Sara Stapleton

Sara Stapleton studied music at University of North Texas, graduating with a degree in voice performance from Antioch College in Yellow Springs, Ohio. She taught music at Incarnate Word Academy in Brownsville before attending law school at Thurgood Marshall in Houston. While in college, she served an internship assisting in the voir dire of a capital murder case in Nashville, Tennessee, where she worked for one of the top federal death penalty lawyers in the country, Rick Kammen. Sara, who serves as a director for the Cameron County Bar Association, was the first intern at Gerry Spence’s Trial Lawyer College near Dubois, Wyoming.

Learning the Rules of Evidence the Hard, Slow Way

In earlier articles, we offered 25 rules of evidence in our order of importance. That leads to the question of how best to learn them? Memory is a big subject and important beyond learning what needs to be known about evidence. For this article, although we focus on evidence rules, we believe these principles also apply as well to learning rules of procedure, elements of the offense, punishments for the offense, the facts of the case, and the text of an opening statement of the case. The goal is for most of the trial to be defended without notes so the defender can pay closer attention to the reactions of the jurors, judge, prosecutors, and witnesses. Also, we find that the more we memorize something, the more the meaning of the passages becomes clear. For example, although we may read and understand the text of Rule 602 on personal knowledge, memorizing the text of the rule gives a deeper understanding.

The bigger picture about memorizing is the classical rhetoric element of Memoria. Memoria is more than just learning words by heart, because it requires the material be important enough to remember and contain an order or rhythm or rhyme or beauty that keep the words in our minds. The main sources for memory techniques are Aristotle, Quintilian, Augustine, Aquinas, and some modern memory gurus who enter contests and do tricks or who do psychological studies of memories (their names can be found in the bibliography). The explanations from evolutionary psychology help us understand why the rhetoricians—ancient, medieval, and modern—were right when they taught memory skills. From evolutionary psychology, we learn human beings are particularly strong at remembering different objects and distinguishing them and finding their way home but not so strong with abstractions such as ideas, names, and numbers.

This is how I imagine the process for the evolving hunters and gatherers: Jack and Jill are members of a hunting and gathering tribe. What they do well is walk a long way from camp and their other tribe members and find edible plants and potable water, eggs, grubs, and the occasional rodent. They see, hear, taste, smell, and feel these things. If anything is weird or scary, they will more likely remember it because they must avoid danger. I see them making up rhymes and songs to help them remember where they have been and what they found. What Jack and Jill do very well is remember plants and animals and geographic landmarks (to go out and get back) and how to avoid dangers—lions, tar pits, that sort of thing. “Jack and Jill went up the hill to fetch a pail of water . . .” My understanding from the evolutionary psychologists is we still have this same kind of memory.

The classic methods for memorizing are confirmed in their effectiveness by the modern studies of memory. That having been said, not everyone agrees about the best way to memorize or how it works. I think the best short text on how to memorize is still Quintilian’s Institutes of Oratory, Book 11, Chapter 2 (http://eserver.org/rhetoric/quintilian/11/chapter2.html#1). Once you have tasted this treat, I think you may find the whole of the bibliography we have included compelling.

What should we know about memory before we try to memorize?

Based on the readings in the bibliography, here are some conclusions about memory:

  • Anyone with a normal, undamaged mind can do it.
  • No one is particularly good at it without using special techniques, and slow learners may hold the memory longer.
  • Except for some children with eidetic memories and people with rare forms of mental disabilities, no one remembers everything.
  • People who claim “photographic memories” have always been found to use memory techniques.
  • Abstractions (like the numbers in the rules of evidence) are hard to remember.
  • We can best remember abstractions by:
    • Associating the images, words, letters, and numbers to a geographic location so we can go there and “see” what we have remembered—the loci method.
    • Turning the numbers into letters so we can turn them into words and images.
    • Hooking items together in a sequence like we would if we were observing them on a walk or in a room.
    • Hooking the words together in a weird manner so we can envision images.
  • Prose and poetry are hard to memorize and must be learned in a manner different from learning lists.
  • Memory is either short-term memory or becomes, later, long-term memory, and the two types are stored in different parts of the brain.
  • We all quickly forget most of what we learn in short-term memory if it is not moved to a different part of the brain.
  • The hippocampus processes those short-term memories into long-term memories and puts them in other parts of the brain. It is like a librarian for memories.
  • Once a memory becomes long-term, it is much more slowly forgotten and can be pulled up and polished off for reuse if it is needed.
  • We place things in long-term memory with repetition over a period of time. Repeating something once a week for 20 weeks is more effective than repeating it 20 times in one day.
  • We place things in long-term memory that are unusual or frightening.
  • We place things in long-term memory that are important to us.
  • Sleep will sometimes improve the memory of something we practiced the day before.

How to learn lists of things

We will next give a list of steps for learning the rules of evidence. I am not sure which of these works and if any of the steps can be cut out or expanded upon to the benefit of different individuals. In fact, some memory wizards argue in favor of skipping the first six steps completely and going directly to the repetition steps we use for memorizing poetry or prose. It reminds me of what a political campaign worker told me once: “Ninety percent of what we do in a campaign doesn’t help at all. It is just that we don’t know which ninety percent it is, so we have to do everything.”

This approach will be to learn the rule numbers and content corresponding to the Texas rules (to the extent they are different from the federal rules) and memorizing the text of the federal rules. This plan reflects our practice, because we go to trial in both state and federal courts, but probably a little more in the state court. The federal restyled rules are more clearly stated and easier to memorize. Also, we anticipate Texas will eventually adopt the restyled language.

Reviewing the lists

1.   Read the restyled federal rules of evidence. It was amended in 2011, and you can find it online. Although it is different in some ways from the Texas rules, it is more clearly stated and will help even if you only do state court defense.

2.   Read through all of the rules and annotations. The TCDLA publication Hampton, C., & Wischkaemper, P. (2009), ­TCDLA’s Annotated Texas Rules of Evidence and Rules of Appellate Procedure, Austin, Texas, is a good place to start. Do not try to memorize anything at this stage. Do not get bogged down in the annotations—in fact, skip over them if they are not from the United States Supreme Court, the Court of Criminal Appeals, or your court of appeals. For instance, if you are from Brownsville, you may want to read the annotations for Corpus Christi and skip the rest. Also, do not get bogged down in the civil rules. Skip those dealing with trade secrets and subsequent remedial measures if you like. You may need them later as place-savers if you are learning the rules in sequence. Do not be disappointed after you do this if you do not feel you know anymore than when you started—we know that much of memory involves the unconscious, and you are beginning to form the basis for lodging these matters in the memory.

The major memory system for turning numbers into words

3.   Look over the major memory system for converting rule numbers to letters, then words, and then images. Here is a site that describes it: http://www.academictips.org/memory/majorsys.html. This is a controversial step because the learning curve is long and the application of the system is a lot of work. If you want help with ideas for turning certain numbers into the words, try http://www.phoneticmnemonic.com/lookup.php?num=103&submit=Lookup.

The loci method

4.   This originates from a story told over and over by the memory experts about a guy who left a building just before it collapsed. The falling building killed everyone eating at a feast inside. The lone survivor was able to remember everyone in the building by going, in his mind, from place to place so he could identify the dead. Everyone using a system seems to start here, and we will do the same. Using a loci method, link each article in the rules to a separate room in your house, office, or a street you may walk for your morning constitutional. Within that room or street, assign each rule a separate location related to an object. For rules with complex parts, assign each part an object. Rule 803 (hearsay exceptions) will need a room all its own, as will Rule 901(b) (authentication illustrations). The parts of Article 38 of the Texas Code of Criminal Procedure warrant a room.
 You may wish to apply the major memory system for remembering the rule numbers and place something that will help you remember the meaning of the rule at that location, but this is not critical at this stage because each of the rooms you use will have certain objects for you to survey as you go around the room. Because you know Rule 602 follows Rule 601, you have a basis for knowing that 601 is related to the lamp and 602 is related to the ape statue. For example, I use my study at home (I call it the Clarence Darrow room) as the place to memorize Article VI on witnesses. Each of the rules, 601 through 607 is identified with an object in the room (a desk lamp, a statue of an ape holding a human skull, a cane holder full of walking canes, an antique Chinese chair, an antique Chinese table, a framed picture of grand kids, and a large wooden gavel).
 Rule 608 has two parts that I have given two locations close together (a wall clock and the statue of the La Virgen). Rules 609 and 610 are a rug and a chair. Rule 611 has three parts: my fat bulldog, his basket of toys, and his leash. Rules 612 through 615 are a printer, a modem, a computer screen, and a keyboard. Then, for instance, to remember the most important of rules, 602, is associated with an ape holding a human skull. The ape is studying the skull so he can describe it later; he is gaining personal knowledge. The ape has his five fingers on his chin and is repeating each of the senses to try to remember qualities of the skull, one finger at a time: sight, smell, hearing, taste, and feel. So, thinking about this rule, I think of the statue. I remember Rule 602 is about personal knowledge and this involves the five senses.
 If I wish to get an image to connect the major memory system to the rule, I convert the rule number to an image. 602 is “chosen.” (In applying the major memory system described above, we say the 6 is sounded as “ch” or “sh,” the 0 is “s,” and the 2 is “n.”) So, I imagine Moses as one of God’s chosen people. That is Moses’ skull the ape is pondering. Later, if I need to connect an important case to the rule, I can get similar devices to remember the case connected to the rule. Other rooms in the house are dedicated to other articles or sections in the rules of evidence. The guest bedroom (we call the Eugene V. Debs room) has 24 items or places associated with 24 exceptions to the hearsay rule. The Dorothy Day living room has 13 locations or articles identified with 13 privileges in Article V: Privileges. The Big Bill Haywood kitchen has 13 locations related to relevancy. (Rule 404 has two locations for (a) and (b).) The rooms have names of historical people in case I need an image to associate. The rooms and their locations can be reused for memorizing other matters as well. This is called a memory palace, but you will want to build your own.

