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South Texas College of Law Houston
Crump, Susan Waite

Crump, Evidence, Fall 2011

1. Overview

a. What is Evidence?

i. Evidence refers to witness testimony and physical items presented by a party and admitted during trial to prove an element of that party’s case or to refute an element of an opponent’s case

1. It is what attys present to the factfinder to help them present the case –

2. Judge judy – no rules of evid, they can talk about whatever they want – she is the factfinder

b. Advisory Committee compiled rules of evid, sent to US Sup Ct, US Sup Ct passed to Congress, Congress held hearings on them, since then they’ve been our rules, not many amendments made, TX rules are almost identical to the fedl rules

c. Predicate: lay the foundation/what you have to establish before a piece of evidence can come in

i. Lay witnesses cant usually offer their opinion

ii. To qualify someone as an expert, lay the predicate – ask him his qualification, education, memberships – show this person has more knowledge than avg person in this particular area

1. Qualifying someone as an expert is laying the predicate

iii. To admit hearsay – excited utterance (exception to hearsay rule)

1. Lay the predicate – ask how the person was talking, how their eyes looked, were they sweating, were they excited

iv. When reading cases, think about questions youd ask this witness to get the evid in

1. What would you do to keep the evid out

2. The Process of Proof and the Structure of Trial

a. Introduction

i. 2 types of evidence an atty may present in ct

1. Testimony of live witnesses

2. Tangible physical evidence (an “exhibit”) – must be shown to be authentic

a. If you can touch it, feel it, its an exhibit – and you need an exhibit number or letter on it (never refer to it as “this”) – make sure when you talk about something that’s an exhibit, refer to it by its exhibit number/letter

b. Real evidence: evidence generated by the case

i. Used in the case, part of the case

ii. Ex. A gun that came off the D

c. Demonstrative evidence: maps, charts, etc used to explain other evid in the case

i. Show and tell evidence – stuff you make up after the fact, doesn’t have anything to do specifically as the case developed – just shows something

1. Aids the fact finder in understanding what went on

ii. Charts – can be real evidence sometimes (ex. If someone shot A who was holding the chart, the gun residue is now on the chart)

ii. Direct evid: based on a testifying witness’s personal knowledge gained thru the witness’s sense which, if true, proves a fact w/o an inference or presumption

1. Witness testimony

iii. Circumstantial evid: a fact-finder must make inferences to reach a factual conclusion in a case

1. Evid that requires an inference by the fact finder

2. A circumstantial evid case can be stronger than direct evid cases sometimes

iv. Which is better – direct or circumstantial

1. Depends

a. Direct – Witness could be biased, not believable

v. Ct clerk – they are like the secretary of the ct

vi. Pg. 10 – example of live witness testimony

1. It’s very short and quick, to the point

2. Direct examination paints a picture – very to the point

vii. Pg. 11 – example of tangible evid

1. Need a marking, exhibit number


b. The Role of the Judge

i. Fedl judges get to control trial much more than a state trial – can even question witnesses

1. A TX state trial judge would cause a mistrial if they question a witness

2. Fedl judge can impose time limits

ii. The Time Limits of Presenting Evidence

1. Rule 102 – Purpose and Construction

a. These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evid to the endthat may be ascertained and proceedings justly determined.

b. Allows the trial judge to use the Fedl Rules of Evid to “secure fairness” and “eliminate undue expense and delay”

2. Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

a. Although relevant, evid may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evid.

b. Recognizes the power and duty of the ct to exclude cumulative evid or evid which consumes more time than its probative value justifies

3. Rule 611 – Mode and Order of Interrogation and Presentation

a. (a) Control by ct – The ct shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evid so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment…

iii. US v. Reeves

1. The ct holds that it has the power to impose reasonable time limits on the trial of both civil and criminal cases in the exercise of its reasonable discretion

2. Tax fraud case

3. Judge gave limited time to the prosecution, the prosecution wants to take more time (a month) – judge only gave them 10 days, he wanted to limit the time of the whole trial, judge thought that the prosecution was purposely taking their time

4. Rule 611 – (2) – prosecution doesn’t like it, it excludes some information that they want to include

5. Rule 403 – can exclude evidence that may result in undue delay

6. Abuse of discretion is the way to overturn the judge – but almost never see a ruling for abuse of discretion

iv. Trial time costs a lot of money – Rule 403 helps to save money

c. The Order of Witnesses and the

ill be reversed if he said this – would show he may have decided guilt prior to completion of trial

a. Harder to reverse

b. A judge is presumed to weigh evid fairly and disregard

e. Object BEFORE witness answers!!

i. If you don’t object, you waive right to complain later about it

ii. If answer is bad, but question is ok

1. Make motion to strike

f. Questioning Witnesses

i. Rule 614 – Calling and Interrogation of Witnesses by Ct

1. (a) Calling by ct – The ct may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

2. (b) Interrogation by ct – The ct may interrogate witnesses, whether called by itself or by a party.

3. (c) Objections – Objections to the calling of witnesses by the ct or to interrogation by it may be made at the time or at the next available opportunity when the jury is nto present.

ii. Rule 614 expressly grants judges the right to call and question witnesses, even repeatedly and aggressively, to clear up confusion and manage trials whenever necessary

iii. Crandell v. US

1. Judges can question witness only if they do so impartially.

2. PH

a. Crandells brought suit for med mal for failure to timely diagnose their baby with spinal meningitis. The Crandells lost the trial. On appeal, they contend that the trial judge had predetermined their case.

b. Reversed and remanded.

3. Ct

a. Trial judges conduct deprived the Crandells of a fair trial.

4. He was an elderly judge.

5. He didn’t want taxpayers to have to pay for this

6. 4 pts of error

a. Made a remark about refusing to settle

b. He badgered the witness

c. Remarked about the financial considerations extraneous to the issues

d. He interfered with the Crandell’s counsels attempts to cross examine the key defense witness

7. INHIBITS the witness AND counsel – doesn’t allow the atty to do what they had planned

8. Sometimes its ok to ask a hypothetical question – pg. 24

a. Judge cant ban hypothetical questions in regards to expert witnesses

9. Demeanor doesnt matter – there is no demeanor in the transcript

a. Ct said that the judge had assumed the role of an advocate

i. The defense never objected – the judge was very one-sided