INTRODUCTION AND CHAP. 1 P. JANICKE 2008

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 2008 Evid. Intro. + Chap. 1

ONLY PARTIES OFFER EVIDENCE (WITH RARE EXCEPTIONS TO BE NOTED) WHO ARE THE PARTIES? CRIMINAL CASE: THE STATE; THE DEFENDANT CIVIL CASE: PLAINTIFF; DEFENDANT 2008 Evid. Intro. + Chap. 1

WHO ARE NOT PARTIES (AND CANNOT OFFER EVIDENCE) ? A WITNESS THE JUDGE A VICTIM 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

“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 2008 Evid. Intro. + Chap. 1

THE HEARSAY RULE IN ONE MINUTE – PART (A) DOCUMENTS ARE USUALLY FULL OF STATEMENTS, HENCE CONTAIN HEARSAY AND AREN’T USUALLY ALLOWED IN EVIDENCE A BIG EXCEPTION: THOSE AUTHORED BY THE NON-OFFERING PARTY ANOTHER EXCEPTION: OFFICIAL RECORDS, IN CIVIL CASES 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

“PROOF” IS VAGUE TERM TWO DECIDERS: WHEN DO YOU FIND OUT? 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 ____” 2008 Evid. Intro. + Chap. 1

RELEVANCE AND COMPETENCE 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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

RELEVANCE PROCEDURE: OFFER: e.g., ask a question OBJECTION: “IRRELEVANT” JUDGE ASKS: “What is the relevance?” and PROPONENT ANSWERS OBJECTOR: “PREJUDICIAL,” OR “CONFUSING,” OR “WASTE OF TIME” COUNTER BY PROPONENT PARTY RULING BY JUDGE 2008 Evid. Intro. + Chap. 1

COMPETENCE THE OFFERED EVIDENCE MEETS ALL THE OTHER RULES OF ADMISSIBILITY ESPECIALLY: RULE EXCLUDING HEARSAY EVIDENCE RULE 802 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

TEXAS RULES UNTIL 2000 WE HAD SEPARATE CRIMINAL AND CIVIL RULES NOW COMBINED 2008 Evid. Intro. + Chap. 1

LAYOUT OF A COURTROOM (A) HIGH UP BENCH (JUDGE) WITNESS JURY CLERK AND REPORTER PODIUM COUNSEL WITHOUT BURDEN OF PROOF COUNSEL WITH BURDEN OF PROOF RAILING SPECTATORS ( FOR D) SPECTATORS (FOR P) 2008 Evid. Intro. + Chap. 1

LAYOUT OF A COURTROOM (B) HIGH UP WITNESS BENCH (JUDGE) JURY CLERK AND REPORTER PODIUM COUNSEL WITH BURDEN OF PROOF (P) COUNSEL WITHOUT BURDEN OF PROOF (D) RAILING SPECTATORS ( FOR P) SPECTATORS (FOR D) 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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! 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

THEORETICALLY, THE JURY IGNORES ANY OTHER INFO 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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

A MOTION TO STRIKE IS TIMELY IF: THE OTHER SIDE HAS A FAIR CHANCE TO FIX ANY PROBLEM CAUSED BY STRIKING 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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 ANY ERROR WAS HARMFUL OR HARMLESS 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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: LEADS TO VACATING THE ORDER UNFAIR TO BIND OTHER SIDE WHEN PROCURING SIDE HAS MENTIONED THE TOPIC 2008 Evid. Intro. + Chap. 1

SPECIAL TYPE OF IN LIMINE ORDER: SUPPRESSION ORDER CRIMINAL CASES ONLY FOR CONSTITUTIONAL VIOLATION ONLY BAD SEARCH BAD CONFESSION APPEALABLE PRETRIAL BY GOV’T 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

AFTER VERDICT “NO REASONABLE JURY COULD, ON THE EVIDENCE, FIND _______” SAME TEST AS BEFORE WHY THE DUPLICATION? 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 [NO “CONVICTION” AS A MATTER OF LAW] 2008 Evid. Intro. + Chap. 1

SOME PITFALLS FOR LAWYERS HANDS IN POCKETS MAKING NOISES (JINGLING; TAPPING) LEADING THE WITNESS →→ 2008 Evid. Intro. + Chap. 1

LEADING DEFINITION: QUESTION SUGGESTS THE EXPECTED ANSWER NOT ALLOWED ON DIRECT EXCEPTION: PRELIMINARY MATTERS EXCEPTION: JOGGING TIMID WITNESS: ALLOWED WITHIN REASON 2008 Evid. Intro. + Chap. 1

LEADING USUALLY CAUSED BY FEAR THE CURE: 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. 2008 Evid. Intro. + Chap. 1

LEADING IS ALLOWED ON CROSS BUT IS INCREDIBLY BORING BEST LAWYERS DON’T DO IT THEY ASK “WHO,” HOW,” “TELL US,” ETC. 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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...” 2008 Evid. Intro. + Chap. 1

TO BE AVOIDED IN OPENING STATEMENTS: ADVERBS CALLOUSLY RECKLESSLY AMAZINGLY DISASTROUSLY MALICIOUSLY HORRENDOUSLY WANTONLY LABELS FOOL JERK IDIOT 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

IT IS REMEMBERED BETTER THAN THE TESTIMONY ALTHOUGH DEMEANED AS MERELY TESTIMONY IN ANOTHER FORM, DEMONSTRATIVE EVIDENCE HAS GREAT PERSUASIVE POWER IT IS REMEMBERED BETTER THAN THE TESTIMONY 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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) 2008 Evid. Intro. + Chap. 1

IMPACT OF ERRONEOUS RULINGS ON EVIDENCE RULE 103 NO GROUND FOR REVERSAL UNLESS: A SUBSTANTIAL RIGHT WAS AFFECTED [i.e., NOT HARMLESS] STEPS WERE TAKEN TO “PRESERVE ERROR” OBJECTION, MTN. TO STRIKE OFFER OF PROOF OR THE ERROR WAS “PLAIN” 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1

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 2008 Evid. Intro. + Chap. 1