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INTRODUCTION AND CHAP. 1

INTRODUCTION AND CHAP. 1. P. JANICKE 2012. 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.

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INTRODUCTION AND CHAP. 1

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  1. INTRODUCTION ANDCHAP. 1 P. JANICKE 2012

  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. USUALLY ONLY PARTIES OFFER EVIDENCE(WITH A FEW 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 • A VICTIM • RELATIVES OF 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 IT • 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 “GIVEN” BY THE WITNESS AND “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 OUT LOUD: “THIS WILL BE P’S EX. 7 FOR ID” • LAWYER ASKS QUESTIONS TO A WITNESS ABOUT IT • CALLED “LAYING THE FOUNDATION” • MAINLY TO PROVE AUTHENTICITY Evid. Intro. + Chap. 1

  8. LWYR. OFFERS DOC./ THING IN EVIDENCE • SAYS “I offer p’s EX. 7 for ID into evidence” • JUDGE SAYS THE MAGIC WORDS: • “Ex. 1 for identification will be received/admitted in evidence” Evid. Intro. + Chap. 1

  9. 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 (PRETTY RARE) Evid. Intro. + Chap. 1

  10. EASY TO ARGUE FOR RELEVANCE TODAY • THE REAL COURTROOM 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 OF THE JURY • THESE ARE KNOWN AS “COUNTERWEIGHTS” TO RELEVANCE RULE 403 Evid. Intro. + Chap. 1

  11. COMPETENT • JUST ANOTHER WORD FOR “ADMISSIBLE.” • MEANING: IT COMPLIES WITH ALL THE RULES OF EVIDENCE Evid. Intro. + Chap. 1

  12. FEDERAL RULES • APPLY IN FEDERAL COURT TRIALS • BUT NOT SENTENCING, BAIL HEARINGS, ETC. • HAVE BEEN THE MODEL FOR STATES’ RULES, INCLUDING TEXAS Evid. Intro. + Chap. 1

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

  14. 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

  15. 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

  16. 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 DOWN BY THE REPORTER • DOCUMENTARY AND TANGIBLE EVIDENCE KEPT BY THE CLERK Evid. Intro. + Chap. 1

  17. 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

  18. NET RESULT • EVEN THE “TRIAL RECORD” CONTAINS LOTS OF ITEMS THAT ARE 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

  19. WHY KEEP THESE NON-EVIDENCE ITEMS IN THE RECORD? • TO ENABLE THE COURT OF APPEALS TO KNOW WHAT HAPPENED • TO ASSESS POSSIBLE ERRORS Evid. Intro. + Chap. 1

  20. 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” • FAILURE TO STATE A GROUND WAIVES THE OBJECTION • BY TIMELY MOTION TO STRIKE Evid. Intro. + Chap. 1

  21. IF MOTION TO STRIKE IS GRANTED • JURY IS TOLD TO DISREGARD THE EVIDENCE • IN A GROSS CASE, A MISTRIAL MAY BE DECLARED • NOTHING IS PHYSICALLY “STRICKEN” Evid. Intro. + Chap. 1

  22. 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 Evid. Intro. + Chap. 1

  23. REASONS FOR THE OFFER-OF-PROOF REQUIREMENT: • GIVES THE TRIAL JUDGE A CHANCE TO RECONSIDER THE EXCLUSION RULING • GIVES THE COURT OF APPEALS THE INFO THEY NEED TO DECIDE IF THE EXCLUSION WAS ERRONEOUS Evid. Intro. + Chap. 1

  24. 3 TYPES OF OFFER OF PROOF(OUTSIDE JURY’S HEARING) • SUMMARY ORAL STATEMENT BY COUNSEL • DETAILED Q & A IN WRITTEN FORM • DETAILED Q & A WITH WITNESS ON THE STAND Evid. Intro. + Chap. 1

  25. 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 • THE IN LIMINE TOPICS ARE THEN OFF LIMITS • LAWYERS CAN’T MENTION THEM IN JURY’S HEARING • LAWYERS ARE RESPONSIBLE FOR THEIR WITNESSES NOT MENTIONING Evid. Intro. + Chap. 1

  26. 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

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

  28. 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

  29. 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

  30. 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

  31. 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 Evid. Intro. + Chap. 1

  32. ROLE OF THE JUDGE • GATEKEEPER, OR SCREEN • CONSIDERS THE FOUNDATION POINTS PRELIMINARILY, BUT ONLY TO SEE IF THE EVIDENCE IS GOOD ENOUGH TO GO TO THE JURY FOR FINAL DECISION • RULING OF ADMISSIBILITY DOESN’T BIND THE JURY ON ANY FACT • EXCEPTION: JUDICIAL NOTICE IN CIVIL CASES Evid. Intro. + Chap. 1

  33. 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: NOTHING BINDING HAS OCCURRED; • NEITHER SIDE IS PRECLUDED FROM PUTTING IN EV. THAT THE DOC. IS FORGED, OR FROM ARGUING THE ISSUE IN CLOSING Evid. Intro. + Chap. 1

  34. RULING OF INADMISSIBILITY • WHERE THE JUDGE’S RULING IS TO EXCLUDE EVIDENCE, THAT IS THE FINAL WORD • THE EVIDENCE IS NOT ADMITTED, AND CAN’T BE MENTIONED Evid. Intro. + Chap. 1

  35. 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! • IN YOUR FIRST FEW TRIALS, KEEP SAYING: “THE EVIDENCE WILL SHOW...” Evid. Intro. + Chap. 1

  36. TO BE AVOIDED IN OPENING STATEMENTS: ADVERBS • CALLOUSLY • RECKLESSLY • AMAZINGLY • DISASTROUSLY • MALICIOUSLY • HORRENDOUSLY • WANTONLY LABELS • FOOL • CRIMINAL • CHARLATAN Evid. Intro. + Chap. 1

  37. DEMONSTRATIVE EVIDENCE • SKETCHES, MODELS, VIDEOS, ETC., THAT ILLUSTRATE A WITNESS’S TESTIMONY; VISUAL AIDS • CAN BE MADE BEFORE TRIAL, BY THE WITNESS OR SOMEONE ELSE • CAN BE MADE BY WITNESS DURING TESTIMONY [A RISK, BUT DRAMATIC] • THE WITNESS MUST TESTIFY WHAT IT REPRESENTS Evid. Intro. + Chap. 1

  38. 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

  39. 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

  40. A WORD ABOUT “REAL” EVIDENCE: TANGIBLE THINGS • 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

  41. APPELLATE IMPACT OF ERRONEOUS RULING ON EVIDENCERULE 103 USUALLY, THIS IS GROUND FOR REVERSAL ONLY WHERE: • A SUBSTANTIAL RIGHT WAS AFFECTED [i.e., NOT HARMLESS], and • STEPS WERE TAKEN TO “PRESERVE ERROR” • OBJECTION, MTN. TO STRIKE • OFFER OF PROOF Evid. Intro. + Chap. 1

  42. THE CONSTITUTIONAL INTERSECTION • EVIDENCE RULINGS OFTEN HAVE CONSTITUTIONAL DIMENSIONS: • FRUIT OF A BAD SEARCH (4TH AM.) • FRUIT OF A BAD CONFESSION (5TH AM.) • DENIAL OF 6TH AM. RIGHT OF CONFRONTATION • DENIAL OF 6TH AM. RIGHT TO SUMMON WITNESSES • FORCED SELF-INCRIMINATION (5th AM.) Evid. Intro. + Chap. 1

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