Thursday, April 17, 2008
Thursday, April 17, 2008
Does The Court Conclude, The Prosecution of Unrepresented 12 Year Olds Is In The interests of Justice or Will The Court Require Representation
Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.
(c) An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation. Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel. In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.
Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.
Posted by The Advocate at 3:03 PM
0 comments:
Monday, June 2, 2008
Thursday, March 20, 2008
Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them.......
This is the html version of the file http://www.schr.org/reports/docs/electricchair.doc.
G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:BgiUuLf9qHEJ:www.schr.org/reports/docs/electricchair.doc+texas+prosecutorial+misconduct+against+welfare+recipients&hl=en&ct=clnk&cd=5&gl=us&client=firefox-a
Google is neither affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: texas prosecutorial misconduct against welfare recipients
THE ELECTRIC CHAIR AND THE CHAIN GANG:
CHOICES AND CHALLENGES FOR AMERICA'S FUTURE
Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).
Copyright (c) 1996 University of Notre Dame; Stephen B. Bright
The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.
Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.
Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.
Let's examine the needs and how individuals and institutions may respond to them.
Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.
This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.
Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.
As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.
As was pointed out recently by Steven Duke and Richard St. John:
Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.
There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2
But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.
Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.
Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.
I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.
As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.
But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.
The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.
In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.
And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.
Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.
As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.
Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10
Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.
It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.
One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.
Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14
But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.
This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.
There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22
Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:
It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24
Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26
Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.
Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.
And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29
In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.
And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.
Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.
The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.
If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.
Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39
The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.
Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?
Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.
Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.
But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.
I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.
But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.
Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.
Those are some of the challenges. What can we do about them?
It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.
Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.
A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.
Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.
Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.
Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.
But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.
But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.
I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.
It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.
You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46
Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47
I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.
We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.
A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.
There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.
Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.
We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.
I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.
Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.
We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.
And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.
And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.
I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:
I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .
Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?
We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51
That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.
I hope to see you in the courts.
. Charles Reich, Opposing the System (1995).
. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.
. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).
. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").
. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").
. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).
. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.
. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.
. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.
. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).
. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).
. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).
. Smith v. Bennett, 365 U.S. 708, 712 (1961).
. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).
. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).
. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.
. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).
. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").
. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.
. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.
. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.
. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.
. 372 U.S. 335 (1963).
. Anthony Lewis, Gideon's Trumpet 205 (1964).
. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).
. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.
. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.
. See Schlup v. Delo, 115 S. Ct. 851 (1995).
. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).
. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).
. Murray v. Giarratano, 492 U.S. 1 (1989).
. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.
. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).
. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.
. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).
. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).
. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).
. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).
. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.
. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.
. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).
. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.
. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).
. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.
. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).
. Id. at 267.
. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).
. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.
. Amadeo v. Zant, 486 U.S. 214 (1988).
. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).
. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).
Page
G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:BgiUuLf9qHEJ:www.schr.org/reports/docs/electricchair.doc+texas+prosecutorial+misconduct+against+welfare+recipients&hl=en&ct=clnk&cd=5&gl=us&client=firefox-a
Google is neither affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: texas prosecutorial misconduct against welfare recipients
THE ELECTRIC CHAIR AND THE CHAIN GANG:
CHOICES AND CHALLENGES FOR AMERICA'S FUTURE
Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).
Copyright (c) 1996 University of Notre Dame; Stephen B. Bright
The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.
Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.
Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.
Let's examine the needs and how individuals and institutions may respond to them.
Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.
This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.
Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.
As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.
As was pointed out recently by Steven Duke and Richard St. John:
Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.
There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2
But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.
Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.
Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.
I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.
As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.
But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.
The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.
In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.
And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.
Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.
As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.
Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10
Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.
It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.
One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.
Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14
But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.
This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.
There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22
Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:
It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24
Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26
Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.
Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.
And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29
In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.
And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.
Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.
The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.
If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.
Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39
The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.
Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?
Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.
Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.
But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.
I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.
But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.
Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.
Those are some of the challenges. What can we do about them?
It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.
Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.
A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.
Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.
Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.
Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.
But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.
But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.
I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.
It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.
You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46
Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47
I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.
We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.
A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.
There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.
Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.
We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.
I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.
Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.
We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.
And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.
And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.
I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:
I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .
Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?
We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51
That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.
I hope to see you in the courts.
. Charles Reich, Opposing the System (1995).
. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.
. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).
. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").
. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").
. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).
. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.
. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.
. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.
. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).
. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).
. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).
. Smith v. Bennett, 365 U.S. 708, 712 (1961).
. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).
. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).
. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.
. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).
. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").
. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.
. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.
. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.
. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.
. 372 U.S. 335 (1963).
. Anthony Lewis, Gideon's Trumpet 205 (1964).
. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).
. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.
. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.
. See Schlup v. Delo, 115 S. Ct. 851 (1995).
. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).
. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).
. Murray v. Giarratano, 492 U.S. 1 (1989).
. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.
. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).
. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.
. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).
. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).
. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).
. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).
. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.
. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.
. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).
. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.
. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).
. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.
. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).
. Id. at 267.
. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).
. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.
. Amadeo v. Zant, 486 U.S. 214 (1988).
. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).
. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).
Page
Sunday, February 24, 2008
Utilization of fabricated evidence by vindictive, malicious & prosecutional misconduct thrives in Kleberg County......Damn Right it's personal........
Texas Rules of Evidence
to be effective January 1, 2007
ARTICLE I. GENERAL PROVISIONS
RULE 101. TITLE AND SCOPE
(a) Title. These rules shall be known and cited as the Texas Rules of Evidence.
(b) Scope. Except as otherwise provided by statute, these rules govern civil and criminal proceedings (including examining trials before magistrates) in all courts of Texas, except small claims courts.
(c) Hierarchical Governance in Criminal Proceedings. Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, and the common law. Where possible, inconsistency is to be removed by reasonable construction.
(d) Special Rules of Applicability in Criminal Proceedings.
(1) Rules not applicable in certain proceedings. These rules, except with respect to privileges, do not apply in the following situations:
(A) the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104;
(B) proceedings before grand juries;
(C) proceedings in an application for habeas corpus in extradition, rendition, or interstate detainer;
(D) a hearing under Code of Criminal Procedure article 46.02, by the court out of the presence of a jury, to determine whether there is sufficient evidence of incompetency to require a jury determination of the question of incompetency;
(E) proceedings regarding bail except hearings to deny, revoke or increase bail;
(F) a hearing on justification for pretrial detention not involving bail;
(G) proceedings for the issuance of a search or arrest warrant; or
(H) proceedings in a direct contempt determination.
(2) Applicability of privileges. These rules with respect to privileges apply at all stages of all actions, cases, and proceedings.
(3) Military justice hearings. Evidence in hearings under the Texas Code of Military Justice, Tex. Gov't Code º432.001-432.195, shall be governed by that Code.
Notes and Comments
Comment to 1997 change: "Criminal proceedings" rather than "criminal cases" is used since that was the terminology used in the prior Rules of Criminal Evidence. In subpart (b), the reference to "trials before magistrates" comes from prior Criminal Rule 1101(a). In the prior Criminal Rules, both Rule 101 and Rule 1101 dealt with the same thing -- the applicability of the rules. Thus, Rules 101(c) and (d) have been written to incorporate the provisions of former Criminal Rule 1101 and that rule is omitted.
