1. INTRODUCTION AND CHAP. 1
P. JANICKE
2008

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
2008
Evid. Intro. + Chap. 1

3. 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

4. WHO ARE NOT PARTIES (AND CANNOT OFFER EVIDENCE) ?
A WITNESS
THE JUDGE
A VICTIM
2008
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
MR. FASTOW GAVE EVIDENCE AT THE LAY-SKILLING TRIAL
HE DID NOT INTRODUCE ANY EVIDENCE
2008
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 “INTRODUCED” BY THE PARTY]
THE ANSWER IS “IN EVIDENCE” UNLESS THE JUDGE SAYS OTHERWISE
2008
Evid. Intro. + Chap. 1

7. “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

8. 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

9. 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

10. “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

11. 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

12. 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

13. 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

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

15. 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

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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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

30. 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

31. 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

32. 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

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

34. 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

35. 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

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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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

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

46. 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

47. 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

48. 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

49. 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

50. 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

51. 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

52. 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

53. 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