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South Texas College of Law Houston
Crump, Susan Waite




I) The Process of Proof and the Structure of Trial

A) Introduction

1) Witness and Physical Evidence

(a) Witness Testimony

(b) Tangible Physical Evidence

(i) Real Evidence – Evidence generated by the case, such as the knife used in the murder in question or the written contract made the basis of the lawsuit.

(ii) Demonstrative Evidence – Evidence such as maps, photographs, charts, experiments, or computer simulations, which are used to illustrate and explain the real evidence in the case.

2) Direct and Circumstantial Evidence

(a) Direct Evidence – evidence based on a testifying witness’s personal knowledge gained through the witness’s senses which, is found to be true, proves an act without an inference or presumption.

(b) Circumstantial Evidence – evidence from which a fact-finder must make inferences to reach an actual conclusion in the case.

B) The Role of the Judge

1) Time limits for Presenting Evidence

Rule 102 – PURPOSE

These 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.


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.


(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

United States v. Reaves 636 F. Supp. 1575 (1986)

· The judge may set time limits on each party’s case to promote efficient use of the court’s time.

· Trials are a public resource that must be allocated so that all have access to the courts.


The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

2) The Order of Witnesses and Their Testimonies

Stone v. Peacock 968 F.2d 1163 (11th Cir. 1992)

· While attorneys usually determine the order of witnesses, a judge may use his discretion to order witnesses to testify in his preferred order.

· Error by a court in this matter is not reversible without a showing of harm.

3) Comments on Evidence

(a) Federal judges may comment on evidence to draw attention to those parts which assist the jury in arriving at a just conclusion.

(b) While voicing his opinion on evidence, he must make it clear that all matters of fact are for them to determine. He may not distort or add to the evidence.

United States v. Yates 553 F.2d 518 (1977)

· It is reversible error for the court to make comments on evidence that create the impression that the judge has considered necessary elements of a case proved.

· An objection is not necessary if the comments are particularly egregious.

4) Questioning Witnesses


(a) 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.

(b) Examining. The court may examine a witness regardless of who calls the witness.

(c) 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.

(a) Judges may not ask questions in a manner that signals their belief or disbelief of a witness.

(b) Appellate review of these questions is difficult because the written record does not convey the demeanor or tone of the judge.

(c) A judge’s aggressive questioning will not result in error unless it affects the substantial rights of a party.

Crandell v. United States 703 F.2d 74 (4th Cir. 1983)

· A judge may ask questions for clarification, inadequacy of counsel’s questioning, or to draw more information from the witness.

· Questioning must be done with the appearance of fairness and impartiality. He may not predetermine a case.

· Failure to preserve this appearance is reversible error.

C) The Order of Proceedings

1) Pretrial Conference –

Federal procedural rules require that the judge hold a pretrial conference with lawyers or each party in order to narrow the legal and factual issues that will be raised at trial and to identify witnesses and documents that will be offered as evidence. This does not preserve error for appeal.

2) Pretrial Motions

(a) Motion in limine – requesting that the judge keep from the jury certain designated testimony or documents which a party anticipates her opponent will attempt to offer.

(b) A granted motion in limine prevents opposing counsel from raising the issue. Failure to obey this order may result in contempt charges or a mistrial.

(c) A motion not granted does not preclude the requesting party from objecting later during the trial.

(d) Does not preserve error because it is not an adjudication on the merits.

3) Selection of the Jury (voir dire)

(a) Questioning of a jury to determine bias

(b) Questioning of a witness’ competency or knowledge at trial

4) Opening statements

(a) Statement to the jury, in summary form, the attorney’s theory of the case and evidence to be presented.

(b) Defense may present an opening statement or may reserve until conclusion of plaintiff’s case-in-chief

5) Presentation of evidence: Plaintiff/Prosecution Case in Chief

(a) Witness testimony is presented and sometimes used to introduce real evidence.