RULE 102. PURPOSE AND CONSTRUCTION
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
RULE 103. RULINGS ON EVIDENCE
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.
(b) Record of Offer and Ruling. The offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may, or at the request of a party shall, direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Fundamental Error in Criminal Cases. In a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.
Notes and Comments
Comment to 1997 change. The exception to the requirement of an offer of proof for matters that were apparent from the context within which questions were asked, found in paragraph (a)(2), is now applicable to civil as well as criminal cases.
RULE 104. PRELIMINARY QUESTIONS
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury. In a criminal case, a hearing on the admissibility of a confession shall be conducted out of the hearing of the jury. All other civil or criminal hearings on preliminary matters shall be conducted out of the hearing of the jury when the interests of justice so require or in a criminal case when an accused is a witness and so requests.
(d) Testimony by Accused Out of the Hearing of the Jury. The accused in a criminal case does not, by testifying upon a preliminary matter out of the hearing of the jury, become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
RULE 105. LIMITED ADMISSIBILITY
(a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
(b) Offering Evidence for Limited Purpose. When evidence referred to in paragraph (a) is excluded, such exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence for its limited, admissible purpose or limits its offer to the party against whom it is admissible.
RULE 106. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. "Writing or recorded statement" includes depositions.
RULE 107. RULE OF OPTIONAL COMPLETENESS
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. "Writing or recorded statement" includes depositions.
Notes and Comments
Comment to 1997 change: This rule is the former Criminal Rule 107 except that the example regarding "when a letter is read" has been relocated in the rule so as to more accurately indicate the provision it explains. While this rule appeared only in the prior criminal rules, it is made applicable to civil cases because it accurately reflects the common law rule of optional completeness in civil cases.
ARTICLE II. JUDICIAL NOTICE
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In criminal cases, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
RULE 202. DETERMINATION OF LAW OF OTHER STATES
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of every other state, territory, or jurisdiction of the United States. A party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. Judicial notice of such matters may be taken at any stage of the proceeding. The court's determination shall be subject to review as a ruling on a question of law.
RULE 203. DETERMINATION OF THE LAWS OF FOREIGN COUNTRIES
A party who intends to raise an issue concerning the law of a foreign country shall give notice in the pleadings or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that the party intends to use as proof of the foreign law. If the materials or sources were originally written in a language other than English, the party intending to rely upon them shall furnish all parties both a copy of the foreign language text and an English translation. The court, in determining the law of a foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises. If the court considers sources other than those submitted by a party, it shall give all parties notice and a reasonable opportunity to comment on the sources and to submit further materials for review by the court. The court, and not a jury, shall determine the laws of foreign countries. The court's determination shall be subject to review as a ruling on a question of law.
RULE 204. DETERMINATION OF TEXAS CITY AND COUNTY ORDINANCES, THE CONTENTS OF THE TEXAS REGISTER, AND THE RULES OF AGENCIES PUBLISHED IN THE ADMINISTRATIVE CODE
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the ordinances of municipalities and counties of Texas, of the contents of the Texas Register, and of the codified rules of the agencies published in the Administrative Code. Any party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. The court's determination shall be subject to review as a ruling on a question of law.
ARTICLE III. PRESUMPTIONS
[No rules adopted at this time.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 401. DEFINITION OF "RELEVANT EVIDENCE"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.
RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON SPECIAL GROUNDS
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait offered:
(A) by an accused in a criminal case, or by the prosecution to rebut the same, or
(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;
(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.
(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.
RULE 405. METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.
RULE 406. HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
RULE 407. SUBSEQUENT REMEDIAL MEASURES; NOTIFICATION OF DEFECT
(a) Subsequent Remedial Measures. When, after an injury or harm allegedgly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in product, a defect in product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
(b) Notification of Defect. A written notification by a manufacturer of any defect in a product produced by such manufacturer to purchasers thereof is admissible against the manufacturer on the issue of existence of the defect to the extent that it is relevant.
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
RULE 410. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS AND RELATED STATEMENTS
Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty that was later withdrawn;
(2) in civil cases, a plea of nolo contendere, and in criminal cases, a plea of nolo contendere that was later withdrawn;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding, in a civil case, either a plea of guilty that was later withdrawn or a plea of nolo contendere, or in a criminal case, either a plea of guilty that was later withdrawn or a plea of nolo contendere that was later withdrawn; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.
However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
RULE 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another issue, such as proof of agency, ownership, or control, if disputed, or bias or prejudice of a witness.
RULE 412. EVIDENCE OF PREVIOUS SEXUAL CONDUCT IN CRIMINAL CASES
(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;
(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
(C) that relates to the motive or bias of the alleged victim;
(D) is admissible under Rule 609; or
(E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.
(c) Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim's past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
(d) Record Sealed. The court shall seal the record of the in camera hearing required in paragraph (c) of this rule for delivery to the appellate court in the event of an appeal.
ARTICLE V. PRIVILEGES
RULE 501. PRIVILEGES RECOGNIZED ONLY AS PROVIDED
Except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority, no person has a privilege to:
(1) refuse to be a witness;
(2) refuse to disclose any matter;
(3) refuse to produce any object or writing; or
(4) prevent another from being a witness or disclosing any matter or producing any object or writing.
RULE 502. REQUIRED REPORTS PRIVILEGED BY STATUTE
A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be made so provides. No privilege exists under this rule in actions involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.
RULE 503. LAWYER-CLIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "client" is a person, public officer, or corporation, association, or other organization or entity either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.
(2) A "representative of the client" is (i) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.
(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.
(4) A "representative of the lawyer" is:
(A) one employed by the lawyer to assist the lawyer in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.
(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(b) Rules of Privilege.
(1) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;
(B) between the lawyer and the lawyer's representative;
(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;
(D) between representatives of the client or between the client and a representative of the client; or
(E) among lawyers and their representatives representing the same client.
(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.
(c) Who May Claim the Privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
(d) Exceptions. There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions;
(3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer;
(4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.
RULE 504. HUSBAND-WIFE PRIVILEGES
(a) Confidential Communication Privilege.
(1) Definition. A communication is confidential if it is made privately by any person to the person's spouse and it is not intended for disclosure to any other person.
(2) Rule of privilege. A person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person's spouse while they were married.
(3) Who may claim the privilege. The confidential communication privilege may be claimed by the person or the person's guardian or representative, or by the spouse on the person's behalf. The authority of the spouse to do so is presumed.
(4) Exceptions. There is no confidential communication privilege:
(A) Furtherance of crime or fraud. If the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud.
(B) Proceeding between spouses in civil cases. In (A) a proceeding brought by or on behalf of one spouse against the other spouse, or (B) a proceeding between a surviving spouse and a person who claims through the deceased spouse, regardless of whether the claim is by testate or intestate succession or by inter vivos transaction.
(C) Crime against spouse or minor child. In a proceeding in which the party is accused of conduct which, if proved, is a crime against the person of the spouse, any minor child, or any member of the household of either spouse, or, in a criminal proceeding, when the offense charged is under Section 25.01 Penal Code (Bigamy).
(D) Commitment or similar proceeding. In a proceeding to commit either spouse or otherwise to place that person or that person's property, or both, under the control of another because of an alleged mental or physical condition.
