INTRODUCTION AND CHAP. 1 P. JANICKE 2009. Evid. Intro. + Chap. 12 THE SUBJECT IS: A BODY OF (MOSTLY EXCLUSIONARY) RULES, TELLING LAWYERS WHAT THEY CAN

INTRODUCTION ANDCHAP. 1

P. JANICKE2009

2009 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


ONLY PARTIES OFFER EVIDENCE

(WITH RARE EXCEPTIONS TO BE NOTED)

• WHO ARE THE PARTIES?

– CRIMINAL CASE: THE STATE; THE DEFENDANT

– CIVIL CASE: PLAINTIFF; DEFENDANT


WHO ARE NOT PARTIES(AND CANNOT OFFER

EVIDENCE) ?• A WITNESS

• THE JUDGE

• A VICTIM


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


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


“OFFERING” EVIDENCEFOR 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:• “Ex. 1 for identification will be

received in evidence”


THE HEARSAY RULE IN ONE MINUTE – PART (A)

• DOCUMENTS ARE USUALLY FULL OF “STATEMENTS” [RECITATIONS OF FACT], i.e., HEARSAY, AND AREN’T USUALLY ALLOWED IN EVIDENCE– BIGGEST EXCEPTION: THOSE

AUTHORED BY THE OPPOSING PARTY– ANOTHER BIG EXCEPTION: RECORDS

OF PUBLIC OFFICES


THE HEARSAY RULE IN ONE MINUTE – PART (B)

• ORAL STATEMENTS MADE OUT OF COURT CAN’T BE TESTIFIED TO – EVEN BY THE PERSON WHO SAID THEM

– EXCEPTION: STATEMENTS OF THE NON-OFFERING PARTY

– EXCEPTION: STATEMENTS OFFERED TO PROVE A STATE OF MIND THAT IS IN ISSUE


RELEVANCE AND COMPETENCE

RELEVANT:• 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


• EASY TO ARGUE FOR RELEVANCE TODAY

• THE REAL CURTROOM 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


COMPETENCE

• JUST ANOTHER WORD FOR “ADMISSIBLE” – COMPLIES WITH ALL THE RULES OF EVIDENCE


FEDERAL RULES

• APPLY IN FEDERAL COURT TRIALS– BUT NOT SENTENCING, BAIL

HEARINGS, ETC.

• HAVE BEEN THE MODEL FOR STATES’ RULES, INCLUDING TEXAS


TEXAS RULES

• UNTIL 2000 WE HAD SEPARATE CRIMINAL AND CIVIL RULES

• NOW COMBINED

16Evid. Intro. + Chap. 12009

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

17Evid. Intro. + Chap. 12009

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


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


• 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!


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


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


• IF MOTION IS GRANTED

– JURY IS TOLD TO DISREGARD

– IN A GROSS CASE, A MISTRIAL MAY BE DECLARED


WHEN YOUR OFFERED EVIDENCE IS WRONGLY KEPT

OUT• MUST MAKE AN “OFFER OF

PROOF” – SPECIAL MEANING IN THIS CONTEXT

– INFORMS THE COURT WHAT THE EVIDENCE WOULD HAVE BEEN


• REASONS FOR THE OFFER-OF-PROOF REQUIREMENT:

1. GIVES THE TRIAL JUDGE A CHANCE TO RECONSIDER THE EXCLUSION RULING

2. GIVES THE COURT OF APPEALS THE INFO THEY NEED TO DECIDE IF ANY ERROR WAS HARMFUL OR HARMLESS


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


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


SPECIAL TYPE OF IN LIMINE ORDER: SUPPRESSION ORDER

• CRIMINAL CASES ONLY

• FOR CONSTITUTIONAL VIOLATION ONLY– BAD SEARCH– BAD CONFESSION

• APPEALABLE PRETRIAL BY GOV’T


SOME PITFALLS FOR LAWYERS

• HANDS IN POCKETS

• MAKING NOISES (JINGLING; TAPPING)

• LEADING THE WITNESS →→


LEADING

• DEFINITION: QUESTION SUGGESTS THE EXPECTED ANSWER

• NOT ALLOWED ON DIRECT– EXCEPTION: PRELIMINARY MATTERS– EXCEPTION: JOGGING TIMID WITNESS

(ALLOWED WITHIN REASON)


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.


LEADING

• IS ALLOWED ON CROSS

– BUT IS INCREDIBLY BORING

– BEST LAWYERS DON’T DO IT

– THEY ASK “WHO,” HOW,” “TELL US,” ETC.


LEADING

• RULES ARE REVERSED FOR AN “ADVERSE” WITNESS FORMERLY CALLED “HOSTILE”– THE OTHER PARTY– A PERSON ALIGNED WITH THE OTHER

PARTY

• HERE, LEADING IS ALLOWED ON DIRECT AND PRECLUDED ON CROSS


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


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


• WHERE THE JUDGE’S RULING IS TO EXCLUDE EVIDENCE, THAT IS THE FINAL WORD

• THE EVIDENCE IS NOT ADMITTED, AND CAN’T BE MENTIONED


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...”


TO BE AVOIDED IN OPENING STATEMENTS:

ADVERBS• CALLOUSLY• RECKLESSLY• AMAZINGLY• DISASTROUSLY• MALICIOUSLY• HORRENDOUSLY• WANTONLY

LABELS• FOOL• JERK• IDIOT


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


• DEMONSTRATIVE EVIDENCE IS TREATED AS PART AND PARCEL OF THE TESTIMONY IT EXPLAINS:

1. CAN’T GO TO THE JURY ROOM IN MOST JURISDICTIONS (SINCE TESTIMONY CAN’T)

2. WILL BE STRICKEN IF THE TESTIMONY IS STRICKEN• e.g., WITNESS DOESN’T COMPLETE

CROSS-EXAM• e.g., WITNESS FOUND TO LACK

COMPETENCY


• ALTHOUGH DEMEANED AS MERELY TESTIMONY IN ANOTHER FORM, DEMONSTRATIVE EVIDENCE HAS GREAT PERSUASIVE POWER

• IT IS REMEMBERED BETTER THAN THE TESTIMONY


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


IMPACT OF ERRONEOUS RULINGS ON EVIDENCE

RULE 103

NO GROUND FOR REVERSAL UNLESS:

1. A SUBSTANTIAL RIGHT WAS AFFECTED [i.e., NOT HARMLESS]

2. a. STEPS WERE TAKEN TO “PRESERVE ERROR”• OBJECTION, MTN. TO STRIKE• OFFER OF PROOF, orb. THE ERROR WAS “PLAIN”


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

Documents

INTRODUCTION AND CHAP. 1 P. JANICKE 2009. Evid. Intro. + Chap. 12 THE SUBJECT IS: A BODY OF (MOSTLY EXCLUSIONARY) RULES, TELLING LAWYERS WHAT THEY CAN