections allow you to limit the
speechesandtheevidenceoftheopponent.Ifyoudon'tknowhowandwhentoobject,youropponent LECTURES: Professor Tom Lyon'...
willhavefreerein.Foryou,trialdegeneratestofreeforallmudwrestling.Inthesamevein,ifyouare
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 welltimed and accurate
objection.Everyprosecutoranddefendermustdevelopaworkingknowledgeoftheapplicablerulesof
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
applicationoftherulesevidence,practice,andproceduretothetrialcourtinsuchamannerthatthe
judgeunderstandsandtrustsyourknowledgeofthelaw.

[Note:OnDecember1,2011theFederalRulesofEvidencewererestyled.(1FederalObjections)]

THE ANALOGY WITH ATHLETIC CONTESTS

I find it helpful to analogize the subject of objections in a criminal trial to the procedure for enforcing
rulesinatypicalathleticsportingcontest.Ineach,twosidesarepittedagainstoneanother.Thereis Thisisasetoflawschoolclassroom
planning,preparing,gamesmanship,strategyandthedesiretowininthecourtroomandontheathletic lecturesonthelawofevidence
playing field. Courtroom trials and sporting contests are each limited by rules that are enforced by presentedbyaknowledgeable
officialjudgesorrefereeswhosewordontherulesisfinal.Butthereisabigdifferencebetweeninthe professoratUSC.Theprofessoris
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procedureforenforcingrulesinthecourtroomvisavistheathleticplayingfield.First,inourgame,the talkingabouttheFederalRulesof
courtroomtrial,thereferee,i.e.,judge,doesn'tdropaflagunlessyou,thespeakerforyourteamask Evidence.Therestoftheonlinelessons
hertodoso.Second,you,thelawyer,havethelaboringoartofigureoutpreciselywhatrule,manyof areasfollows:
themhavenumbers,ofthegamehasbeenviolatedbytheallegedfoul.Foulsaretypicallycommitted (2),(3),(4),(5whatishearsay),(6
bytheopposition,buttheymaybecommittedbyothers,eventherefereejudge.Soyou'vegotobe whatishearsay),(7),(8),(9),(10lay
knowledgeable enough regarding the rules of evidence, criminal procedure, and criminal law to andexpertwitnesses),(11character
recognize that you have a valid objection, and also to know what that specific objection is. Third, evidence),(12),(13),(14),(15),(16),
you'vegotobeexperienced,cunning,andwiseenoughtobeabletodecideinasplitsecondifitis (17).
strategically appropriate to make the objection. This calculus of whether to object or not involves
numerousfactors.Forexample,youmayneedtoaskyourselfwhetheryourotherwisevalidobjection
istoformorsubstanceofanopponent'squestion.Iftheobjectionisonlytotheformofthequestion,
youropponentmaybeabletocorrecttheerrorsimplybyrephrasingthequestion.Ifso,theevidence
willcomeinandyou'veemphasizedittothejurybyobjecting.Onceyoudecidethatyouaregoingto
object, you've go to be ready and able to articulate to the refereejudge the legal basis for your
objection.And,tofinallycapitoff,you'vegottobesoquickonthetriggerthatyoucandoallofthisina
coupleofsecondsorelseyouriskwaivingyourobjectionbecauseitisnotdeemedtimelybythetrial
and appellate court. (Always remember that appellate court are courts of error correction they are
theretocorrecterrorbythetrialcourtifyouhaveproperly"preserved"theerrorintherecordofthe
casetypically,youpreserveerrorbyobjection.)

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
mustbe(1)timely.Itmustalsobespecificasto(2)ground,(3)party,(4)part,and(5)purpose.This,
yourobjectiontotheadmissibilityofevidencemust:
Followrapidlyinatimelymanneraftertheoccurrenceoftheobjectionableact.
Stateaspecificgroundofevidentiaryinadmissibility.
Identifythepartyagainstwhomitisinadmissible.
Identifythepartoftheevidencethatisinadmissible.
Object to the opponent's general unrestricted offer of evidence when it is admissible only for a
limitedpurpose.

PRETRIAL OBJECTIONS AND MOTIONS IN LIMINE

Incriminaldefensepractice,youwilloftenwanttoobtainadmissibilityrulingsthroughpretrialmotions
to suppress or exclude evidence and other motions in limine. The idea behind a pretrial objection or
motioninlimineistokeepthejuryfrombeingexposedtoinadmissibleevidence.Itisalwayspreferable
to present your motion in limine in writing. The judge has three choices in ruling on your pretrial
objectionormotioninlimineshemaygrantit,denyit,ordefer(reserve)ruling.Insomeinstancesthe
subjectofthemotioninlimineissuchthatthetrialcourtcannotissueadefinitivepretrialrulingwithout
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
junctureinthetrialwhenitwillbeoffered.Insuchcases,thetrialjudgewill,ifaskedbytheproponent
movantofthemotioninlimine,issueapreliminaryordertotheopposingpartydirectingthat,beforethe
evidence in question is presented to the jury, the opposing party must approach the bench and
announceitsintentiontointroducethedisputedevidence,givingthemovanttheopportunitytomake
anobjection.Evenifthetrialjudgewillnotgrantyourmotioninlimine,youcanusuallygetoneofthese
"approachthebenchbeforeofferingtheproof"orders.Thesemotionsinlimineareparticularlyvaluable
in situations involving uncharged misconduct (prior acts of misconduct) under Rule 404(b) FRE and
TREandpriorconvictionsforimpeachmentunderRule609FREandTRE.

Ifthetrialjudgerulesonyourpretrialobjection,howdefinitiveisthecourt'sruling?Forexample,ifthe
ruling is against you, do you have to renew the objection at trial when your opponent seeks to
introducetheevidenceyouobjectedtopriortotrial.Rule103(b)FREsays"NotNeedingtoRenewan
ObjectionorOfferofProof.Oncethecourtrulesdefinitivelyontherecordeitherbeforeorattrial
apartyneednotrenewanobjectionorofferofprooftopreserveaclaimoferrorforappeal."Rule103
TRE is not as clear when it states "Not Needing to Renew an Objection. When the court hears a
partysobjectionsoutsidethepresenceofthejuryandrulesthatevidenceisadmissible,apartyneed
not renew an objection to preserve a claim of error for appeal." My advice to Texas defenders is to
alwaysrenewyourobjectionattrialtotheofferofevidencethatyouobjectedtoinapretrialmotionin
limine.Donotrelyonthetrialcourt'soverrulingofyourpretrialmotion.

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
basicobjectionsfordefendersandprosecutorsinTexascriminalcases.Neitherlistisexhaustive.You
may find one or the other useful as a quick ready reference guide. Each ground of the Texas list is
linkedtoitssourceintheTexasRulesofEvidence(2016),andinsomeinstancestotheFederalRules
of Evidence. For a complete explanation of criminal evidence and much more comprehensive
explanationofobjections,consultthe200pageCCJAmonograph,MakingandMeetingObjectionsin
CriminalCasesontheCCJADVD.Thebookcontainsacomprehensivediscussionofseveralhundred
objections,allofwhicharekeyedtodifferentstagesofthetrialandtospecificrulesintheTexasRules
ofEvidence.Forthosewhoarelookingforalittlefreewebbasedhelpwiththeirobjections,therearea
few resources (1 1 page jury argument), ( 2 slide show), (3 list), (4 short list without
explanations),(5preservingtheappeal),(6theFederalRulesofCriminalProcedure).

Never lose sight of the fact that there will be no ruling by the court excluding or admitting evidence
unlessyouoropposingcounselobjects.Yourjoinissuebyobjectingorfilingapreobjectionmotionin
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
basicallythatyouaregoingtooffersuchandsuchasevidenceatthetrialandthatyouanticipatethe
oppositionwillobjectexplaintothecourtinyourmotioninlimineprofferingevidencethatyouthinkthe
evidence is admissible and why. Ask the court to allow you to make an offer of proof for the record.
(NotethattheFREandTREallowyoutomakeawitnessofferoralawyerofferhowever,thecourt
(federal)orthecourtoryouropponent(Texas)canforceyoutomakeawitness(Q&A)offerratherthan
a lawyer offer.) For more on the law and techniques of making an offer of proof (proffer), see the
MakingandMeetingObjectionsmonograph.