The linking method

5.   Using a linking method, connect the rules in order. In order to list the rules in order, you will want the number of the rule, so you will want to develop the major memory system for converting numbers to letters and creating an image in your mind. Learn all of the rule numbers in sequence, hooking them together in a sequence. Here are some examples:

  • 101 is “toast.” Think of animated slice of toast wearing a monocle in one eye, representing his title, and looking through a telescope with the other eye. This Texas rule clarifies where the rules of evidence do not apply—hearings under Rule 104, grand juries, habeas corpus, competency, bail, warrants, contempt—while these exceptions are in Federal Rule 1101.
  • The toast is attacked by 12 (102 is “dozen”) porpoises, who eat him up. Rule 102 is related to the porpoise or “purpose” of the rules.
  • One of the dozen porpoises is an “atheist” (103), and just like Judas, he betrays us by failing to make an objection and getting a ruling on the record.

These are the images that come to my mind with the numbers and rules, but yours may well be different. Under this method, you continue to link images through Rule 107. I would get around to Article II judicial notice last. Here are some starters for Articles IV, VI, and VIII:

  • 401 is “rust” and the rule defines relevant evidence. I use a dancing elephant as the memorable object to symbolize the abstraction of relevant evidence. So think of a dancing elephant covered with rust walking toward the front door of the courthouse.
  • 402 is “raisin,” admits relevant evidence and excludes irrelevant evidence. Think of a giant raisin blocking the door of the courthouse that swings aside when the rusty dancing elephant arrives. But it closes again quickly to keep out a crazy guy.
  • 403 is “résumé,” and the rule is prejudice and confusion, waste of time, and cumulative evidence. Think of a crazy guy, all dirty and smelly, carrying his résumé for a job above his head. He is confused and keeps repeating himself and we will not let him in the door of the courthouse. He climbs in a window with a razor in his pocket.
  • 404 is “razor,” and the rule is character evidence. Think about the crazy guy with a straight razor who runs up and cuts your throat because you forgot to request notice of his prior convictions under 404(b).
  • 601 is “chest.” Imagine an insane person and a child standing side by side beating their chests and bellowing that they want to want to testify. The rule is about competence to be a witness.
  • Imagine they are yelling at Moses. 602 is “chosen,” and the rule is personal knowledge. Think of Moses, one of the chosen people, stopping to use all five senses: seeing, hearing, smelling, tasting, and feeling.
  • 801 is “fist,” and the rule is the definition of hearsay. The prosecution witness is a police officer. He starts trying to say what the witnesses said at the scene and you run up to the stand and try to hit him in the mouth with your fist, but he grabs a fission bomb he has in his pocket.
  • 802 is “fission,” and the rule that excludes hearsay. The cop throws the fission bomb, blows up the courtroom, and the hearsay is destroyed. But your Ma is exposed to the radiation.
  • 803 is “fuse Ma,” and is the rule of hearsay exceptions. There are 24 hearsay exceptions. (The last federal exception has been transferred elsewhere.) Think of your Ma as actually being a Siamese twin or two Ma’s fused together as a result of the radiation exposure. She (they?) are wearing a dress with 24 pockets, and each one contains one of the exceptions.
  • Then you will want a hook to Rule 804 (“face sore”) when the declarant is unavailable.
  • You will likely want to invent your own images for those I have given above. Some of the other words I have used for other rules: 405 is “wrestle.” 609 is “chess bee.” 611 is “jaded.” 701 is “cast.” 702 is “cousin.” 805 is “fossil.” 901 is “pest.” 1006 is “Texas Sage.”

I know all of this sounds awkward. But do not expect to have to keep the clues forever. After a while, the major memory symbols, like a plaster cast into which the gold is poured, is broken away and not needed. I no longer think of Moses when I think of Rule 602 or rust when I think of Rule 402; my mind goes straight to the rule number.

Chunking

6.   We do not learn phone number in groups of seven, but break them into groups of three and four. Chunking is not so much a memory technique like those described above as an organization of the material in a matter that groups similar items to help remember each in the group. The rules of evidence lend themselves to chunking. Here are some recommendations:

  • The most important evidence chunk is composed of Rules 602, 402, and 802. If you add the Confrontation Clause (with Crawford) to those, you will use them over and over during a trial. Much of the police officer testimony we hear in the courthouse should be excluded under these four objections. Evidence offered by a police officer witness for “background” are often violations of these rules.
  • Three easy ones used in every trial: 403 (prejudice), 615 (production of witness statement), 614 (The Rule).
  • Preserving Error: 103, Texas Rule of Appellate Procedure 44.2
  • Reputation: 404(a), 608, 803(21).
  • Crimes: 404(b), 609, 803(22).
  • Opinions: 701, 702, 704. Daubert objections.
  • Dealing with paper: 902, 803(6), 803(8), 901(10)
  • Dealing with doctors: 803(4), 803(18)
  • 803 exceptions (dealing with action at the scene): 1, 2, 3.
  • To keep things orderly: 611(a, b, and c), 1006.
  • Client’s statements outside of trial: 801(e), 803(24), Texas Code of Criminal Procedure, Art. 38.21.
  • Dealing with snitches: 801(e)(2)(E), 508.
  • Spanish-language issues: 604, 1009, 901(6)
  • What the feds have and the state lacks: 1101, 807, 706, Fed CCP 26.2.

Drawbacks to the memory systems for learning lists

I find myself using these first six steps and this method over and over for memorizing lists. But, now for the bad news. Even after you have gone to the trouble of learning the method and memorizing all of the rules by number and in order, within a day or two, if you do not repeat them every day, you will forget them. There is the further problem that I find that by the time I have worked through a list, I am so tired of them that I cannot seem to force myself to do a daily repetition. The benefit I have discovered, though, is that even forgetting the rules by their numbers, there is a residual value. I will have gained a general familiarity of what the rules are and how to find them.

Sometimes, too, a rule will pop into my mind that I did not know I knew, and sometimes that happens in court when I really need it. There is no question that this method works well for parlor tricks, but the experts argue about its value for long-term learning. I still use the memory systems described above because I get worn out with plain repetition and return to the systems so I can make progress without being too bored of brute repetition. I also believe these methods can also be calming similar to other forms of meditation. So I return to them every so often to learn lists.

I have not, however, found these methods helpful for prose or poetry passages, or really even the text of the rules of evidence. I have tried using the methods for prose, but the examples are so long and contrived—forgettable, really—that with memory of prose of the text of the rules, I skip the methods and go to various types of repetition.

Learning poetry, prose, and texts of rules: the awful prospect of memorizing text

I think this is the hardest type of memory work, and apparently that is the consensus of the contestants in the memory competitions. The same guy who can remember 100 places of pi cannot memorize the Gettysburg Address. The methods just do not work as well for prose. On the other hand, memorized passages can be the most useful during different stages of trial. For the rhetoricians, the “treasury of eloquence” was an important part of the work of the orator. Any rule we read out loud to a judge in court should be on the list. Poems, like songs, may be a little easier because the rhyme and rhythm creates a structure that will clue us to certain words that follow. This may also explain why Homer keep mentioning “the rosy fingers of dawn”—the pattern helped him remember. Fortunately, we are not the only ones who need to memorize text, and there are several books that help with their own methods.

The most important passages to learn by heart

These are my suggestions in order of importance:

1.   “A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Rule 602.

2.   Evidence if relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Rule 401.

3.   “Hearsay” means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Rule 801.

4.   “Declarant” means the person who made the statement. Rule 801.

5.   “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. Rule 801. (For the Texas rule, substitute the word “expression” for “assertion” and study 801(c) “Matter asserted”).

6.   If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Rule 701. (For Texas Rule, “opinions or inferences.”)

How to learn the text of the rule by heart

Here are some of the things I have tried for learning the text of the rules of evidence and sooner or later, something seems to work.