(E) Proceeding to establish competence. In a proceeding brought by or on behalf of either spouse to establish competence.
(b) Privilege not to Testify in Criminal Case.
(1) Rule of privilege. In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over objection by the accused. A spouse who testifies on behalf of an accused is subject to cross-examination as provided in rule 611(b).
(2) Failure to call as witness. Failure by an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by counsel.
(3) Who may claim the privilege. The privilege not to testify may be claimed by the person or the person's guardian or representative but not by that person's spouse.
(4) Exceptions. The privilege of a person's spouse not to be called as a witness for the state does not apply:
(A) Certain criminal proceedings. In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor, or in an offense charged under Section 25.01, Penal Code (Bigamy).
(B) Matters occurring prior to marriage. As to matters occurring prior to the marriage.
Notes and Comments
Comment to 1997 change: The rule eliminates the spousal testimonial privilege for prosecutions in which the testifying spouse is the alleged victim of a crime by the accused. This is intended to be consistent with Code of Criminal Procedure article 38.10, effective September 1, 1995.
RULE 505. COMMUNICATIONS TO MEMBERS OF THE CLERGY
(a) Definitions. As used in this rule:
(1) A "member of the clergy" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.
(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by the person's guardian or conservator, or by the personal representative of the person if the person is deceased. The member of the clergy to whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the communicant.
RULE 506. POLITICAL VOTE
Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.
RULE 507. TRADE SECRETS
A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
RULE 508. IDENTITY OF INFORMER
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the public entity.
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, it may require the identity of the informer to be disclosed. The court shall, on request of the public entity, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity.
RULE 509. PHYSICIAN-PATIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "patient" means any person who consults or is seen by a physician to receive medical care.
(2) A "physician" means a person licensed to practice medicine in any state or nation, or reasonably believed by the patient so to be.
(3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family.
(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
(c) General Rule of Privilege in Civil Proceedings. In a civil proceeding:
(1) Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.
(3) The provisions of this rule apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. art. 4590i.
(d) Who May Claim the Privilege in a Civil Proceeding. In a civil proceeding:
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf.
(2) The physician may claim the privilege of confidentiality, but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary.
(e) Exceptions in a Civil Proceeding. Exceptions to confidentiality or privilege in administrative proceedings or in civil proceedings in court exist:
(1) when the proceedings are brought by the patient against a physician, including but not limited to malpractice proceedings, and in any license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a physician;
(2) when the patient or someone authorized to act on the patient's behalf submits a written consent to the release of any privileged information, as provided in paragraph (f);
(3) when the purpose of the proceedings is to substantiate and collect on a claim for medical services rendered to the patient;
(4) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense;
(5) in any disciplinary investigation or proceeding of a physician conducted under or pursuant to the Medical Practice Act, Tex. Rev. Civ. Stat. art. 4495b, or of a registered nurse under or pursuant to Tex. Rev. Civ. Stat. arts. 4525, 4527a, 4527b, and 4527c, provided that the board shall protect the identity of any patient whose medical records are examined, except for those patients covered under subparagraph (e)(1) or those patients who have submitted written consent to the release of their medical records as provided by paragraph (f);
(6) in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under
(A) the Texas Mental Health Code, Tex. Health & Safety Code º571.001-571.026;
(B) the Persons with Mental Retardation Act, Tex. Health & Safety Code º591.001-591.025;
(7) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution" as defined in Tex. Health & Safety Code º242.002.
(f) Consent.
(1) Consent for the release of privileged information must be in writing and signed by the patient, or a parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated incompetent to manage personal affairs, or an attorney ad litem appointed for the patient, as authorized by the Texas Mental Health Code, Tex. Health & Safety Code º 571.001-571.026; the Persons with Mental Retardation Act; Tex. Health & Safety Code º591.001-591.025; Chapter V, Texas Probate Code; and Tex. Fam. Code º107.011; or a personal representative if the patient is deceased, provided that the written consent specifies the following:
(A) the information or medical records to be covered by the release;
(B) the reasons or purposes for the release; and
(C) the person to whom the information is to be released.
(2) The patient, or other person authorized to consent, has the right to withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal.
(3) Any person who received information made privileged by this rule may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained.
Notes and Comments
Comment to 1997 change: Prior Criminal Rules of Evidence 509 and 510 are now in subparagraph (b) of this Rule. Former paragraph (d)(6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted.
RULE 510. CONFIDENTIALITY OF MENTAL HEALTH INFORMATION IN CIVIL CASES
(a) Definitions. As used in this rule:
(1) "Professional" means any person:
(A) authorized to practice medicine in any state or nation;
(B) licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder;
(C) involved in the treatment or examination of drug abusers; or
(D) reasonably believed by the patient to be included in any of the preceding categories.
(2) "Patient" means any person who:
(A) consults, or is interviewed by, a professional for purposes of diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or
(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.
(3) A representative of the patient is:
(A) any person bearing the written consent of the patient;
(B) a parent if the patient is a minor;
(C) a guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs; or
(D) the patient's personal representative if the patient is deceased.
(4) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the diagnosis, examination, evaluation, or treatment, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis, examination, evaluation, or treatment under the direction of the professional, including members of the patient's family.
(b) General Rule of Privilege.
(1) Communication between a patient and a professional is confidential and shall not be disclosed in civil cases.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and shall not be disclosed in civil cases.
(3) Any person who received information from confidential communications or records as defined herein, other than a representative of the patient acting on the patient's behalf, shall not disclose in civil cases the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
(4) The provisions of this rule apply even if the patient received the services of a professional prior to the enactment of Tex. Rev. Civ. Stat. art. 5561h (Vernon Supp. 1984)(now codified as Tex. Health & Safety Code º611.001-611.008).
(c) Who May Claim the Privilege.
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf.
(2) The professional may claim the privilege of confidentiality but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary.
(d) Exceptions. Exceptions to the privilege in court or administrative proceedings exist:
(1) when the proceedings are brought by the patient against a professional, including but not limited to malpractice proceedings, and in any license revocation proceedings in which the patient is a complaining witness and in which disclosure is relevant to the claim or defense of a professional;
(2) when the patient waives the right in writing to the privilege of confidentiality of any information, or when a representative of the patient acting on the patient's behalf submits a written waiver to the confidentiality privilege;
(3) when the purpose of the proceeding is to substantiate and collect on a claim for mental or emotional health services rendered to the patient;
(4) when the judge finds that the patient after having been previously informed that communications would not be privileged, has made communications to a professional in the course of a court-ordered examination relating to the patient's mental or emotional condition or disorder, providing that such communications shall not be privileged only with respect to issues involving the patient's mental or emotional health. On granting of the order, the court, in determining the extent to which any disclosure of all or any part of any communication is necessary, shall impose appropriate safeguards against unauthorized disclosure;
(5) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense;
(6) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution as defined in Tex. Health and Safety Code º242.002.
Notes and Comments
This rule only governs disclosures of patient-professional communications in judicial or administrative proceedings. Whether a professional may or must disclose such communications in other circumstances is governed by Tex. Health & Safety Code º611.001-611.008. Former paragraph (d)(6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted.
RULE 511. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged; or
(2) the person or a representative of the person calls a person to whom privileged communications have been made to testify as to the person's character or character trait insofar as such communications are relevant to such character or character trait.
