INTRODUCTION AND CHAP. 1 P. JANICKE 2006

Evid. Intro. + Chap. 12 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

2006Evid. Intro. + Chap. 13 ONLY PARTIES OFFER EVIDENCE (WITH RARE EXCEPTIONS TO BE NOTED) WHO ARE THE PARTIES? –CRIMINAL CASE: THE STATE; THE DEFENDANT –CIVIL CASE: PLAINTIFF; DEFENDANT

2006Evid. Intro. + Chap. 14 WHO ARE NOT PARTIES (AND CANNOT OFFER EVIDENCE) ? A WITNESS THE JUDGE A VICTIM

2006Evid. Intro. + Chap. 15 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

2006Evid. Intro. + Chap. 16 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

2006Evid. Intro. + Chap. 17 “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

2006Evid. Intro. + Chap. 18 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

2006Evid. Intro. + Chap. 19 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

2006Evid. Intro. + Chap. 110 “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 ____”

2006Evid. Intro. + Chap. 111 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

2006Evid. Intro. + Chap. 112 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

2006Evid. Intro. + Chap. 113 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

2006Evid. Intro. + Chap. 114 COMPETENCE THE OFFERED EVIDENCE MEETS ALL THE OTHER RULES OF ADMISSIBILITY ESPECIALLY: RULE EXCLUDING HEARSAY EVIDENCE RULE 802

2006Evid. Intro. + Chap. 115 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

2006Evid. Intro. + Chap. 116 TEXAS RULES UNTIL 2000 WE HAD SEPARATE CRIMINAL AND CIVIL RULES NOW COMBINED

2006Evid. Intro. + Chap. 117 LAYOUT OF A COURTROOM (A) BENCH (JUDGE) WITNESS JURY COUNSEL WITH BURDEN OF PROOF COUNSEL WITHOUT BURDEN OF PROOF CLERK AND REPORTER SPECTATORS ( FOR D) SPECTATORS (FOR P) RAILING PODIUM HIGH UP

2006Evid. Intro. + Chap. 118 LAYOUT OF A COURTROOM (B) BENCH (JUDGE) WITNESS COUNSEL WITHOUT BURDEN OF PROOF (D) COUNSEL WITH BURDEN OF PROOF (P) CLERK AND REPORTER SPECTATORS ( FOR P) SPECTATORS (FOR D) RAILING PODIUM JURY HIGH UP

2006Evid. Intro. + Chap. 119 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

2006Evid. Intro. + Chap. 120 COLLOQUYS: 1.AT THE BENCH 2.IN CHAMBERS 3.IN OPEN COURT WITH THE JURY ABSENT EACH PARTY IS ENTITLED TO HAVE ALL COLLOQUYS BE “ON THE RECORD” SUGGESTION: DO IT!

2006Evid. Intro. + Chap. 121 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

2006Evid. Intro. + Chap. 122 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

2006Evid. Intro. + Chap. 123 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

2006Evid. Intro. + Chap. 124 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

2006Evid. Intro. + Chap. 125 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

2006Evid. Intro. + Chap. 126 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

2006Evid. Intro. + Chap 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

2006Evid. Intro. + Chap. 128 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

2006Evid. Intro. + Chap. 129 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

2006Evid. Intro. + Chap. 130 SPECIAL TYPE OF IN LIMINE ORDER: SUPPRESSION ORDER CRIMINAL CASES ONLY FOR CONSTITUTIONAL VIOLATION ONLY –BAD SEARCH –BAD CONFESSION APPEALABLE PRETRIAL BY GOV’T

2006Evid. Intro. + Chap. 131 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

2006Evid. Intro. + Chap AFTER VERDICT “NO REASONABLE JURY COULD, ON THE EVIDENCE, FIND _______” SAME TEST AS BEFORE WHY THE DUPLICATION?

2006Evid. Intro. + Chap. 133 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

2006Evid. Intro. + Chap. 134 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]

2006Evid. Intro. + Chap. 135 SOME PITFALLS FOR LAWYERS HANDS IN POCKETS MAKING NOISES (JINGLING; TAPPING) LEADING THE WITNESS →→

2006Evid. Intro. + Chap. 136 LEADING DEFINITION: QUESTION SUGGESTS THE EXPECTED ANSWER NOT ALLOWED ON DIRECT –EXCEPTION: PRELIMINARY MATTERS –EXCEPTION: JOGGING TIMID WITNESS: ALLOWED WITHIN REASON

2006Evid. Intro. + Chap. 137 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.

2006Evid. Intro. + Chap. 138 LEADING IS ALLOWED ON CROSS –BUT IS INCREDIBLY BORING –BEST LAWYERS DON’T DO IT –THEY ASK “WHO,” HOW,” “TELL US,” ETC.

2006Evid. Intro. + Chap. 139 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

2006Evid. Intro. + Chap. 140 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

2006Evid. Intro. + Chap. 141 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

2006Evid. Intro. + Chap. 142 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

2006Evid. Intro. + Chap. 143 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...”

2006Evid. Intro. + Chap. 144 TO BE AVOIDED IN OPENING STATEMENTS: ADVERBS CALLOUSLY RECKLESSLY AMAZINGLY DISASTROUSLY MALICIOUSLY HORRENDOUSLY WANTONLY LABELS FOOL JERK IDIOT

2006Evid. Intro. + Chap. 145 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

2006Evid. Intro. + Chap. 146 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

2006Evid. Intro. + Chap. 147 ALTHOUGH DEMEANED AS MERELY TESTIMONY IN ANOTHER FORM, DEMONSTRATIVE EVIDENCE HAS GREAT PERSUASIVE POWER IT IS REMEMBERED BETTER THAN THE TESTIMONY

2006Evid. Intro. + Chap. 148 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

2006Evid. Intro. + Chap. 149 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)

2006Evid. Intro. + Chap. 150 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”

2006Evid. Intro. + Chap. 151 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

2006Evid. Intro. + Chap. 152 THE CONSTITUTIONAL INTERSECTION EVIDENCE RULINGS OFTEN HAVE CONSTITUTIONAL DIMENSIONS: –FRUIT OF A BAD SEARCH –FRUIT OF A BAD CONFESSION –DENIAL OF 6 TH AM. RIGHT OF CONFRONTATION –DENIAL OF 6 TH AM. RIGHT TO SUMMON WITNESSES –FORCED SELF-INCRIMINATION