1.   Read all the commentary and cases about the rule you can find. Getting context helps in remembering the language of the rule.

2.   Write each sentence in the passage ten times.

3.   Diagram the sentences. http://homeworktips.about.com/od/englishhomework/ss/diagram_10.htm

4.   Strip the sentences down so you can see the subjects, verbs, and objects. That way even complex rules like 702 become manageable: Witness may testify, if knowledge will help trier; testimony is based on facts or data; testimony is product; and, expert has applied principles and methods.

5.   Read the passage into a recorder app on your phone in
a dramatic manner and then play it back to yourself, over and over. This also will let you know how you sound
so you can work on the fifth canon of rhetoric, pronun­tiatio.

6.   Put the passage to music with a familiar tune. (Also, good for pronuntiatio). Here is an example, to the tune of “Are you Sleeping, Brother John?”

A witness may testify
to a matter

only if evidence

is introduced

sufficient to support a finding

that the witness

has personal knowledge

of the matter.

Try it out; it almost works.

7.   Write a poem about the rule or rewrite the rule so it rhymes or repeats. Here is my entry:

A Sonnet to Rule 602

We see, or hear, or taste, or feel, or smell.
Your witness must have knowledge binding.
So lack you not evidence to support a finding
To know his knowledge is personal.
The witness may himself claim he knows the matter.
We trust the senses and teachings of Aquinas
Through five great windows come the truth
Into our minds that sorts the good from clatter.
Only experts need not heed this rule.
They opine on data loose and free
O, expert under Rule Seven Zero Three
May you be qualified and not play the fool.
Our queen of evidence, Six Zero Two
We trust the most that which starts with you.

8.   Use the passage in conversation or in court. Sometimes your friends will indulge you and sometimes it will arise naturally. Be aware that even though you can handily recite the rule when you are alone, sometimes under pressure, it will not come. This is the “blocking” described as one of the sins of memory in Schacter’s book in the bibliography. Do not be too concerned—the paraphrase will still be better than it would have been without the work.

9.   Practice at night and then recite in the morning after a night’s sleep.

10.  Even after you have it word for word, keep reciting it so it will not go away.

Is it worth it?

So is all this work worth it? Alexander Pope provides solace for forgetting the matters learned with so much effort:

Education is what is left after all that has been learnt is forgotten. . . .

and

How happy is the blameless vestal’s lot! The world forgetting, by the world forgot. Eternal sunshine of the spotless mind! Each pray’r accepted, and each wish resign’d. . . .

—From Alexander Pope’s Eloisa to Abelard

Bibliography of memorizing the rules of evidence

This bibliography is neither in alphabetical nor chronological order. Rather, we lists the different books about memory and evidence as if we were preparing a course on memory with many required texts, and then putting them in an order for the class.

The first we offer is probably the least informative, but it is easily accessible:

Lorayne, Harry, and Lucas, Jerry. The Memory Book: The Classic Guide to Improving Your Memory at Work, at School, and at Play, Ballantine Books (1996). This is an easy and practical way to start, with little history or theory. Lorayne was a magician who also played memory tricks. The book does have some practical application for learning how to remember phone numbers—something people once did before there were cell phones. Also, it has some value for putting names to faces, but I still seem to always call people named “Dan” by the name of “Stan” after using the method. There are also many blogs that provide summaries of memory techniques and have suggestions, such as http://memoryskills.blogspot.com/2009/07/major-system.html.

Next, for readers who do not need to rush into immediate practical application, we recommend Foer, Joshua. Moonwalking with Einstein: The Art and Science of Remembering Everything, New York: Penguin Press (2011). This is written by a journalist with no previous experience in memory competitions who took off a year to learn memory techniques and then successfully participated.

For you very serious sorts who want a history and a summary of the great memory teachers, we suggest Yates, Frances A. The Art of Memory, Chicago: University of Chicago Press (1961). I love this book, and the Modern Library declared it one of the top 100 nonfiction books of the 20thcentury. It surveys the great memory teachers of history, most of whom can be found for free online. Quintilian is a great place to start. http://eserver.org/rhetoric/quintilian/11/chapter2.html#1

Schacter, Daniel L. The Seven Sins of Memory: How the Mind Forgets and Remembers, New York: Houghton Mifflin Company (2001). This is the best book I have read explaining why some things are forgotten and others stick in the memory. This book may be the basis for much witness examination: All testimony not given by an expert under Rule 702 is based on personal knowledge under Rule 602. Personal knowledge is based on perceptions of the five senses, and these can only be described by the witness to the extent they are remembered. This book also explains why eyewitness testimony is so weak and why so many firmly believed recollections, and therefore testimony, is false. For the purposes of this article, remembering the rules of evidence, it is much easier to memorize material if we know what our mind is doing with the information. I have asked psychologists about Schacter, and they seem to recognize him, so this should be good Rule 803(18) material in the right cases.

Mlodinow, L. Subliminal: How Your Unconscious Mind Rules Your Behavior. New York: Pantheon Books (2012). We really do not “record” anything in our memories like a video camera may. Rather, the human sensory system sends the brain about eleven million bits of information a second, but our brains handle between 16 and 50 bits a second. Our mind invents a story out of the selected information it can handle and then reinvents the story each time an event is recalled. For this reason, several eyewitnesses will all remember different events and the same eyewitness will remember the event differently every time he thinks about it, with greater changes over time. The unconscious is recognized from St. Augustine (though he does not call it that) to Marshall McLuhan as the best source of a memory palace. Everyone has the ability to infinitely (until we die or lose our minds, and then, according to Augustine, even afterward) recombine images to help us remember.

Vost, K. Memorize the Faith! (and Most Anything Else): Using the Methods of the Great Catholic Medieval Memory Masters, Manchester, New Hampshire: Sophia Institute Press (2006). This is to help Catholics learn and remember the facts of the religion. It develops the techniques of St. Augustine, St. Thomas Aquinas, and St. Albert the Great as they expanded upon Simonides (the guy the building did not fall on), and Aristotle and Marcus Tullius Cicero. Vost uses the method of loci and offers his version of a house and church as the places to put things you want to remember. I like the book as an example of putting the method to work on something a little more weighty than random numbers and lists of names.

Schulz, K. Being Wrong: Adventures in the Margin of Error, New York: HarperCollins Publishers, Inc. (2010). Being wrong is about a misperception (Rule of Evidence 602) or the wrong opinion formed from a perception (Rule of Evidence 701). Schulz quotes (probably misquotes, actually, but it is not so important here) St. Augustine as writing “fallor ergo sum”—I err, therefore I am. She makes a virtue of mistakes and explains why the fallacies are part of everyone’s remembrances and reasoning.

Del Gaudio, J. How to Become Fluent in Spanish: Not for Beginners, Not Quick and Easy, but Really Effective, New York: Published by John V. Del Gaudio (2013). This book is about memorizing words and phrases in Spanish. Most helpful is his suggestion about memorizing and reciting dramatically a paragraph from a well-respected author, Gabriel García Márquez or Horacio Quiroga, once a month. Del Gaudio is a lawyer, so I imagine he uses these techniques in law practice as well. I especially like that he is not afraid to tell us how hard all of this is. I would just as soon know this up front, and for that reason, the title to this article admits this as well.

I keep a reference work on my Kindle: Texas Evidence Rules 2014 Courtroom Quick Reference, Summit Legal Publishing (2014). It has both Texas and federal rules texts (but no annotations), so I can flip back and forth between the text of the two rules. The TCDLA phone app has the same information. These are not meant to be used in court for objections—they are too slow and, hey, why are we going to all of this trouble to spend our time staring down at a phone. Besides, if your federal courts are like the ones in Brownsville, you can not get the phones and iPads into the courtroom anyway.

Hampton, C., and Wischkaemper, P. TCDLA’s Annotated Texas Rules of Evidence and Rules of Appellate Procedure, Austin, Texas: Texas Criminal Defense Lawyers Association (2009); Brown, J., and Rondon, R. Texas Rules of Evidence Handbook, Houston, Texas: Jones McClure Publishing (2014). Goode, S., and Wellborn, O. Courtroom Handbook on Federal Evidence, Eagan, MN: Thomson Reuters (2014). These are the books I carry around and use in our monthly evidence seminars, although they are expensive and I do not always have the most recent volume of everything.

Evidence Treatises. Those multi-volumed tomes on evidence that nobody can afford can be a lot of fun, if you live somewhere with a law library. I have on my Kindle an early 1899 Wigmore: Greenleaf, S., Wigmore, J., and Harriman, E. A Treatise on the Law of Evidence. It is nice for some historical perspective. Both sets of the rules of evidence, Texas and federal, were adopted after I began practicing law and after I studied evidence with Mr. Sutton, so it is interesting to look at the common law that produced the Rules.

