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 AND CAN’T DO TO ESTABLISH FACTS AT TRIAL “LAW” POINTS ARE ESTABLISHED DIFFERENTLY; EVIDENCE DEALS WITH FACTS

2009Evid. 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

2009Evid. Intro. + Chap. 14 WHO ARE NOT PARTIES (AND CANNOT OFFER EVIDENCE) ? A WITNESS THE JUDGE A VICTIM

2009Evid. 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

2009Evid. 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

2009Evid. 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

2009Evid. Intro. + Chap 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”

2009Evid. Intro. + Chap. 19 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

2009Evid. Intro. + Chap. 110 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

2009Evid. Intro. + Chap. 111 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

2009Evid. Intro. + Chap. 112 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

2009Evid. Intro. + Chap. 113 COMPETENCE JUST ANOTHER WORD FOR “ADMISSIBLE” – COMPLIES WITH ALL THE RULES OF EVIDENCE

2009Evid. Intro. + Chap. 114 FEDERAL RULES APPLY IN FEDERAL COURT TRIALS –BUT NOT SENTENCING, BAIL HEARINGS, ETC. HAVE BEEN THE MODEL FOR STATES’ RULES, INCLUDING TEXAS

2009Evid. Intro. + Chap. 115 TEXAS RULES UNTIL 2000 WE HAD SEPARATE CRIMINAL AND CIVIL RULES NOW COMBINED

2009Evid. Intro. + Chap. 116 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

2009Evid. Intro. + Chap. 117 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

2009Evid. Intro. + Chap. 118 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

2009Evid. Intro. + Chap. 119 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!

2009Evid. Intro. + Chap. 120 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

2009Evid. Intro. + Chap. 121 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

2009Evid. Intro. + Chap. 122 IF MOTION IS GRANTED –JURY IS TOLD TO DISREGARD –IN A GROSS CASE, A MISTRIAL MAY BE DECLARED

2009Evid. Intro. + Chap. 123 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

2009Evid. Intro. + Chap. 124 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

2009Evid. 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

2009Evid. Intro. + Chap. 126 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

2009Evid. Intro. + Chap. 127 SPECIAL TYPE OF IN LIMINE ORDER: SUPPRESSION ORDER CRIMINAL CASES ONLY FOR CONSTITUTIONAL VIOLATION ONLY –BAD SEARCH –BAD CONFESSION APPEALABLE PRETRIAL BY GOV’T

2009Evid. Intro. + Chap. 128 SOME PITFALLS FOR LAWYERS HANDS IN POCKETS MAKING NOISES (JINGLING; TAPPING) LEADING THE WITNESS →→

2009Evid. Intro. + Chap. 129 LEADING DEFINITION: QUESTION SUGGESTS THE EXPECTED ANSWER NOT ALLOWED ON DIRECT –EXCEPTION: PRELIMINARY MATTERS –EXCEPTION: JOGGING TIMID WITNESS (ALLOWED WITHIN REASON)

2009Evid. Intro. + Chap. 130 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.

2009Evid. Intro. + Chap. 131 LEADING IS ALLOWED ON CROSS –BUT IS INCREDIBLY BORING –BEST LAWYERS DON’T DO IT –THEY ASK “WHO,” HOW,” “TELL US,” ETC.

2009Evid. Intro. + Chap. 132 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

2009Evid. Intro. + Chap. 133 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

2009Evid. Intro. + Chap. 134 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

2009Evid. Intro. + Chap. 135 WHERE THE JUDGE’S RULING IS TO EXCLUDE EVIDENCE, THAT IS THE FINAL WORD THE EVIDENCE IS NOT ADMITTED, AND CAN’T BE MENTIONED

2009Evid. Intro. + Chap. 136 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...”

2009Evid. Intro. + Chap. 137 TO BE AVOIDED IN OPENING STATEMENTS: ADVERBS CALLOUSLY RECKLESSLY AMAZINGLY DISASTROUSLY MALICIOUSLY HORRENDOUSLY WANTONLY LABELS FOOL JERK IDIOT

2009Evid. Intro. + Chap. 138 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

2009Evid. Intro. + Chap. 139 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

2009Evid. Intro. + Chap. 140 ALTHOUGH DEMEANED AS MERELY TESTIMONY IN ANOTHER FORM, DEMONSTRATIVE EVIDENCE HAS GREAT PERSUASIVE POWER IT IS REMEMBERED BETTER THAN THE TESTIMONY

2009Evid. Intro. + Chap. 141 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

2009Evid. Intro. + Chap. 142 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, or b. THE ERROR WAS “PLAIN”

2009Evid. Intro. + Chap. 143 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