Houston NW Bar Association

1. Houston NW Bar Association WITNESS BACKGROUND ISSUES By: Benny Agosto, Jr. Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz

3. Introduction: Juror Perception • “A positive juror perception can be the difference between winning and losing a case. Jurors formulate a strong opinion based on their first impression and they are inherently biased in evaluating subsequent information.” • The rules of evidence are in place to prevent evidence that is not relevant or is prejudicial from being presented at trial that may cause the jury to come to a verdict based upon personal biases and prejudices.

4. PRACTICE TIP • Don’t bring it up in Voir Dire or it’s waived! • Cortez . HCCI – San Antonio, Inc. (Tex. 2005) • attempts to preview a prospective juror's likely vote not permitted • Hyundai Motor Co. v. Vasquez (Tex. 2006) • trial court could refuse to permit voir dire question about prospective jurors' response to fact that child was not wearing seat belt

5. Cross-Examination of Witnesses • The purpose of cross-examination • To attack facts • To attack witness’credibility

6. ImpeachmentTexas Rules of Evidence • TRE 404. Character Evidence Not Admissible To Prove Conduct’ Exceptions; Other Crimes • TRE 405. Methods of Proving Character • TRE 607. Who May Impeach • TRE 608. Evidence of Character & Conduct of a Witness • TRE 609. Impeachment By Evidence of Conviction of a Crime • TRE 613. Prior Statements of Witnesses: Impeachment & Support

10. Immigration Status “cases ought to be tried in a court of justice upon the facts provided; and whether a party be a jew or gentile, white or black, is a matter of indifference.”

12. Immigration Status • Blatant forms of racisms has been replaced with never and more elusive forms of derision. • Our system of justice must be vigilant to protect against efforts to tarnish a person’s character based on racial or ethnic background, religion, or immigration status. • During the past 100 years, Texas Appellate Courts have condemned arguments that invoke prejudice.

13. TXI Transp. Co. v. Hughes(Tex. 2010) • CAR WRECK CASE • Truck driver’s immigration status was not admissible because it was not relevant to the cause of the accident • TRE 608(b): specific instances of conduct not admissible on cross examination • Even if immigration status was relevant, it’s probative value was outweighed by the risk of unfair prejudice

14. Mendez v. Salinas & Antara Trucking(Tex. App. 2018) • CAR WRECK CASE • Appellees counsel asked Expert if his opinions were based on whether Plaintiff was going to continue living in the United States. • A single racially or ethnically prejudicial remark, whether implicit or explicit, may give rise to incurable error. • Court held appellees’ counsel’s veiled reference to Plaintiff’s immigration status was so prejudicial as to be incurable by an instruction to disregard.

15. TXI Transp. Co. v. Hughes(Tex. 2010) • TRE 608(b) Specific Instances of Conduct Specific instances of the conduct of a witness, for the purposes of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

16. TXI Transp. Co. v. Hughes(Tex. 2010) • According to Justice Medina: “Such appeals to racial and ethnic prejudices, whether ‘explicit or brazen’ or ‘veiled and subtle’ cannot be tolerated because they undermine the very basis of our judicial process.”

17. Republic Waste Services, Ltd. v. Martinez(Houston [1st Dist.] 2011) • WRONGFUL DEATH CASE • Court held that decedents status as an illegal immigrant was not relevant – excluded under TRE 401 & 403 • “the probative value of showing only that the plaintiff is an illegal immigrant, who could possibly be deported, is slight because of the highly speculative nature of such evidence”

18. Republic Waste Services, Ltd. v. Martinez(Houston [1st Dist.] 2011) • TRE 401. Definition of Relevant Evidence • "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence • TRE 403. Exclusion of Relevant Evidence on Special Grounds • Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

19. When can the evidence be used?

20. Bustos v. Able Crushed Concrete, Inc.(Houston – 1st Dist., 2002) • NEGLIGENCE CASE • Employee's opening statement that referred to forgery conviction waived any error in admitting the conviction in personal injury action against employer and other contractors.

21. Carcamo-Lopez v. Does (Boarder Patrol Agents)(W.D. Texas, 2011) • MOTION FOR SUMMARY JUDGEMENT • Plaintiff was injured by a boarder patrol agent’s vehicle while trying to illegally cross the Mexican-U.S. boarder • Plaintiff sued the boarder patrol agent and the U.S. Government • The Government’s MSJ based on the Unlawful Acts Rule was denied

22. “Unlawful Acts Rule” • No action may be predicated upon an admittedly unlawful act of the party asserting it. • If at the time of the injury, the plaintiff was engaged in an illegal act, if the illegal act contributed to the injury, the plaintiff cannot recover. • No legal or equitable right can result from an unlawful or wrongful act or transaction and that no action can be maintained on a claim arising out of or based on such an act or transaction if the plaintiff must in any way rely thereon in establishing his or her cause of action.