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

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remarks, not addressed to the court, while you are questioning a witness, in jury argument you
might object to the opponent arguing facts that are not supported by evidence, expressing her
personal opinion, etc. That said, here's a list of some basic objections that recur in criminal trials
across the country:

AMBIGUOUS(SEEVAGUE)

ANSWERNONRESPONSIVE

ANSWER EXCEEDS (GOES BEYOND) SCOPE OF QUESTION AND CONSTITUTES A

VOLUNTEEREDSTATEMENTBYTHEWITNESS

ARGUMENTIMPROPER(E.G.,REFERSTOFACTSNOTINEVIDENCE,MISSTATESEVIDENCE,
MISQUOTESWITNESS,VOUCHESFORWITNESS,INDICATESPERSONALBELIEFOROPINION
OF COUNSEL, UNFAIRLY PREJUDICIAL, COMMENT ON DEFENDANT'S FAILURE TO TESTIFY,
INDIRECT ATTACK ON ACCUSED BY ATTACKING INTEGRITY OF DEFENSE COUNSEL [For
specificobjectionstoJURYARGUMENT]

ARGUMENTATIVE IN CONTENT AND TONE WITHOUT ASKING FOR NEW INFORMATION

USINGHIS/HERQUESTIONTOARGUETHECASE

ASKING ONE WITNESS TO COMMENT ON THE VERACITY OF ANOTHER WITNESS'

TESTIMONYIMPROPERLY INVADES THE PROVINCE OF THE JURYTODETERMINEWITNESS
CREDIBILITYANDISIMPROPERCHARACTEREVIDENCE.(EXAMPLE:WHEREONEWITNESS
ISASKEDWHETHERANOTHERWITNESSLIEDORTOLDTHETRUTH)[Note:Therearelotsof
cases on this, but prosecutors seem to have a proclivity for such "war the officer lying"
questionsoncrossofthedefendant,e.g.,UnitedStatesv.Geston,299F.3d1130(9thCir.2002)
UnitedStatesv.Sullivan,85F.3d743(1stCir.1996)UnitedStatesv.Boyd,54F.3d868(D.C.Cir.
1995)UnitedStatesv.Richter,826F.2d206(2ndCir.1987),andfor"wastheotherofficertelling
thetruth"questionsondirectofofficers,e.g.,UnitedStatesv.SanchezLima,161F.3d545(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
EXPERTKNOWLEDGE

ASSUMING FACTS NOT IN EVIDENCE (LOADED QUESTION THAT PREVENTS THE WITNESS
FROMHAVINGTHEOPPORTUNITYTODENYTHEEXISTENCEOFTHEASSUMEDFACT)

ASKEDANDANSWERED(SEEREPETITIOUS)

AUTHENTICATIONLACKINGORIMPROPER(FAILURETOIDENTIFYITEMOFEVIDENCE,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,LOOMINGOVER,ANDTHREATENING)

BESTEVIDENCERULEVIOLATED(SEEALSO,"ORIGINALWRITING"RULE)

BEYONDSCOPEOFDIRECT(INJURISDICTIONSTHATLIMITTHESCOPEOFCROSSTOTHE
SUBJECT MATTER OF THE DIRECT AND MATTERS AFFECTING CREDIBILITY OF THE
WITNESS)

BILLOFRIGHTSVIOLATEDANDEXCLUSIONARYRULEAPPLICABLE[SUGGESTION:PRINT
THE BILL OF RIGHTS FROM THE CCJA PAGE AND PUT IT IN YOUR TRIAL NOTEBOOK SO
THATYOUMAYCITETHECOURTTHELANGUAGEOFAPARTICULARRIGHTTHATHASBEEN
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
ITEMWITHPERSONALKNOWLEDGE)

CHARACTEREVIDENCEIMPROPER(E.G.,TOESTABLISHPROPENSITY)

COMPOUND QUESTION THAT CONTAINS TWO OR MORE QUESTIONS WITHIN A SINGLE

QUESTION

COMMENTONEVIDENCEBYJUDGE

COMMENT ON DEFENDANT'S POSTARREST SILENCE FOR IMPEACHMENT PURPOSES

WHENDEFENDANTREMAINSSILENTAFTER BEING GIVEN MIRANDAWARNINGSVIOLATES
DUEPROCESS[Doylev.Ohio,426U.S.610(1976)butseeJenkinsv.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
inconsistentstatementafterMirandawarning.SeeImpeachment]

CONFESSION OBTAINED WITHOUT REQUIRED WARNING AND VOLUNTARY WAIVER OF

RIGHTSUNDERFIFTHANDSIXTHAMENDMENTS

CONFESSIONINVOLUNTARY(SEEINVOLUNTARYCONFESSION)

CONFESSION OF CODEFENDANT INADMISSIBLE [See Bruton v. United States, 391 U.S. 123
(1968)Grayv.Maryland,523U.S.185(1998)Motions]

CONFRONTATIONCLAUSEOFSIXTHAMENDMENTVIOLATEDBYPROSECUTOR'SOFFEROF
OUTOFCOURT STATEMENT FOR A HEARSAY PURPOSE, I.E., FOR THE TRUTH OF THE
MATTER ASSERTED IN THE STATEMENT, NOTWITHSTANDING THAT THE OUTOFCOURT
STATEMENTMAYAPPEARTOFITWITHINANEXCEPTIONOREXEMPTIONTOTHEHEARSAY
RULE[SeeCrawfordv.Washington,541U.S.36(2004)SeealsothediscussionatMotions]
UNDER THE Crawford Rule YOU ARE LOOKING FOR 4 CONDITIONS: 1. THE OUTOF
COURT STATEMENT OF A WITNESS IS BEING OFFERED BY THE PROSECUTION
AGAINST THE ACCUSED IN A CRIMINAL CASE FOR THE TRUTH OF THE MATTER
ASSERTEDINTHEOUTOFCOURTSTATEMENT2.THEREWASNOOPPORTUNITYFOR

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THEDEFENSETOCROSSEXAMINETHEWITNESSATTHETIMEOFTHESTATEMENT3.
AT THE TIME OF THE TRIAL WHEN THE OUTOFCOURTSTATEMENT IS OFFERED, THE
DECLARANT, I.E., THE PERSON WHO MADE THE OUTOFCOURT STATEMENT, IS
UNAVAILABLE AS A WITNESS AND 4. THE OUTOFCOURT STATEMENT OF THE
UNAVAILABLEDECLARANTISCLASSIFIEDAS"TESTIMONIAL"BYTHEUSSC.
WHAT IS A "TESTIMONAL" OUTOFCOURT 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 OUTOF COURT STATMENT OVER THE
DEFENSE CONFRONTATION CLAUSE OBJECTION. THE COURT SUGGESTED THAT
AFFIDAVITS, DEPOSITIONS, PRIOR TESTIMONY THAT THE DEFENDANT WAS UNABLE
TOCROSSEXAMINE,AND"STATEMENTSTHATWEREMADEUNDERCIRCUMSTANCES
WHICH WOULD LEAD AN OBJECIVE WITNESS REASONABLY TO BELIEVE THAT THE
STATEMENTS WOULD BE AVAILABLE FOR USE IN A LATER TRIAL" WOULD BE
CLASSIFIEDAS"TESTIMONIAL"OUTOFCOURTSTATEMENTS.
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,THEUSSCHASENLIGHTENEDUSWITHTHESECASES:Davisv.Washington,
547 U.S. 813 (2006) HOLDING THAT AN OUTOFCOURT STATEMENT MADE FOR THE
PRIMARY PURPOSE OF SECURING HELP IN AN ONGOING EMERGENCY, E.G., A 911
CALLREPORTINGANONGOINGASSAULT,WASNOTTESTIMONIALHammonv.Indiana,
DECIDEDASACOMPANIONCASETODavisINVOLVEDASTATEMENTBYADOMESTIC
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,
829N.E.2D444(IND2005)Michiganv.Bryant,__U.S.__,131S.CT.1143(2011),ANOTHER
ONGOING EMERGENCY CASE WITH A NONTESTIMONIAL OUTOFCOURT 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
NOTRETROACTIVEGilesv.California, 554 U.S. 353 (2008) WHICH SEEKS TO CLARIFY
THE FORFEITURE RULE, WHEREBY A DEFENDANT FORFEITS HIS SIXTH AMENDMENT
RIGHTTOCONFRONTAWITNESSAGAINSTHIMWHENAJUDGEDETERMINESTHATA
WRONGFULACTBYTHEDEFENDANTMADETHEWITNESSUNAVAILABLETOTESTIFY
AT TRIAL MelendezDiaz v. Massachusetts, 557 U.S. 1256 (2009) (KENNEDY, ROBERTS,
BREYER AND ALITO DISSENTING) WHICH HELD THAT A FORENSIC LABORATORY
REPORTINTHEFORMOFANAFFIDAVITSTATINGTHATASUSPECTSUBSTANCEWAS
COCAINERANKEDASTESTIMONIALTHEPROSECUTIONREPORTHADBEENCREATED
SPECIFICALLY TO SERVE AS EVIDENCE IN A CRIMINAL PROCEEDING AND ABSENT
STIPULATION,THEPROSECUTIONCOULDNOTINTRODUCESUCHAREPORTWITHOUT
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
WHETHERTHECONFRONTATIONCLAUSEPERMITSTHEPROSECUTIONTOINTRODUCE
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
PERFORMOROBSERVETHETESTREPORTEDINTHECERTIFICATIONTHEUSSCHELD
THAT SURROGATE TESTIMONY OF THAT ORDER DOES NOT MEET THE
CONFRONTATIONREQUIREMENT,I.E.,THEACCUSEDISENTITLEDTOBECONFRONTED
WITH THE ANALYST WHO MADE THE CERTIFICATION, UNLESS THAT ANALYST IS
UNAVAILABLE AT TRIAL AND THE ACCUSED HAD A PRETRIAL OPPORTUNITY TO
CROSSEXAMINETHATPARTICULARSCIENTIST.[Note:Keepaneyeoutforthedecision
inWilliamsv.Illinois,certgranted131S.Ct.3090(2011),(1)whereaDNAexpertwhodid
not perform the DNA test testified at trial and relied upon the forensic opinion/results of
thenontestifyinganalystinarrivingatanincourtopinion.]
NOTETHATUNDERCrawfordEVENTHOUGHANOUTOFCOURTSTATEMENTFITSINTO
ARECOGNIZEDHEARSAYEXCEPTION,THECONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT BARS USE OF TESTIMONIAL OUTOFCOURT STATEMENT BY AN
UNAVAILABLEWITNESSWHOMTHEDEFENDANTHASNOTHADTHEOPPORTUNITYTO
CROSSEXAMINE, IRRESPECTIVE OF WHETHER THE STATEMENT IS DEEMED
RELIABLETHESTATEMENTISINADMISSIBLEASUNCROSSEXAMINED.SEECrawfordv.
Washington,541U.S.36(2004)
NOTE: Here is a 164page 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
casesgrantingreliefonConfrontationClausegroundsthroughJanuary1,2011.