Some blogs worth browsing:

http://lawprofessors.typepad.com/evidenceprof/

http://federalevidence.com/blog

http://confrontationright.blogspot.com/

http://www.scotusblog.com/

Literature as a Portal into Human Nature for the Defender

Lawyers seem to agree that a knowledge of human nature helps in the defense of a criminal case. For example, Leonard E. Davies in his book, Anatomy of Cross- Examination: A History and the Techniques of an Ancient Art, emphasizes “a keen understanding of human nature” as the basis for effective cross-examination. Davies at 285. It may be that not everyone needs to study human nature. I do believe that some defenders have excelled at trial with little interest in the subject, but they seem to have had a set of interests and opinions that were shared by other people, their jurors, in a largely homogenous venue. Beyond these, the skilled defenders I have known all studied human nature.

What I offer below is not the “answer” to human nature, of course, but what perhaps will be an insight. It does not say much about emotion, which is key to decision-making. Nor does it talk about group dynamics—an individual and a pair and a jury and a mob are of different sizes and are different from each other. Nonetheless, I hope you find it interesting and helpful. Our theme is the complexity of human nature and human society. As our guide is Hamlet: “What a piece of work is a man! How noble in reason, how infinite in faculty! In form and moving how express and admirable! In action how like an angel, in apprehension how like a god! The beauty of the world. The paragon of animals. And yet, to me, what is this quintessence of dust?” 

Why does a keen understanding of human nature aid in the defense at trial? Understanding human nature allows us to understand why our client may have committed the crime he committed. It helps us tell our client’s story; if we do not know what facts will produce a reaction of pity or terror in our audience, we will be unable to select events that matter to the story. Understanding human nature helps us pick a jury and perhaps provides a hunch about which jurors will help or hurt us. Studying human nature helps us predict how a person will respond to our actions or answer a question in direct or cross-examination. Being correct about these aspects of human nature will help us make the decisions in trial. Certain jurors may disagree with us about aspects of human nature and this is worth understanding as well. 

What must the defender know about human nature? Many fields require a study of human nature. Economists, anthropologists, and theologians, for example, all develop theories of how people act. Although these are all of interest, as criminal defenders our immediate needs are more limited. It may not be important to us whether people act the way they do because of nature or nurture, but we may want to know how prospective jurors or witnesses feel about this subject so we may tailor our choices and questions. We may not need to know whether there is free will or determinism, but, again, it may be helpful to know this about jurors or witnesses. Whether there is an external or internal control over our actions is less important to our decision-making than what the jurors and witnesses believe about this. Even disputes of correlation or causation are less important to us than in other fields. If we can reliably associate chickens and eggs, we may not need to know what came first. If we know a cock crows at sunrise, whether or not he caused the sun to rise is not quite so important.

We must make a good guess about how people will react in different situations. Which jurors will acquit? What story will move a jury? How will this witness answer my question? Often, even if we are correct about the reaction, we can be wrong about the reason and still gain for our client.

For example, many people and philosophies make predictions based on a theory that people are innately bad. My experience is that most prosecutors who fit the job have this view. “People are bad, so there must be a strong government with strong laws to keep them in line, or there will be chaos that is harmful to all people.” This theory allows them to correctly predict behavior from time to time. It also forms the basis for most of the prosecutors’ trial themes presented to jurors. Sometimes it resonates with jurors and works well. Usually, jurors recognize that it over-simplifies human-kind and they will not swallow it whole.

Other people and philosophies (fewer, I think) make predictions based on a theory that people are innately good, or at least malleable to be made good. “People are good until society corrupts them, and if we have the right responses to social problems, including education and decent treatment, we can bring about a utopia.” Some criminal defenders hold this view, but likely it has declined as Clarence Darrow fades into the past. This theory will also sometimes correctly predict behavior and it will resonate with a few jurors. For the most part, in my experience, it is viewed as naive, and jurors recognize it over-simplifies human nature and will not swallow this whole, either.

Still others rely on a variety of theories, some of which espouse a single description of human behavior: Man is a blank slate. Man is a noble savage. Economic determinism governs human conduct. Repressed sexual desires and the unconscious dictate conduct. In this article, we avoid the explanations that wrap up people in a single big idea and revert back to the more complex understanding that comes from traditional sources from Aristotle to Aquinas. As a portal to traditional understanding of human nature, we propose the defense lawyer study literature. 

The best way for defenders to view human nature is through literature. This is not as frivolous as it may first appear—many of the theorists of human nature rely heavily upon literature. For examples, Freud and Rene Girard come to mind. The great advantage is that literature recognizes the complexity of human personality and human society that confront the criminal defense lawyer. This complexity is also confirmed by science, of course, but literature frees us from being blown around by each new study. Chicago writer Joseph Epstein describes this: “One of the most important functions of literature in the current day is to cultivate a healthy distrust of the ideas thrown up by journalism and social science.” Novels and poems can be the antidote here. “The novel’s spirit is the spirit of complexity,” Milan Kundera writes. “Every novel says to the reader: ‘things are not as simple as you think.’” When he is working well, the good novelist persuasively establishes that life is more surprising, bizarre, fascinating, complex, and rich than any shibboleth, concept, or theory used to explain it. A literary education establishes a strong taste for the endless variousness of life; it teaches how astonishing reality is—and how obdurate to even the most ingenious attempts to grasp its mechanics or explain any serious portion of it! “A man is infinitely more complicated than his thoughts,” wrote Valéry—which, if you think about it, is happily so. A Literary Education at 311.

Why does literature so well describe human nature for criminal defense? First, literature reflects tradition representing centuries of experience about how people act, and through trial and error, it usually gets the right answer. The simpler explanations of human nature that have been espoused since the Enlightenment in efforts to improve upon tradition have fallen short when tested. The older and the more universal the tradition, the more it can be trusted. Newer, more regional traditions are less trustworthy. For example, we do not now believe that trial by battle will find the truth in a lawsuit. This was primarily a Germanic concept (8th century). When exposed to the older and more universal Roman and Christian law, it lost credibility. Second, even if a tradition (in the long, long run) proves to be false, in the shorter run, it is still believed by jurors, so may still for some purposes be relied upon in defending a case. That having been said, we do not live in an age of faith, so to the extent literature is bolstered by psychology as I understand it, I will present it.

First, the literature. In Shakespeare’s play, As You Like It, Act II, Scene VII, Jaques in his monologue beginning “All the world’s a stage,” presents seven stages of man. They are represented by the infant, the schoolboy, the lover, the soldier, the justice, the pantaloon, and the old man in second childishness. These stages did not begin with Shakespeare, but represent a tradition rooted in the Christian philosophy of the Middle Ages. Jaques’ description is humorous and presents a physical description of a man in each of these ages:

All the world’s a stage,
And all the men and women merely players.
They have their exits and their entrances,
And one man in his time plays many parts,
His acts being seven ages. At first the infant,
Mewling and puking in the nurse’s arms.
Then, the whining school-boy with his satchel
And shining morning face, creeping like a snail
Unwillingly to school. And then the lover,
Sighing like a furnace, with a woeful ballad
Made to his mistress’ eyebrow. Then, a soldier,
Full of strange oaths, and bearded like the pard,
Jealous in honour, sudden, and quick in quarrel,
Seeking the bubble reputation
Even in the cannon’s mouth. And then, the justice,
In fair round belly, with a good capon lin’d,
With eyes severe, and beard of formal cut,
Full of wise saws, and modern instances,
And so he plays his part. The sixth age shifts
Into the lean and slipper’d pantaloon,
With spectacles on nose and pouch on side,
His youthful hose, well sav’d, a world too wide
For his shrunk shank, and his big manly voice,
Turning again toward childish treble, pipes
And whistles in his sound. Last scene of all,
That ends this strange eventful history,
Is second childishness and mere oblivion,
Sans teeth, sans eyes, sans taste, sans everything.

Next, the evolutionary psychology. These seven stages for Jaques are presented in chronological order. Please understand we are not describing types of people. This is exactly what we are trying not to do: decide that someone is of a type. These are all characteristics within every person, and we never know which one we will see (or be). The evolutionary psychologists recognize that they are explaining the ancient wisdom. Steven Pinker in his book, The Blank Slate: The Modern Denial of Human Nature, refers to this connection:

Evolution is central to the understanding of life, including human life. Like all living things, we are outcomes of natural selection; we got here because we inherited traits that allowed our ancestors to survive, find mates, and reproduce. This momentous fact explains our deepest strivings: why having a thankless child is sharper than a serpent’s tooth, why it is a truth universally acknowledged that a single man in possession of a good fortune must be in want of a wife, why we do not go gentle into that good night but rage, rage against the dying of the light.

