Evidence Refresh Recap

Evidence Refresh Recap

In case you missed it, on April 11th, the DAYL CLE Committee and the DAYL Trial Skills Committee held an interactive CLE focusing on some of the most common evidentiary pitfalls seen at trial.  Professor Fred Moss from the SMU Dedman School of Law led the discussion, with significant contribution from the Honorable Jim Jordan and Melanie Okon.  Here are some of the key pieces of advice offered from the distinguished panel:

  1. Obtain a Ruling on Objections. Often times, an attorney will make an objection, and a judge may instruct counsel to “move along.” If the objecting attorney fails to obtain a ruling, the objection is waived.
  2. State the Basis for Objections. Assume it is never enough to simply say “Objection!”  An attorney should always state the basis for her objection. For example, “Objection, hearsay.”   This prevents an attorney from having to argue on appeal that the basis for the objection was apparent.
  3. Refreshing Recollection. An attorney cannot refresh a witness’s recollection until the witness has stated he does not remember a certain act or event.  Once a witness has stated he does not remember, the document used to refresh the recollection should not be read aloud by the witness.  Instead, the witness should read it to himself.   Counsel should ask if the document refreshed the witness’s recollection, and if the witness says yes, counsel should re-ask the original question.
  4. Running Objections. A “running objection” preserves the objection to a particular line of questioning asked of a particular witness.   Importantly, many Texas court have held that a running objection is only good for one witness.  If another witness is questioned on the same subject, the objection should be renewed or it is waived.
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