INTRODUCTION AND CHAP. 1

1. INTRODUCTION ANDCHAP. 1 P. JANICKE 2006

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 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 Evid. Intro. + Chap. 1

4. WHO ARE NOT PARTIES(AND CANNOT OFFER EVIDENCE) ? • A WITNESS • THE JUDGE • A VICTIM 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 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 Evid. Intro. + Chap. 1

7. “OFFERING” EVIDENCE FOR DOCUMENTARY AND TANGIBLE EVIDENCE: • PARTY’S LAWYER HAS DOCUMENT MARKED BY CLERK FOR ID • CLERK SAYS “THIS WILL BE P’S EX. __ FOR ID” • LAWYER ASKS QUESTIONS OF A WITNESS ABOUT IT • CALLED “LAYING THE FOUNDATION” • MAINLY TO PROVE AUTHENTICITY • LWYR. OFFERS DOC./ THING IN EVIDENCE • SAYS “I OFFER P’s EX. __ FOR ID INTO EVIDENCE” • JUDGE SAYS THE MAGIC WORDS 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 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 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 ____” 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 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 Evid. Intro. + Chap. 1

13. RELEVANCE PROCEDURE: • OFFER: e.g., ask a question • OBJECTION: IRRELEVANCE • JUDGE ASKS: What is the relevance? and PROPONENT ANSWERS • OBJECTOR: PREJUDICIAL, OR CONFUSING, OR WASTE OF TIME • COUNTER BY “PROPONENT” PARTY • RULING BY JUDGE Evid. Intro. + Chap. 1

14. COMPETENCE • THE OFFERED EVIDENCE MEETS ALL THE OTHER RULES OF ADMISSIBILITY • ESPECIALLY: RULE EXCLUDING HEARSAY EVIDENCE RULE 802 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 Evid. Intro. + Chap. 1

16. TEXAS RULES • UNTIL 2000 WE HAD SEPARATE CRIMINAL AND CIVIL RULES • NOW COMBINED Evid. Intro. + Chap. 1

17. LAYOUT OF A COURTROOM (A) HIGH UP WITNESS BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL WITHOUT BURDEN OF PROOF COUNSEL WITH BURDEN OF PROOF RAILING SPECTATORS ( FOR D) SPECTATORS (FOR P) Evid. Intro. + Chap. 1

18. LAYOUT OF A COURTROOM (B) HIGH UP WITNESS JURY BENCH (JUDGE) CLERK AND REPORTER PODIUM COUNSEL WITH BURDEN OF PROOF (P) COUNSEL WITHOUT BURDEN OF PROOF (D) RAILING SPECTATORS ( FOR P) SPECTATORS (FOR D) 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 Evid. Intro. + Chap. 1

20. COLLOQUYS: • AT THE BENCH • IN CHAMBERS • IN OPEN COURT WITH THE JURY ABSENT • EACH PARTY IS ENTITLED TO HAVE ALL COLLOQUYS BE “ON THE RECORD” • SUGGESTION: DO IT! 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 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 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 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 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 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 Evid. Intro. + Chap. 1

27. 3 TYPES OF OFFER OF PROOF(OUTSIDE JURY’S HEARING) • SUMMARY ORAL STATEMENT OF COUNSEL • DETAILED Q & A IN WRITTEN FORM • DETAILED Q & A WITH WITNESS ON THE STAND 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 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 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 Evid. Intro. + Chap. 1

31. A REVIEW OF JMOL MOTIONS • AT CLOSE OF PLAINTIFF’S CASE • FAILURE OF PRIMA FACIE PROOF • STATE COURT: MTN. FOR DIRECTED VERDICT • 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 Evid. Intro. + Chap. 1

32. AFTER VERDICT • “NO REASONABLE JURY COULD, ON THE EVIDENCE, FIND _______” • SAME TEST AS BEFORE • WHY THE DUPLICATION? 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 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] Evid. Intro. + Chap. 1

35. SOME PITFALLS FOR LAWYERS • HANDS IN POCKETS • MAKING NOISES (JINGLING; TAPPING) • LEADING THE WITNESS →→ 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 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. 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. 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 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 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 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 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...” Evid. Intro. + Chap. 1

44. TO BE AVOIDED IN OPENING STATEMENTS: ADVERBS • CALLOUSLY • RECKLESSLY • AMAZINGLY • DISASTROUSLY • MALICIOUSLY • HORRENDOUSLY • WANTONLY LABELS • FOOL • JERK • IDIOT 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 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 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 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 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) Evid. Intro. + Chap. 1

50. IMPACT OF ERRONEOUS RULINGS ON EVIDENCERULE 103 NO GROUND FOR REVERSAL UNLESS: • A SUBSTANTIAL RIGHT WAS AFFECTED • HARMLESS ERROR DOCTRINE • CUMULATIVE EVIDENCE DOCTRINE • STEPS WERE TAKEN TO “PRESERVE ERROR” • OBJECTION, MTN. TO STRIKE • OFFER OF PROOF • OR THE ERROR WAS “PLAIN” Evid. Intro. + Chap. 1