Rules of Evidence and Objections in a Virtual Hearing

Whether in-person or through virtual court, you will need to complete the following to validate and submit evidence to the court: 

• Submit exhibits to the court according to local procedure,  

• Present the evidence to the courtroom or “walk the triangle,”  

• Mark the evidence for identification as an exhibit, 

• Submit the exhibit for inspection (if requested),  

• Authenticate, or identify, the exhibit (also known as “laying the foundation”), and 

• Offer the exhibit into evidence. 

Local rules are the courts’ administrative procedures that control local practice. Local rules allow the courts to manage things like case scheduling, admission of evidence, remote hearing procedures, motions, and orders.  

Local rules cannot conflict with or interfere with state law, federal law, or rules that have been adopted by the Supreme Court of Texas. 

Texas courts offer a Local Rules search engine to help you find your court’s local rules. Local rules are often also found on your court’s website. 

It is important for you to review your court’s local rules before preparing your case so that you are not surprised by any restrictions on the types of evidence or the way you are allowed to present evidence in your case. 

Some courts have additional rules on top of their county or region’s local rules. Court rules spell out your individual court’s procedures for things like scheduling, motions and accompanying dockets, and rules of decorum.  

If provided, rules of courtroom decorum are critical for the presentation of your case. The rules of courtroom decorum will usually instruct you on: 

• Proper courtroom attire; 

• Procedures for speaking to the court, jury, and witnesses; and 

• Procedures for marking and presenting exhibits. 

This is not an exhaustive list. It is important for you to review your court’s local rules and their rules of decorum. If you cannot find these rules, try contacting your court clerk or court coordinator for more information. Following court rules, just like local rules, is necessary for your case’s success.  

Standing orders are temporary rulings issued by judges that control the conduct of the parties before trial. The purpose of a standing order is to require a party to act, or not act, in a certain way to keep things running normally and as smoothly as possible until a judge can hear the issues in the case. 

For example, many courts released standing orders on the requirements of virtual hearings, including how to behave behind camera, and the presentation of evidence via your court’s video conferencing platform. 

If a standing order applies in your case, print it out, and attach it to your first pleading when you file your suit.  

Standing orders are also included in the Texas Local Rules search engine. Confirm with your court that you are not missing any standing orders. 

A court may take judicial notice of facts that cannot be reasonably denied because: 

• The facts are commonly known to the court and within the court’s authority; or 

• The facts can accurately and readily be proven from reliably trustworthy sources.  

There are four rules in Article II of the Texas Rules of Evidence regarding judicial notice. Review these rules for a complete understanding of judicial notice. 

Evidence is relevant if:  

• The evidence has any tendency to make a fact more or less likely than it would be without the evidence; and  

• The evidence is important to decide the issues of your case. 

This means the evidence should be related to the facts you are offering and important to proving your case. 

There are exceptions to the relevance rule. Rule 403 of the Texas Rules of Evidence states that even relevant evidence may be excluded if there is a danger of the truth of the evidence, or the probative value, significantly causing a major imbalance in the issues. The probative value of the evidence may not: 

• Cause unfair prejudice; 

• Confuse the issues; 

• Mislead the jury; 

• Unnecessarily slow down the case; or 

• Continue to add evidence that has already been admitted without an important need.  

Note: It is important to be aware of the relevant evidence balancing test. Courts consider factors like these to determine whether a piece of evidence is unnecessarily harmful to the search for truth: 

• How strong is the evidence?; 

• Do you need this evidence to prove your point?; 

• Is the evidence misleading?; 

• Does the evidence confuse or distract the jury from the main issues?; 

• Would a jury give this evidence an unfair amount of weight in deciding the facts of the case?; 

• Will presenting the evidence slow down the case?; and 

• Is this evidence an unnecessary repeat of evidence that has already been presented? 

Some relevant evidence cannot be admitted for reasons spelled out in the Rules of Evidence. Relevant evidence that is not permissible includes: 

• Evidence that is outweighed by prejudice, confusion, or other reasons; 

• Forbidden character evidence; 

• Actions that were taken after an injury to prevent that type of injury from occurring again, known as subsequent remedial measures; 

• Offers of compromise or settlement negotiations; 

• Offers to pay medical and similar expenses; 

• Certain pleas, discussions, and related statements; 

• Ownership (or lack thereof) liability insurance to prove negligence; and 

• Evidence of previous sexual assault in certain criminal cases. 

Privileges are rules in place to protect certain confidential information from being used in court.  

Can privileged evidence come into court? 

No. Privileges help keep confidential conversations confidential. 

