Posted on 3/4/19

When a defendant pleads not guilty,  the defendant is likely headed for trial against the weight of the prosecutor’s office. As such, it is imperative that the defendant’s advocate understand the rules related to the trial, specifically what is relevant and what should be excluded. If the prosecution presents evidence that should be excluded, the defense attorney must object or risk having that otherwise inadmissible evidence being sent to the jury for consideration.


Under both the Federal Rules of Evidence and the Texas Rules of Evidence, only relevant evidence is admissible evidence. Often, the prosecution will try to build a case upon irrelevant evidence as a strategy to paint the defendant in a negative light. The prosecution may point to an irrelevant event to demonstrate how the defendant is not a good neighbor and the like. Such evidence is not relevant because that has no bearing as to whether the defendant committed a crime. The defense attorney must be cognizant of prosecution modus operandi and object accordingly.

Exclusion of Relevant Evidence

Even if evidence is relevant, both the Federal and State of Texas rules provide exceptions where the evidence should not be admitted. Section 403 of the Texas Rules of Evidence provides: “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.”

The language in the Texas Rules of Evidence is important, specifically the word “substantially.” Evidence, otherwise relevant, can be excluded if it substantially outweighs certain dangers. In contrast, the Federal Rules of Evidence have no “substantially” outweighing standard. Consequently, certain evidence that is marginally outweighed by certain danger may be admitted in Texas but would be inadmissible under Federal law.

This difference manifests itself based on the alleged crime. The average murder, rape, burglary etc. will fall under state law and will be governed by the Texas Rules of Evidence. Crimes like wiretapping and many white collar crimes are governed by federal statutes and are therefore subject to the Federal Rules of Evidence.

Therefore, when governed under Texas law, evidence that is relevant but has borderline prejudicial effect may still be admissible.

Similarly, confusion of the issues is also a factor. Long-winded evidence that is confusing should be excluded. When it is more subtle, such evidence may be excluded under federal law but may be admissible under Texas law.

In most instances, however, the Texas Rules of Evidence work the same as the Federal Rules of Evidence. There are cases where the nuances are pronounced and it is important to understand that the Texas Rules of Evidence substantial factor does not work exactly the same as the Federal Rules of Evidence.

Arrested and facing charges? You need an advocate with a winning track record who knows the rules. Contact the law firm of Christopher Abel, a Dallas-area, board-certified, criminal defense attorney.

Flower Mound Office

Phone: 972.584.7837

Denton Office