Jaques’ stages of man are explained, I believe, by another evolutionary psychologist, Douglas T. Kenrick. Kenrick, a psychology professor at Arizona State University, based on his clinical experiments with human beings, comes to the conclusion that we each have seven subselves that make decisions. For me, this explains why Jaques was correct in describing the seven personalities and also why so much more traditional wisdom about people is also correct. Kenrick places the different selves in a pyramid and describes them from bottom to top: 1. Immediate Physiological Needs, 2. Self-Protection, 3. Affiliation, 4. Status/Esteem, 5. Mate Acquisition, 6. Mate Retention, and 7. Parenting. Kenrick at 1600, Figure 7.2. If this sounds familiar, Kenrick acknowledges Abraham Maslow’s pyramid of the hierarchy of needs and argues that he improves it.

If, in fact, our brains produce seven different subselves, it should not be surprising that much of human organizing of the information brought into the brain reflects different characteristics for that self. How can this work? It is not phrenology and there are not particular parts of the brain that hold each separate self. But there are different parts of the brain that light up a positron emission tomography (PET) imaging test, depending what part of the brain is doing the work. Hearing words, seeing words, speaking words, and generating words all light up different parts of the brain. The neuroscientists tell us: “With the use of these techniques it is becoming increasingly apparent that during a specific task several different brain regions are working simultaneously. There is not just one brain area for one function but rather several brain areas appear to contribute to a particular function.” The Human Brain at 342.

The significant factor, though, is that parts of the brain respond, not the whole brain. If a different part of the brain responds, we get a different result: Happy and sad light up different parts of the brain; romantic and maternal love light up different parts of the brain; cocaine and sugar have similar pleasure centers; a baseline scan and a scan when the person is in prayer are different; exposure to angry faces lights up a bigger area after consuming alcohol. So, neuroscience appears at least not to negate Kenrick’s model. If Kenrick is correct that there are different subselves and if these do correlate with different areas of the brain that are governed by certain hormones that are expressed in different emotions, I suggest, it makes sense that the manifestations of these differences would have been noticed by humanity and described similarly throughout history.

If we accept the theory that the brain produces these separate selves to best promote survival, the reverence shown the number is natural. We have the Seven Deadly Sins, the Seven Virtues, the Seven Sacraments, the Seven Corporal Acts of Mercy, the Seven Spiritual Acts of Mercy, Seven Gifts of the Holy Spirit, the Seven Sorrows and Seven Joys of the Virgin Mary, the seven days of the week, the Seven Heavens, the seven liberal arts, the Seven Wise Masters, seven notes of music in the scale, seven days of creation, vengeance seven times over for killing Cain, Noah’s command to bring seven pairs of every clean animal into the ark, seven years of plenty and seven years of famine in Pharaoh’s dream, seven days in the feast of Passover, a seven-year cycle for a year of Jubilee, seven trumpets for seven days around the walls of Jericho, seven things detestable to the Lord, seven pillars of the House of Wisdom, seven loaves multiplied into seven baskets, and seven demons driven out of Mary Magdalene. When Isaac Newton identified colors of the rainbow—red, orange, yellow, green, blue, indigo, and violet—he grouped seven. As moderns, we have produced the seven stages of grief and the seven dwarfs. And Mickey Mantle wore number seven. Something about that number moves us.

What follows, then, is a description of each of Jaques’ and Kenrick’s seven selves, together with other characteristics that traditionally explain human behavior, especially the seven sins and the seven virtues. A more modern addition comes from the sociobiologist, Edward O. Wilson. He describes different types of aggression with many types of animals, such as rattlesnakes. His summary of the different forms of aggression, not shown by all animals, but all shown by man says there are . . . seven.

No fewer than seven categories can be distinguished: the defense and conquest of territory, the assertion of dominance within well-organized groups, sexual aggression, acts of hostility by which weaning is terminated, aggression against prey, defensive counterattacks against predators, and moralistic and aggression used to enforce the rules of society.”

On Human Nature at 1560.

What follows then, are a list of the competing impulses, desires, urges, personalities, selves, as described by tradition and explained by evolutionary psychology. I have offered a correlation with how I believe these human characteristics best match up. The matches are not exclusive, because greed, for example, may be a harmful excess produced by most personalities. For example, to the extent greed helps satisfy immediate physiological needs or helps to buy weapons or buy status, it could be identified with any subself. However, I suggest it is best viewed as the excess or sin related to retaining a mate, and other personalities are more readily identified with propensities to excess identified with one of the six other sins. Also, Wilson’s types of violence may be invoked for other personalities.

Although I have matched defense of territory aggression with the soldier/night watchman below, this form of aggression may be important for other subselves as well. Also, emotion (which because it is produced mainly by three hormones producing eight combinations) does not match neatly with a personality. A lover or a fighter or a mother can all be angry, sad, or happy. Nonetheless, I believe the alignments ring true in most cases and are helpful in understanding why folks are acting the way they are, and always have been.

The infant mewling and puking in his nurse’s arms. The first of Kenrick’s subselves is the one driving us to fulfill immediate physiological needs. He also calls this subself “the compulsive,” and says it is in charge of avoiding disease. If something smells bad or tastes bad, this subself is engaged. For several years, a child is appropriately selfish and oriented towards fulfilling his own needs, both for food and care and in relation to siblings. No one faults a two-year-old for being in the “terrible twos.” According to both tradition and Kenrick’s evolutionary psychology, the subself, like all of them, once they manifest, stay with us. Even an old man may feel a strong desire to fulfill immediate physiological needs; as an example, Jaques’ justice “with the fair round belly lined with capon” has carried the overindulgence of childhood into a later stage of life. However, this stage greatly marks infancy.

When tradition talks about original sin, it is perhaps this tendency being described. Philosopher Rene Girard describes the basis for infant learning as “mimetic desire.” Children imitate so they can learn and they also imitate desires of others, so that the desire of one child for a particular toy will make that toy more valuable to the other child. Girard then describes this as the basis of original sin; human beings are born with a propensity to imitate each other. Girard at 1602. Girard says because of this, human culture was laid upon a foundation of violence. In the context of Wilson’s forms of violence, I nominate aggression against prey as that most likely to be needed by this subself. The propensity for sin—that is, when this subself dominates the other subselves and we suffer from the excesses—is gluttony. The virtue that manages gluttony is temperance. 

The whining schoolboy with his satchel. Kenrick describes a subself who seeks affiliation as the “team player.” This subself manages problems and opportunities related to affiliation. “To survive and reproduce, our ancestors needed to get along with other people,” Kenrick says. “Friends share food, teach us valuable skills, and fill us in on essential information; they team up with us to move things that are too big; and they provide safety in numbers when the bad guys are around.” Kenrick at 1553. I see this as a source of wanting to be popular in high school. We make alliances, form friendships, and develop a tit-for-tat idea of whether someone has been a true friend. Cliques and rivalries are driven by this subself. This subself may carry on into old age, as well. The old men whittling in front of the general store or the old women in a quilting club would likely be governed by this subself. Wilson’s form of violence associated with this is the “assertion of dominance in organized groups.” The sin, when this subself acts in excess, is envy, and the virtue that manages the sin is kindness. 

The lover sighing like furnace, with a woeful ballad made to his mistress’ eyebrow. Kenrick says we have a subself that is involved in mate acquisition. He calls this the “swinging single.” “This is the subself,” Kenrick says, “concerned with acquiring mates. As I have discussed, the ‘his’ and ‘hers’ versions are somewhat different, tuned to the sex-specific cues that make for good mates.” Id. at 1563. Shakespeare places this subself early in the stages of man, but remember, other cultures had different concepts about when a young woman was ready to marry. Romeo’s Juliet was only thirteen. However, this subself can carrying on into old age as well. The old basketball club owner with the young mistress is likely suffering a visitation of this subself. Wilson has a form of aggression for this called, appropriately, “sexual aggression.” The sin is lust and the virtue is chastity. 

The soldier . . . jealous in honor, sudden, and quick in quarrel. Kenrick describes a subself devoted to self-defense. He calls him “the night watchman”:

This subself manages problems and opportunities linked to self-protection. The night watchman subself is tuned in to information such as: Is that band of nasty looking guys who just walked over the hill going to steal something from me or burn down my hut? Are there enough of my tribe members around that I can protect myself?”

Id. at 1560.

This is the 18-year-old who wants to join the army or study martial arts. This is the inmate who joins the gang. This is the desire to get a concealed handgun license. When threatened, we all have this subself who will help protect us. This is also a young person’s self that may be needed in old age. The elderly couple who buy the doberman, for instance would be making this decision in this subself. Wilson’s form of violence for this subself is the “defense and conquest of property.” The sin is wrath and the virtue is patience. 

The justice, In fair round belly, with a good capon lin’d, With eyes severe, and beard of formal cut, Full of wise saws, and modern instances. The subself that represents much of human creativity is described by Kenrick as that related to self-esteem or status in society. Kenrick calls this subself the “go-getter.” Kenrick describes the function for survival of this subself:

Being respected by others brings numerous survival and reproductive benefits; being disdained carries some serious costs. But respect and status do not come for free: Leaders have to give the group more than followers do, and people do not like it when their friends step over them. The go-getter subself is tuned in to where we stand in the dominance hierarchy and to who is above and below us.