What types of evidence are privileged? 

Privileges are not always absolute; an exception may apply to the privilege in your case. Some of the privileges outlined in the Texas Rules of Evidence include: 

• Lawyer-client privilege: communications with your lawyer about case strategy including work product derived from the lawyer-client relationship. 

• Spousal privilege: conversations between spouses if the conversation was held privately. 

• Communications to clergy: confidential communications to clergy for spiritual advice. 

• Political vote privilege: votes in a secret ballot unless the vote was cast illegally. 

• Trade secrets privilege: information about a company’s operations that the company intends to protect. 

• Informer's identity privilege: the right to refuse to disclose a potential informant. 

• Physician-patient privilege: confidential communication between a patient and their physician as it relates to treatment, and confidential protection of records maintained by the physician. 

• Mental health information privilege: confidential communications made to a mental health professional. 

Evidence made from privileged information may be excluded by the judge if it is properly challenged or objected to.  

Hearsay is a statement that: 

• The declarant, or person who made the statement, made while not testifying in the current trial or hearing; and 

• A party offers the statement as proof that the point presented in the statement is true.  

Hearsay statements have been repeated or shared by someone who heard it from another person, rather than from direct knowledge or observation. Hearsay is considered unreliable information because it can be distorted or inaccurate. Hearsay statements are usually not allowed as evidence to guarantee the trustworthiness of out-of-court statements and to prevent the unfair prejudice that may occur from admitting them.  

An important formula to keep in mind when considering hearsay statements is:  

• Out-of-court: The statement was not made in court, on the record, during this trial. 

• Statement: A statement is a person’s verbal expression. However, a statement may also include something a person did if they intended the action to replace a verbal statement. Therefore, some actions, or writings may also be classified as hearsay. 

• 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 that the main point of the statement is true. 

Example: 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. Your spouse’s sister’s statement is hearsay. 

Hearsay Rule: 

Hearsay statements are generally not admissible in court under Rule 802 of the Texas Rules of Evidence. However, there are many exceptions and exclusions to the hearsay rule in Article VIII of the Texas Rules of Evidence. These exceptions are broken up into three sub-categories: 

• Statements that are not hearsay [Rule 801(e)]; 

• Exceptions when the person that made the statement is not available as witness [Rule 804]; and 

• Exceptions whether or not the person who made the statement is available as witness [Rule 803]. 

The hearsay rule includes written statements. You must find the correct exception if you are trying to introduce written statements that can be considered hearsay. 

Be sure to carefully review all of the exceptions found in Article VIII before preparing your case. This will prevent you from being surprised when you are trying to offer evidence to the court for consideration. 

Under Rule 404(a) of the Texas Rules of Evidence, character evidence is evidence used of a person’s character to prove that person acted in accordance with that character or character trait.  

Character evidence is prohibited, subject to limited exceptions.  

Character evidence can be introduced in some circumstances. You can prove character by: 

• Reputation or opinion of a person’s character [Rule 405(a)]; 

• Specific instances of conduct, if the character trait is an essential element of the claim (for example, specific instances of dishonesty in a case involving fraud) [Rule 405(b)]; 

• Evidence of habit or routine practice [Rule 406]; and 

• Exceptions for accused, victims, and witnesses who are under impeachment [Rule 404(a) (2)-(4)]. 

• Situational exceptions [Rules 407-412]. 

Note: specific instances of conduct can be admissible in cross-examination, even when character is not essential to the claim.  

Impeachment is the attack or support of a witness’s credibility. Any party, including the party that called the witness, may attack or support the witness’s credibility. 

Article VI of the Texas Rules of Evidence governs impeachment processes. You can impeach a witness by: 

• Reputation, opinion, or specific instances of truthfulness or untruthfulness [Rule 608]; 

• Evidence of criminal convictions [Rule 609]; or 

• Evidence of prior inconsistent statements, bias, or interest [Rule 613]. 

These rules of impeachment, like other Rules of Evidence, are subject to strict limitations.  

Evidence must be authenticated. This means that you must produce outside evidence to support a finding that the item is what you claim it is. 

Under Rule 901, evidence can be authenticated by: 

• Testimony of a witness with personal knowledge of the evidence; 

• Nonexpert opinion about handwriting, based on familiarity acquired before the litigation; 

• Comparison by an expert witness or trier of fact; 

• Evidence of distinctive characteristics; 

• Opinion about a voice through prior knowledge of the alleged speaker’s voice; 

• Evidence of a telephone conversation with a person or business; 

• Evidence of public records; 

• Evidence about ancient documents or data compilations; 

• Evidence about a process or system; or 

• Methods provided by a statute or rule.  

