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South Texas College of Law Houston
Field, Ted L.



Fall 2013

· If not admitted, it doesn’t exist.

· Construed to secure fairness in administration, efficiency and truth.

1. Witnesses and Physical Evidence

a. Testimony of witnesses

i. Assessment of witness credibility

1. Perception- how well did the witness interpret sensory data

2. Memory- how well can you recall what happened

3. Logic and clarity of the testimony– are there internal inconsistencies

4. Veracity- truthfulness, does witness have a reason to lie

b. Tangible Physical Evidence

i. Real evidence- ( murder weapon, contract, etc)

ii. Demonstrative evidence- (picture, graph, etc)

2. Direct and Circumstantial Evidence

a. Direct- evidence based on testifying witnesses’ personal knowledge gained through the witness senses which, if found to be true, proves a fact without an inference or presumption.

i. witness testimony is the most common direct evidence (ex. I saw the snow falling)

b. Circumstantial- evidence from which the fact finder must make an inference to reach a factual conclusion in the case. (fleeing the scene, dna evidence)

3. The role of the judge

a. The trial judge controls the trial process by setting limits on lawyers in order to achieve justice and efficiency.

a. United States v. Reaves- case where judge put a time restraint on the prosecution presenting its case.

i. Rule 611- Mode and Order of Examining Witnesses and Presenting 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:

0. make those procedures effective for determining the truth

1. avoid wasting time; and

2. 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.

iii. Rule 102: Purpose- The purpose 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.

– Judge order p to testify first to help the chronological order

– Comments on evidence (yes, judge may comment and have discretion to clarify evidence)

– Judge can call witnesses

iv. Rule 614- Court’s Calling or Examining a Witness

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 of at the next opportunity when the jury is not present.

The order of the Proceeding

· Petrial conferences

· Petrial motions (motions in limine)- filed before the case to argue that a particular piece of evidence should be either excluded or included.

· Not necessarily final, until the trial happens. Judge may change their mind before witness testifies. Opposing party still has to object.

· Jury Selection (voir dire)

· Opening Statements

· Presentation of evidence

· Plaintiff’s/Prosecution’s case in chief (goes first)

· Examination of witnesses

Direct examination- friendly witness- examining your own witness

· Narratives are not allowed- takes away the opportunity to object

· Must ask non leading questions

Cross examination

· Designed to test the credibility of the witness

· You are allowed to asked leading questions

· Scope of cross is limited to what was discussed in direct

Redirect examination

· Where the plaintiff gets to go again and asks non- leading questions\

· Why weren’t you wearing your glasses? I was wearing my contacts

Recross examination

Objections- prevent introduction of evidence; preserve error for appeal

Must be made before witness answers

Judge: sustains the objection (evidence doesn’t come in) or overrules the objection (evidence comes in)

Offers of proof: the judge at some point will send the jury out you call the witness and becomes part of the transcript- let the record reflect that this is what the witness would answer

Plaintiff’s prosecution in chief

· Defendants motion for JMOL (directed verdict)

· No reasonable jury could find a conclusion to support a conclusion or a particular element

· Defendant’s case in chief

· Plaintiff’s prosecution’s rebuttal- cannot anything new that wasn’t brought up

· Defendant’s surrebutal

· Closing Arguments

· Plaintiff and prosecution goes first

· Defendant

· Plaintiff/Prosecution

· Jury Instructions

· Jury deliberates

· Verdict

· Judgment

Relevance (ch.5)

• Definition of Logically Relevant Evidence

Rule 401: Test for Relevant Evidence

Logical relevance: Evidence is relevant if:

a) Probativeness: It has any tendency to make a fact more or less probable than it would be without the evidence; and

b) Materiality: The fact is of consequence in determining the action.

Rule 402: General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

– The U.S Constitution;

– A federal statute

– These rules; or

– Other rules prescribed by the Supreme Court

Irrelevant Evidence is not admissible.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (remember exact language)

The court may exclude relevant

– NOT admissible to show fault or product defect

– BUT admissible for OTHER purpose

§ Impeachment

§ If DISPUTED: Ownership, control, feasibility

Settlement Matters

Rule 408 Compromise Offers and Negotiations

a. Prohibited Uses: Evidence of the following is not admissible- on behalf of any party- either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

1. Furnishing, promising or offering or accepting promising to accept of offering to accept- a valuable consideration in compromising or attempting to compromise the claim, and:

2. Conduct or a statement made during compromise negotiations about the claim, except when offered in a criminal case and when negotiations related to a claim by a public office in the exercise of its regulatory, investigative or enforcement authority.

b. Exceptions: the court may admit this evidence for another purpose such as proving witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

There has to be a claim

Payment of Medical and Similar Expenses

Rule 409: Offers to Pay Medical and Similar Expenses

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

**No need for a claim**

Plea Bargain Agreements in Criminal Cases

Rule 410: Please, Plea Discussion and Related Statements

a. Prohibited uses: in civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

1. A guilty plea that was later withdrawn

2. A nolo contendere plea

3. A statement made during a proceeding on either of those please under Fed. Rule of criminal procedure 11 or a comparable state procedure; or

4. A statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea

b. Exceptions: the court may admit a statement described in rule 410 (a) (3) or (4)

1. In proceeding in which another statement made during the same plea or plea discussions has been introduced if in fairness the statements ought to be considered together, or

2. In a criminal proceeding for perjury or false statement , if the defendant made the statement under oath , on the record, and with counsel present.