(i) Direct Examination – Must be open ended. Cannot lead the witness.

(ii) Cross Examination – Restricted to matters addressed in direct examination. Used to address accuracy and completeness of testimony in Direct. Leading is allowed and strongly recommended.

(iii) Redirect – Restricted to matters addressed in cross examination. Leading is still not allowed.

(iv) Recross – The judge may allow this back and forth extensively at his own discretion.

(b) Objections –

(i) Two basic reasons to object

· Prevent evidence from being introduced

· Preserve error for appeal

(ii) Must object to questions prior to witness answer in order to preserve error. Failure to do so may waive error on appeal.

(iii) Motion to Strike – The question is not objectionable, but the answer contains inadmissible evidence. This evidence may be stricken from the record.

(iv) Offer of Proof – If an objection is sustained, but you believe the evidence is admissible, this devise allows the evidence to be preserved in the record. Can be in Q&A form or summarize what the evidence will show. Must be done in the absence of the jury.



(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of

tice of the Law – Notice of statutory and common law.

B) Judicial Notice of Adjudicative Facts

1) The Difference Between Adjudicative and Legislative Facts

(a) Adjudicative facts are subject to Rule 201fIn a criminal case, the judge must instruct the jury that adjudicative facts need not be accepted as conclusive.

(b) Legislative facts are not subject to Rule 201fThe jury is instructed that the fact is a matter of law that cannot be contested.

(c) Courts are reluctant to take judicial notice of scientific facts because of the constant changes in technology. Exception: DNA evidence. Fingerprinting is coming under increasing scrutiny.

United States v. Gould 536 F.2d 216 (8th Cir. 1976)

· Cocaine case.

· Adjudicative facts apply specifically to the party’s to a case.

· Legislative facts apply to all cases regardless of the facts in this case.

· Allowing juries to determine legislative facts would lead to conflicting findings (for example on what constitutes a scheduled drug)

2) Judicial Notice in Civil Cases

(a) The court is required to instruct the jury “to accept as conclusive any fact judicially noticed.”

(b) In a civil case, the parties can be heard as to whether to take judicial notice; but once it is taken, it cannot be contested.

(c) Judicial notice is allowed at any time even on appellate review.

Kaggen v. Internal Revenue Service 71 F.3d 1018 (2d Cir. 1995)

· Tax deficiency case where notice was proper prior to running of the statute of limitations.

· For Rule 201, adjudicative facts must be (1) generally known or (2) capable of determination and not reasonably questionable.

3) Judicial Notice in Criminal Cases

(a) The court is required to instruct the jury that “it may, but is not required to, accept as conclusive any fact judicially noticed.

(b) Judicial notice of the record in another court regarding matters between the same parties is allowed. However, the court cannot take judicial notice of findings of fact from those proceedings because those issues were/are in dispute.

(c) Jury Nullification – Even with judicial notice and all elements proven, a jury can acquit for two reasons:

(i) To avoid political prosecution.

(ii) Prosecution cannot appeal an acquittal.

United States v. Jones 580 F.2d 219 (6th Cir. 1978)

· Husband illegally intercepted and used telephone conversations of his estranged wife.

· Matters falling within the common fund of information supposed to be possessed by jurors need not be proved.

· Indisputable judicial notice would effectively be a partial directed verdict on as to the fact noticed. Based on this, judicial notice at the appellate level is not allowed in most courts.

C) Facts Within the Personal Knowledge of the Judge

1) A trial judge is prohibited from relying on his personal experience to support the taking of judicial notice.

2) This deprives opposing counsel of the opportunity to compare/contrast the judge’s experience with that of others.

United States v. Lewis 833 F.2d 1380 (9th Cir. 1987)

· A heroin addict confessed to three robberies shortly after awakening from general anesthesia.

· The judge improperly used his own experience with general anesthesia to take judicial notice of the ability to give a voluntary statement during this time.