RULE 512. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE
A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.
RULE 513. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION
(a) Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), the claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel, and no inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Claim of Privilege Against Self-Incrimination in Civil Cases. Paragraphs (a) and (b) shall not apply with respect to a party's claim, in the present civil proceeding, of the privilege against self-incrimination.
(d) Jury Instruction. Except as provided in Rule 504(b)(2) and in paragraph (c) of this Rule, upon request any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
Notes and Comments
Comment to 1997 change. Subdivision (d) regarding a party's entitlement to a jury instruction about a claim of privilege is made applicable to civil cases.
ARTICLE VI. WITNESSES
RULE 601. COMPETENCY AND INCOMPETENCY OF WITNESSES
(a) General Rule. Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules:
(1) Insane persons. Insane persons who, in the opinion of the court, are in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify.
(2) Children. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.
(b) "Dead Man Rule" in Civil Actions. In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof. The trial court shall, in a proper case, where this rule prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.
RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
RULE 603. OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
RULE 604. INTERPRETERS
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
RULE 605. COMPETENCY OF JUDGE AS A WITNESS
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
RULE 606. COMPETENCY OF JUROR AS A WITNESS
(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the party calling the witness.
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if:
(1) based on the finding of the rehabilitation of the person convicted, the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment;
(2) probation has been satisfactorily completed for the crime for which the person was convicted, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment; or
(3) based on a finding of innocence, the conviction has been the subject of a pardon, annulment, or other equivalent procedure.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by the Constitution of the United States or Texas.
(e) Pendency of Appeal. Pendency of an appeal renders evidence of a conviction inadmissible.
(f) Notice. Evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
RULE 610. RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
Notes and Comments
Comment to 1997 change: This is prior Rule of Criminal Evidence 615.
RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.
(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Notes and Comments
RULE 612. WRITING USED TO REFRESH MEMORY
If a witness uses a writing to refresh memory for the purpose of testifying either
(1) while testifying;
(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or
(3) before testifying, in criminal cases;
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
RULE 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND SUPPORT
(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).
(b) Examining Witness Concerning Bias or Interest. In impeaching a witness by proof of circumstances or statements showing bias or interest on the part of such witness, and before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, the circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence rebutting any evidence impeaching one of said party's witnesses on grounds of bias or interest.
(c) Prior Consistent Statements of Witnesses. A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).
RULE 614. EXCLUSION OF WITNESSES
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:
(1) a party who is a natural person or in civil cases the spouse of such natural person;
(2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause; or
(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.
RULE 615. PRODUCTION OF STATEMENTS OF WITNESSES IN CRIMINAL CASES
(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
(b) Production of Entire Statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party.
(c) Production of Excised Statement. If the other party claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of appeal.
(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party, the court, upon application of that party, shall recess proceedings in the trial for a reasonable examination of such statement and for preparation for its use in the trial.
(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.
(f) Definition. As used in this rule, a "statement" of a witness means:
(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;
(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.
Notes and Comments
Comment to 1997 change: This is prior Texas Rule of Criminal Evidence 614.
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Notes and Comments
Comment to 1997 change: The former Civil Rule referred to facts or data "perceived by or reviewed by" the expert. The former Criminal rule referred to facts or data "perceived by or made known to" the expert. The terminology is now conformed , but no change in meaning is intended.
RULE 704. OPINION ON ULTIMATE ISSUE
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
(b) Voir dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.
(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
Notes and Comments
Comment to 1997 change: Paragraphs (b), (c), and (d) are based on the former Criminal Rule and are made applicable to civil cases. This rule does not preclude a party in any case from conducting a voir dire examination into the qualifications of an expert.
RULE 706. AUDIT IN CIVIL CASES
Despite any other evidence rule to the contrary, verified reports of auditors prepared pursuant to Rule of Civil Procedure 172, whether in the form of summaries, opinions, or otherwise, shall be admitted in evidence when offered by any party whether or not the facts or data in the reports are otherwise admissible and whether or not the reports embrace the ultimate issues to be decided by the trier of fact. Where exceptions to the reports have been filed, a party may contradict the reports by evidence supporting the exceptions.
ARTICLE VIII. HEARSAY
RULE 801. DEFINITIONS
The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.
(b) Declarant. A "declarant" is a person who makes a statement
(c) Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter.
(d) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding except a grand jury proceeding in a criminal case, or in a deposition;
(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;
(C) one of identification of a person made after perceiving the person; or
(D) taken and offered in a criminal case in accordance with Code of Criminal Procedure article 38.071.
(2) Admission by party-opponent. The statement is offered against a party and is:
(A) the party's own statement in either an individual or representative capacity;
(B) a statement of which the party has manifested an adoption or belief in its truth;
(C) a statement by a person authorized by the party to make a statement concerning the subject;
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or
(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
(3) Depositions. In a civil case, it is a deposition taken in the same proceeding, as same proceeding is defined in Rule of Civil Procedure 207. Unavailability of deponent is not a requirement for admissibility.
RULE 802. HEARSAY RULE
Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.
RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;
unless the sources of information or other circumstances indicate lack of trustworthiness.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the authenticity of which is established.
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
(21) Reputation as to Character. Reputation of a person's character among associates or in the community.
(22) Judgment of Previous Conviction. In civil cases, evidence of a judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), judging a person guilty of a felony, to prove any fact essential to sustain the judgment of conviction. In criminal cases, evidence of a judgment, entered after a trial or upon a plea of guilty or nolo contendere, adjudging a person guilty of a criminal offense, to prove any fact essential to sustain the judgment of conviction, but not including, when offered by the state for purposes other than impeachment, judgments against persons other than the accused. In all cases, the pendency of an appeal renders such evidence inadmissible.
(23) Judgment as to Personal, Family, or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
(24) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(3) testifies to a lack of memory of the subject matter of the declarant's statement;
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.
A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay Exceptions. The following are not excluded if the declarant is unavailable as a witness:
(1) Former testimony. In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.
(2) Dying declarations. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement of personal or family history.
(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated; or
(B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
RULE 805. HEARSAY WITHIN HEARSAY
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
When a hearsay statement, or a statement defined in Rule 801(e)(2) (C), (D), or (E), or in civil cases a statement defined in Rule 801(e)(3), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with specimens which have been found by the court to be genuine.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:
(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or
(B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence twenty years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by statute or by other rule prescribed pursuant to statutory authority.
RULE 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person, authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. The final certification shall be dispensed with whenever both the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces such requirement, in which case the record and the attestation shall be certified by the means provided in the treaty or convention.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.
(5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Business Records Accompanied by Affidavit.
(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.
(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice, to-wit:
No ______________
John Doe (Name of Plaintiff)
º
IN THE __________
º
v.
º
COURT IN AND FOR
º
º
John Roe (Name of Defendant)
º
_________ COUNTY, TEXAS
AFFIDAVIT
Before me, the undersigned authority, personally appeared _________, who, being by me duly sworn, deposed as follows:
My name is _________, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:
I am the custodian of the records of _________. Attached hereto are _____ pages of records from ______. These said ____ pages of records are kept by ________ in the regular course of business, and it was the regular course of business of __________ for an employee or representative of ________, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.
