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INTRODUCTION AND CHAP. 1. P. JANICKE 2006. THE SUBJECT IS:. A BODY OF (MOSTLY EXCLUSIONARY) RULES, TELLING LAWYERS WHAT THEY CAN AND CAN’T DO TO ESTABLISH FACTS AT TRIAL “LAW” POINTS ARE ESTABLISHED DIFFERENTLY; EVIDENCE DEALS WITH FACTS. - PowerPoint PPT Presentation
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INTRODUCTION ANDCHAP. 1
P. JANICKE
2006
2006 Evid. Intro. + Chap. 1 2
THE SUBJECT IS:
• A BODY OF (MOSTLY EXCLUSIONARY) RULES, TELLING LAWYERS WHAT THEY CAN AND CAN’T DO TO ESTABLISH FACTS AT TRIAL
• “LAW” POINTS ARE ESTABLISHED DIFFERENTLY; EVIDENCE DEALS WITH FACTS
2006 Evid. Intro. + Chap. 1 3
ONLY PARTIES OFFER EVIDENCE
(WITH RARE EXCEPTIONS TO BE NOTED)
• WHO ARE THE PARTIES?
– CRIMINAL CASE: THE STATE; THE DEFENDANT
– CIVIL CASE: PLAINTIFF; DEFENDANT
2006 Evid. Intro. + Chap. 1 4
WHO ARE NOT PARTIES(AND CANNOT OFFER
EVIDENCE) ?
• A WITNESS
• THE JUDGE
• A VICTIM
2006 Evid. Intro. + Chap. 1 5
HOW THEN DO WITNESSES GET HEARD AT TRIAL?
• A PARTY CALLS THEM AND “OFFERS” THEIR TESTIMONY IN EVIDENCE
• WITNESS IS SAID TO BE “GIVING” EVIDENCE, BUT NOT OFFERING OR INTRODUCING
• MR. FASTOW GAVE EVIDENCE AT THE LAY-SKILLING TRIAL
• HE DID NOT INTRODUCE ANY EVIDENCE
2006 Evid. Intro. + Chap. 1 6
HOW DO PARTIES “OFFER” EVIDENCE?
FOR TESTIMONIAL EVIDENCE:
• A PARTY’S LAWYER ASKS A QUESTION [EVIDENCE HAS BEEN “OFFERED” BY THAT PARTY]
• THE WITNESS ANSWERS [EVIDENCE HAS BEEN “INTRODUCED” BY THE PARTY]
• THE ANSWER IS “IN EVIDENCE” UNLESS THE JUDGE SAYS OTHERWISE
2006 Evid. Intro. + Chap. 1 7
“OFFERING” EVIDENCE
FOR DOCUMENTARY AND TANGIBLE EVIDENCE:
1. PARTY’S LAWYER HAS DOCUMENT MARKED BY CLERK FOR ID
• CLERK SAYS “THIS WILL BE P’S EX. __ FOR ID”
2. LAWYER ASKS QUESTIONS OF A WITNESS ABOUT IT
– CALLED “LAYING THE FOUNDATION”– MAINLY TO PROVE AUTHENTICITY
3. LWYR. OFFERS DOC./ THING IN EVIDENCE• SAYS “I OFFER P’s EX. __ FOR ID INTO EVIDENCE”
4. JUDGE SAYS THE MAGIC WORDS
2006 Evid. Intro. + Chap. 1 8
THE HEARSAY RULE IN ONE MINUTE – PART (A)
• DOCUMENTS ARE USUALLY HEARSAY AND AREN’T USUALLY ALLOWED IN EVIDENCE– EXCEPTION: THOSE AUTHORED BY
THE NON-OFFERING PARTY– EXCEPTION: OFFICIAL RECORDS, IN
CIVIL CASES
2006 Evid. Intro. + Chap. 1 9
THE HEARSAY RULE IN ONE MINUTE – PART (B)
• ORAL UTTERANCES MADE OUT OF COURT CAN’T BE TESTIFIED TO
– EXCEPTION: UTTERANCES OF THE NON-OFFERING PARTY
– EXCEPTION: UTTERANCES OFFERED TO PROVE A STATE OF MIND THAT IS IN ISSUE
