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Evidence
South Texas College of Law Houston
Read, Frank T.

 
EVIDENCE OULTINE
Dean Read
Fall 2005
 
I) GENERAL BACKGROUND
A) Purposes of the Trial
1)       Search for Truth: recreating what happened in a past historic event.
(a) There are limitations that make this process flawed
(i) Time: causes memory to fade, witnesses may die, exhibits get lost, etc.
(ii) Memory: different for everyone.
(iii) Energy: we cannot use everyone who has knowledge in the case.
Þ     The lawyer must choose his resources carefully
(b) Nature of the Procedure
(i) Very intimidating and scary for the W
(ii) There are collateral policies: 
Þ     Privileges
Þ     5th Amendment.
(c) Because of these limitations, one very rarely has a perfect recreation of the event
(i) Some pieces will always be missing
(ii) Attys job is to use the best approximate method to complete the picture.
2)       End Controversy
(a) Where the public trial exists so the public can buy into the notion that the process is as fair and just as possible for the client.
(b) This provides finality for the public regarding dispute.
(c) US clings to the jury trial
(i) Read Theory:
Þ     B/c the US has people from all over the world who come here for
·         Economic security
·         Freedom of conscience,
·         Most do not like the government too involved.
Þ     A jury decision is far more acceptable to the public than a governmental ruling.
B) the dirty little Secret
1)       Jury Trial Opportunity
(a) We are frightened of the jury b/c
(i) We don’t know if we can trust them
(ii) We doubt their ability
(b) We however, have the power to control what the jury hears.
(i) To avoid prejudice
(ii) To avoid wrong verdicts
(iii) This is what created Evidence.
C) what is evidence?
1)       85% of the individual rules deal with admissibility
(a) Whether or not the judge will allow the jury to hear the matter
2)       15% attempt to control what the jury does with the information they have heard or once they hear it.
3)       The same rules of evidence apply in a bench trial as well as a jury trial.
(a) The rules are a little more relaxed in a bench trial.
(b) In a jury trial
(i) The judge governs the case
(ii) The jury judges the facts based on the standard the judge gives them.
D) codes
1)       Model Rules of Evidence
(a) 1st body of evidence rules and procedure collection
(i) No one adopted this
2)       Uniform Rules
(a) Writers of the model rules were also the creator
(i) Adopted by the Virgin Islands and Kansas
3)       CA Evidence Code
(a) This was the 2nd model
(b) Was a form of the uniform rules
4)       Federal Rules of Evidence
(a) This was the last effort, and is used extensively.
II) JUDICIAL NOTICE
The court’s recognition of a fact as true w/o requiring formal presentation of evidence.
Ø       There are certain things that are so true, that the judge will take the fact issue and treat it like a law issue.
Ø       The judge will use the fact to tell the jury what something is.
Ø       Judicial notice may take place at any sta

Criminal Side
(a) Cannot use judicial notice [FRE 201(g)]: same rule applies at C/L.
(i) B/c the prosecution must prove the elements.
(b) Jury must decide the facts
E) Judicial Notice of the Law
Ø       In most courts, federal and state laws and official regulations are subject to mandatory judicial notice.
Ø       Ct may take notice of municipal codes, congressional resolutions and laws of foreign countries, however, they are not required to do so.
1)       All states have a form of law that requires judicial notice
(a) All the laws of their jrd
(b) All sister states
(c) All foreign and maritime law
2)       Sometimes when a judge cannot find the law, they treat it as a fact and send it to the jury.
(a) This is very rare
(b) Usually involves some obscure fact.
F) Judicial Notice of Legislative Facts
1)       Has nothing to do with judicial notice (Phrase was coined by Kenneth Davis in an article.)
2)       Basically whether or not the legislature had the power under the policing act to create or exercise the law.
(a) The court looks at the intent and history of the legislature
3)       How courts interpret the meaning of the statutes.
RELEVANCY: Discretionary rule for judges.