CONFRONTATION,FACETOFACEDENIEDWHENWITNESSORDEFENDANTISBLOCKEDOR
SCREENEDFROMLIVECONFRONTATION[Coyv.Iowa,487U.S.1012(1988)holdingthatuse
of closedcircuit 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
blockingorscreeningthewitnessfromseeingthedefendantprovidedthereisaparticularized
showingthatsuchblockageislikelytoavoidtraumatothewitness.]

CONFUSIONOFISSUES

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 standby counsel but see
Martinez v. Court of Appeal of California, 528 U.S. 152 (2000) no constitutional right to self
representationonappeal.]

CROSSEXAMINATIONTOSHOWBIASIMPROPERLYDENIED[SeeDavisv.Alaska, 415 U.S.

308(1974).]

CROSSEXAMINATION DENIED BY TRIAL COURT LIMITING COUNSEL'S CONTACT WITH

WITNESS[SeeDelawarev.VanArsdall,475U.S.673(1986)Perryv.Leeke,488U.S.272(1989)]

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CUMULATIVE EVIDENCE, NEEDLESSLY, IN THAT IT FAILS TO ADD TO THE PROBITY OF

PREVIOUSLYADMITTEDEVIDENCE

DISCOVERYVIOLATION[Bradyv.Maryland,373U.S.83(1963)UnitedStatesv.Agurs,427U.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,requiredSeePretrialPractice]

DISPLAYING EVIDENCE PRIOR TO ITS INTRODUCTION OR CONTINUING TO DISPLAY

EVIDENCEAFTERITHASBEENUSED

EXPERTTESTIMONYNOTADMISSSIBLE(E.G.,UNDERLYINGFACTSORDATAINSUFFICIENT
FIELD OF SCIENTIFIC, TECHNOLOGICAL OR OTHER SPECIALTY OF EXPERTISE NOT
RELIABLEAND/ORRELEVANTBASEDONDAUBERTFACTORSSUCHAS:(1)WHETHERTHE
PRINCIPLEHASBEENTESTED,(2)THERESULTSOFPUBLISHEDPEERREVIEW,(3)ERROR
RATESAND(4)GENERALACCEPTANCEOLDFRYEUnitedStatesv.Frye,293F.1013(D.C.
1923)(1)RULEREQUIRESGENERALACCEPTANCE)[SeeExpert]

EXPERTWITNESSNOTCOMPETENT

FAILURE TO LAY PROPER FOUNDATION FOR ADMISSION OF TESTIMONY, EXHIBIT, OR

DOCUMENT(PREDICATE)(SEELACKOFEVIDENTIARYPREDIATE)

FINALARGUMENTIMPROPER(SEEARGUMENTIMPROPEROBJECTIONSTOARGUMENT)

GOADING THE DEFENSE INTO MOVING FOR A MISTRIAL, PROSECUTORIAL CONDUCT

INTENDEDTOANDINFACTSUCCEEDINGIN[Note:Oregonv.Kennedy,456U.S.667(1982)
establishedthatwheretheprosecutor'sconductisintendedto"goad"thedefenseintomoving
for a mistrial, the defense may successfully claim that a retrial is barred by the Fifth
Amendmentprotectionagainstdoublejeopardy.Theideabehindthisgroundforobjectionis
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 convictionoriented jury may be empanelled, etc. In my home state, Texas, the
rulealsoappliesbycaselawto"reckless"goading.]

HABITNOTESTABLISHED,IMPROPERHABITEVIDENCEBECAUSE

HEARSAY, QUESTION CALLS FOR OR ANSWER CONTAINS (1 HISTORY OF THE RULE

AGAINSTHEARSAYTREASONTRIALOFSIRWALTERRALEIGH),(2VARIOUSEXCEPTIONS
TORULEAGAINSTHEARSAYDISCUSSED)

HEARSAYWITHINHEARSAY

HEARSAY,EVIDENCECONTAINS

HEARSAY,EVIDENCEISTHERESULTOFANDISBASEDUPON

ILLEGALSEARCHANDSEIZUREINVIOLATIONOFFOURTHAMENDMENT

ILLEGALIDENTIFICATION

INVOLUNTARYCONFESSIONINVIOLATIONOFDUEPROCESSORLAW

IMMATERIAL IN THAT IT IS OF NO CONSEQUENCE TO ANY ISSUE IN THE CASE (COUPLE

WITHIRRELEVANT)

IMPEACHMENTIMPROPER(IMPROPEROPINIONORREPUTATIONCHARACTEREVIDENCE
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
IRRELEVANTORCOLLATERALMATTERRULE403FRE)

INCOMPETENCY OF WITNESS (E.G., LACK OF PERCEPTION, LACK OF MEMORY, INABILITY

TO UNDERSTAND NATURE AND OBLIGATION OF OATH RULE 603 FRE, INABILITY TO
NARRATEORCOMMUNICATEINLANGUAGEOFCOURT,LACKOFPERSONALKNOWLEDGE
RULE602FRE,LACKOFEXPERTISETOTESTIFYASANEXPERTRULE702FRE)[Notethat
thecompetencyunderRULE601FREisthat"everypersoniscompetenttobeawitnessunless
theserulesprovideotherwise.Butinacivilcase,statelawgovernsthewitnessscompetency
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
criminalcases.]

IRRELEVANT IN THE SENSE THAT IT DOES NOT MAKE A FACT OF CONSEQUENCE TO THE
LAWSUITANYMOREORLESSLIKELYRULE401FRE

JUDICIALNOTICEIMPROPERRULE201FRE

JUDGEASKINGQUESTIONTHATIMPROPERLYINFLUENCESTHEJURYAND/ORINTERFERES
WITH COUNSEL'S PRESENTATION OF CASE ( SEE COMMENT ON WEIGHT OF EVIDENCE
TOLERATEDINSOMEJURISDICTIONS,E.G.,FEDERALCOURTSEERULE614FRE)

LACK OF EVIDENTIARY PREDICATE (FOUNDATION) FOR ADMISSION OF TESTIMONY,

EXHIBIT,ORDOCUMENT

LACK OF PERSONAL KNOWLEDGE (WITNESS, OTHER THAN EXPERT, DOES NOT HAVE
FIRSTHANDINFORMATION)RULE602FRE

LAY WITNESS OPINION AND/OR INFERENCE IMPROPER NOT HELPFUL TO CLEAR

UNDERSTANDING OF WITNESS' TESTIMONY OR DETERMINATION OF FACT IN ISSUE, NOT
RATIONALLYBASEDONPERCEPTIONOFWITNESS(E.G.,SEERULE701FRE)

LEADING QUESTION ON DIRECT EXAMINATION (QUESTION SUGGESTS OR COAXES

DESIREDANSWER)RULE611(C)FRE

LEGALCONCLUSION(QUESTIONSCALLSFORORANSWERCONTAINS)RULE

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LIMITED PURPOSE OR PARTY, EVIDENCE ADMISSIBLE ONLY FOR A LIMITED PURPOSE OR
LIMITEDTOAPARTICULARPARTY(ANDOFFEREDGENERALLYORAGAINSTALLPARTIES)
RULE105FRE

MISLEADINGTHEJURY

MISSTATEMENT(MISCHARACTERIZATION)OFEVIDENCEBYCOUNSEL(ORWITNESS)

NONRESPONSIVEANSWER

OFFERTOPLEADGUILTYORNOLOCONTENDEREINADMISSIBLE(SEERULE410FRE)

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
STATEMENTpagewillprovidealongerlistofpossibleobjections.]