2006 Evid. Intro. + Chap. 1 10
“PROOF” IS VAGUE TERM• TWO DECIDERS:
– THE JUDGE: PRELIMINARY SCREEN – THE JURY: ULTIMATE FINDER OF FACT
• WHEN DO YOU FIND OUT?– JUDGE: RIGHT AWAY (USUALLY)– JURY: AFTER IT’S ALL OVER
• SO, WE USUALLY EQUATE “PROOF” AND “EVIDENCE” – “THE PROOF WAS INSUFFICIENT” “HE HAD TOO LITTLE PROOF OF ____”
2006 Evid. Intro. + Chap. 1 11
RELEVANCE AND COMPETENCE
RELEVANCE:• THE PIECE OF EVIDENCE MAKES A
DISPUTED FACT MORE LIKELY OR LESS LIKELY TO BE TRUE THAN IT WAS A MINUTE BEFORE
IRRELEVANT:• DOESN’T MOVE THE SCALE AT ALL,
EITHER WAY
2006 Evid. Intro. + Chap. 1 12
• NEARLY EVERYTHING IS RELEVANT TODAY
• THE ISSUE IS WHETHER THE AMOUNT OF RELEVANCE IS ENOUGH IN THE JUDGE’S MIND TO OVERCOME:– TIME NEEDED TO PUT IT IN– POSSIBLE “UNFAIR PREJUDICE” OR
CONFUSION
RULE 403
2006 Evid. Intro. + Chap. 1 13
RELEVANCE PROCEDURE:
1. OFFER: e.g., ask a question
2. OBJECTION: IRRELEVANCE
3. JUDGE ASKS: What is the relevance? and PROPONENT ANSWERS
4. OBJECTOR: PREJUDICIAL, OR CONFUSING, OR WASTE OF TIME
5. COUNTER BY “PROPONENT” PARTY
6. RULING BY JUDGE
2006 Evid. Intro. + Chap. 1 14
COMPETENCE
• THE OFFERED EVIDENCE MEETS ALL THE OTHER RULES OF ADMISSIBILITY
• ESPECIALLY: RULE EXCLUDING HEARSAY EVIDENCE RULE 802
2006 Evid. Intro. + Chap. 1 15
FEDERAL RULES
• FIRST ADOPTED 1975
• APPLY IN FEDERAL COURT TRIALS– BUT NOT SENTENCING, BAIL
HEARINGS, ETC.
• HAVE BEEN THE MODEL FOR STATES’ RULES, INCLUDING TEXAS
2006 Evid. Intro. + Chap. 1 16
TEXAS RULES
• UNTIL 2000 WE HAD SEPARATE CRIMINAL AND CIVIL RULES
• NOW COMBINED
17Evid. Intro. + Chap. 12006
LAYOUT OF A COURTROOM (A)
BENCH (JUDGE) WITNESS
JURY
COUNSEL WITH BURDEN OF PROOF
COUNSEL WITHOUTBURDEN OF PROOF
CLERK AND REPORTER
SPECTATORS( FOR D)
SPECTATORS(FOR P)
RAILING
PODIUM
HIGH UP
18Evid. Intro. + Chap. 12006
LAYOUT OF A COURTROOM (B)
BENCH (JUDGE)WITNESS
COUNSEL WITHOUT BURDEN OF PROOF
(D)
COUNSEL WITHBURDEN OF PROOF
(P)
CLERK AND REPORTER
SPECTATORS( FOR P)
SPECTATORS(FOR D)
RAILING
PODIUMJURY
HIGH UP
2006 Evid. Intro. + Chap. 1 19
HOW “THE RECORD” IS MADE
• AT LEAST TWO KINDS OF RECORD:
– OF THE ENTIRE CASE • KEPT BY THE CLERK• INCLUDES PLEADINGS, MOTIONS, ETC.
– OF THE TRIAL• TESTIMONY AND COLLOQUYS TAKEN BY
REPORTER• DOCUMENTARY AND TANGIBLE EVIDENCE
KEPT BY THE CLERK
2006 Evid. Intro. + Chap. 1 20
• COLLOQUYS:
1. AT THE BENCH2. IN CHAMBERS3. IN OPEN COURT WITH THE JURY
ABSENT
• EACH PARTY IS ENTITLED TO HAVE ALL COLLOQUYS BE “ON THE RECORD”
• SUGGESTION: DO IT!
