Gathering and Presenting Evidence
Court How-Tos (Civil Procedure)
Evidence can be documents, spoken words, and physical things. A court considers evidence when it makes decisions and orders. You must follow very specific steps when you gather evidence and prove to the court that the evidence is accurate.
What is evidence?
Evidence is the way that you or the opposing party can prove or disprove the facts in your case.
Gathering, presenting, and admitting evidence can be confusing for self-represented (pro se) litigants. If you represent yourself in court without a lawyer, you will be held to the same evidence standards as attorneys.
Where can I read the evidence rules followed in Texas?
The evidence rules used in Texas courts can be found in the Texas Rules of Evidence. This article does not contain everything you should know about evidence before representing yourself in court, so it is important that you become familiar with the Texas Rules of Evidence.
As a pro se litigant, you should also read and become familiar with the Texas Rules of Civil Procedure, the Texas Civil Practice and Remedies Code, and your court’s local rules. Local rules are important, because some courts have specific local rules about how a pro se litigant should act in court. Local rules are often available on your district clerk’s website.
Are there different types of evidence?
Yes. When gathering evidence for your case, think about the different types of evidence. Types of evidence include, but are not limited to:
- Testimony. This type of evidence, known as testimonial evidence, is simply a witness giving testimony under oath about the facts of the case.
- Documents. This type of evidence, called documentary evidence, mainly refers to writings on paper, but also applies to other ways that information is preserved. Documentary evidence includes, but is not limited to, police reports, diaries, letters, contracts, photographs, tape recordings, and a printed form of digital evidence, such as emails or text messages.
- Tangible (physical) evidence. This type of evidence is made up of objects and things that a judge or jury can physically hold and inspect.
- Demonstrative evidence. This type of evidence is used to show or demonstrate the testimony of a witness. Types of demonstrative evidence include charts, maps, and diagrams.
Can I present any evidence that I want in court?
No. It is a judge’s duty to make sure that only proper evidence is presented and admitted in court.
For any evidence to be considered by a judge or jury, the evidence must be:
- Relevant. Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence.
- Material. Material evidence is evidence that is related to the issues being decided in your case.
- Authentic. Even if evidence is relevant, you still must authenticate it. Authentication is the process by which evidence is proven to be genuine, real, and not forged or faked. Often, evidence is authenticated through testimony of a witness with knowledge. Some kinds of documentary evidence are self-authenticating, which means that they do not need any proof of their genuineness beyond the documents themselves.
- Not privileged. Even if evidence is relevant, it will not be admissible if it is covered by a privilege. Certain information is privileged, which means that it does not have to be disclosed or discussed by the opposing party and cannot be asked about in testimony. Privileges recognized in Texas include, but are not limited to:
- Lawyer-client privilege
- Spousal privilege
- Doctor-patient privilege; and
- Privilege for communications to a clergy member.
Judges have discretion to admit or exclude any evidence that is not privileged, and there are many reasons why a judge might refuse to admit relevant evidence. The Texas Rules of Evidence explain in detail the reasons why relevant evidence might be excluded. If you need help figuring out whether or not evidence is admissible, talk to a lawyer (use the TexasLawHelp Legal Help Finder tool to find someone).
Do I need to attach my evidence when I file my Original Petition?
No. Attaching your evidence to your Original Petition is not necessary. Generally, you will present your evidence at your hearing or trial.
When do I present my evidence to the judge or jury?
At trial, each side will have the chance to make an opening statement. Your opening statement is like a preview of your case. It should briefly outline your general legal position. Your opening statement might refer to your evidence. But the opening is not the time to present your evidence.
After both sides have made an opening statement, you will have a chance to “put on your case.” This is when you will present your evidence and try to prove your case.
It is very important that you present your evidence at the right time. For example, if you only mention a particular piece of evidence during your opening statement and the other side is represented by an attorney, the attorney might argue that you never actually presented that evidence because it was only mentioned in your opening statement.
How do I get evidence that I know the other side has in its possession?
Discovery is the legal process that allows each side of a lawsuit to ask the other side for information that is related to the case. The discovery process is governed by the Texas Rules of Civil Procedure. These rules say that parties to a case are entitled to any information that is “relevant” to the case as long as it is not “privileged” information. Discovery rules are meant to give fairly broad access to information.
For more information about discovery, read Discovery in Texas: Investigate and Prepare for Trial.
Can the other side challenge the evidence that I want to present in court?
Yes. An opposing party or their lawyer can challenge evidence the evidence you want admitted by making objections in court.
The judge will respond by either sustaining the objection or or overruling the objection. Sustaining the objection means that the objection is correct and the evidence should be excluded. Overruling the objection means that the evidence will be admitted to the court. If the judge overrules an objection made by the other side, that means that you have permission to discuss your evidence.
Some common objections that you should be familiar with include, but are not limited to:
- Asked and answered
- No proper authentication
- Incompetent witness
- Not based on personal knowledge
- Unfairly prejudicial
- Calls for speculation
It is helpful to understand these objections before you go to court. Understanding objections will help you when preparing your evidence, because you can try to anticipate how the other side might object and prepare your response. It is also good to understand objections so that you can object to evidence presented by the other side.
What is hearsay?
Generally speaking, hearsay is inadmissible and cannot be used as evidence at trial.
Hearsay is defined as an out-of-court statement offered into evidence to prove the truth of the matter asserted in that statement. It is helpful to break the hearsay rule down so that it is easier to understand:
Out-of-court: The statement was not made in court, on the record, during the trial.
