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.
