1. INTRODUCTION AND CHAP. 1
P. JANICKE
2010

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
2010
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
2010
Evid. Intro. + Chap. 1

4. WHO ARE NOT PARTIES (AND CANNOT OFFER EVIDENCE) ?
A WITNESS
A VICTIM
RELATIVES OF A VICTIM
2010
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
2010
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
2010
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. __ FOR ID”
LAWYER ASKS QUESTIONS TO A WITNESS ABOUT IT
CALLED “LAYING THE FOUNDATION”
MAINLY TO PROVE AUTHENTICITY
2010
Evid. Intro. + Chap. 1

8. LWYR. OFFERS DOC./ THING IN EVIDENCE
SAYS “I OFFER P’s EX. __ FOR ID INTO EVIDENCE”
JUDGE SAYS THE MAGIC WORDS:
“Ex. 1 for identification will be received in evidence”
2010
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 (THIS IS PRETTY RARE)
2010
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
2010
Evid. Intro. + Chap. 1

11. COMPETENT
JUST ANOTHER WORD FOR “ADMISSIBLE.” MEANING IT COMPLIES WITH ALL THE RULES OF EVIDENCE
2010
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
2010
Evid. Intro. + Chap. 1

13. TEXAS RULES UNTIL 2000 WE HAD SEPARATE CRIMINAL AND CIVIL RULES
NOW COMBINED
2010
Evid. Intro. + Chap. 1

14. 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)
2010
Evid. Intro. + Chap. 1

15. 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)
2010
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
2010
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!
2010
Evid. Intro. + Chap. 1

18. 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
2010
Evid. Intro. + Chap. 1

19. 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
2010
Evid. Intro. + Chap. 1

20. IF MOTION TO STRIKE IS GRANTED
JURY IS TOLD TO DISREGARD THE EVIDENCE
IN A GROSS CASE, A MISTRIAL MAY BE DECLARED
2010
Evid. Intro. + Chap. 1

21. 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
2010
Evid. Intro. + Chap. 1

22. 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
2010
Evid. Intro. + Chap. 1

23. 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
2010
Evid. Intro. + Chap. 1

24. 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 IN JURY’S HEARING
LAWYERS ARE RESPONSIBLE FOR THEIR WITNESSES NOT MENTIONING
2010
Evid. Intro. + Chap. 1

25. SPECIAL TYPE OF IN LIMINE ORDER: SUPPRESSION ORDER
CRIMINAL CASES ONLY
FOR CONSTITUTIONAL VIOLATION ONLY
BAD SEARCH
BAD CONFESSION
APPEALABLE PRETRIAL BY GOV’T
2010
Evid. Intro. + Chap. 1

26. SOME PITFALLS FOR LAWYERS
HANDS IN POCKETS
MAKING NOISES (JINGLING; TAPPING)
LEADING THE WITNESS →→
2010
Evid. Intro. + Chap. 1

27. LEADING DEFINITION: QUESTION SUGGESTS THE EXPECTED ANSWER
NOT ALLOWED ON DIRECT
EXCEPTION: PRELIMINARY MATTERS
EXCEPTION: JOGGING TIMID WITNESS (ALLOWED WITHIN REASON)
2010
Evid. Intro. + Chap. 1

28. 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.
2010
Evid. Intro. + Chap. 1

29. LEADING IS ALLOWED ON CROSS BUT IS INCREDIBLY BORING
BEST LAWYERS DON’T DO IT
THEY ASK “WHO,” HOW,” “TELL US,” ETC.
2010
Evid. Intro. + Chap. 1

30. 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
2010
Evid. Intro. + Chap. 1

31. ROLE OF THE JUDGE GATEKEEPER, OR SCREEN
CONSIDERS THE THRESHOLD 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
2010
Evid. Intro. + Chap. 1

32. 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
2010
Evid. Intro. + Chap. 1

33. THE EVIDENCE IS NOT ADMITTED, AND CAN’T BE MENTIONED
WHERE THE JUDGE’S RULING IS TO EXCLUDE EVIDENCE, THAT IS THE FINAL WORD
THE EVIDENCE IS NOT ADMITTED, AND CAN’T BE MENTIONED
2010
Evid. Intro. + Chap. 1

34. 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...”
2010
Evid. Intro. + Chap. 1

35. TO BE AVOIDED IN OPENING STATEMENTS:
ADVERBS
CALLOUSLY
RECKLESSLY
AMAZINGLY
DISASTROUSLY
MALICIOUSLY
HORRENDOUSLY
WANTONLY
LABELS
FOOL
JERK
IDIOT
2010
Evid. Intro. + Chap. 1

36. DEMONSTRATIVE EVIDENCE
SKETCHES, MODELS, 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
THE WITNESS MUST TESTIFY WHAT IT REPRESENTS
2010
Evid. Intro. + Chap. 1

37. 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
2010
Evid. Intro. + Chap. 1

38. 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
2010
Evid. Intro. + Chap. 1

39. 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
2010
Evid. Intro. + Chap. 1

40. APPELLATE IMPACT OF ERRONEOUS RULING ON EVIDENCE RULE 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
2010
Evid. Intro. + Chap. 1

41. 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.)
2010
Evid. Intro. + Chap. 1