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South Texas College of Law Houston
Williams, Kenneth A.

Evidence Outline

Fall 2012 – Williams

Chapter 2: The Process of Proof and the Structure of Trial

A. Introduction

a. Witnesses and Physical Evidence

i. Federal Rules of Evidence

1. Govern trials in federal court

2. Serve as a guide for states on evidence rules

3. Apply to both criminal and civil cases

4. Designed to allow admission of facts

a. Facts need to be relevant and reliable

b. Exclude tangential, confusing, speculative, and unrelated facts

ii. Types of Evidence

1. Testimonial

a. Testimony of live witnesses

2. Tangible physical evidence

a. Real

i. Evidence generated by the case

ii. Evidence that directly impacts the case

iii. I.e., the gun used in a murder

b. Demonstrative evidence

i. Used to illustrate and explain the real evidence in the case

ii. Must be shown to be authentic

iii. I.e., maps, photographs, charts, experiments, computer simulations

b. Direct and Circumstantial Evidence

i. Direct Evidence

1. Based on a testifying witness’s personal knowledge gained through the witness’s senses

a. If found to be true, proves a fact without an inference or presumption

b. Witness testimony is only as good as witness’s power of observation

2. I.e., eyewitness, confession

ii. Circumstantial

1. Evidence from which a fact finder must make inferences to reach a factual conclusion

2. Inferences may be weak, moderate, or strong

3. Doesn’t directly prove the case, however, most cases actually proven via circumstantial evidence

B. The Role of the Judge

a. Time Limits for Presenting Evidence

i. Rule 102 – Purpose

1. The rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination

ii. Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other

1. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence

iii. Rule 611 – Mode and Order of Examining Witness and Presenting Evidence

1. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

a. Make those procedures effective for determining the truth;

b. Avoid wasting time; AND

c. Protect witnesses from harassment or undue embarrassment

iv. Judges are allowed to set reasonable time limits on the various stages of trial

b. The Order of Witnesses and Their Testimonies

i. Normally, lawyer determine order in which witnesses are called

1. Federal trial judges may have discretion in the order of calling witnesses

2. May be helpful to call a witness out of order to present a chronology of events at the beginning of trial

c. Comments on the Evidence

i. The judge may analyze and dissect the evidence for the jury, as long as he does not distort or add to it

d. Questioning Witnesses

i. Rule 614 – Court’s Calling or Examining a Witness

1. Calling – the court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness

2. Examining – the court may examine a witness regardless of who calls the witness

3. Objections – a party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present

ii. Judge’s can’t ask questions that signal their belief or disbelief of witnesses; this would usurp role of jury

iii. A judge’s overly aggressive questioning of a witness will not result in reversal unless it affects the substantial rights of a party

C. The Order of Proceedings

a. Criminal Case

i. Investigation

ii. Arrest – must have probable cause

iii. Prosecutor brings charges (not police)

iv. Charges presented to a grand jury (some states have “preliminary hearing” before a judge)

1. Rules of evidence do not apply

2. Purpose is to decide whether case should go forward

3. D doesn’t have opportunity to challenge grand jury

4. Grand jury is an ex parte proceeding – one sided, only the state

v. Pretrial motions

1. Motions in limine

a. Get evidence excluded before trial starts

b. Helps with trial strategy

c. May still have an offer of proof in order to preserve error if motion in limine is granted

2. Anything based on violation of US Constitution

3. Florida has a pretrial stand you ground motion – if granted, case dismissed

vi. Jury selection – voir dire

1. Race and gender only things with Batson

vii. Opening Statements

1. Preview of the evidence that will be presented in the case

2. Prosecution goes first (

vidence as to each element, and D does not rebut

1. P wins as matter of law

iii. If P satisfies burden of production by producing some competent evidence as to each elements à burden of production shifts from P to D to rebut P’s case

1. Burden of persuasion remains on P to convince jury by a preponderance that he has satisfied all elements

2. If can’t do that, D wins

B. Standards of Proof

a. Preponderance of the Evidence

i. Greater than 50%, or more likely than not

ii. Applies to most civil cases and defenses

iii. Applies to most affirmative defenses in criminal cases

b. Clear and Convincing

i. Most rare standard

ii. More stringent that preponderance of evidence, but less stringent than BRD

iii. Civil claims of fraud; criminal insanity defense; many family law issues

c. Beyond a Reasonable Doubt

i. Criminal cases

ii. Required from Due Process Clause 14th Amendment

iii. Reasonable doubt is based on reason

1. If there is some basis for believing D didn’t commit the crime, not guilty

2. Doubt is based off evidence, not subjective thoughts

C. Presumptions and Inferences

a. Inferences

i. Inferences are common sense conclusions deduced from facts

ii. Only as reliable as the facts from which they are drawn

b. Presumptions

i. A presumption is a legal inference

ii. Once a certain fact (Fact A) is established, the presumed fact (Fact B) must be taken as established if not disputed by the opposing party

1. Mail box rule – if something is mailed (properly addressed), the presumption is that it was received

iii. Created to further social policy

iv. Permissive Presumption

1. Instruct the jury that they may, but are not required to, conclude the presumed fact (Fact B) if the presumption is not contested

v. Mandatory Presumption

1. The court will usually instruct the jury that they must find the concluded fact if the presumption is not contested