23. Criminal Background

24. Criminal Background Under TRE and the FRE, courts must balance the risk of unfair prejudice against the probative value of the evidence seeking to be admitted

25. Criminal Background • TRE 404(b) Other Crimes, Wrongs or Acts. • “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident…”

26. Old Chief v. United States(U.S. Sup. Ct. 1967) • PRIOR CONVICTION EVIDENCE • The Court held that the defendant’s prior criminal conviction should have been stipulated and not listed in full detail on the indictment • “unfair prejudice” is evidence that may “lure the fact-finder into declaring guilt in a ground different from proof specific to the offense charged”

27. Howard v. Tarrant County(Fort Worth, 2012) • NEGLIENCE CASE • When prisoner sued Tarrant Co. for sheriff’s negligence when transporting the prisoner, all of the prisoner’s prior felonies were admissible • When a witness’s credibility is at issue, prior convictions may be admissible

28. Car Wreck Issues Unlicensed drivers Admissibility of seat belts

30. Carter v. Johnson(San Antonio, 2012) • PRIOR DRIVING RECORD • Under TRE 404(b), drivers prior driving record and whether had previously been involved in other accidents was not admissible to show action in conformity therewith

31. When can the evidence be used?

32. Williams v. Steves Industries, Inc.(Tex. 1985) • UNLICENSED DRIVER • More evidence was required to show gross negligence for punitive damages, being unlicensed alone was not enough • The court held that the primary purpose of requiring a license “is to insure minimum competence and skill,” but just because a driver is unlicensed does not determine they are in fact incompetent

33. Bridgestone/Firestone, Inc. v. Glyn-Jones(Tex. 1994) • SEAT BELT USAGE • Legislature’s mandatory seat belt law was enacted to provide a criminal penalty for failure to wear a seat belt • The court held that failure to wear a seat belt cannot be used against an injured person as trial

34. Texas Transportation Code § 545.413(g) • “Use or nonuse of a safety belt is not admissible as evidence in a civil trial…” • In 2003, the Legislature repealed § 545.413(g) • Since repeal, one federal court has concluded that the 2003 repeal “does not indicate that [evidence of a party’s failure to wear a seat belt] is now per se admissible”

35. Idar v. Cooper Tire & Rubber Co.(U.S. Dist. 2011) • SEAT BELT USAGE • The court held that the alleged failure of the injured person to wear a seat belt did not contribute to the accident and under current Texas law should not give rise to contributory negligence • Failure to wear a seat belt did not constitute subsequent negligence and does not give rise to a reduction of recovery

37. When can the evidence be used?

38. Substance Abuse General impeachment Habit evidence causation

39. M.I.L. Language • “Any reference to the personal habits, including alcohol use, or drug use. It is well recognized that if personal habits are not in issue in the case, they are not admissible and are a proper subject for a Motion in Limine.”

40. Commerce & Indus. Ins. V. Ferguson-Stewart(Houston, 2011) • WORKERS’ COMPENSATION CASE • Texas courts have consistently upheld the exclusion of evidence of a witness’s prior drug use for general impeachment purposes

41. “Habit Evidence” • TRE and FRE 406 • “Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.” • Factors: • (1) degree to which conduct is reflexive or semi-automatic; • (2) specificity or particularity of the conduct; and • (3) regularity or numerosity of the examples of the conduct.

43. Ticknor v. Doolan(Houston, 1991) • CAR WRECK CASE • Substance abuse & causation • The court held that although evidence of intoxication alone does not establish negligence or proximate cause, it is an evidentiary factor to be considered by the jury in assessing contributory negligence.

44. Mental Anguish Issues DAMAGES FORESEEABILITY

45. SCI Texas Funeral Services, Inc. v. Nelson(Texas 2018) • MENTAL ANGUISH CASE • Corpse of mother was cremated even though adult son had not been notified and consented. • Evidentiary standard: Plaintiff must provide direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiff’s daily routine. • Court held contractual relationships such as funeral services may give rise to mental anguish damages. But such a contract is not required if the defendant breaches an independent legal duty that gives rise to mental anguish damages. • Negligent mishandling of a corpse is one such legal duty where mental anguish damages may be available

46. Foreseeability • Mental anguish is more difficult to foresee than other injuries because the invasion of the same legal right may lead to extreme anguish in one person while causing essentially no emotional damage to another. • Requiring a special relationship, malice, or a particularly shocking injury helps alleviate this concern • Ensuring that the injury and injured party are foreseeable to the defendant (because of the existence of a special relationship) or by shifting the risk of overcompensation in only especially egregious situations

47. Trucking Case Issues Preservation of evidence Digital event data

48. Know What Data is Available and Insure it is Preserved – Digital Event Data • Digital Event Data: Crash specific information that can contain pre- and/or post-impact vehicle speed, breaking, throttle, steering and other useful accident related information. • What previously took an accident reconstructionist months of billing to estimate can now be determined with certainty in minutes. • Data will stay in the vehicle until the airbag module is replaced or the event is overwritten by another accident. It is imperative that the truck is towed from the accident and not touched until the data can be properly preserved. • It is not uncommon to retrieve data years after the date of the accident. Therefore, if the vehicle is still available, there may still be data from the accident in that vehicle.

49. Four Most Common Areas of Digital Event Data • Passenger Vehicle Airbag Module Data • Most important data recovered from a vehicle is your client’s speed. • DeltaV is used to determine how violent the impact was and the speed of the other vehicle. • Seatbelt usage available in almost all vehicles • Tractor Trailer Engine Module Data • Triggers to initiate recording include: deceleration by braking application and last stop event. • GPS Fleet Tracking Software • This date can provide exact GPS locations, speeds and braking for the minute leading up to the accident • Big service providers include: Peoplenet, Qualcomm, Rand McNally, Driver Tech and Fleetmatics • Dash Cameras • Most of these cameras not only record the forward looking view from the truck cab but also record what the truck driver is doing as well.

50. When can the evidence be used?