OPINIONONULTIMATEISSUE

PRIORBADACTS,MISCONDUCT,WRONGS,OROTHERCRIMES(UNCHARGEDMISCONDUCT,
EXTRANEOUS OFFENSES) IMPROPER TO SHOW PROPENSITY/DISPOSITION (SEE RULE
404(B)FRE)

PRIORCONVICTIONINADMISSIBLE

PRIORSEXUALBEHAVIORIMPROPER

PERSONAL KNOWLEDGE OF LAY WITNESS LACKING (SEE LACK OF PERSONAL

KNOWLDGE)

POSTARREST SILENCE AGAINST THE DEFENDANT, USE OF DEFENDANT'S [See above re

CommentonPostArrestSilenceseealsoDoylev.Ohio,426U.S.610(1976)Fletcherv.Weir,
455U.S.603(1982)]

PRIVILEGED COMMUNICATION (E.G., ATTORNEYCLIENT DOCTORPATIENT (IF ANY)

CLERGY INFORMANT'S IDENTITY SPOUSAL CAPACITY SPOUSAL OR MARITAL
COMMUNICATIONSELFINCRIMINATION)

QUESTIONHASBEENANSWEREDBYWITNESSANDISNOWGIVINGANANSWERTHTGOES
BEYONDTHEQUESTIONPOSED(SEEWITNESSHASANSWERED)

QUESTION ON CROSSEXAMINATION GOES BEYOND SCOPE OF DIRECT AND ISSUES OF

WITNESS CREDIBILITY (APPLIES ONLY IN JURISDICTIONS, E.G., FEDERAL COURT, WHERE
SCOPEOFCROSSISLIMITEDTOSUBJECTOFDIRECTANDISSUESRELATEDTOWITNESS
CREDIBILITY)

REMAINDER RULE, EVIDENCE OF WRITING OR RECORDED STATEMENT SHOULD NOT IN

FAIRNESSBECONSIDEREDCONTEMPORANEOUSLYUNDERTHE

RELEVANCE LACKING (SEE IRRELEVANT) ( E.G., HAS NO TENDENCY TO MAKE EXISTENCE

OFANYFACTOFCONSEQUENCETOTHECASEMOREORLESSPROBABLETHANITWOULD
BEWITHOUTTHEEVIDENCE)

RELIGIOUS BELIEFS OR OPINIONS OF WITNESS INADMISSIBLE TO SHOW WITNESS'

CREDIBILITYIMPAIREDORENHANCED(E.G.,SEERULE610FRE)

REPETITIOUS(SEEASKEDANDANSWERED)

REQUIREMENTOFORIGINALVIOLATED(SEEBESTEVIDENCERULE,ORIGINALDOCUMENT
RULE)

SENTENCEINCREASEBYTHETRIALJUDGEABOVESTATUTORYMAXIMUMVIOLATESSIXTH
AMENDMENTRIGHTTOTRIALBYJURY[SeeBlakelyv.Washington,542U.S.296(2004)]

SEQUESTRATION OF WITNESSES ("THE RULE" OF WITNESSES) VIOLATION (AS WHEN

EVIDENCE THAT ANOTHER WITNESS HAS MADE NOTATIONS UPON IS PRESENTED TO A
TESTIFIYINGWITNESS)

SHACKLING,BINDING,GAGGING,NOTAPPROPRIATEUNDERCIRCUMSTANCES[SeeIllinois
v.Allen,397U.S.337(1970)]

SIDEBARREMARK(SIDEBARREMARKSARESTATEMENTSOFCOUNSELFORONEPARTY
NOT ADDRESSED TO THE COURT AND TYPICALLY MADE WHILE COUNSEL FOR ANOTHER
PARTYISEXAMININGAWITNESS,ARGUINGAQUESTIONTOTHECOURTORADDRESSING
THEJURY.)

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
suppressionhearingtoestablish"standing"maynotbeusedagainstherattrialontheissueof
guilt but see Harris v. New York, 401 U.S. 222 (1971) which allows the use of statements
obtainedinviolationofMirandaforimpeachmentpurposes.]

TRIALINABSENTIANOTPERMITTEDWHEREDEFENDANTNOTPRESENTATBEGINNINGOF
TRIAL ACCUSED HAS RIGHT TO BE PRESENT [See Crosby v. United States, 506 U.S. 255
(1993)UnitedStatesv.Gagnon,470U.S.522(1985)]

UNDUEDELAY

UNFAIRLYPREJUDICIAL(E.G.RULE403FREPOTENTIALDANGEROF"UNFAIR"PREJUDICE
SUBSTANTIALLY OUTWEIGHS PROBATIVE VALUE OBJECTING PARTY HAS BOP OBJECT
THAT THE OTHERWISE ARGUABLY RELEVANT EVIDENCE UNFAIRLY EXAGGERATES THE
TRUTHANDTENDSTOIMPROPERLYSTIRTHEPASSIONSORSYMPATHYOFTHEJURORS)
EVENTHOUGHARGUABLYRELEVANT

VAGUE

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WASTEOFTIME

WEARING PRISON GARB VIOLATES DUE PROCESS [See Estelle v. Williams, 425 U.S. 501
(1976)]

WITNESSHASANSWEREDTHEQUESTIONANDISNOWVOLUNTEERINGANANSWERTOA
QUESTIONTHATHASN'TBEENASKED

QUIK REFERENCE GUIDE

to
OBJECTIONS IN TEXAS CRIMINAL TRIALS
copyrightRayMoses2000
allrightsreserved


HerearesomeusefultrialobjectionsthatcanbemadeincriminaltrialsundertheTexasRules
ofEvidence(2016)(TRE).TheTREaresimilarinmanyrespectstotheFederalRulesof
Evidence(FRE),however,theydodifferinsomesignificantrespects,e.g.,Rule609
impeachmentofawitnesswithpriorconviction,thepresenceofaTexasruleof"optional
completeness,"etc.BecauseourTREaretosomeextentaripoffoftheFRE,readingthe
historyoftheFREprovidesthecourtroomwarriorwithavaluableperspectiveinunderstanding
therulesofthegame.TexascriminallawyersshouldbeawareoftheTexasRulesofAppellate
Procedure(2016)andtheTexasUniformCourtReportersManual.

Objections to the Form of the Question

+ARGUMENTATIVEQUESTIONRule611(a)TRE,FRE.

+ASKEDANDANSWERED(SeeDuplicitous)Rule403TRE,FRE611(a)TRE,FRE.

+ASSUMINGFACTSNOTINEVIDENCERule611(a)TRE,FRE.

+BADGERINGTHEWITNESS(SeeHarassing)Rule611(a)TRE,FRE.

+COMPOUNDQUESTIONRule611(a)TRERule611(a)TRE,FRE.

+ DUPLICITOUS (See Asked and Answered and Needlessly Cumulative) Rule 403 TRE, FRE
Rule611(a)TRE,FRE.

+HARASSINGTHEWITNESSRule611(a)TRE,FRE.

+LEADINGANDSUGGESTIVERule611(c)TRE,FRE.

+NARRATIVERESPONSE,INVITESARule611(a)TRE,FRE.

+REPETITIOUSRule611(a)TRE,FRE.

+UNINTELLIGIBLERule611(a)TRE,FRE.

+VAGUERule611(a)TRE,FRE.

Objections to the Substantive Admissibility of Evidence

+AUTHENTICATION,INSUFFICIENTANDIMPROPERRule901TRE,FRE.

+ BEST EVIDENCE (ORIGINAL WRITING) RULE, NOT THE ORIGINAL WRITING, RECORDING,
ORPHOTOGRAPHRule1002TRE,FRE.

+BOLSTERING
WITHIMPROPERCHARACTEREVIDENCERule607TRERule608TRE,FRE

WITHPRIORCONSISTENTSTATEMENTRule801(e)(1)(b)TRE.Rule801(d)(1)(b)FRE.

+ CHARACTER EVIDENCE, IMPROPER PROOF OF CHARACTER TRAIT OF DEFENDANT OR

VICTIMRule404(a)TRE.

NOTAPERTINENTCHARACTERTRAITOFDEFENDANT/VICTIM.Rule404(a)TRE.

