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Evidence
South Texas College of Law Houston
Field, Ted L.

Evidence Outline – Professor Field – Summer 2011

I. Process of Proof and Structure of Trial

a. Types of Evidence

i. Testimonial Evidence

ii. Tangible Physical Evidence

1. Real

2. Demonstrative

b. Assessment of Witness Credibility

i. Perception

ii. Memory

iii. Logic and Clarity

iv. Veracity

c. Role of Judge

i. Time Limits of presenting evidence – Rule 403

ii. Order of witnesses and their testimony – Rule 611

iii. Comments on the evidence – Rule 102

iv. Questioning witnesses – Rule 614

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

1. Although relevant, evidence 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 evidence.

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

1. (a) Control by Court

2. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence 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.

vii. Rule 102 – Purpose and Construction

1. 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 evidence to the end that the truth may be ascertained and proceedings justly determined.

viii. Rule 614 – Calling and Interrogation of Witnesses by Court

1. (a) Calling by Court – The court 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 Court – The court may interrogate witnesses, whether called by itself or by a party.

3. (c) Objections – Objections to the calling of witnesses by the court or to interrogations by it may be made at the time or at the next available opportunity when the jury is not present.

II. Relevance

a. Definition of Relevant Evidence

i. Rule 401 – Definition of “Relevant Evidence”

1. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

b. Types of Relevance

i. Logical Relevance (“Probativeness”)

1. Rule 401: “evidence having any tendency to make the existence of any fact …more probable or less probable than it would be without the evidence.”

ii. Legal Relevance (“Materiality”)

1. Rule 401: “any fact that is of consequence to the determination of the action”

c. Determining Relevant Evidence

i. Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

1. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

d. Exclusion of Relevant Evidence

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

1. Although relevant, evidence 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 evidence.

ii. Rule 403 Analysis

1. Evidence is unfairly prejudicial if:

a. It has an undue tendency to suggest decision on an improper basis – commonly an emotional basis

b. Appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish

c. Causes jury to base its decision on something other than established propositions in the case

2. Classic example of unfairly prejudicial evidence: Defendant’s criminal record

a. Jury might decide that Defendant committed so many other crimes, that the likely committed the one he’s charged with, too

e. Judicial Determination

i. Preliminary Questions

1. Rule 104 – Preliminary Questions

a. (a) Questions of admissibility Generally – Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

b. ANALYSIS

i. Trial judge makes preliminary LEGAL decisions about admissibility of proposed evidence

1. e.g., qualifications of witness to testify; existence of privilege not to testify

ii. Judge is NOT bound by rules of evidence in making this decision

1. Judge CAN consider inadmissible evidence to determine whether OTHER evidence is admissible

2. Judges often must make factual findings to determine whether evidence is admissible

iii. E.g., judge must weigh evidence under Rule 403

ii. Conditional Relevancy

1. Rule 104(b)

a. (b) Relevancy Conditioned on Fact – When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding or the fulfillment of the condition.

2. Rule 105 – Limited Admissibility

a. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

III. Qualifications of a Fact Witness

a. General Rule of Competency

i. Rule 601 – General Rule of Competency

1. Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

a. Very low standard – almost EVERYONE is competent to testify

2. (a) General Rule – Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceedings subject to these rules:

b. Mentally Incapacitated Witness

i. Rule 601(a)(1) – Insane Persons

1. Insane persons who, in the opinion of the court, are in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify.

a. Rule 601 abolishes mental capacity as a grounds for rendering a person incompetent as a witness

b. Opponent can impeach witness’s perceptions and recollections on CROSS-EXAMINATION

c. Child Witnesses

i.

mitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposing party.

h. Other Prerequisites to Testifying

i. Rule 603 – Oath or Affirmation

1. Before Testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.

2. ANALYSIS

a. Can a witness testify or is he incompetent because he hasn’t taken the “standard” oath?

i. YES, if he understands duty to tell the truth.

ii. Up to the judge to revise the oath

iii. à There is NO standard oath; instead court must be persuaded that the witness appreciates the duty to be truthful/not lie/penalty of perjury

iv. Anything that “awakens the conscience” of the witness

ii. Rule 602 – Lack of Personal Knowledge

1. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

2. Personal Knowledge Requirement

a. A witness may NOT testify, unless evidence:

i. Is sufficient to support a finding

ii. That witness has personal knowledge

b. The witness’s own testimony can establish personal knowledge

c. NOTE: Rule 602 is subject to Rule 703, which allows experts to testify as to certain things even if they do NOT have personal knowledge

IV. Witnesses

a. Direct Examination and Cross Examination

i. When Can an Attorney Use Leading Questions?

1. Cross examination

2. Hostile Witness

3. Adverse Party

4. Witness identified with an Adverse Party

5. Other EXCEPTIONS:

a. Children

b. Infirm or forgetful witness

c. Undisputed background issues

d. General points in the interest of time

ii. Rule 611(c) – Leading Questions

1. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

iii. Leading Questions

1. What is a leading question as opposed to an open-ended question?

a. Leading questions SUGGEST THE ANSWER in it, an open ended question does not.

2. Is it a question the answer to which is Yes/NO?

a. NOT necessarily – possible to ask such a question without it necessarily suggesting the answer