2006 Evid. Intro. + Chap. 1 21
CONCLUSION
• THE “TRIAL RECORD” CONTAINS LOTS OF STUFF THAT IS NOT IN EVIDENCE. EXAMPLES:– OFFERED TESTIMONY THAT DID NOT
GET IN– ARGUMENTS OF COUNSEL– DOCUMENTS THAT WERE MARKED
BUT DID NOT GET IN
2006 Evid. Intro. + Chap. 1 22
• THE FACT-FINDER BASES HER DECISIONS ONLY ON EVIDENCE THAT HAS BEEN ADMITTED, SOMETIMES CALLED THE “EVIDENTIARY RECORD” [SUBPART OF THE TRIAL RECORD]
• THEORETICALLY, THE JURY IGNORES ANY OTHER INFO
2006 Evid. Intro. + Chap. 1 23
KEEPING OUT THE OTHER GUY’S EVIDENCE
• BY OBJECTION– MUST STATE A GROUND– NEED NOT CITE A RULE BY NUMBER– E.G.: “CALLS FOR HEARSAY”;
“IRRELEVANT”
• BY TIMELY MOTION TO STRIKE
2006 Evid. Intro. + Chap. 1 24
• A MOTION TO STRIKE IS TIMELY IF:– THE OTHER SIDE HAS A FAIR CHANCE
TO FIX THE PROBLEM– OTHER EVIDENCE HAS NOT YET COME
IN BASED ON THE TO-BE-STRICKEN EVIDENCE
• IF MOTION IS GRANTED – JURY IS TOLD TO DISREGARD– IN A GROSS CASE, A MISTRIAL MAY
BE DECLARED
2006 Evid. Intro. + Chap. 1 25
INSTRUCTION TO DISREGARD: IS IT AN ANACHRONISM?
• JURY MAY NOT BE ABLE TO COMPLY
• BUT, COURTS ARE ABLE TO COMPLY– MOTIONS AT CLOSE OF EVIDENCE– APPEAL
2006 Evid. Intro. + Chap. 1 26
WHEN YOUR OFFERED EVIDENCE IS WRONGLY KEPT
OUT
• MAKING A FACE WON’T DO
• MUST MAKE AN “OFFER OF PROOF” – SPECIAL MEANING IN THIS CONTEXT
• MUST INFORM THE COURT WHAT THE EVIDENCE WOULD HAVE BEEN
2006 Evid. Intro. + Chap. 1 27
3 TYPES OF OFFER OF PROOF(OUTSIDE JURY’S HEARING)
1. SUMMARY ORAL STATEMENT OF COUNSEL
2. DETAILED Q & A IN WRITTEN FORM
3. DETAILED Q & A WITH WITNESS ON THE STAND
2006 Evid. Intro. + Chap. 1 28
OBJECTING IN ADVANCE: THE MOTION IN LIMINE
• COUNSEL ASKS FOR ORDER IN LIMINE BEFORE TRIAL
• BASED ON PREJUDICE E.G., BIG COMPANY; RICH PERSON; MINORITY PERSON
• CERTAIN TOPICS OFF LIMITS– LAWYERS CAN’T MENTION IN JURY’S
HEARING– LAWYERS ARE RESPONSIBLE FOR
THEIR WITNESSES NOT MENTIONING
2006 Evid. Intro. + Chap. 1 29
• VIOLATING AN ORDER IN LIMINE:
– BY NONMOVING PARTY: • A TECHNICAL CONTEMPT • COULD LEAD TO MISTRIAL • WILL AT LEAST LEAD TO INSTRUCTION TO
DISREGARD
– BY PROCURING PARTY: • A TECHNICAL CONTEMPT; • LEADS TO VACATING THE ORDER
– UNFAIR TO BIND OTHER SIDE WHEN PROCURING SIDE HAS MENTIONED THE TOPIC
2006 Evid. Intro. + Chap. 1 30
SPECIAL TYPE OF IN LIMINE ORDER: SUPPRESSION ORDER
• CRIMINAL CASES ONLY
• FOR CONSTITUTIONAL VIOLATION ONLY– BAD SEARCH– BAD CONFESSION
• APPEALABLE PRETRIAL BY GOV’T
2006 Evid. Intro. + Chap. 1 31
A REVIEW OF JMOL MOTIONS
1. AT CLOSE OF PLAINTIFF’S CASE• FAILURE OF PRIMA FACIE PROOF• STATE COURT: MTN. FOR DIRECTED
VERDICT
2. AT CLOSE OF ALL THE EVIDENCE• TAKING AN ISSUE AWAY FROM THE JURY
[“NO REASONABLE JURY COULD, ON THE EVIDENCE, FIND _______”]
• BOTH SIDES NORMALLY MOVE• BIG PENALTY ON APPEAL FOR NOT
MOVING• STATE COURT: MTN. FOR DIRECTED
VERDICT
2006 Evid. Intro. + Chap. 1 32
3. AFTER VERDICT
• “NO REASONABLE JURY COULD, ON THE EVIDENCE, FIND _______”
• SAME TEST AS BEFORE
• WHY THE DUPLICATION?