PROSECUTIONOFFERINGEVIDENCEOFDEFENDANT'SPERTINENTCHARACTERTRAIT
BEFORE DEFENDANT OFFERED EVIDENCE OF SUCH CHARACTER TRAIT THEREFORE,
THEEVIDENCEISNOTINPROPERREBUTTAL.Rule404(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
CHARACTEROFTHEVICTIMOFFEREDBYTHEPROSECUTIONINAHOMICIDECASETO
REBUT PREVIOUS DEFENSE EVIDENCE THAT THE VICTIM WAS THE FIRST
AGGRESSOR.]Rule404(a)(2)TRE.

SPECIFICINSTANCESOFDEFENDANT'SCHARACTERTRAITNOTADMISSIBLEBECAUSE
THETRAITISNOTANESSENTIALELEMENTOFTHECHARGEORDEFENSE.Rule405(b)
TRE.

+ CHARACTER EVIDENCE, IMPROPER PROOF OF WITNESS' CHARACTER FOR

TRUTHFULNESSORUNTRUTHFULNESSRule608TRE.

CHARACTERTRAITINQUIRYTOOBROADBECAUSERULE608REFERSONLYTOTRAIT
OF A WITNESS FOR TRUTHFULNESS OR UNTRUTHFULNESS AND NOT CHARACTER
GENERALLYORANYOTHERSPECIFICCHARACTERTRAITSRule608(a)(1)TRE.

MAY NOT BOLSTER YOUR WITNESS WITH POSITIVE EVIDENCE OF TRUTHFUL

CHARACTER BEFORE WITNESS' CHARACTER FOR TRUTHFULNESS HAS BEEN

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ATTACKEDBYREPUTATION,OPINION,OROTHERWISE.Rule608(a)(2)TRE.

SPECIFIC INSTANCES OF WITNESS' CREDIBILITY ["CREDIBILITY" PROBABLY MEANS

"CHARACTERFORTRUTHFULNESS"]ORLACKOFITNOTADMISSIBLEONCROSSORBY
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
SUPPORTTHEWITNESS'CHARACTERFORTRUTHFULNESSANYRIGHTTOCROSSON
ORINTRODUCEEXTRINSICEVIDENCEFOROTHERGROUNDSOFIMPEACHMENT,E.G.,
BIAS,CONTRADICTION,PRIORINCONSISTENTSTATEMENT,ISLEFTTORULES402TRE
AND403TRE,NOT608(B)]

+ CHARACTER EVIDENCE, IMPROPER EFFORT TO IMPEACH WITNESS WITH PROOF OF

PRIORCONVICTIONRule609TRE.

PROOFNOTELICITEDFROMTHEWITNESSORBYPUBLICRECORD.Rule609(a)TRE.

CRIME IN QUESTION NOT A FELONY OR A MISDEMEANOR INVOLVING MORAL

TURPITUDE. Rule 609 (a) TRE. [WHAT CONSTITUTES "MORAL TURPITUDE"
MISDEMEANORDETERMINEDBYCASELAW.]

PROPONENTOFIMPEACHMENTDIDNOTSUSTAINTHEBURDENOFPROVINGTHATTHE
PROBATIVEVALUEOFADMITTINGTHEPROOFOFTHEPRIORCONVICTIONOUTWEIGHS
ITS PREJUDICIAL EFFECT TO THE DEFENSE (OR PROSECUTION). [NOTE: THE
BALANCING TEST HERE, UNLIKE RULE 403 TRE, PREVENTS IMPEACHMENT OF A
WITNESSWITHAPRIORCONVICTION,UNLESSTHEPARTYSEEKINGTOIMPEACHCAN
SUSTAIN THE BURDEN OF PROVING THAT THE PROBATIVE VALUE OF THE
IMPEACHMENT WITH THE OTHERWISE ADMISSIBLE PRIOR OUTWEIGHS ITS
PREJUDICIALEFFECTTOAPARTY.]SEETHEUSV.STATE,845SW2D874(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
involvingviolencebecauseviolentcrimesaremorelikelytohaveaprejudicialeffect.Thesecond
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
offenseandthecurrentoffense.militatesagainstadmissibility,whereasdissimilaritybetweenthe
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
thedefendant'stestimonyversusthetestimonyoftheprosecution'switnesses,theimportanceof
the defendant's testimony 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.Thefifthfactor,whichisverysimilartothefourthfactor,focusesontheimportanceof
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.WithregardtoobtainingareversalforerrorinthetrialcourtsapplicationoftheTheus
balancingtestthecasessaythat"Atrialcourtabusesits"widediscretion"whenitsdecisionto
admitapriorconvictionliesoutsidethezoneofreasonabledisagreement."(1)Rule609(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:THEOTHERWISEREMOTEPRIORCONVICTIONMAYBEADMISSIBLEINTHE
INTERESTS OF JUSTICE IF THE PROPONENT OF THE IMPEACHMENT INTRODUCES
FACTS AND CIRCUMSTANCES THAT PROVE THAT THE PROBATIVE VALUE OF THE
REMOTECONVICTIONSUBSTANTIALLYOUTWEIGHSITSPREJUDICALEFFECT.]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
FELONYORMISDEMEANORINVOLVINGMORALTURPITUDE.Rule609(c)(2)TRE.

THE PROPONENT OF THE CONVICTION WAS ASKED BY THE OPPONENT IN A TIMELY

WRITTENREQUESTTOPROVIDEWRITTENNOTICEOFINTENTTOUSEEVIDENCEOFA
PRIORCONVICTIONTOIMPEACHTHEWITNESSANDTHEPROPONENTFAILEDTOGIVE
THEOPPONENTSUFFICIENTADVANCENOTICETHATWOULDALLOWTHEOPPONENT
A FAIR OPPORTUNITY TO CONTEST THE USE OF SUCH PRIOR CONVICTION TO
IMPEACHTHEWITNESS.Rule609(f)TRE.

+COMPETENCE,WITNESS'LACKOFRule601TRE.

+CONFUSINGTHEISSUESRule403TRE.

+CROSSEXAMINATION,DENIALOFTHERIGHTOFRule611(a)and(b)TRE.

+CUMULATIVEEVIDENCE,NEEDLESSPRESENTATIONOFRule403TRE.

+ EXPERT IS NOT QUALIFIED BY KNOWLEDGE, SKILL, EXPERIENCE, TRAINING OR

EDUCATIONRule703TRE,FRE.

+ EXPERT'S CLAIMED FIELD OF EXPERTISE IS NOT GENERALLY RECOGNIZED AS A

SCIENTIFIC,TECHNICAL,OROTHERWISESPECIALIZEDDISCIPLINERule702TRE.

+ 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
ADMISSIBLETOPROVETHECHARACTEROFAPERSONINORDERTOSHOWCONFORMITY
THEREWITH HOWEVER. PROOF OF PRIOR BAD ACTS MAY BE ADMISSIBLE FOR SOME
LIMITEDPURPOSE,SUCHASPROOFOF(1)motive,(2)opportunity,(3)intent,(4)preparation,(5)
plan,(6)knowledge,(7)identity,(8)absenceofmistakeoffactoraccidentor(9)otherunlistedreason.
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)Rule404(b)TRE.[NOTE:THISRULESEEMSTOALLOWTHEPROPONENTTO
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

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PRIOR BAD ACT IS WEAK, I SUGGEST THAT THE DEFENSE TRY TO KEEP SUCH EVIDENCE
FROM THE JURY AND OBJECT TO IT PRIOR TO ITS INTRODUCTION BEFORE THE JURY ON
THEGROUNDTHATTHEPROSECUTION'SPROOFOFTHEPRIORBADACTISINSUFFICIENT
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 CASEIN
CHIEF,PROVIDEDTHATTHEREISATIMELYDEFENSEREQUESTFORSUCHNOTICE.FINALLY,
ALWAYS REMEMBER THAT IF YOUR RULE 404(b) TRE OBJECTION TO PROOF OF
EXTRANEOUS OFFENSES (UNCHARGED MISCONDUCT, PRIOR BADS ACTS) IS OVERRULED,
YOUSHOULDALSOOBJECTTOTHEPROOFASBEINGINADMISSIBLEUNDERRULE403TRE.
]

+HABIT,INADMISSIBLECONDUCTNOTSUFFICIENTLYSHOWNTOBEROUTINEPRACTICE
Rule406TRE.

+HEARSAYANOUTOFCOURTSTATEMENTBYADECLARANTOFFEREDFORTHETRUTH
OFTHEMATTERASSERTEDRule802TRE.

+ HEARSAY WITHIN HEARSAY ONE PART OF THE COMBINED HEARSAY STATEMENTS

DOESNOTCONFORMTOANEXCEPTIONTOTHEHEARSAYRULERules802TRE&RULE
805TRE.