Id. at 1558. This subself comes into dominance in adulthood. Much of what Abraham Maslow called “self-actualization”—the desire to fulfill your unique potential as a musician, poet, or philosopher—is folded by Kenrick into this category of self-esteem. Id. at 1664. Wilson’s aggression matching this category is “aggression used to enforce the rules of society,” which we might expect from the round-bellied justice. The sin is vainglory and the virtue humility. 

The lean and slipper’d pantaloon. This character and the next are objects of ridicule by Jaques because of their physical decline, but they are important as subselves. Kenrick’s category is mate retention. This is the subself Kenrick says is in charge of retaining mates. He calls this subself “The good spouse.” This subself “is tuned in to information about whether my partner seems to be happy or unhappy,” explains Kenrick, “and it is also scanning the social horizon for potential interlopers who might be in the market to make my partner happier.” Id. at 1565. This is for the couple who have picked their mates and now hope to live happily ever after. This is the subself who, for instance, feels guilt or remorse or shame when she betrays her husband and cannot tell herself why. This is also the nest-builder, who makes sure they have a house and cars and 401K. Wilson’s form of aggression for this subself is “defensive counterattacks against predators.” This subself’s sin is greed and its virtue is charity or love. 

Second childishness and mere oblivion, Sans teeth, sans eyes, sans taste, sans everything. This is grandpa’s and grandma’s subself, but it is also represented in parents caring for their young. Jaques gives a grim picture of this age, but for some of us, at least physically, it is not quite that bad. However, it does often, as the years pass, crowd the other subselves. Kenrick puts it on top of his pyramid, calling the subself “parenting.” I would suggest that it is somewhat broader and involves a general devotion to kin; “blood is thicker than water.” This is the ferocious mother protecting her young. This is why you may accept an annoying habit from a family member, but the same habit in a neighbor is intolerable. The form of aggression Wilson gives that fits this subself includes “acts of hostility by which weaning is terminated.” The sin is sloth or acedia. This requires some explanation because in modern times we understand sloth differently than was traditionally true. Sloth is now viewed as the amiable weakness of indolence. Glittering Vices at 1401. However, sloth is not merely inaction; this may have been honored traditionally as a period of prayer and meditation. A hint about the meaning of sloth comes from looking at its virtue: diligence. “The telltale root of our word diligence is the Latin diligere, which means ‘to love.’ Sloth, on this view, is apathy—comfortable indifference to duty and neglect of other human beings’ needs.” Id. at 1420. Within the context of this subself, sloth is shown by the mother who doesn’t feed her child and the son who leaves his invalid father alone without care. We would consider it akin to criminal negligence.

How can we apply this understanding of human nature to trial? Among other things, clients are often unable to explain their conduct. This interpretation of human nature may give some reasons why. When a client says, “I wasn’t myself,” to explain an action, we may get an inkling of what he means. We can more readily discover the client’s story if we understand why he has acted as he has. We can develop a sentencing argument of “aging out” of certain crimes. We are given an argument why some types of violence are not likely to be repeated. Moreover, this view of human nature explains and mitigates some crimes based on which subself has committed the crime. Theft to provide for a kin is different than theft to advance self-esteem. Possession of drugs driven by gluttony (moderns sometimes say “addiction”) is different than possession of drugs driven by greed. It may be helpful in direct or cross-examination to the extent the witness accepts your characterization of his motives. It helps explain hypocrisy. With an innocent client, it may help show lack of motive.

I do not suggest it is necessary or perhaps even a good idea to describe this theory to the jury, but to the extent it is true and resonates in our traditions, a theory of human nature is a good companion for all parts of the trial. In this one matter I have some small measure of certainty: It is a greater task for a juror to give death or a long prison sentence or even to find guilty someone the juror believes carries the seeds within himself to be noble in reason, infinite in faculty, express and admirable in form and moving, in action like an angel, in apprehension like a god, the beauty of the world, the paragon of animals, the quintessence of dust.

The Rules of Evidence: The Rest of Our Top 25

In our first article, we offered a summary of our top 12 rules of evidence for defending criminal cases. These rules are: 1) Rule 602, 2) Rule 402, 3) Rule 802, 4) Rule 403, 5) Rule 614, 6) Rule 615, 7) CCP Chapter 38, 8) Crawford, 9) Rule 404(b), 10) Rule 701, 11) Rule 702, and 12) Rule 104. These next 13 rules will also be important in most every criminal defense. They may not require as quick a response as the first 12, so there may be more time to look them up, but learning them will increase the defender’s confidence level in making objections and offering evidence. With these next 13, we move out of the comfort level of most prosecutors and even most judges, so they give us an edge in defending the case. These are summaries, and each rule will need to be studied over time in more depth, but for now, we give our next 13 in order of importance.

13

Rule 803(6) (hearsay exception for records of regularly conducted activity)

This is the first of our top 25 to be an exception to the hear­say rule. Rule 803(6) is the rule under which the pros­e­cutor will attempt to introduce telephone records, child-support payments, medical records, child protective services records, employment records—that sort of thing. The federal and state rules differ in the wording, but the result is largely the same. This used to be the “business records act” under 3737e. It can be proved by a witness or an affidavit (certification in the federal language) by asking the custodian of records if the record was made at or near the time the events were described and was made by a person with knowledge of the events and kept in the course of a regularly conducted business activity. Hearsay within the record still may be objectionable, and it is trumped by the Confrontation Clause and by Rule 803(8).

14

Rule 803(8) (hearsay exception for public records and reports)

Rule 803(8) provides a basis for excluding many expert reports of the prosecution witnesses, so it pertains to Rule 702. It speaks to many of the documents the prosecution wants to introduce in a criminal case. For example, the DPS chemist report may be excluded under this rule. Cole v. State, 839 S.W.2d 798 (Tex. Crim. App. 1990). This exclusion under Rule 803(8) also prevents its admission under the business records exception, Rule 803(6). Id. Just because the prosecutor has proved the document under the business records exception does not mean it is reliable and ad­mis­sible under 803(8)(B). Another nice aspect to this rule is un­der the language of the rule—it may benefit the defendant when it does not benefit the state. Rule 803 (8)(c) provides, “and in criminal cases as against the state. . . .” Differently put, there may be instances in which the same document excluded under the defendant’s 803(8) objection should be admitted over the State’s 803(8) objection.

15

Rule 803(18) (hearsay exception for learned treatises)

Rule 803(18) is important when Rule 702 (expert opinions) or experts are involved in the case. Whether it is the government or defense witnesses, the scholarly literature should be reviewed for the Daubert challenge. For example, the pathologist should be willing to admit the textbook she used is authoritative; then it can be used for cross-examination. “Doctor, you studied with Dr. Spitz in residency? He is one of the foremost authorities in this field? This is a current edition of his textbook and a version of the one from which you learned your profession? And of course you recognize it as authoritative in this field?” Then you can read helpful passages and ask for comment. On cross-examination, the learned treatise is offered as substantive evidence and not solely for impeachment. Tart v. McGann, 697 F.2d 75 (2d Cir. 1982); Godsey v. State, 989 S.W.2d 482 (Tex. App.—Waco 1999, pet. ref’d).

16

Rule 703 (bases of opinion testimony by experts)

Under Rule 703, the expert may rely on facts or data if of a type reasonably relied upon by experts in the field, whether or not the underlying facts are admissible into evidence. Con­frontation Clause issues still apply and trump this rule.

17

Rule 705 (disclosure of facts or data underlying expert opinion)

Rule 703 and 705 are usually argued together when considering the treatment of the expert’s opinion (see Rule 702, above). The expert can testify to opinions without first giving the underlying facts to support the opinion. The trial judge, however, can require they be produced ahead of time. Voir dire of the witnesses “shall” be given in a criminal case out­side the presence of the jury. The court should keep out the opinion if the facts are not sufficient. A limiting instruction on the use of the otherwise inadmissible evidence shall be given upon request.

18

Rule 608 (a witness’ character for truthfulness or untruthfulness)

Rule 608 may be used by the defense to show that a witness (including the client) who testifies has a reputation for be­ing a truthful person. It is sometimes used by the state to present a police officer who says the defendant who tes­ti­fies has a bad reputation for being a truthful person. Re­mem­ber, though, no witness, lay or expert, may testify that another witness is lying in particular testimony. Schultz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997). Offering evidence about the truthful nature of a witness may elicit “have you heard” questions about specific acts of the fact witness that are inconsistent with a truthful nature.

