explaining that term bolstering is used to refer to evidence that is offered for sole purpose of persuading fact-finder that prior witness is worthy of credit without substantively contributing “to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence”
How later courts described this case
- explaining that term bolstering is used to refer to evidence that is offered for sole purpose of persuading fact-finder that prior witness is worthy of credit without substantively contributing “to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence”
- holding that expert testimony regarding behavioral characteristics typically exhibited by sexually abused children, and describing particular complainants' behavior, was admissible substantive evidence even though complainants' credibility had not been impeached, disapproving Duckett to that extent
- holding that expert testimony describing behavioral characteristics typically exhibited by child victims of sexual abuse and 4 behavior observed in complaining witness was admissible as relevant substantive evidence under Texas Rules of Evidence 401 and 402
- stating that bolstering objection should no longer be recognized because “an objection that certain evidence is ‘bolstering’ in no way invokes the Rules or informs the trial court of the basis for exclusion under the Rules”
Written by the judges who cited it.
Later courts went against this
Questioned by Eric Vasquez v. State (1998)
continued validity of a bolstering objection, see Cohn v. State, 849 S.W.2d 817, 819-21 (Tex. Crim.
The opinion
CAMPBELL, Judge,
concurring.
While I agree with the result reached by the majority of the Court, I write separately to express my belief that a “bolstering” objection is no longer adequate to preserve error for review concerning the admission of evidence because no such ground survived the Texas Rules of Criminal Evidence. 1
Prior to the adoption of the Rules of Evidence, “bolstering” was a proper objection when one item of evidence was used by a party to add credence or weight to some earlier unimpeached evidence that the same party had offered. McKay v. State, 707 S.W.2d 23, 33 (Tex.Cr.App.1985), cert. denied, 479 U.S. 871 , 107 S.Ct. 239 , 93 L.Ed.2d 164 (1986); Pless v. State, 576 S.W.2d 83, 84 (Tex.Cr.App.1978); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971); Acker v. State, 421 S.W.2d 398 (Tex.Cr. App.1967). Under case law existing prior to the promulgation of the Rules of Evidence, bolstering an unimpeached witness was “automatically” error. The Rules of Evidence, however, do not contain a specific rule pertaining to or prohibiting “bolstering.” Moreover, nothing in the Rules prevents a party from adding credence to an unimpeached witness or adding credence to other evidence as long as that additional evidence is relevant. In fact, the Rules favor admissibility. See Rules 402, 403. Therefore, if such “bolstering” evidence is presented, the party seeking exclusion must object in accord with the Rules of Evidence so as to inform the trial court that the evidence is not relevant (Rule 402), the evidence is substantially prejudicial, confusing, needlessly cumulative (Rule 403), or otherwise specify a rule or reason found in the Rules to exclude the evidence.
Given the focus of the Rules favoring admission, as well as the lack of a specific prohibition of this type of evidence, an objection that certain evidence is “bolstering” in no way invokes the Rules or informs the trial court of the basis for exclusion under the Rules. “Bolstering” evidence is no longer inadmissible simply due to the fact it adds credence to unimpeached testimony. The Rules of Evidence do not bar evidence which is otherwise relevant just because that evidence may add credence to unim-peached testimony. Therefore, a party’s objection must inform the trial court why or on what basis the otherwise admissible evidence should be excluded. Such a complaint might be expressed as a “general” objection under Rule 403, that although relevant, the prejudice substantially outweighs the probative value; or the objection, depending on the type of the evidence at issue, might reference a more specific rule of exclusion. See, e.g., Rules 404(b), 410, 411, 412, 608, and 609. Prior case law concerning bolstering may be useful in determining whether evidence is substantially prejudicial. The Rules of Evidence, however, are now the controlling authority for what constitutes a sufficient objection to the admission of evidence, not case law that predates the adoption of the Rules. 2
This requirement that an objection be tailored to the Rules of Evidence is analogous to this Court’s holding in Montgomery relating to the admission of extraneous offenses. In Montgomery we explained that an objection that evidence was not “relevant” or constituted an “extraneous *822 offense” invoked only a relevance complaint. Montgomery v. State, 810 S.W.2d 372, 387-388 (Tex.Cr.App.1990). Contrary to case law decided prior to the Rules of Evidence, such an objection was held to be no longer sufficient to require a ruling concerning exclusion due to unfair prejudice. Id. at 388-389 . A further objection is now required based upon Rule 403. Id.
Since “bolstering” evidence, assuming it is relevant, is generally admissible, I would hold that the former “bolstering” objection no longer meets the requirements for invoking the now applicable Rule 403 analysis. Accordingly, I would overrule appellant’s contentions that his bolstering objection is sufficient and that the case law concerning bolstering is applicable. Since appellant voiced no separate objection based upon Rule 403 or any other rule, I would find that he has not preserved error on such basis. With these comments, I join the judgment of the Court.
WHITE and BAIRD, JJ., join.
. Unless otherwise noted, all general references to the "rules” and all references to specific rules in this opinion refer to the Texas Rules of Criminal Evidence.
. An analogue of this notion is this Court’s treatment of an objection that certain evidence is irrelevant. Prior to the adoption of the Rules of Criminal Evidence, no error was preserved by objecting that the evidence was irrelevant. See Euziere v. State, 648 S.W.2d 700, 703 (Tex.Cr. App.1983). After the promulgation of the Rules of Criminal Evidence, which define relevant evidence in Rule 401, an objection that certain evidence was irrelevant constitutes a sufficient objection to preserve for review the issue of the relevance of that evidence. See Valcarcel v. State, 765 S.W.2d 412, 417 (Tex.Cr.App.1989).