______________________________________
Affiant
SWORN TO AND SUBSCRIBED before me on the _________ day of _________, 19 ____.
______________________________________
Notary Public, State of Texas
Notary's printed name:
______________________________________
My commission expires:
_______________
(11) Presumptions Under Statutes or Other Rules. Any signature, document, or other matter declared by statute or by other rules prescribed pursuant to statutory authority to be presumptively or prima facie genuine or authentic.
RULE 903. SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
RULE 1001. DEFINITIONS
For purposes of this article the following definitions are applicable:
(a) Writings and Recordings. "Writings" and "recordings" consist of letters, words, or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(b) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(c) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
(d) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
RULE 1002. REQUIREMENT OF ORIGINALS
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.
RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(a) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
(c) Original Outside the State. No original is located in Texas;
(d) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the content would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.
RULE 1005. PUBLIC RECORDS
The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
RULE 1006. SUMMARIES
The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.
RULE 1008. FUNCTIONS OF COURT AND JURY
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
RULE 1009. TRANSLATION OF FOREIGN
LANGUAGE DOCUMENTS
(a) Translations. A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.
(b) Objections. Any party may object to the accuracy of another party's translation by pointing out the specific inaccuracies of the translation and by stating with specificity what the objecting party contends is a fair and accurate translation. Such objection shall be served upon all parties at least 15 days prior to the date of trial.
(c) Effect of Failure to Object or Offer Conflicting Translation. If no conflicting translation or objection is timely served, the court shall admit a translation submitted under paragraph (a) without need of proof, provided however that the underlying foreign language documents are otherwise admissible under the Texas Rules of Evidence. Failure to serve a conflicting translation under paragraph (a) or failure to timely and properly object to the accuracy of a translation under paragraph (b) shall preclude a party from attacking or offering evidence contradicting the accuracy of such translation at trial.
(d) Effect of Objections or Conflicting Translations. In the event of conflicting translations under paragraph (a) or if objections to another party's translation are served under paragraph (b), the court shall determine whether there is a genuine issue as to the accuracy of a material part of the translation to be resolved by the trier of fact.
(e) Expert Testimony of Translator. Except as provided in paragraph (c), this Rule does not preclude the admission of a translation of foreign language documents at trial either by live testimony or by deposition testimony of a qualified expert translator.
(f) Varying of Time Limits. The court, upon motion of any party and for good cause shown, may enlarge or shorten the time limits set forth in this Rule.
(g) Court Appointment. The court, if necessary, may appoint a qualified translator, the reasonable value of whose services shall be taxed as court costs.
Notes and Comments
Comment to 1997 change. This is a new rule.
to be effective January 1, 2007
ARTICLE I. GENERAL PROVISIONS
RULE 101. TITLE AND SCOPE
(a) Title. These rules shall be known and cited as the Texas Rules of Evidence.
(b) Scope. Except as otherwise provided by statute, these rules govern civil and criminal proceedings (including examining trials before magistrates) in all courts of Texas, except small claims courts.
(c) Hierarchical Governance in Criminal Proceedings. Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, and the common law. Where possible, inconsistency is to be removed by reasonable construction.
(d) Special Rules of Applicability in Criminal Proceedings.
(1) Rules not applicable in certain proceedings. These rules, except with respect to privileges, do not apply in the following situations:
(A) the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104;
(B) proceedings before grand juries;
(C) proceedings in an application for habeas corpus in extradition, rendition, or interstate detainer;
(D) a hearing under Code of Criminal Procedure article 46.02, by the court out of the presence of a jury, to determine whether there is sufficient evidence of incompetency to require a jury determination of the question of incompetency;
(E) proceedings regarding bail except hearings to deny, revoke or increase bail;
(F) a hearing on justification for pretrial detention not involving bail;
(G) proceedings for the issuance of a search or arrest warrant; or
(H) proceedings in a direct contempt determination.
(2) Applicability of privileges. These rules with respect to privileges apply at all stages of all actions, cases, and proceedings.
(3) Military justice hearings. Evidence in hearings under the Texas Code of Military Justice, Tex. Gov't Code º432.001-432.195, shall be governed by that Code.
Notes and Comments
Comment to 1997 change: "Criminal proceedings" rather than "criminal cases" is used since that was the terminology used in the prior Rules of Criminal Evidence. In subpart (b), the reference to "trials before magistrates" comes from prior Criminal Rule 1101(a). In the prior Criminal Rules, both Rule 101 and Rule 1101 dealt with the same thing -- the applicability of the rules. Thus, Rules 101(c) and (d) have been written to incorporate the provisions of former Criminal Rule 1101 and that rule is omitted.
RULE 102. PURPOSE AND CONSTRUCTION
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
RULE 103. RULINGS ON EVIDENCE
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.
(b) Record of Offer and Ruling. The offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may, or at the request of a party shall, direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Fundamental Error in Criminal Cases. In a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.
Notes and Comments
Comment to 1997 change. The exception to the requirement of an offer of proof for matters that were apparent from the context within which questions were asked, found in paragraph (a)(2), is now applicable to civil as well as criminal cases.
RULE 104. PRELIMINARY QUESTIONS
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury. In a criminal case, a hearing on the admissibility of a confession shall be conducted out of the hearing of the jury. All other civil or criminal hearings on preliminary matters shall be conducted out of the hearing of the jury when the interests of justice so require or in a criminal case when an accused is a witness and so requests.
(d) Testimony by Accused Out of the Hearing of the Jury. The accused in a criminal case does not, by testifying upon a preliminary matter out of the hearing of the jury, become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
RULE 105. LIMITED ADMISSIBILITY
(a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
(b) Offering Evidence for Limited Purpose. When evidence referred to in paragraph (a) is excluded, such exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence for its limited, admissible purpose or limits its offer to the party against whom it is admissible.
RULE 106. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. "Writing or recorded statement" includes depositions.
RULE 107. RULE OF OPTIONAL COMPLETENESS
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. "Writing or recorded statement" includes depositions.
Notes and Comments
Comment to 1997 change: This rule is the former Criminal Rule 107 except that the example regarding "when a letter is read" has been relocated in the rule so as to more accurately indicate the provision it explains. While this rule appeared only in the prior criminal rules, it is made applicable to civil cases because it accurately reflects the common law rule of optional completeness in civil cases.
ARTICLE II. JUDICIAL NOTICE
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In criminal cases, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
RULE 202. DETERMINATION OF LAW OF OTHER STATES
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of every other state, territory, or jurisdiction of the United States. A party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. Judicial notice of such matters may be taken at any stage of the proceeding. The court's determination shall be subject to review as a ruling on a question of law.
RULE 203. DETERMINATION OF THE LAWS OF FOREIGN COUNTRIES
A party who intends to raise an issue concerning the law of a foreign country shall give notice in the pleadings or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that the party intends to use as proof of the foreign law. If the materials or sources were originally written in a language other than English, the party intending to rely upon them shall furnish all parties both a copy of the foreign language text and an English translation. The court, in determining the law of a foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises. If the court considers sources other than those submitted by a party, it shall give all parties notice and a reasonable opportunity to comment on the sources and to submit further materials for review by the court. The court, and not a jury, shall determine the laws of foreign countries. The court's determination shall be subject to review as a ruling on a question of law.