19

Rule 404 (a) (character of the client or the complaining witness)

We visited Rule 404(b) (limiting the use of the client’s other crimes, wrongs, or acts) in the top 12. We now turn to 404(a). Even if the client does not testify, his character for be­ing a truthful, law-abiding, violent, honest, moral, or sober person may be presented. Being a non-murderer or a non-pedophile are not character traits. See Valdez v. State, 2 S.W.3d 518 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). The character traits of the complaining witness may also be presented under this rule, but they are limited in sex-offense cases by Rule 412. (Rule 412 does not make our top 25 because it only applies in sexual assault cases, but in those cases it is essential.)

20

Rule 609 (impeachment by evidence of conviction of crime)

Rule 609 will often apply if the client testifies in the guilt or innocence portion of the trial. This rule determines which convictions may be used against him—if they are fel­o­nies or crimes of moral turpitude, within the last ten years, and pending appeal in state court. In federal court, it is admissible even if an appeal is pending. Texas has a no­tice requirement. The document of the judgment of the prior conviction may be admitted under hearsay exception 803(22).

21

Art. 37.07 Sec. 3 and Federal Rule 1101 (Evidence of criminal record after a find­ing of guilty)

Once the client is found guilty, prepare for the admission of crimes or bad acts whether or not he was previously charged or convicted. These are much broader than the evidence allowed by Rules 404 or 609. We urge that we are entitled to a prior hearing under Rule 104 to determine whether there is evidence sufficient for showing beyond a reasonable doubt that the crime or bad act was committed by the defendant. Federal Rule 1101 is even broader because the rules of evidence do not apply to sentencing, and the judge does the sentencing. The counterpart to Federal Rule 1101 restricting the use of the rules of evidence in the Texas system is Rule 101(d)(1) (rules not applicable in certain proceedings).

22

Rule 1009 (translation of foreign language documents)

This is only a state court rule; there is no federal Rule 1009. However, we include it because it has arisen for us in every recent state court trial. It has become increasingly common for the police department to take a confession by audio or videotape. If it is in Spanish, the district attorney’s office will translate the transcript into English and either offer it into evidence or ask that it be used by the jury to help interpret the audiotape. This use was limited before the rule was passed. Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989). When the rule was adopted in 1998, it included a requirement that the translated document be served upon all parties at least 45 days before trial. After filing, it provides for objections to the translations.

23

Rule 901 (authenticating or identifying evidence)

Rule 901 requires that the proponent produce evidence sufficient to support a finding that the item is what the proponent claims it is. The rule then lists ten illustrations of ways of authenticating a piece of evidence. For example, an opinion identifying a person’s voice may be based on a person familiar with the alleged speaker’s voice and the voice to be identified.

24

Rule 611(b) (scope of cross-examination)

When cross-examination draws an objection, it is usually based on the proper scope of a cross-examination. The Texas and federal rules are different. The Texas rule provides for cross-examination on any matter relevant to any issue in the case, including credibility. Under federal Rule 611(b), the scope of the cross may be limited to the subject matter of the direct examination and matters affecting the witness’ credibility. An objection that the cross is beyond the scope of direct in state court is probably a misapplication of the federal rule.

25

Rule 704 (opinion on ultimate issue)

An opinion is not objectionable merely because it embraces an ultimate issue. Both lay witnesses and expert witnesses may give an opinion about an ultimate fact if it is helpful and will assist the trier of fact. Some opinions are rarely help­ful, such as whether or not a witness is telling the truth. The federal rule differs from the state rule because it specifically prohibits an expert from stating an opinion about whether the accused person has a mental state that con­sti­tutes an element of the crime charged or a defense. This rule arises because we still hear objections based on the common law doctrine that this will “invade the province of the jury.” Rule 704 rejected the common law rule for both lay and expert witnesses.

Those are our top 25. The summary, in order of importance: (1) Rule 602, personal knowledge; (2) Rule 402, relevance; (3) Rule 802, hearsay; (4) Rule 403, prejudicial; (5) Rule 614, “The Rule”; (6) Rule 615, produce witness’ state­ment; (7) CCP Chapter 38, voluntary statement and more; (8) Crawford, right of confrontation; (9) Rule 404(b), criminal history; (10) Rule 701, lay opinion; (11) Rule 702, expert opinion; (12) Rule 104, preliminary question hearing; (13) Rule 803(6), business records hearsay exception; (14) Rule 803(8), public records hearsay exception; (15) Rule 803(18), learned treatise hearsay exception; (16) Rule 703, basis of expert opinion; (17) Rule 705, disclosure of data on expert opinion; (18) Rule 608, truthfulness opinion/rep­u­tation; (19) Rule 404(a), character evidence; (20) Rule 609, impeaching with prior conviction; (21) Art. 37.07 § 3, criminal history in sentencing; (22) Rule 1009, translating foreign documents; (23) Rule 901, authentication; (24) Rule 611(b), scope of cross; and (25) Rule 704, ultimate issue.

Once you have these 25 tucked firmly away in your long-term memory, you will wonder how you ever walked into the halls of justice without them. This still leaves out many important matters, of course. We have not mentioned judicial notice in Article II or presumptions in Article III—these will more likely arise in civil trials. Nor have we touched on any of the important privileges in Article V. Although we have not mentioned separately Rules 401 and 801, their text is so important it should be committed to memory. More importantly, we have had no discussion of many other critical matters. The rules that govern evidence are still spread out despite the adoption of the rules. We will list another 75 important rules governing evidence—not with the idea of soon committing them to memory. It will probably suffice to know they are out there somewhere so you can hunt them down when you need them: Rules 101(d)(1), 103, 106, 406, 410, 412, 503, 504, 508, 509, 601, 607, 611 (a) and (c), 612, 613, 803 (1), (2), (3), (5), (9), (11), (16), (19), (21), (22), (24), 804, 805, 806, 902 , the remaining 8 Rules in Article X, and Federal Rules 1101 and Rule 105, Code of Criminal Procedure, Art. 38.05, 38.07, 38.071, 38.072, 38.073, 38.10, 38.101, 38.14, 38.141, 38.21, 38.22, 38.23, 38.25, 38.27, 38.30, 38.34, 38.35, 38.36, 38.37, 38.38, 38.39, 38.40, 38.41, 38.42, 38.43, 38.44 or such federal rules as 18 USC § 3500, 3502, 3504, 3505, 3509, 3510, and of course the 4th and 5th Amendments. So this will round out our 100, not necessarily in this order.

Learning the rules, even just the first 25, is a major un­der­tak­ing, perhaps similar to achieving conversational abil­ity in a foreign language. A high level of comfort with evi­dence rules is more like a fluency in a foreign literature. In our next article, we will describe techniques for learning evidence that will allow effective trial work. It is not quick. It is not easy. It is not for beginners, but it is effective and may just be the only way to get there.

Texas and Federal Rules of Evidence: Our Top 12

Certain rules of evidence are needed in most every trial. These may be committed to memory, not necessarily so the rule can be recited verbatim, but at least so we may get to our feet and give a rule number and general description of the rule in making an objection. Being able to recite the rule word for word has advantages also. However, not all rules of evidence are as important as the ones we use reg­ularly. Learning a rule of evidence so it may be used read­ily in trial requires a ranking of the rules in order of im­por­tance. If we know only three rules, they should be the three most important. We suggest that a fluency with the top twelve rules will give a certain comfort level in trial that most trial lawyers lack. Later, we will give another group to round out the top twenty-five.

We are listing the rules we have found most important. This is based on years of regular trial work, rather than any counting of objections from trial transcripts, but we believe most busy criminal defense lawyers would end up with a list that looks similar.

One, two, and three: Rules 602 (personal knowledge), 402 (relevance), and 802 (hearsay)

The first three: Rules 602, 402, and 802.

Rule 602, the queen of the evidence rules, requires personal knowledge of the witness. The five senses are the key to this rule. Rule 402 excludes evidence that is not relevant. Relevant evidence has a tendency to make any fact of consequence to the determination of the action more or less probable. Rule 802 excludes hearsay, a statement made by the declarant to prove an assertion.

These three often go together: “Your honor, objection. No personal knowledge under Rule 602. Not relevant under Rule 402. Hearsay, Rule 802.” The meat of these objections is in the definitions in Rules 401 and 801, but this is the triumvirate of objections that will be necessary over and over. T. S. Eliot wrote that “Dante and Shakespeare divide the modern world between them; there is no third.” Rules 602, 402, and 802 divide the evidence world with a three-way split.

Four, Five, and Six: Rules 403 (prejudice), 615 (production of witness statement), and 614 (The Rule)

The next three: Those first three are big and hard and needed in every trial. These next three are easier, but common. We want to urge these next three be learned now to provide a break before we move back into some harder rules. Also, grouping the rules in threes makes them easier to remember. Our next three are 403, 615, and 614 for a state court trial. For a federal trial, 403 is the same but the other two are found in different places. Each of these three rules should also be invoked in almost every criminal trial.