+IMPEACHMENT,IMPROPER

STATEMENT OR CIRCUMSTANCES SHOWING BIAS OR INTEREST OF WITNESS (1)

WITNESS NOT INFORMED OF CONTENTS AND WHERE, WHEN, AND TO WHOM
STATEMENTSHOWINGBIASORINTERESTWASMADE,OR(2)WITNESSNOTGIVENAN
OPPORTUNITY TO EXPLAIN OR DENY STATEMENT OR CIRCUMSTANCES ON CROSS
EXAMINATIONRule613(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.
Rule608(a)TRE

PRIOR INCONSISTENT STATEMENT OF WITNESS (1) WITNESS NOT INFORMED OF

CONTENTS AND WHERE, WHEN, AND TO WHOM ALLEGED PRIOR INCONSISTENT
STATEMENTWASMADE,OR(2)WITNESSNOTGIVENANOPPORTUNITYTOEXPLAINOR
DENYSTATEMENTONCROSSEXAMINATION.Rule613(a)TRE.

PRIORCONVICTIONOFWITNESSREFERTOCHARACTEREVIDENCERERULE609TRE
ABOVE FOR AN EXPLANATION OF WHEN PROOF OF A WITNESS' PRIOR CONVICTION
MAYBEINADMISSIBLE)Rule609TRE.

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
PROPENSITYTOCOMMITCRIMEINANEFFORTTOSHOWTHEPERSON'SCONDUCTIN
THEINSTANTCASEWASINCONFORMITYTOSUCHPRIORMISCONDUCT.

+ IRRELEVANT HAS NO TENDENCY TO MAKE THE EXISTENCE OF ANY FACT OF

CONSEQUENCE TO THE DETERMINATION OF THE CRIMINAL ACTION MORE PROBABLE OR
LESSPROBABLETHANITWOULDBEWITHOUTTHEEVIDENCERule402TRE.[HINT:YOU
MAYHAVEANOUTOFCOURTSTATEMENTTHATQUALIFIESASADMISSIBLEHEARSAY,BUT
WHICH IS INADMISSIBLE BECAUSE IT IS NOT RELEVANT ALWAYS ASK YOURSELF IF THE
OUTOFCOURT STATEMENT IS RELEVANT. ALSO, BE CAREFUL IN YOUR OPENING AND
QUESTIONS NOT TO "OPEN THE DOOR" (EXPAND THE ADMISSIBILITY) TO DAMAGING
EVIDENCETHATOTHERWISEWOULDBEIRRELEVANT.]

+JUDICIALNOTICE,IMPROPERRule201TRE.

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
BEREASONABLYDISPUTED.Rule201(b)TRE.

THEOBJECTINGPARTY,AFTERMAKINGATIMELYREQUEST,HASNOTBEENGIVENAN
OPPORTUNITY TO BE HEARD AS TO THE PROPRIETY OF THE TRIAL COURT TAKING
JUDICIALNOTICE.Rule201(e)TRE.

+KNOWLEDGE.LACKOFPERSONALRule602TRE,FRE.SEE"PERSONALKNOWLEDGE,
LACKOF"BELOW.

+LAYOPINION,IMPROPERRule701TRE.

+LEADINGQUESTIONRule611(c)TRE.

+MISLEADINGTHEJURYRule403TRE.

+MISQUOTINGTHERECORDRule611(a)TRE.

+NARRATIVEANSWERRule611(a)TRE.

+PERSONALKNOWLEDGE,NONEXPERTWITNESS'LACKOFRule602TRE.[NOTETHAT
THE LACK OF PERSONAL KNOWLEDGE OBJECTION APPLIES TO THE HEASAY (OUTOF
COURT)DECLARANTASWELLASTOTHEINCOURTDECLARANT.SO,THISOBJECETIONIS
VALID UNLESS THE FACTS WOULD SUPPORT A FINDING THAT THE OUT OF COURT
DECLARANTHADPERSONALKNOWLEDGEOFHISASSERTIONOFFACTWHENTHEOUTOF
COURTASSERTIONISOFFFEREDFORTHETRUTHOFTHEMATTERASSERTED.]

+PLEAS,PLEADISCUSSIONS,ANDRELATEDSTATEMENTS,INADMISSBILERule410TRE.

+PRIVILEGEDCOMMUNICATION

ATTORNEYCLIENTPRIVILEGERule503TRE.
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HUSBANDWIFE(MARITIAL)PRIVILEGERIGHTOFTHEPERSONMAKINGAND/ORTHE
PERSON TO WHOM A CONFIDENTIAL COMMUNICIATION IS MADE PRIVATELY BY THE
PERSON TO THE PERSON'S SPOUSE TO REFUSE TO DISCLOSE AND PREVENT
ANOTHERFROMDISCLOSINGSUCHSTATEMENT.Rule504(a)TRE.

SPOUSALCAPACITYOFONESPOUSETOTESTIFYAGAINSTANOTHERSPOUSEHASA
PERSONALPRIVILEGENOTTOBECALLEDBYPROSECUTIONASAWITNESSAGAINST
OTHERSPOUSE,EXCEPT,THEPRIVILEGEOFAPERSON'SSPOUSENOTTOBECALLED
ASAWITNESSFORTHEPROSECUTIONDOESNOTAPPLYINPROCEEDINGSINWHICH
THEPERSONISCHARGEDWITHACRIMEAGAINSTTHEPERSON'SSPOUSE,AMEMBER
OFTHEHOUSEHOLDOFEITHERSPOUSE,ORANYMINOR.Rule504(b)TRE.

COMMUNICATIONTOANYPERSONINVOLVEDINTHETREATMENTOREXAMINATIONOF
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 PHYSICIANPATIENT PRIVILEGE IN TEXAS
CRIMINALPROCEEDINGS.)

+RELEVANT,NOTRule402TRESEETHEDISCUSSIONUNDER"IRRELEVANT."

+SEQUESTRATIONOFWITNESSES,VIOLATIONOF"THERULE"OFRule614TRE,RULE615
FRE

+SUMMARY,INADMISSIBLE

UNDERLYING WRITINGS, RECORDINGS, AND/OR PHOTOGRAPHS NOT SHOWN TO BE

ADMISSIBLE.Rule1006TRE.

NOADEQUATESHOWINGTHATSUCHITEMSCANNOTBECONVENIENTLYEXAMINEDIN
COURT.RULE1006TRE.

ORIGINALSORDUPLICATESNOTMADEAVAILABLEFOREXAMINATIONORCOPYINGBY
OTHERPARTIESATREASONABLETIMEANDPLACE.Rule1006TRE.

+UNDUEDELAYRule403TRE.

+UNFAIRPREJUDICE,DANGEROFSUBSTANTIALLYOUTWEIGHSTHEPROBATIVEVALUEOF
THE EVIDENCE (OBJECTING PARTY HAS BURDEN OF PROOF TO EXCLUDE OTHERWISE
RELEVANTEVIDENCE)Rule403TRE.YOUR"FALLBACK"OBJECTIONWHENEVIDENCEIS
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
PREJUDICIALSTIPULATION,SEETIP6BELOW.[Note:ARule403TREanalysisbythetrialcourt
shouldinclude,butisnotlimitedto,thefollowingfactors:(1)theprobativevalueoftheevidence(2)
thepotentialoftheevidencetoimpressthejuryinsomeirrationalbutneverthelessindelibleway(3)
thetimetheproponentneedstodeveloptheevidenceand(4)theproponent'sneedfortheevidence.]

CHART OF SOURCES OF INDIVIDUAL RIGHTS

State courts must enforce federal constitutional rights that apply to state court proceedings. A state
courtalsohaspowertoconstruestateconstitutionalprovisionsinamannerthatmorebroadlyprotects
individual rights than the federal constitution. Of course, a state court may construe the state
constitutioninlockstep(completeharmony)withthefederalconstitutionoritcanlookfirst(primacy)
tothestateconstitutionoritcanaddressthefederalconstitutionalclaimfirstoritcanlookatboththe
stateandfederalrights.Onepossibleeffectofthesharpcurtailmentofconstitutionaldueprocessby
theUnitedStatesSupremeCourtandcrimecontrolorientedfederaljudgesistherevitalizationofstate
supreme courts concern for individual rights. In making objections, defense lawyers may find it
efficacioustorelyonstateconstitutionsandbillsofrightsaswelltheBillofRightsoftheUnitedStates
Constitution.