RULE 204. DETERMINATION OF TEXAS CITY AND COUNTY ORDINANCES, THE CONTENTS OF THE TEXAS REGISTER, AND THE RULES OF AGENCIES PUBLISHED IN THE ADMINISTRATIVE CODE
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the ordinances of municipalities and counties of Texas, of the contents of the Texas Register, and of the codified rules of the agencies published in the Administrative Code. Any party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. The court's determination shall be subject to review as a ruling on a question of law.
ARTICLE III. PRESUMPTIONS
[No rules adopted at this time.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 401. DEFINITION OF "RELEVANT EVIDENCE"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.
RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON SPECIAL GROUNDS
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait offered:
(A) by an accused in a criminal case, or by the prosecution to rebut the same, or
(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;
(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.
(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.
RULE 405. METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.
RULE 406. HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
RULE 407. SUBSEQUENT REMEDIAL MEASURES; NOTIFICATION OF DEFECT
(a) Subsequent Remedial Measures. When, after an injury or harm allegedgly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in product, a defect in product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
(b) Notification of Defect. A written notification by a manufacturer of any defect in a product produced by such manufacturer to purchasers thereof is admissible against the manufacturer on the issue of existence of the defect to the extent that it is relevant.
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
RULE 410. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS AND RELATED STATEMENTS
Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty that was later withdrawn;
(2) in civil cases, a plea of nolo contendere, and in criminal cases, a plea of nolo contendere that was later withdrawn;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding, in a civil case, either a plea of guilty that was later withdrawn or a plea of nolo contendere, or in a criminal case, either a plea of guilty that was later withdrawn or a plea of nolo contendere that was later withdrawn; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.
However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
RULE 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another issue, such as proof of agency, ownership, or control, if disputed, or bias or prejudice of a witness.
RULE 412. EVIDENCE OF PREVIOUS SEXUAL CONDUCT IN CRIMINAL CASES
(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;
(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
(C) that relates to the motive or bias of the alleged victim;
(D) is admissible under Rule 609; or
(E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.
(c) Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim's past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
(d) Record Sealed. The court shall seal the record of the in camera hearing required in paragraph (c) of this rule for delivery to the appellate court in the event of an appeal.
ARTICLE V. PRIVILEGES
RULE 501. PRIVILEGES RECOGNIZED ONLY AS PROVIDED
Except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority, no person has a privilege to:
(1) refuse to be a witness;
(2) refuse to disclose any matter;
(3) refuse to produce any object or writing; or
(4) prevent another from being a witness or disclosing any matter or producing any object or writing.
RULE 502. REQUIRED REPORTS PRIVILEGED BY STATUTE
A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be made so provides. No privilege exists under this rule in actions involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.
RULE 503. LAWYER-CLIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "client" is a person, public officer, or corporation, association, or other organization or entity either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.
(2) A "representative of the client" is (i) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.
(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.
(4) A "representative of the lawyer" is:
(A) one employed by the lawyer to assist the lawyer in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.
(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(b) Rules of Privilege.
(1) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;
(B) between the lawyer and the lawyer's representative;
(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;
(D) between representatives of the client or between the client and a representative of the client; or
(E) among lawyers and their representatives representing the same client.
(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.
(c) Who May Claim the Privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
(d) Exceptions. There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions;
(3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer;
(4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.
RULE 504. HUSBAND-WIFE PRIVILEGES
(a) Confidential Communication Privilege.
(1) Definition. A communication is confidential if it is made privately by any person to the person's spouse and it is not intended for disclosure to any other person.
(2) Rule of privilege. A person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person's spouse while they were married.
(3) Who may claim the privilege. The confidential communication privilege may be claimed by the person or the person's guardian or representative, or by the spouse on the person's behalf. The authority of the spouse to do so is presumed.
(4) Exceptions. There is no confidential communication privilege:
(A) Furtherance of crime or fraud. If the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud.
(B) Proceeding between spouses in civil cases. In (A) a proceeding brought by or on behalf of one spouse against the other spouse, or (B) a proceeding between a surviving spouse and a person who claims through the deceased spouse, regardless of whether the claim is by testate or intestate succession or by inter vivos transaction.
(C) Crime against spouse or minor child. In a proceeding in which the party is accused of conduct which, if proved, is a crime against the person of the spouse, any minor child, or any member of the household of either spouse, or, in a criminal proceeding, when the offense charged is under Section 25.01 Penal Code (Bigamy).
(D) Commitment or similar proceeding. In a proceeding to commit either spouse or otherwise to place that person or that person's property, or both, under the control of another because of an alleged mental or physical condition.
(E) Proceeding to establish competence. In a proceeding brought by or on behalf of either spouse to establish competence.
(b) Privilege not to Testify in Criminal Case.
(1) Rule of privilege. In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over objection by the accused. A spouse who testifies on behalf of an accused is subject to cross-examination as provided in rule 611(b).
(2) Failure to call as witness. Failure by an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by counsel.
(3) Who may claim the privilege. The privilege not to testify may be claimed by the person or the person's guardian or representative but not by that person's spouse.
(4) Exceptions. The privilege of a person's spouse not to be called as a witness for the state does not apply:
(A) Certain criminal proceedings. In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor, or in an offense charged under Section 25.01, Penal Code (Bigamy).
(B) Matters occurring prior to marriage. As to matters occurring prior to the marriage.
Notes and Comments
Comment to 1997 change: The rule eliminates the spousal testimonial privilege for prosecutions in which the testifying spouse is the alleged victim of a crime by the accused. This is intended to be consistent with Code of Criminal Procedure article 38.10, effective September 1, 1995.
RULE 505. COMMUNICATIONS TO MEMBERS OF THE CLERGY
(a) Definitions. As used in this rule:
(1) A "member of the clergy" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.
(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by the person's guardian or conservator, or by the personal representative of the person if the person is deceased. The member of the clergy to whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the communicant.
RULE 506. POLITICAL VOTE
Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.
RULE 507. TRADE SECRETS
A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
RULE 508. IDENTITY OF INFORMER
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the public entity.
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, it may require the identity of the informer to be disclosed. The court shall, on request of the public entity, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity.
RULE 509. PHYSICIAN-PATIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "patient" means any person who consults or is seen by a physician to receive medical care.
(2) A "physician" means a person licensed to practice medicine in any state or nation, or reasonably believed by the patient so to be.
(3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family.
(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
(c) General Rule of Privilege in Civil Proceedings. In a civil proceeding:
(1) Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.
(3) The provisions of this rule apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. art. 4590i.
(d) Who May Claim the Privilege in a Civil Proceeding. In a civil proceeding:
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf.
(2) The physician may claim the privilege of confidentiality, but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary.