Statement: A statement is defined as a person’s oral or written verbal expression, or nonverbal conduct that a person intended as a substitute for a verbal expression. In other words, a hearsay statement can be something a person said, wrote down, or did.
Offered into evidence: A party to the current lawsuit is trying to get the statement admitted into evidence
To prove the truth of the matter asserted in that statement: The statement itself is being offered as evidence to prove the substance of that statement.
While hearsay is, in general, inadmissible in court, many objections and exclusions to the hearsay rule exist.
Example of a hearsay statement: You are the Petitioner in a divorce case. You believe that your spouse is hiding a bank account from you, because your spouse’s sister told you that your spouse has a hidden account with $5,000 in it. Your spouse’s sister is not available as a witness in court.
To prove the existence of the bank account at your divorce hearing, you tell the judge: “I know my spouse is hiding a bank account from me, because my spouse’s sister told me that my spouse has a hidden account with $5,000 in it.”
The sister’s statement was made out-of-court, and you are offering it as evidence to prove that the hidden account exists. So your spouse’s sister’s statement is hearsay.
For more information on hearsay, see the Texas Rules of Evidence, Rules 801 – 806.
How can I respond to a hearsay objection made by the other side?
If the opposing side objects to your evidence and claims that it is hearsay, you will have an opportunity to respond. In your response, you should state how your evidence either (1) is not hearsay, or (2) falls within an exception of the hearsay rule. The judge will then decide whether the objection is sustained or overruled.
Statements that are not hearsay include:
- A prior statement made by a person who is now a witness;
- An admission by the opposing party; and
- Statements made in a deposition.
For more information on statements that are not hearsay, see the Texas Rules of Evidence, Rule 801(e).
Statements that are hearsay but are still admissible under an exception to the hearsay rule include, but are not limited to:
- Present sense impressions: A present sense impression is a statement describing or explaining an event made while the person was perceiving the event or immediately afterwards.
- Excited utterances: An excited utterance is a statement relating to a startling event or condition made while the person was under stress or excitement caused by the event or condition.
- Recorded recollections: A recorded recollection is a record that is on a matter the witness once knew about but now cannot recall well enough to testify fully or accurately. The record must have been made or adopted by the witness when the matter was fresh in the witness’s memory.
- Business records: A business record is a record that (1) was made at the time by someone with knowledge, and (2) was kept in the course of a regularly conducted business activity.
- Public records: A public record is a record or statement of a public office.
- Certificates of marriage, baptism, and similar ceremonies
- Statements against interest: A statement against interest is a statement that a reasonable person would only have made if it were true, because the statement, when said:
- Was contrary to the person’s financial or proprietary interest; or
- Subjected the person to civil or criminal liability; or to
- Made the person an object of hatred, ridicule, or disgrace.
- Former Testimony: Former testimony is testimony that was given previously by a witness at a trial or hearing and is now offered against that witness.
For more detailed information and for a full list of the exceptions to the hearsay rule, see the Texas Rules of Evidence, Rule 803 and Rule 804.
What is an exhibit?
An exhibit is evidence, often a document, that is marked so that the court and the other side can know what piece of evidence you are discussing. Exhibits are usually marked with letters (Exhibit A, Exhibit B, Exhibit C, etc.) or numbers (Exhibit 1, Exhibit 2, Exhibit 3, etc.).
Different courts often have different rules about how they want exhibits to be marked. Be sure to familiarize yourself with your court’s local rules before preparing your exhibits. Also, if you are in a virtual courtroom, learn that particular court's procedure.
Typically, you introduce an exhibit by marking it, showing it to the other side, then presenting it to the witness. Many courts will require that you ask the judge if you can approach, or get close to, the witness to show them the exhibit.
Sometimes you use exhibits just to ask questions and then take it back, and other times you will want to introduce the exhibit into evidence. Once an exhibit is introduced into evidence, you may then show it to the jury. This is called “publishing to the jury.” If you are having a trial without a jury, which is called a “bench trial,” you would also give a copy to the judge.
Some courts have local rules requiring parties to exchange their exhibit list with the other side a certain number of days before trial. Be sure to check your district clerk’s website for a list of your court’s local rules.
How can I bring in text messages, emails, and social media messages to use as evidence?
To present text messages, emails, or social media messages to the court, take screen shots of the exchange you want to use as evidence and print those photographs. Label each separate exchange as an Exhibit.
In court, you will need to authenticate the photographs through testimony. The judge may ask you some questions to help you authenticate the photographs, but you should be prepared to do so without assistance.
Below is a sample script for authenticating a photograph of a text message exchange:
“Your Honor, I wish to identify this photograph as Exhibit ____.
I am showing you what’s been marked as Exhibit _________.
This is a photograph of a text message that ___________ (person) sent to me on ____________ (date).
I know that the text message is from __________ (person) because it came from his/her phone number. I have received a lot of texts from him/her so I know he/she writes and sounds like this.
This photograph is a picture of the exact message I received on _______ (date).
I took this photograph on _______ (date).
Your Honor, I wish to offer Exhibit ____ into evidence.
Your Honor, I wish to publish Exhibit ____ to the jury.”
Be prepared to respond to a hearsay objection from the other side. The rule against hearsay and possible responses to a hearsay objection are explained above.
A Guide to Representing Yourself in Family Court
Family, Divorce & Children
Discovery in TexasThis article offers information about the rules governing discovery in Texas.
Civil Litigation in Texas: The BasicsThis article explains the basics of civil lawsuits in Texas.
Justice 101: The Client's Guide to Texas Civil LitigationThis article contains a link to a video that provides some background on the civil litigation system in Texas.