2006 Evid. Intro. + Chap. 1 33
• AFTER RULING ON JMOL #3, THE CASE MAY BE READY FOR ENTRY OF A JUDGMENT– A SHORT PAPER– IS WHAT GETS APPEALED
• IN A COMPLEX CIVIL CASE THE JUDGMENT COULD COME YEARS AFTER THE TRIAL AND VERDICT
• CAVEAT: PRESS REPORTS
2006 Evid. Intro. + Chap. 1 34
JAML MOTIONS IN CRIMINAL CASES
• JUDGMENT OF ACQUITTAL AS A MATTER OF LAW
• SIMILAR IN LOGIC TO JMOL IN CIVIL CASES
• BUT, PROSECUTION CAN’T GET ANYTHING EQUIVALENT [NOTE THE “A” = ACQUITTAL]
2006 Evid. Intro. + Chap. 1 35
SOME PITFALLS FOR LAWYERS
• HANDS IN POCKETS
• MAKING NOISES (JINGLING; TAPPING)
• LEADING THE WITNESS →→
2006 Evid. Intro. + Chap. 1 36
LEADING
• DEFINITION: QUESTION SUGGESTS THE EXPECTED ANSWER
• NOT ALLOWED ON DIRECT– EXCEPTION: PRELIMINARY MATTERS– EXCEPTION: JOGGING TIMID WITNESS:
ALLOWED WITHIN REASON
2006 Evid. Intro. + Chap. 1 37
LEADING
• USUALLY CAUSED BY FEAR– LAWYER IS AFRAID WITNESS WON’T
ANSWER AS EXPECTED– QUESTION USUALLY STARTS WITH “DID”
“DO” “ARE” or “WERE”
• THE CURE:– BEGIN QUESTION WITH “TELL US WHAT
HAPPENED WHEN ...,” “TELL US HOW ...,” OR “WHO ...,” “WHEN,” “WHERE,” ETC.
2006 Evid. Intro. + Chap. 1 38
LEADING
• IS ALLOWED ON CROSS
– BUT IS INCREDIBLY BORING
– BEST LAWYERS DON’T DO IT
– THEY ASK “WHO,” HOW,” “TELL US,” ETC.
2006 Evid. Intro. + Chap. 1 39
LEADING
• RULES ARE REVERSED FOR AN “ADVERSE” WITNESS FORMERLY CALLED “HOSTILE”
– THE OTHER PARTY– A PERSON ALIGNED WITH THE OTHER
PARTY
• NOW LEADING IS ALLOWED ON DIRECT AND PRECLUDED ON CROSS
2006 Evid. Intro. + Chap. 1 40
ROLE OF THE JUDGE
• GATEKEEPER, OR SCREEN
• DECIDES SOME POINTS PRELIMINARILY, FOR PURPOSES OF ADMISSIBILITY FOR JURY’S CONSIDERATION
• RULING OF ADMISSIBILITY DOESN’T BIND THE JURY ON ANY FACT– EXCEPTION: JUDICIAL NOTICE IN CIVIL
CASES
2006 Evid. Intro. + Chap. 1 41
EXAMPLE:
• JUDGE AND JURY HEAR EVIDENCE THAT HANDWRITING ON A DOCUMENT IS GENUINE
• JUDGE “RULES” THE DOCUMENT IS AUTHENTIC, AND ADMITS IT IN EV.
• JURY CAN NOW SEE IT• BUT: NEITHER SIDE IS PRECLUDED
FROM PUTTING IN EV. THAT THE DOC. IS FORGED, OR FROM ARGUING THE ISSUE IN CLOSING
2006 Evid. Intro. + Chap. 1 42
• WHERE THE JUDGE’S RULING IS TO EXCLUDE EVIDENCE, THAT IS THE FINAL WORD
• IN THIS LIMITED SENSE THE JUDGE IS A “FINDER OF FACT” EVEN IN A JURY TRIAL
2006 Evid. Intro. + Chap. 1 43
OPENING STATEMENT
• KEEP THE FUNCTION IN MIND: TO TELL WHAT THE EVIDENCE WILL SHOW
• DON’T USE ARGUMENTATIVE PHRASEOLOGY NO ADVERBS! EASY ON THE ADJECTIVES! NO DEROGATORY NOUNS!