Usethismodeltomakeyourselfachartthatreferencesyourstateconstitutionandproceduralcode.
ThismodelisonethatIputtogethermanyyearsago

ProtectedRightFederalConstitutionStateConstitutionStateCodeofProcedure
BillofRights(ExampleTX)(ExampleTX)

SpeechandPressFirstAmendmentTexasArt.1,Sec.8Art.1.16

IllegalSearchFourthAmendmentTexasArt.1,Sec.9Arts.1.06,
Arts.14.0114.06
Arts.15.0115.17
Arts.16.0116.21
Arts.18.0118.21

SelfIncriminationFifthAmendmentTexasArt.1,Sec.10Arts.1.05,
Arts.38.21,38.22

GrandJuryFifthAmendmentTexasArt.1,Sec.10Arts.1.05,1.141
Chs.19,20,21

DoubleJeopardyFifthAmendmentTexasArt.1,Sec.14Arts.1.10,1.11,36.33

DueProcessFifthAmendmentTexasArt.1,Sec.19Art.1.04
(FederalCases)

DueProcessFourteenthAmendmentTexasArt.1,Sec.19Art.1.04
(StateCases)

SpeedyTrialSixthAmendmentTexasArt.1,Sec.10Art.1.05

JuryTrialSixthAmendmentTexasArt.1,Sec.10Arts.1.05,1.12,1.13,
1.15,36.19,36.29
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PublicTrialSixthAmendmentArt.1.24

AccusationSixthAmendmentTexasArt.1,Sec.10Art.1.05

Confrontation&SixthAmendmentTexasArt.1,Sec.10Arts.1.05,1.15,1.25,
CrossExamination38.071

CompulsorySixthAmendmentTexasArt.1,Sec.10Art.1.05
Process

AssistanceofSixthAmendmentTexasArt.1,Sec.10Art.1.05
Counsel

ExcessiveBailEighthAmendmentTexasArt.1,Secs.11Arts.1.07,17.0117.38
&13

Cruel&UnusualEighthAmendmentTexasArt.1,Sec.13Arts.1.09,16.21,43.24
Punishment

EqualProtectionFourteenthAmendment

ProofBeyondAInreWinshipArt.1.08
ReasonableDoubt

ExclusionaryRuleMappv.OhioArt.38.23

HabeasCorpusTexasArt.1,Sec.12Art.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 MOTIONIN 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
INADMISSIBLEEVIDENCE.(1PRESERVINGERRORINFEDERALCOURT13PAGES)

+TIP2:IFYOUMOVETOEXCLUDEORSUPPRESSEVIDENCEANDYOURMOTIONTOEXCLUDE
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
HAVETOOBJECTTOTHEADMISSIONOFTHEEVIDENCEAGAINATTHETIMEITISOFFEREDAT
TRIAL.SEERULE103(a)FREANDTRE.

+ 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
EXPOSESHIMSELFTOTHEIMPEACHMENT.SEELUCEV.UNITEDSTATES,469U.S.38(1984).

+ TIP 4: BE VERY CAREFUL WHEN YOU MAKE A SOCALLED "RUNNING OBJECTION" BE

CERTAINTHATYOURORIGINALOBJECTIONISASPERFECTLYFORMEDASPOSSIBLEDONOT
TREATYOURRUNNINGOBJECTIONASCARRYINGOVERTOALLWITNESSESWITHEACHNEW
WITNESS WITH WHOM THE OBJECTIONABLE SUBJECT IS RAISED, EXPRESSLY STATE YOUR
OBJECTIONINTOTHERECORDANDASKFORARUNNINGOBJECTIONTOANYSUCHINQUIRIES
OFTHATWITNESS.TEXASLAWYERSSEETHIS4PAGEARTICLE

+ 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
OFFEREVIDENCEOTHERTHANAWRITINGORRECORDEDSTATEMENT,THEOPPOSITIONDOES
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
TRIALSTHERULEOFOPTIONALCOMPLETENESS(ROC)NOTCONTAINEDINTHEFRE.THEROC
ISBROADERTHANTHEREMAINDERRULEOFRULE106FRE&TRE.THEROCAPPLIESTOACTS,
DECLARATIONS, AND CONVERSATIONS, AS WELL AS TO WRITINGS AND RECORDED
STATEMENTSHOWEVER,THEROCDOESNOTALLOWCONTEMPORANEOUSINTRODUCTIONOF
SUCH UNWRITTEN OR RECORDED ACTS, DECLARATIONS, AND CONVERSATIONS, ASSUMING
THEYAREOTHERWISEADMISSIBLE.]

+ TIP 6: IN LIEU OF ACTUAL EVIDENCE, OFFER TO STIPULATE TO OTHERWISE ADMISSIBLE

PRIORCONVICTIONSALLEGEDFORENHANCEMENT.ARGUETHATTHISWILLPREVENTUNFAIR
PREJUDICE, E.G., UNDER RULE 403 FRE & TRE CITE THE USSC CASE OF OLD CHIEF V. UNITED
STATES,519U.S.172(1997).IFTHECOURTDENIESYOURREQUESTFORANAGREEDSTIPLATION
OFTHEPRIORS,OBJECTTHATTHERULINGISUNFAIRLYPREJUDICIALINTHATTHEDANGEROF
UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHS THE PROBATIVE VALUE OF ALLOWING
INTRODUCTIONOFREALEVIDENCEOFTHEPRIORS.

+ TIP 7: IF YOUR OPPONENT TRIES TO INTRODUCE A SUMMARY WITHOUT MAKING

ARRANGEMENTS FOR YOU TO SEE THE UNDERLYING MATERIALS AT A REASONABLE TIME
ANDPLACEOUTOFCOURT,OBJECTTOTHESUMMARYUNDERRULE1006FRE&TRE.

+ TIP 8: OBJECT IF YOUR OPPONENT TRIES TO REQUIRE YOUR WITNESS TO CHARACTERIZE

THETESTIMONYOFANOTHERWITNESS,E.G.,ASWHEREAPROSECUTORASKSADEFENDANT
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.,
RULE608FRE&TRE,MAYALLOWONEWITNESSTOVENTUREANOPINIONREGARDINGTHE
TRUTHANDVERACITYOFANOTHERWITNESSWHENASUFFICIENTSHOWINGOFFAMILIARITY

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ISSHOWNBUTTHERULESDONOTALLOWTHEOPINIONCHARACTERWITNESSTOVENTURE
AN OPINION ON THE TRUTH OF THE TESTIMONY OF ANOTHER WITNESS. NEITHER LAY NOR
EXPERTWITNESSESSHOULDBEALLOWEDTOTESTIFYTHATANOTHERWITNESSISLYINGOR
FAKING.THATDETERMINATIONISFORTHEJURY.INSUPPORTOFTHEOBJECTION,ALSOCITE
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
SUCHAQUESTIONUNFAIRLYPLACESTHEWITNESSINSUCHANUNFLATTERINGLIGHTASTO
POTENTIALLY UNDERMINE HIS ENTIRE TESTIMONY. ARGUE THAT OPPOSING COUNSEL
SHOULDBEARTICULATEENOUGHTOSHOWTHEJURYWHERETHETESTIMONYOFWITNESSES
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
STILLMAYBEEXCLUDEDUNDERRULE403FRE&TREIFITSPROBATIVEVALUEISSHOWNTO
BE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE NOTE THAT THE
BURDENOFPROOFISONTHEOPPONENTOFTHEEVIDENCE,I.E.,THEOBJECTINGPARTY,NOT
THEPARTY,PROPONENT,SEEKINGTOINTRODUCETHEUNCHARGEDCONDUCTEVIDENCE.

+TIP10:RULE602FRE&TRE REQUIRING PERSONAL KNOWLEDGE OF ALL FACT WITNESSES

OTHER THAN EXPERTS APPLIES TO HEARSAY DCLARANTS AS WELL AS INCOURT
DECLARANTS. YOU MAY OBJECT TO LACK OF KNOWLEDGE ON THE PART OF THE HEARSAY
DECLARANT.

+TIP11:BEWARYOFDYINGDECLARATIONSBYTHEPROSECUTIONINJURISDICTIONSWHERE
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
PROSECUTIONISFORSOMEFORMOFCRIMINALHOMICIDE.ONTHEOTHERHAND,TRE804(B)
(2) DOES NOT RESTRICT THE ADMISSIBILITY OF DYING DECLARATIONS TO CRIMINAL
HOMICIDECASES,BUTITDOESREQUIRETHATTHEDECLARANTBEUNAVAILABLE.THEREIS
NOCAUSEOFACTIONRESTRICTIONASTOTHEADMISSIBILITYOFDYINGDECLARATIONSIN
FEDERALORTEXASCIVILCASES.]

+TIP12:IFYOUWANTTOINTRODUCEEVIDENCETHATMAYBECONTROVERSIAL,ANTICIPATE
THEEVIDENTIARYPROBLEMSINADVANCEANDCONSIDERALERTINGTHEJUDGETHATYOU
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
OBJECTIONTOSUCHEVIDENCELETTHECOURTKNOWTHATIFTHEOPPOSITION'SOBJECTION
IS SUSTAINED, YOU WISH TO MAKE AN OFFER OF PROOF OR PROFFER BE READY TO MAKE
WITNESSOFFEROFPROOF,RATHERTHANALAWYEROFFER,IFTHEOTHERSIDEDEMANDSIT
BE CERTAIN TO GET A RULING ON YOUR OFFER OF PROOF (PROFFER) SOMETIMES JUDGES
WILLCHANGETHEIRRULINGSAFTERHEARINGTHEOFFEROFPROOFANDKNOWINGITMAY
NOWBEAGROUNDFORAPPEAL.

