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South Texas College of Law Houston
Read, Frank T.

Dean Read
Fall 2005
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.
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 stage in the proceeding. [FRE 201(f)] o        May take place for the 1st time in the appeals process
o        Note: the appeals ct must take judicial notice of any fact that the trial ct properly noticed.
Ø       Note: the judge’s personal knowledge of the facts is immaterial.
o        Only thing that defines judicial notice is whether the facts are either
§         Damn Fool Facts or
§         Almanac Facts.
A) Adjudicative Facts: Facts being judged in the trial process [FRE 210] 1)       Damn Fool Facts [FRE 201(b)(1)] (a) Facts known with certainty by all reasonably intelligent persons in the community.
(i) Does away with proof
(ii) Does away with evidence
(iii) Community
Þ     Community is not only a geographic area
Þ     Also means a group that is familiar with a certain trade, market, etc.
2)       Almanac Facts [FRE 201(b)(2)] (a) Facts capable of positive verification through
(i) Readily accessible sources of indisputable accuracy.
B) Discretionary v. Mandatory
1)       Discretionary [FRE 201(c)] (a) A judge may take judicial notice of a fact whether it is requested by the parties or not.
2)       Mandatory [FRE 201(d)] (a) The judge must take judicial notice of the fact once it is requested by the parties and the fact satisfies FRE 201(b).
C) instructing the jury [fre 201 (g)
1)       civil action: ct will instruct the jury to accept judicially noticed facts as conclusive.
2)       Crim. Action: ct will instruct the jury that it may, (but is not required to), accept and judicial fact as conclusive.
3)       Note: These facts are not decided by the jury
(i) Judges do not like to deny jury the ability to decide b/c they don’t police the lawyers enough.
(ii) Though facts over time may change from being a certainty, the ct can only use the best information that they have at the time.
D) 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.
III) RELEVANCY: Discretionary rule for judges.
A) Classic Definition
1)       Relevant evidence means a “Tendency” to prove a proposition that is properly proven in a case.
2)       There is never a relevancy problem in dealing with direct evidence. (Relevancy only applies to circumstantial evidence)
3)       Evidence may be excluded as irrelevant b/c:
(a) It is not probative of the proposition to which it is directed
Þ     Does not prove the issue you are trying to prove in the lawsuit
Þ     OR
(b) B/c the proposition is not provable in the case
Þ     The issue the item proves is not an issue that is in the case
4)       One must focus on the issue that one is trying to prove
(a) Properly framing the issue is important
5)       Note:  evidence that is relevant must also clear the other evidence obstacles
(a) e.g. Hearsay, and privileges
(b) Irrelevant evidence is inadmissible.
B) The Relevancy Two-Step
1)       Step 1: Does it Tend to Prove? [Logical relationship – FRE 401] ·         Tendency to make the existence of any fact that is of consequence to the issue probative.
(a) Rel. v. Materiality:
(i) There is really no need for this b/c with discovery and indictments to be proven w/particularity there is required.
(b) Rel. v. Sufficiency
(i) Relevancy is a low threshold test that is applied to each item used to prove an issue
(ii) Tendency: each item ever so slightly to move one toward the issue.
(iii) B/c of the fragility of items, you want the lowest test possible.
(iv) Sufficiency of a test is based on all the evidence on the record.
(c) Direct v. Circumstantial
(i) Direct evidence “if believed” absolutely proves the issue.
·         E.g.: eyeball witness –she saw Clinton stab Gore to death
·         Relevancy cannot be called on direct evidence
(ii) Circumstantial means you can always test the logical relationship b/n the issue and the evidence.
·         If believed circumstantial moves you toward the issue, but does not establish the issue.
2)       Step 2: Does It Hurt too Much? [Legal Rel – FRE 403] (a) Excludes evidence when the prejudicial outweighs the probative value.
(b) This is the permissive action.
(c) The judge makes the decision whether evidence is included or not
(i) Will the jury misuse the evidence?
(ii) Will it cause prejudice in the jury?
(iii) There is a logical basis not to allow evidence for fear it will mislead the jury.
(iv) Evidence hurts too much if it causes any of these legal risks:
Risk of harm
Unfair Prejudice
Þ     Confusion –or creation of a side issue
Þ     Undue Consumption of Time:
·         ability of the judge to limit the undue expenditure of time on needless evidence
Þ     Unfair Surprise (Obsolete)
(d) Note: repulsive and highly inflammatory evidence is not per se inadmissible.