(e) Exceptions in a Civil Proceeding. Exceptions to confidentiality or privilege in administrative proceedings or in civil proceedings in court exist:
(1) when the proceedings are brought by the patient against a physician, including but not limited to malpractice proceedings, and in any license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a physician;
(2) when the patient or someone authorized to act on the patient's behalf submits a written consent to the release of any privileged information, as provided in paragraph (f);
(3) when the purpose of the proceedings is to substantiate and collect on a claim for medical services rendered to the patient;
(4) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense;
(5) in any disciplinary investigation or proceeding of a physician conducted under or pursuant to the Medical Practice Act, Tex. Rev. Civ. Stat. art. 4495b, or of a registered nurse under or pursuant to Tex. Rev. Civ. Stat. arts. 4525, 4527a, 4527b, and 4527c, provided that the board shall protect the identity of any patient whose medical records are examined, except for those patients covered under subparagraph (e)(1) or those patients who have submitted written consent to the release of their medical records as provided by paragraph (f);
(6) in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under
(A) the Texas Mental Health Code, Tex. Health & Safety Code º571.001-571.026;
(B) the Persons with Mental Retardation Act, Tex. Health & Safety Code º591.001-591.025;
(7) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution" as defined in Tex. Health & Safety Code º242.002.
(f) Consent.
(1) Consent for the release of privileged information must be in writing and signed by the patient, or a parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated incompetent to manage personal affairs, or an attorney ad litem appointed for the patient, as authorized by the Texas Mental Health Code, Tex. Health & Safety Code º 571.001-571.026; the Persons with Mental Retardation Act; Tex. Health & Safety Code º591.001-591.025; Chapter V, Texas Probate Code; and Tex. Fam. Code º107.011; or a personal representative if the patient is deceased, provided that the written consent specifies the following:
(A) the information or medical records to be covered by the release;
(B) the reasons or purposes for the release; and
(C) the person to whom the information is to be released.
(2) The patient, or other person authorized to consent, has the right to withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal.
(3) Any person who received information made privileged by this rule may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained.
Notes and Comments
Comment to 1997 change: Prior Criminal Rules of Evidence 509 and 510 are now in subparagraph (b) of this Rule. Former paragraph (d)(6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted.
RULE 510. CONFIDENTIALITY OF MENTAL HEALTH INFORMATION IN CIVIL CASES
(a) Definitions. As used in this rule:
(1) "Professional" means any person:
(A) authorized to practice medicine in any state or nation;
(B) licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder;
(C) involved in the treatment or examination of drug abusers; or
(D) reasonably believed by the patient to be included in any of the preceding categories.
(2) "Patient" means any person who:
(A) consults, or is interviewed by, a professional for purposes of diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or
(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.
(3) A representative of the patient is:
(A) any person bearing the written consent of the patient;
(B) a parent if the patient is a minor;
(C) a guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs; or
(D) the patient's personal representative if the patient is deceased.
(4) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the diagnosis, examination, evaluation, or treatment, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis, examination, evaluation, or treatment under the direction of the professional, including members of the patient's family.
(b) General Rule of Privilege.
(1) Communication between a patient and a professional is confidential and shall not be disclosed in civil cases.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and shall not be disclosed in civil cases.
(3) Any person who received information from confidential communications or records as defined herein, other than a representative of the patient acting on the patient's behalf, shall not disclose in civil cases the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
(4) The provisions of this rule apply even if the patient received the services of a professional prior to the enactment of Tex. Rev. Civ. Stat. art. 5561h (Vernon Supp. 1984)(now codified as Tex. Health & Safety Code º611.001-611.008).
(c) Who May Claim the Privilege.
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf.
(2) The professional may claim the privilege of confidentiality but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary.
(d) Exceptions. Exceptions to the privilege in court or administrative proceedings exist:
(1) when the proceedings are brought by the patient against a professional, including but not limited to malpractice proceedings, and in any license revocation proceedings in which the patient is a complaining witness and in which disclosure is relevant to the claim or defense of a professional;
(2) when the patient waives the right in writing to the privilege of confidentiality of any information, or when a representative of the patient acting on the patient's behalf submits a written waiver to the confidentiality privilege;
(3) when the purpose of the proceeding is to substantiate and collect on a claim for mental or emotional health services rendered to the patient;
(4) when the judge finds that the patient after having been previously informed that communications would not be privileged, has made communications to a professional in the course of a court-ordered examination relating to the patient's mental or emotional condition or disorder, providing that such communications shall not be privileged only with respect to issues involving the patient's mental or emotional health. On granting of the order, the court, in determining the extent to which any disclosure of all or any part of any communication is necessary, shall impose appropriate safeguards against unauthorized disclosure;
(5) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense;
(6) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution as defined in Tex. Health and Safety Code º242.002.
Notes and Comments
This rule only governs disclosures of patient-professional communications in judicial or administrative proceedings. Whether a professional may or must disclose such communications in other circumstances is governed by Tex. Health & Safety Code º611.001-611.008. Former paragraph (d)(6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted.
RULE 511. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged; or
(2) the person or a representative of the person calls a person to whom privileged communications have been made to testify as to the person's character or character trait insofar as such communications are relevant to such character or character trait.
RULE 512. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE
A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.
RULE 513. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION
(a) Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), the claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel, and no inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Claim of Privilege Against Self-Incrimination in Civil Cases. Paragraphs (a) and (b) shall not apply with respect to a party's claim, in the present civil proceeding, of the privilege against self-incrimination.
(d) Jury Instruction. Except as provided in Rule 504(b)(2) and in paragraph (c) of this Rule, upon request any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
Notes and Comments
Comment to 1997 change. Subdivision (d) regarding a party's entitlement to a jury instruction about a claim of privilege is made applicable to civil cases.
ARTICLE VI. WITNESSES
RULE 601. COMPETENCY AND INCOMPETENCY OF WITNESSES
(a) General Rule. Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules:
(1) Insane persons. Insane persons who, in the opinion of the court, are in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify.
(2) Children. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.
(b) "Dead Man Rule" in Civil Actions. In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof. The trial court shall, in a proper case, where this rule prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.
RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
RULE 603. OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
RULE 604. INTERPRETERS
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
RULE 605. COMPETENCY OF JUDGE AS A WITNESS
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
RULE 606. COMPETENCY OF JUROR AS A WITNESS
(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the party calling the witness.
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if:
(1) based on the finding of the rehabilitation of the person convicted, the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment;
(2) probation has been satisfactorily completed for the crime for which the person was convicted, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment; or
(3) based on a finding of innocence, the conviction has been the subject of a pardon, annulment, or other equivalent procedure.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by the Constitution of the United States or Texas.
(e) Pendency of Appeal. Pendency of an appeal renders evidence of a conviction inadmissible.
(f) Notice. Evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
RULE 610. RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
Notes and Comments
Comment to 1997 change: This is prior Rule of Criminal Evidence 615.
RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.
(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Notes and Comments
RULE 612. WRITING USED TO REFRESH MEMORY
If a witness uses a writing to refresh memory for the purpose of testifying either
(1) while testifying;
(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or
(3) before testifying, in criminal cases;
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
RULE 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND SUPPORT
(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).
(b) Examining Witness Concerning Bias or Interest. In impeaching a witness by proof of circumstances or statements showing bias or interest on the part of such witness, and before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, the circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence rebutting any evidence impeaching one of said party's witnesses on grounds of bias or interest.
(c) Prior Consistent Statements of Witnesses. A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).
RULE 614. EXCLUSION OF WITNESSES
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:
(1) a party who is a natural person or in civil cases the spouse of such natural person;
(2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause; or
(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.
RULE 615. PRODUCTION OF STATEMENTS OF WITNESSES IN CRIMINAL CASES
(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
(b) Production of Entire Statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party.