Some evidence is self-authenticating. These types of evidence do not require outside evidence of authenticity. Under Rule 902, self-authenticating evidence includes: 

• Domestic public documents that are sealed and signed; 

• Domestic public documents that are not sealed but are signed and certified; 

• Foreign public documents; 

• Certified copies of public records; 

• Official publications issued by a public authority; 

• Newspapers and periodicals; 

• Trade inscriptions (signs, tags, or labels indicating origin, ownership, or control);  

• Acknowledged documents executed by a notary public or other authorized officer; 

• Commercial paper, to the extend allowed by general commercial law; 

• Business records with accompanying affidavit; and 

• Any evidence that is presumptively genuine under statute or rule. 

Example of authenticating evidence:  

The most common way of authenticating evidence is through testimony of a person with personal knowledge that the item is what it is claimed to be (Rule 901(b)(1)). This means that a witness will come to the stand to testify that the object you are trying to introduce is, in fact, the item that you have claimed to be.  

For example, you may try to introduce evidence of a photo of the scene during a tow hearing, to prove that you did not have notice of any parking restrictions. To do so, you may try to introduce a photograph of the parking lot. To authenticate this evidence, you should bring a witness to the stand to verify that the photograph of the parking lot is an accurate reflection of the parking lot at the time of the tow. You may accomplish this by bringing an employee with personal knowledge of the parking lot to verify the scene.  

Review each of the examples of authentication in Rule 901(b). 

What is a “chain of custody”?

Fungible evidence is evidence that is easily replicated, or not sufficiently different from other, similar objects. 

Some evidence is not unique and distinctive. For instance, evidence of a faulty wire that caused injury. The faulty wire may be considered fungible, as all of the other wires sold could look the exact same.  

In cases involving fungible evidence, a chain of custody must be established. A chain of custody proves not only that the evidence is what you claim it to be, but that the evidence presented is the same object that caused the injury. A chain of custody is established by showing that the evidence remained in the same condition from the time of the injury, to the introduction of the evidence at court.  

In this example, you may have to prove through personal knowledge that the wire is the same wire that shocked you and that you took that wire out and placed it in a bag to deliver to an investigator. The investigator should then testify that the wire that they received from you is the same wire that they provided to the attorney. The person introducing the evidence must prove that the evidence is the same, and that no opportunities to alter the evidence existed. 

Absent evidence of tampering, problems in the chain of custody do not affect the admissibility of the evidence but can impact the weight of the evidence.    

Hard-copy documents, such as writings, recordings, and photographs fall under the best evidence rule of Texas Rules of Evidence Rule 1002.  

The best evidence rule states that: when proving the content of a writing, recording, or photograph, the original document must be produced, unless the original is shown to be unavailable (through no fault of the proponent), or unless secondary evidence is otherwise permitted by rule.  

Under Rule 1004, secondary evidence is admissible in lieu of the best evidence rule when: 

• All the originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith; 

• An original cannot be obtained by any available judicial process; 

• An original is not located in Texas; 

• The party against whom the original would be offered had control of the original, was put on notice that the original would be subject of proof at the trial or hearing, and failed to produce it at the trial or hearing; or 

• The writing, recording, or photograph is not closely related to a controlling issue. 

You must object to a Rule 1004 “best evidence rule” violation upon introduction, or the objection will be waived. 

Rule 103 of the Texas Rules of Evidence governs objections.  

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party, this is also known as an objection. 

If the court admits evidence, a party, on the record must timely object or move to strike, and must state the specific ground for objection, unless it was apparent from the context. 

If the court excludes the evidence, a party must inform the court of its substance by an offer of proof, unless the substance was apparent from the context.

Under Rule 103(a)(2), a party can preserve an issue for appeal by tendering an offer of proof. This means that if evidence is admitted or excluded per the Rules of Evidence, you must make an offer of proof, motion to strike, or objection to preserve your claim of error.  

If you do not preserve your claim of error, you can lose your right to argue the admission or exclusion of that evidence upon appeal.   

A party tenders an offer of proof when the party informs the court of the substance of the evidence, unless the substance was apparent from the context. In a jury trial, the court must allow a party to make the offer outside of the jury’s presence. 

You should familiarize yourself with the Texas Rules of Evidence. However, secondary sources allow you to further analyze the Rules of Evidence in practice. The Texas State Law Library offers access to many of these secondary sources, visit your local law library or the State Law Library website to further examine these rules in practice.