3)       Dancing With Rhythm: How to balance the test.
(a) Risk of Harm must substantially outweigh the probative value.
(b) Key word “substantially” –this is the core word
(c) Fundamental power of the trial judge
(i) The power of the trial judge is hugely fundamental in cases at the trial level.
Þ     The closer the item is to proving an issue, the more probative the item is
Þ     The harder it is to find the issue as substantially outweighing its value b/c of risk of harm.
C) Relevancy Rule of Thumb
1)       Statistical Probabilities (People v. Collins: blk man & w Woman drive yellow car-robbery)
(a) Some believe that mathematical probability does not have a place in cts.
(i) The evidence does not tend to prove
(ii) Does it hurt too much?
Þ     Unfair prejudice
Þ     Confusion/creation of side issue
Þ     Undue consumption of time
(b) Blood tests (Kammer v Young: blood test to show paternity)
(i) Tends to prove
Þ     Highly proba

trial, this cannot be used as evidence agst you in a civil trial.
IV) CHARACTER EVIDENCE FRE 404: [uses the 403 balancing test] A) Habit (ok) v. Character (disfavored): [406] 1)       Habit 406: semi-automatic response to a given set of stimuli. (e.g. crossing the street). One hardly thinks about it, you just do it.
2)       Halloran v. Va Chem—routine mechanical task of using the heating coil is highly probative in this situation and is thus, admissible.
(a) Custom is another word for habit.
(i) The routine practice of an organization is considered a business habit/custom. Ex: Was a letter properly sent to person X? The regular habits of an organization or a person would be admissible.
(ii) This evidence is considered more reliable on the theory that businesses typically act with greater regularity than individuals.
(b) Generally cts will freely admit habit or custom
(c) FRE: habit is freely admissible to prove that a person acted in conformity with his habit on a certain occasion
(d) C/L: habit is admissible provided there are eyewitnesses and the evidence can be corroborated.
3)       Character Traits 405: a sort of a way to describe a character trait. (e.g. propensity to violence)
(a) Character trait is a generalized description of a person’s disposition/trait of character (e.g. truth & veracity- generally under stress, trouble when a person may lie, they don’t) 
(b) Generally cts do not like character traits and feel that 403 risks outweigh 401 “tending to prove.”
(c) Character traits are not highly probative and are generally not admissible.
4)       NOTE: habit & character traits can fuse in the middle
(a) E.g.: if a person takes the same route to work, it is his habit to do so. If he always drives carefully, this would be considered part of his character.
B) Character “In Issue: [405] [direct evidence] 1)       Character trait must be an actual element of the civil case/defense
(a) Must be one of the issues in the case that must be proved up.
(i) Evidence of the character trait wld be a direct evidence and therefore, cannot be objected to.
(ii) Admissible under both FRE & C/L.
Þ     Examples:
·         Defamation: truth wld be a defense
*        The Δ wld use “character trait” to show the “truth” of the statement.
·         Negligent Entrustment
*        2 elements for neg. entrustment
ª       knowledge of questionable character traits
ª       employs them anyway
*        Δ can show character traits to prove 1st element of Neg. Entrustment.
·         Custody Suits
*        Best interest of the child is at issue
ª       Character traits of each parent is important to establish which parent wld be best for the child.
ª       In this case all 3 types of character evidence wld be allowed.
·         Insanity Defense
*        Where the defendant claims lack of volitional control as a result of a mental defect.
·         Entrapment
·         Self-defense
2)       Methods of Proof when Character is an issue.
(a) Reputation: [405(a)] putting as evidence the ∆’s general reputation in the community
(i) Reputation is generally limited to the community the person lives and works
(ii) Or other locales where the person has consistent interaction.
Þ     Use “the community mouth witness” to do this
Þ     Reputation is a compilation of out-of-ct statements.
(b) Opinion: [405(a)] of community mouth can be used.
(i) This element requires personal knowledge of the W when used to show character as an issue.
(ii) Whenever character evidence is admissible, reputation or opinion evidence can be introduced.
(c) Specific acts (Prior Acts)/incidents of conduct [FRE 405 (b)] Þ     Can only be used
·         By inquiry during cross-X of a W giving reputation or opinion evidence
·         When the character of a person is an essential element of a charge, claim, or defense.
Note:  the questioner must have a reasonable belief that the specific act really