(c) Production of Excised Statement. If the other party claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of appeal.
(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party, the court, upon application of that party, shall recess proceedings in the trial for a reasonable examination of such statement and for preparation for its use in the trial.
(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.
(f) Definition. As used in this rule, a "statement" of a witness means:
(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;
(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.
Notes and Comments
Comment to 1997 change: This is prior Texas Rule of Criminal Evidence 614.
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Notes and Comments
Comment to 1997 change: The former Civil Rule referred to facts or data "perceived by or reviewed by" the expert. The former Criminal rule referred to facts or data "perceived by or made known to" the expert. The terminology is now conformed , but no change in meaning is intended.
RULE 704. OPINION ON ULTIMATE ISSUE
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
(b) Voir dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.
(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
Notes and Comments
Comment to 1997 change: Paragraphs (b), (c), and (d) are based on the former Criminal Rule and are made applicable to civil cases. This rule does not preclude a party in any case from conducting a voir dire examination into the qualifications of an expert.
RULE 706. AUDIT IN CIVIL CASES
Despite any other evidence rule to the contrary, verified reports of auditors prepared pursuant to Rule of Civil Procedure 172, whether in the form of summaries, opinions, or otherwise, shall be admitted in evidence when offered by any party whether or not the facts or data in the reports are otherwise admissible and whether or not the reports embrace the ultimate issues to be decided by the trier of fact. Where exceptions to the reports have been filed, a party may contradict the reports by evidence supporting the exceptions.
ARTICLE VIII. HEARSAY
RULE 801. DEFINITIONS
The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.
(b) Declarant. A "declarant" is a person who makes a statement
(c) Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter.
(d) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding except a grand jury proceeding in a criminal case, or in a deposition;
(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;
(C) one of identification of a person made after perceiving the person; or
(D) taken and offered in a criminal case in accordance with Code of Criminal Procedure article 38.071.
(2) Admission by party-opponent. The statement is offered against a party and is:
(A) the party's own statement in either an individual or representative capacity;
(B) a statement of which the party has manifested an adoption or belief in its truth;
(C) a statement by a person authorized by the party to make a statement concerning the subject;
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or
(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
(3) Depositions. In a civil case, it is a deposition taken in the same proceeding, as same proceeding is defined in Rule of Civil Procedure 207. Unavailability of deponent is not a requirement for admissibility.
RULE 802. HEARSAY RULE
Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.
RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;
unless the sources of information or other circumstances indicate lack of trustworthiness.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the authenticity of which is established.
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
(21) Reputation as to Character. Reputation of a person's character among associates or in the community.
(22) Judgment of Previous Conviction. In civil cases, evidence of a judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), judging a person guilty of a felony, to prove any fact essential to sustain the judgment of conviction. In criminal cases, evidence of a judgment, entered after a trial or upon a plea of guilty or nolo contendere, adjudging a person guilty of a criminal offense, to prove any fact essential to sustain the judgment of conviction, but not including, when offered by the state for purposes other than impeachment, judgments against persons other than the accused. In all cases, the pendency of an appeal renders such evidence inadmissible.
(23) Judgment as to Personal, Family, or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
(24) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(3) testifies to a lack of memory of the subject matter of the declarant's statement;
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.
A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay Exceptions. The following are not excluded if the declarant is unavailable as a witness:
(1) Former testimony. In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.
(2) Dying declarations. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement of personal or family history.
(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated; or
(B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
RULE 805. HEARSAY WITHIN HEARSAY
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
When a hearsay statement, or a statement defined in Rule 801(e)(2) (C), (D), or (E), or in civil cases a statement defined in Rule 801(e)(3), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with specimens which have been found by the court to be genuine.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:
(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or
(B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence twenty years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by statute or by other rule prescribed pursuant to statutory authority.
RULE 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person, authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. The final certification shall be dispensed with whenever both the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces such requirement, in which case the record and the attestation shall be certified by the means provided in the treaty or convention.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.
(5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Business Records Accompanied by Affidavit.
(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.
(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice, to-wit:
No ______________
John Doe (Name of Plaintiff)
º
IN THE __________
º
v.
º
COURT IN AND FOR
º
º
John Roe (Name of Defendant)
º
_________ COUNTY, TEXAS
AFFIDAVIT
Before me, the undersigned authority, personally appeared _________, who, being by me duly sworn, deposed as follows:
My name is _________, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:
I am the custodian of the records of _________. Attached hereto are _____ pages of records from ______. These said ____ pages of records are kept by ________ in the regular course of business, and it was the regular course of business of __________ for an employee or representative of ________, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.
______________________________________
Affiant
SWORN TO AND SUBSCRIBED before me on the _________ day of _________, 19 ____.
______________________________________
Notary Public, State of Texas
Notary's printed name:
______________________________________
My commission expires:
_______________
(11) Presumptions Under Statutes or Other Rules. Any signature, document, or other matter declared by statute or by other rules prescribed pursuant to statutory authority to be presumptively or prima facie genuine or authentic.
RULE 903. SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
RULE 1001. DEFINITIONS
For purposes of this article the following definitions are applicable:
(a) Writings and Recordings. "Writings" and "recordings" consist of letters, words, or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(b) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(c) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
(d) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
RULE 1002. REQUIREMENT OF ORIGINALS
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.
RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(a) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
(c) Original Outside the State. No original is located in Texas;
(d) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the content would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.
RULE 1005. PUBLIC RECORDS
The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
RULE 1006. SUMMARIES
The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.
RULE 1008. FUNCTIONS OF COURT AND JURY
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
RULE 1009. TRANSLATION OF FOREIGN
LANGUAGE DOCUMENTS
(a) Translations. A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.
(b) Objections. Any party may object to the accuracy of another party's translation by pointing out the specific inaccuracies of the translation and by stating with specificity what the objecting party contends is a fair and accurate translation. Such objection shall be served upon all parties at least 15 days prior to the date of trial.
(c) Effect of Failure to Object or Offer Conflicting Translation. If no conflicting translation or objection is timely served, the court shall admit a translation submitted under paragraph (a) without need of proof, provided however that the underlying foreign language documents are otherwise admissible under the Texas Rules of Evidence. Failure to serve a conflicting translation under paragraph (a) or failure to timely and properly object to the accuracy of a translation under paragraph (b) shall preclude a party from attacking or offering evidence contradicting the accuracy of such translation at trial.
(d) Effect of Objections or Conflicting Translations. In the event of conflicting translations under paragraph (a) or if objections to another party's translation are served under paragraph (b), the court shall determine whether there is a genuine issue as to the accuracy of a material part of the translation to be resolved by the trier of fact.
(e) Expert Testimony of Translator. Except as provided in paragraph (c), this Rule does not preclude the admission of a translation of foreign language documents at trial either by live testimony or by deposition testimony of a qualified expert translator.
(f) Varying of Time Limits. The court, upon motion of any party and for good cause shown, may enlarge or shorten the time limits set forth in this Rule.
(g) Court Appointment. The court, if necessary, may appoint a qualified translator, the reasonable value of whose services shall be taxed as court costs.
Notes and Comments
Comment to 1997 change. This is a new rule.
Subscribe to:
Comments (Atom)
