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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Texas Rules of Evidence Series - RULE 1008

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.

Todays rule of evidence is the second to last one in the Texas Rules! Rule 1008 covers the "Functions of the Court and Jury. It states more like a suggestion and less like a rule that "Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004, or 1005." If you remember those rules cover admissibility of items when an original cannot be found or produced.

The federal counterpart to this rule also contains the "Ordinarily" language. This is because in accordance with Rule 104 (b) the jury must be the fact finder as to whether the purported writing ever existed in the first place. You can see how a court's determination that someone could testify to the contents of a writing implies that the writing itself existed. This again is a determination for members of the jury and not the function of the court when it balances if the testimony is admissible. A jury is free to believe or disbelieve anything that a witness says. The rule also gives the jury the power to determine if the document (when another is produced) is the original, or if other evidence accurately reflects the content of the original.

This rule preserves the function of jury trials and the deliberative process of fact finding that the jury engages in during a trial. While these rules rarely become contentious it is important to know each of them to be a competent lawyer. You never know when one may come in handy during a trial. Similarly you never know when an opponent may feel like one is applicable and you'll have to make an argument against the application of the rule.

In this rule's case imagine if opposing counsel argued that because the testimony about the contents of the writing were allowed by the judge over an objection this meant that the jury should adopt it as such. You could object under rule 1008 that the jury determines any issue about if the other evidence, testimony in this case, accurately reflects the original.

This can make opposing counsel look a little bit like a snake trying to pull one over on the jury. Anytime you can make opposing counsel look that way you are probably headed in the right direction. Similarly you should always avoid giving your opponent opportunities to make you appear this way as it can destroy your credibility with the jury.

Rule 1008. Functions of the Court and Jury

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.


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