– YOU CAN ACCOMPLISH THE SAME PURPOSE WITH POLITE TERMS
• IN YOUR FIRST FEW TRIALS, KEEP SAYING: “THE EVIDENCE WILL SHOW...”
2006 Evid. Intro. + Chap. 1 44
TO BE AVOIDED IN OPENING STATEMENTS:
ADVERBS• CALLOUSLY• RECKLESSLY• AMAZINGLY• DISASTROUSLY• MALICIOUSLY• HORRENDOUSLY• WANTONLY
LABELS• FOOL• JERK• IDIOT
2006 Evid. Intro. + Chap. 1 45
DEMONSTRATIVE EVIDENCE
• SKETCHES, MODELS, ETC., THAT ILLUSTRATE A WITNESS’S TESTIMONY; i.e., VISUAL AIDS
• CAN BE MADE BEFORE TRIAL• CAN BE MADE BY THE WITNESS OR
SOMEONE ELSE• THE WITNESS MUST TESTIFY WHAT
IT REPRESENTS
2006 Evid. Intro. + Chap. 1 46
• DEMONSTRATIVE EVIDENCE IS TREATED AS PART AND PARCEL OF THE TESTIMONY IT EXPLAINS
• CAN’T GO TO THE JURY ROOM IN MOST JURISDICTIONS (SINCE TESTIMONY CAN’T)
• WILL BE STRICKEN IF THE TESTIMONY IS STRICKEN– e.g., WITNESS DOESN’T COMPLETE CROSS-
EXAM– e.g., WITNESS FOUND TO LACK
COMPETENCY
2006 Evid. Intro. + Chap. 1 47
• ALTHOUGH DEMEANED AS MERELY TESTIMONY IN ANOTHER FORM, DEMONSTRATIVE EVIDENCE HAS GREAT PERSUASIVE POWER
• IT IS REMEMBERED BETTER THAN THE TESTIMONY
2006 Evid. Intro. + Chap. 1 48
A WORD ABOUT “REAL” EVIDENCE
• MURDER WEAPON• BLOODY SHIRT
• THESE ARE USUALLY IRRELEVANT, STRICTLY SPEAKING– THEY DON’T MAKE A FACT IN DISPUTE MORE
OR LESS PROBABLE
• BUT ARE TRADITIONALLY ALLOWED WITHIN REASON
2006 Evid. Intro. + Chap. 1 49
ESTABLISHING RELEVANCE MAY NEED LINKS
• LIGHTER FOUND AT SCENE – NOT YET PROVED WHOSE IT IS
• COURT CAN ADMIT IT “SUBJECT TO CONNECTION”– FAILURE TO CONNECT LEADS TO
MOTION TO STRIKE
• OR, COURT CAN KEEP IT OUT UNTIL ALL THE LINKS ARE IN EVIDENCE
RULE 104 (b)
2006 Evid. Intro. + Chap. 1 50
IMPACT OF ERRONEOUS RULINGS ON EVIDENCE
RULE 103
NO GROUND FOR REVERSAL UNLESS:
1. A SUBSTANTIAL RIGHT WAS AFFECTED– HARMLESS ERROR DOCTRINE– CUMULATIVE EVIDENCE DOCTRINE
2. STEPS WERE TAKEN TO “PRESERVE ERROR”
– OBJECTION, MTN. TO STRIKE– OFFER OF PROOF
3. OR THE ERROR WAS “PLAIN”
2006 Evid. Intro. + Chap. 1 51
PRACTICAL REALITIES:REVERSAL RISKS
• IN CIVIL CASES, SAFER TO ADMIT THAN TO EXCLUDE
• IN CRIMINAL CASES, SAFER TO ADMIT D’S EVIDENCE, EXCLUDE PROSECUTOR’S
• ALL CASES: ERROR COULD BE HARMLESS
2006 Evid. Intro. + Chap. 1 52
THE CONSTITUTIONAL INTERSECTION
• EVIDENCE RULINGS OFTEN HAVE CONSTITUTIONAL DIMENSIONS:– FRUIT OF A BAD SEARCH– FRUIT OF A BAD CONFESSION– DENIAL OF 6TH AM. RIGHT OF
CONFRONTATION– DENIAL OF 6TH AM. RIGHT TO SUMMON
WITNESSES– FORCED SELF-INCRIMINATION