Rule 403 excludes even relevant testimony if it is too prejudicial, confusing, or misleading. For example, polygraph results may be excluded under Rule 403. United States v. Call, 129 F.3d 1402, 1406 (10th Cir. 1997), cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998). The federal rule includes “waste of time.” The impatient federal judge may say: “Sustained. That’s a waste of time.” The state judge must cloak his impatience by saying: “Sustained. Because of considerations of undue delay and needless presentation of cumulative evidence, that will be excluded.”

Rule 615 has traditionally been the first consideration in most cases in which the prosecutor says, “I pass the witness.” Although the new discovery rules may now provide every witness’ statement before trial, the best practice has been to request the previous statements of the witness, in­clud­ing grand jury testimony, before beginning the cross-examination. The federal rule is found in Federal Rules of Criminal Procedure Rule 26.2.

Rule 614 is “The Rule” for excluding witnesses from the courtroom during testimony of other witnesses. “Your honor, we invoke The Rule.” Note that complaining witnesses and expert witnesses may sometimes be allowed to stay in the courtroom. Confusingly enough, “The Rule” in federal cases is Rule 615.

So here we have the first six rules to memorize that are used in almost every trial—602, 402, 802, 403, 615, 614. In a perfect world, we would want to master the top twelve before beginning trial, but these first six can be learned during that time on Sunday afternoon before trial usually devoted to unproductive worry. If you decide to mem­o­rize these word for word, begin with Rules 602, 401, and 801, because the definitions are the heart of relevance and hearsay.

Seven: Code of Criminal Procedure Chapter 38, Evidence in Criminal Actions

Our next two rules, making up the seventh and eighth, are not even in the rules of evidence, but they are evidentiary and they are critical. First is the exclusion of witness testimony under Article 38, and the next are the Confrontation Clause issues of Crawford. We group these because they are so important in keeping out harmful State’s evidence. Our winners for place seven are Code of Criminal Procedure Article 38.21 and the sections that follow restricting the use of the statement of the accused. These sections require some study to master them, but certainly the location of this rule needs to be learned. This article is also filled with evidence rules that apply to specific facts in the trial such as murder, 38.36, accomplice testimony, 38.14, child victim testimony, 38.072, or inmate testimony, 38.073. Beyond the general rules of evidence, the specific offenses may elevate some rules to greater importance, and an awareness and review of Chapter 38 before trial will help.

Eight: Sixth Amendment, Confrontation Clause, Crawford

Even if the evidence is otherwise relevant and falls under a valid hearsay exception, it may be excluded if it violates the Confrontation Clause. “Objection. Violation of the Sixth Amendment right of confrontation since this question would elicit testimony that we cannot test by cross-examination under Crawford.” This objection, especially when combined with a Rule 602 objection that the testimony is outside the witness’ personal knowledge, excludes testimony that a few years ago came in as both relevant and an exception to hearsay. This is a rule that requires study as well, but knowledge of the basic outline of the Confrontation Clause will exclude much harmful testimony. A nice quote from Crawford: “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Nine: Rule 404(b) (other crimes, wrongs, or acts)

This may only be part of a rule, but it is essential even before trial. The first filing in most cases should be a Request for Notice under Rule 404(b). This notice obligates the prosecution to tell you what crimes and bad acts they want to move into evidence against your client. Rule 404(b) must be understood within the context of other rules, 609 (impeachment by evidence of conviction of crime), 803(22) (exception for judgment of previous conviction), and Code of Criminal Procedure Article 37.07, Section 3 (evidence of prior criminal record in all criminal cases after a finding of guilty).

Ten: Rule 701 (opinion testimony by lay witness)

A witness’ opinion is not admissible unless it qualifies either as a lay witness opinion under 701 or expert witness tes­ti­mony under 702. A prosecutor will sometimes try to in­tro­duce a police officer’s opinion as a lay opinion because the officer cannot qualify under 702 as an expert on the sub­ject. Rule 701 is a valuable tool for excluding harmful opinion testimony. Under Rule 701, the lay opinion must be rationally based on the perception of the witness and must be help­ful to the jury. These restrictions exclude many of the opinions the prosecutor will offer. For example, neither lay nor expert witnesses may express an opinion on proper punishment for a criminal defendant. Hughes v. State, 787 S.W.2d 193 (Tex. App.—Corpus Christi 1990, pet. ref’d).

Eleven: Rule 702 (testimony by experts)

Rule 702 may be used to exclude or limit the testimony of the prosecution witnesses. The trial judge has a gatekeeping duty. Daubert challenges have greatly limited expert tes­ti­mony, and we should use them as readily in criminal cases as they are used in civil cases. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Texas version of the rule is Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Also, Rule 702 is needed to support the defense expert witness, for ex­ample, on the issue of the state of mind of the defendant. Fielder v. State, 756 S.W.2d 309 (Tex. Crim. App. 1988).

Twelve: Rule 104 (preliminary questions)

Rule 104 allows many of the issues we discussed in the first eleven rules to be decided outside the hearing of jury. Many lawyers would put it first. After all, what good is a rule of evidence if the jury has already heard the matter before they are told it is not admissible? Also, an adverse ruling under any of the rules above can sometimes be controlled and even changed by a request for a hearing under Rule 104. Much of the language in the rule is mandatory, and trial judges will usually grant the hearing.

So, these are the first twelve. The next group will round out the Top Twenty-Five, because we envision this as a series of articles. Our plan is to offer memory techniques to commit the first twenty-five to memory and then review each of the top twenty-five in more depth.

Our belief is that the rules of evidence are in a separate category from any other area of law. We think you will enjoy how useful is this article, and we believe you will find the rules of evidence to be beautiful. Evidence teaches us how we determine truth or falsity in the material world around us.

First Blood

Navy blue suit. Close-toed heels. Hair neatly coiffed. I look the part, but will this facade prove to provide me with the skills to convince these jurors that I am a competent lawyer? Even more importantly, will this material persona help to relay the truth about my client and the fact that he has been wrongly accused?

I’ve given this client a lot of thought. When I first met with him and his wife at the IHOP Saturday morning, I learned that he had been charged with terroristic threat. Wow, that sounds pretty bad, I thought. He sits across the table from me with his small 5’5”, 130-pound frame, his calloused hands from hard labor, and his Mickey Mouse T-shirt. To his left sat his gap-toothed, red (almost pink) haired wife, who had a smile that could light up a room and a laugh that was so contagious, you couldn’t help but chuckle even though you might not understand a word she’s saying. I thought, We’ll they’re sweet. He doesn’t seem like a “terrorist.”

The time has come. As I sit in this courtroom as a lawyer about to embark on my first actual trial, I feel the panic set in. I’ve written the opening statement. I’ve practiced it in front of my mirror with my not-so-forgiving audience at least a dozen times. I attempt to block out the fear of failure by positive reinforcements that seem to do nothing more then intensify my dread of collapse. Legs shaking, I somehow manage to stand up with my trusty cheat sheet in hand and complete my very first journey ten feet up to the podium. “May it please the court?” Oh my gosh, these are either great acoustics, or the middle of the courtroom is microphoned. That was unexpected. I continue. “Ladies and gentlemen, things aren’t always what they seem.” I am visibly shaking. Pull yourself together, I think to myself. “Let me tell you the story of a man poorly misunderstood.”

As I begin to tell his story, the doubt and fear somehow seem to slowly seep from my body. I put down that cheat sheet. Maybe it was the dozen times I practiced in front of the mirror. Maybe it was the attentive faces of those six jurors. Maybe it was the heels. Or maybe, just maybe, it was that a part of me, regardless of how different I may be from this man accused of a terroristic threat, was able to find a similarity that connected us on a different level. We are both humans whose liberty is priceless.

The trial took place over two long days. I manage to survive a few direct and cross examinations. We rest. The state rests. Closings. Now we wait.

The prosecution is texting his buddies back in the office, confidently awaiting his victory like a farmer who has not only counted his chickens, but has proudly announced their arrival to the market before they have actually hatched. I sit there wondering, When the jury foreman says “guilty” will my client understand what that means or will the interpreter sitting behind him have to clear it up in Spanish. What seems like an eternity of waiting turns out to be about only three hours. The clerk pokes her head into the courtroom: “We have a verdict.”

Well, this is it. The foreman stands. We stand. I make sure to have a pen in my hand to divert my nervousness from a gri­mace on my face to a death grip on the pen. A one-word verdict could change this man’s life, take away his liberty, curse his name, damn his future. I hold my breath.

“Not guilty.”

I exhale. The prosecution scowls. Our poorly misunderstood man walks through the courtroom threshold a free and unmarked man.

I realize that the world would not have ceased to rotate in the event of a guilty verdict. The birds would continue to sing. The rains would continue to fall. But, the quality of a man’s life would have been severely diminished. His small stature might not stand as proudly and his wife’s smile might not shine as brightly. If for nothing more than that, I now know that this is what being a lawyer is all about.