+TIP13:BEZEALOUSINREQUIRINGTHECOURTTOENFORCETHERULESOFTHEGAME,BUT
BE CONSISTENTLY CIVIL WITH THE COURT IN MAKING YOUR OBJECTIONS. DON'T BE A
HYPERCRITICAL,CARPINGCENSORTOOREADYTORAISEOBJECTIONSTOTRIVIALMATTERS.
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
ABOUTLAWYERSLIKEOLDMAIDSDOABOUTROUGHSEX.

+ 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
SUBPOENAEDWITNESS.

+TIP15:IFYOUCALLANADVERSEPARTYORAWITNESSALIGNEDORIDENTIFIEDWITHTHE
OPPOSITION,REMEMBERTHATYOUCANOBJECTTOTHEOPPOSITIONLEADINGTHEADVERSE
WITNESSONCROSS.(INTHISSITUATION,YOUALSOHAVETHERIGHTTOLEADTHEADVERSE
WITNESSONDIRECT.)

+TIP16:OBJECTBEFORETHEDAMAGEISDONE.

+TIP17:LEARNTOWEAVETHEPHILOSOPHICALPURPOSEOFTHEEVIDENTIARYRULESINTO
THESUBSTANCEOFYOUROBJECTION.

+TIP18:BESURETOCLARIFYTHEIMPROPERNONVERBALGESTURESOFYOUROPPONENT
(OR THE JUDGE) FOR THE RECORD BY DICTATING A VERBAL DESCRIPTION OF WHAT
HAPPENED.NEVERFORGETTHATASFARASTHEAPPELLATECOURTISCONCERNEDIFITISN'T
INTHERECORD,ITDIDN'THAPPEN!

+TIP19:ASAGENERALRULE,DURINGTHETRIAL,DON'TGO"OFFTHERECORD."THISMEANS
THATYOUSHOULDNOTACCEDETOTHECOURT'SREQUESTTODISCUSSTHECASEOFFTHE
RECORD. IF THE COURT INSISTS THAT ITS WORDS BE OFF THE RECORD AND ORDERS THE
COURTREPORTERNOTTOTRANSCRIBEITSCOMMENTS,WAITUNTILTHECOURTISFINISHED.
DO NOT INTERRUPT THE COURT, AND DO NOT MAKE ANY OFF THE RECORD RESPONSE OR
COMMENT.IFTHECOURT'SOFFTHERECORDCOMMENTSAREOFSUFFICIENTCONTENT,WAIT
UNTIL TESTIMONY RESUMES, AND STATE INTO THE RECORD WHAT THE COURT SAID IN ITS
"OFFTHERECORD"COMMENTSTOYOU.[NOTE:THISWILLNOTENDEARYOUTOTHECOURT,
BUT WILL PROTECT YOUR CLIENT AND SERVE AS NOTICE THAT YOU WON'T SUBMIT TO
BULLYINGTACTICSBYTHEJUDGE.]

+ TIP 20: REMEMBER THAT YOU STILL HAVE A GOOD HEARSAY OBJECTION WHEN YOUR
OPPONENTASKSAWITNESSTOPARAPHRASEORSUMMARIZEWHATADECLARANTSAID.THE
CUNNING OPPONENT MAY TRY THIS PARLOR TRICK BY SAYING, "WITHOUT TELLING US
EXACTLYWHATWASSAID,TELLUSTHEGISTOFWHATYOURINVESTIGATIONREVEALED."

+ 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.
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+ TIP 22: WHEN YOU ARE OBJECTING TO YOUR OPPONENT'S FAILURE TO ESTABLISH AN
EVIDENTIARYFOUNDATIONORPREDICATETHROUGHAWITNESS'ANSWERS,REMEMBERTHAT
THE PROPONENT OF THE EVIDENCE MUST GENERALLY CONVINCE THE TRIAL JUDGE BY A
PREPONDERANCEOFTHEEVIDENCETHATTHEFOUNDATIONFACTSARETRUE.

+TIP23:CERTAINFRONTENDPREFATORYWORDS,E.G.,"SO,"ORPHRASES,E.G.,"WOULDYOU
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
QUESTIONTHATASKSTHEWITNESSTOSPECULATE.

+ 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
"OPENINGTHEDOOR"THEORY.THESEARETHREELABELSFORTHERULEOFJURYARGUMENT,
RECOGNIZED IN SOME CASES, THAT ALLOWS ONE SIDE TO REPLY TO IMPROPER ARGUMENT
OFTHEOTHERSIDE.

+ 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
FEDERALRULESOFEVIDENCEATTHEBOTTOMOFTHEPROBLEMPAGE.USETHERULESASA
RESOURCEINTRYINGTOSOLVETHEEVIDENCEPROBLEMS.

PRACTICE TIPS FOR MEETING AND DEFEATING

OBJECTIONS

+TIP1:RULE404(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
EXAMPLESOFPROPERPURPOSESFORPROOFOFUNCHARGEDMISCONDUCT.

+ TIP 2: WHEN INTRODUCING BUSINESS RECORDS, VET THEM IN ADVANCE TO BE CERTAIN

THEYDON'TINCLUDEMATERIALSRECEIVEDFROMOUTSIDESOURCESTHATDON'TCOMPLY
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
WELLASTOTHE"TREATING"DOCTOR.SEERULE803(4)FRE&TRE.

+TIP4:ANADOPTIVEADMISSION(STATEMENT)UNDERRULE801(d)(2)(B)FRE&RULE801(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
ITSTRUTH.

+TIP5:REMEMBER THAT RULE 806 FRE&TRE ALLOWS YOU TO IMPEACH THE CREDIBILITY
FORANONWITNESSCOCONSPIRATORDECLARANT,WHOSESTATEMENTISOFFEREDAGAINST
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 NONTESTIFYING DECLARANT WITH PROOF OF: (1) ADMISSIBLE PRIOR
CONVICTIONSUNDERRULE609FRE&TRE(2)LACKOFPERCEPTION(3)BIASORANIMUSOR
INTEREST (4) PRIOR INCONSISTENT STATEMENT UNDER RULE 613 FRE & TRE WITHOUT THE
NECESSITYOFAFFORDINGTHEDECLARANTANOPPORTUNITYTODENYOREXPLAIN(5)BAD
CHARACTEREVIDENCERETRUTHFULNESSUNDERRULE608FRE&TRE,ETC.[NOTE:ITMAKES
SENSETHATTHERULESALL0WYOUTOMAKETHISATTACKONANONWITNESS.OTHERWISE,
YOUR OPPONENT COULD WALL OFF IMPEACHING EVIDENCE SIMPLY BY INTRODUCING THE
COCONSPIRATOR'S OUTOF COURT STATEMENTS AND KEEPING THE COCONSPIRATOR OFF
THESTAND.]

+TIP6:IFYOUPLANTOINTRODUCEASUMMARYOFVOLUMINOUSWRITINGS,RECORDINGS,
AND/ORPHOTOGRAPHSTHATCANNOTBECONVENIENTLYEXAMINEDINCOURT,BESURETO
MAKE ARANGEMENTS FOR THE OPPOSITION TO VIEW THE DOCUMENTS UNDERLYING THE
SUMMARY MATERIALS AT A REASONABLE TIME AND PLACE. BEND OVER BACKWARDS TO
ACCOMMODATETHEOPPOSITIONBECAUSETHECOURTHASTHEPOWERTOORDERTHATTHE
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 SELFAUTHENTICATION CERTIFICATE TO ESTABLISH
THENECESSARYPREDICATEFORTHEEXCEPTION.SEERULE902FRE&TRE,CONTAININGTHE
FORMFORTHECERTIFICATE.

+ TIP 7: IF YOUR OBJECTION TO EVIDENCE IS SUSTAINED AND THE OPPOSING COUNSEL

MAKESANOFFEROFPROOF,REQUESTTHATTHEOFFEROFPROOFBEINWITNESSFORM,I.E.,
THATTHEOFFEROFPROOFBEINQ&AOFTHEWITNESS.YOUHAVETHISRIGHTUNDERRULE
103(B)TRE.HOWEVER,FRE103(C)VESTSTHETRIALJUDGEWITHTHEDECISIONOFWHETHER
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 CROSSEXAMINE 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 ONESIDED THAT THE COURT WILL REVERSE
ITSRULINGANDADMITTHEHARMFULEVIDENCE.

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