The objective of all of the rules of evidence is to try to make sure that the information admitted into evidence at a trial is reliable.  The first way we do that is that we swear the witness to “tell the truth, the whole truth, and nothing but the truth.”  The problem is that electrons and pieces of paper simply refuse to be sworn.  So, we have a variety of procedures by which we try to ensure that the documents are worthy of our trust.  In deciding how to get a document into evidence, it is helpful to start with the presumption that your document is hearsay, and then find the appropriate exception to the hearsay rule.

Hearsay is the most misunderstood concept in evidence.  But it’s really not that difficult.  The simplified definition of hearsay is any out of court statement, offered for the proof of the matter asserted.  (Texas Rules of Evidence 801(d)).  So, the first question to consider is whether you are offering the document as proof of what the document says.  For example, a log of the times people entered and left a building could be evidence of who entered, who left, and when; an invoice could be proof of services rendered and the prices charged; a photograph or video tape could be proof of what something looked like; and a recording could be proof of what someone said.  In each case, the evidence might be rebutted, but the documents can be admitted with the proper authentication.  Beware, however, that while a letter might be proof of that a message was sent, it doesn’t ordinarily prove that what was said in the letter was true – that’s a separate problem, and a second level of hearsay.

Once you’ve accepted the premise that your document starts out as hearsay, making it admissible is merely an issue of determining whether there is a hearsay exception that applies.  (References to TRCP are to the Texas Rules of Civil Procedure, and TRE refers to the Texas Rules of Evidence).

  1. Documents produced by other side TRCP 193.7
  2. Documents which contain an admission by other side TRCP 198.3
  3. Business Records Affidavit. If filed 14 days before trial, the records can be admitted. But beware – just because someone has a document in their file doesn’t make it their business record.  TRE 803 (6)
  4. Live testimony or Deposition testimony to establish authentication of the document as a business record.
  5. Deposition on Written Questions to authenticate the documents as business records. Medical and employment records are often subpoenaed by a court reporting service, and the subpoena can require that the record holder answer questions in “admissible form” which means asking questions that will establish the records as business records so that they are admissible.
  6. Judicial Notice TRE 201- 204. This allows laws of other states, countries, ordinances, administrative rules, or documents in the court’s file to come into evidence.
  7. Certified copy of public records TRE 803(8) The most frequently encountered issue here is that a police report, while a public record, virtually always contains information which the officer was told by a third person. That information also hearsay, and must be dealt with separately; the only thing the report proves is that the officer appeared, did an investigation, and wrote a report.  The reporting officer was not on the scene, and cannot testify to what happened.  In order to get the underlying information into evidence, it will be necessary to call another witness to testify to that information.
  8. Past Recollection recorded – this is usually seen in diaries, calendars, correspondence, summaries or other documents prepared by the testifying witness at some time before their testimony.
  9. Prior Inconsistent statement. If the witness has said something in writing which conflicts with their current testimony, that document may be admissible using this exception to the hearsay rule.
  10. Waiver of objection by opponent. Sometimes, if you have no better option, evidence can be admitted simply because it is offered in trial and no one objects.

All that being said, if you have a case of any significant size, you don’t want to try the case yourself, any more than you would want to do your own brain surgery – because you’ll likely get an equally devastating result.

If you need help, just call your favorite lawyer.