Cause No. xxxxxxxxxx
State of Texas	In the County Criminal Court no. xx

V. 

Joe Q. Citizen	County of Texas, Texas   

DEFENDANT’S MOTION TO EXCLUDE IMPROPER BOLSTERING TESTIMONY AND 
MOTION IN LIMINE IN THE ALTERNATIVE

IMPROPER BOLSTERING DEFINITION
	Eliciting from a witness what percentage he/she arrests from the number of investigations he/she conducts for DWI constitutes improper bolstering.
STATUTES AT HAND
Now comes the Defendant, Joe Q. Citizen and moves this Honorable Court to exclude impermissible bolstering testimony from the trial so as not to prejudice his right to a fair trial from the danger of inadmissible “bolstering” testimony according to the Rules of Evidence, to-wit, Rule 401, as such bolstering testimony is not “relevant” and therefore inadmissible under Rule 402; evidence of a person’s character is not admissible for the purpose of proving action in conformity therewith on a particular occasion (the percentage of one’s releases versus arrests do not prove guilt in any particular occasion and such evidence is inadmissible character evidence anway); and for witnesses in particular only character evidence under 607,608 and 609 is admissible. Under Rule 608 (a) (1) evidence admitted under the Rule “may refer only to character for truthfulness or un­truth­fulness.” Testimony by police officers that they determine a relatively few number of the persons they stop and observe to be intoxicated is not relevant under Rules 401,402 to the facts of Joe Q. Citizen’s case, does not go to a witness’ truthfulness under Rule 608 (a)(1) and serves only to improperly bolster the witness’ alleged character for fairness and carefulness. Defendant moves the Court direct such testimony be prohibited, or in the alternative, that the State be required before offering such evidence to approach the bench so that the Court may determine the admissibility issue outside the hearing of the jury.
STARE DECISES CASE LAW
 The impermissible bolstering question in Parham v. State, 244 S.W.2d 809 (Tex. Crim. App. 1952) was “. . . can you tell the jury approximately how many, what percentage of these people you observe that you determine to be intoxicated, and how many you just turn loose ?” The Court determined: “We conclude that this was both an effective and improper method of bolstering the State’s witness. It would only be natural for a jury to conclude that an officer who arrested one out of fifty suspects in driving while intoxicated cases was a fair and careful officer who resolved all doubt in favor of those he suspected of violating the law and should, therefore be afforded the highest degree of credibility.” In Clay v. State, 276 S.W.2d 843 (Tex. Crim. App. 1955) the offending bolstering question was “. . . whether or not you have ever filed a complaint on anybody for any offense unless you think they are guilty of that offense ?” The Court referred to Parham citing that the answer to the question “. . . was an effective and improper method of bolstering the State’s witness.” In Story v. State, 502 S.W. 2d 764 (Tex. Crim. App. 1973) the improper bolstering took the format of “. . . have you ever filed a complaint against anybody since you have been in office that you didn’t think was a justified complaint?” The Court said the complained-of question should not have been asked. The current state of the law regarding bolstering is clear and it remains impermissible.
CASE AT HAND
	Defendant anticipates that State’s witness, [police officer], will be improperly questioned to testify as to the ratio of persons the officer determines to be intoxicated of those stopped and investigated. Defendant in this motion presents his objections on this issue for ruling at hand and further preservation in case of appeal.
THE LAW DEFINED
EVIDENCE OF [OFFICER’S] CHARACTER FOR FAIRNESS OR CAREFULNESS IS INADMISSIBLE
	Texas Rule of Evidence 404(a)(3) states that: “Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion except: Evidence of the character of a witness, as provided in rules 607, 608, and 609.” Therefore the Rules of Evidence specifically limit the circumstances in which one may admit character evidence of a witness to those stated in rules 607, 608, and 609.
	Texas Rule of Evidence 608 addresses opinion and reputation evidence of a witness. The rule states that, “the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation.” Tex. R. Evid. 608(a). However, under Rule 608(a)(1) evidence admitted under the rule, “may refer only to char­acter for truthfulness or untruthfulness.” 
	An officer’s testimony that he determines a relatively few number of the persons he stops and observes to be intoxicated will naturally cause a jury to conclude that the officer is a fair and careful officer who resolves all doubt in favor of those suspected of violating the law and should, therefore, be afforded the highest degree of credibility. Parham v. State, 244 S.W.2d 809, 809 (Tex. Crim. App 1952). Under Rule 608 only evidence of a witness’ character for truthfulness or untruthfulness, other than conviction of crime as provided for in Rule 609, is admissible. Evidence of a witness’ character for fairness or carefulness is ex­cluded from the rule and therefore inadmissible. Because the impermissible bolstering testimony tends to prove that the officer has a character for fairness or carefulness and therefore acted in a fair or careful manner in the case of the Defendant, this testimony must be excluded pursuant to the general rule against relevant and character evidence.
PRAYER
	For these reasons, the Defendant requests a ruling by the court that such evidence is inadmissible and must be excluded. In the alternative, the Defendant requests that the State be required before offering such evidence to approach the bench so that the court may determine the admissibility issue outside the hearing of the jury.
		Respectfully Submitted,
		Mimi Coffey
		The Coffey Firm
		Attorney at Law
		State Bar of Texas 00792435
		4700 Airport Freeway
		Fort Worth, TX 76117
		817.831.3100
		fax 817.831.3340

		3098 N Stemmons Frwy
		Dallas, TX 75247
		214-219-6464
		214-219-6462