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Univ. of South Carolina School of Law

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Thursday, January 3, 2013

Hierarchy of Needs: Texas Case Reveals Explicit Texas Rule of Evidence on Evidentiary Hierarchy

I always teach my students that the Constitution trumps the Federal Rules of Evidence. There is, however, no specific Rule in the Federal Rules of Evidence that sets forth this hierarchy. As the recent opinion of the Court of Appeals of Texas, Texarkana, in Clay v. State, 2012 WL 6721012 (Tex.App.-Texarkana 2012), makes clear, however, there is such a Rule in the Texas Rules of Evidence. And the opinion also makes clear that there is another important difference between the two sets of Rules.

In Clay, Cedric Charles Clay was convicted of two counts of sexual assault and one count of engaging in organized criminal activity. These crimes were allegedly admitted against teenage girls, and, at trial, Clay unsuccessfully tried to cross-examine them regarding the fact that they lied to their parents about where they were going on the night in question.

After Clay was convicted, he appealed, claiming, inter alia, that the trial court erred in precluding him from engaging in this cross-examination. Under Federal Rule of Evidence 608(b), Clay would have a good argument. That Rule provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

But Clay's case was not heard under the Federal Rules of Evidence. Instead, it was heard under the Texas Rules of Evidence, and Texas Rule of Evidence 608(b) provides that 

Specific instances of the conduct of a witness, for the purpose 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.

Therefore, the Court of Appeals of Texas, Texarkana, found no evidentiary error with the trial court's ruling because

Whether the victims fabricated a story that they were going to one of the girls' homes to watch a niece that night is irrelevant as to whether Clay sexually assaulted Marie that night. This is primarily an attack on general credibility....

Clay also argued that application of Rule 608(b) to prevent his proposed cross-examination violated the Confrontation Clause, and the appellate court acknowledged that Texas Rule of Evidence 101(c) provides that

Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, and the common law. Where possible, inconsistency is to be removed by reasonable construction.

But because the appellate court found that the proposed cross-examination was lacking in relevance, it found no such constitutional violation.

-CM

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