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.
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).
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.
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).
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.
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.
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.
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.)
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).
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).
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.
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.
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.
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.