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South Texas College of Law Houston
Field, Ted L.

Outline – Evidence
Summer 2013, Prof. Field
Ch. 2: The Process of Proof and the Structure of Trial
·         What is evidence?
o   Something that tends to prove/disprove the existence of an alleged fact (Black’s law dictionary)
o   Testimony, documents, tangible objects
·         Role of the judge
o   He’s the gatekeeper and determines whether a piece of evidence is admissible or not
o   He determines this through the federal rules of evidence, case law, advisory committee notes, and his own experience
·         What are the goals of evidence rules?
o   Fairly resolve the case so that both sides have an equal shot
o   Finding the truth with evidence and judicial efficiency require a constant balance in the courtroom.
Types of Evidence
o   Testimonial evidence
§  Someone testifying in court
§  The main form of evidence
§  The content of the testimony is important, what the person actually said, credibility (are they nervous, are they an expert witness, their demeanor)
o   Tangible physical evidence
§  Real evidence
·         The evidence generated by the case
·         Anything involved directly in the events given rise to the case
·         Ex. The gun used in the murder or written contract that made the basis of the lawsuit
§  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
o   Helps clarify other evidence
·         Assessment of witness credibility by the jury or judge (if a bench trial):
o   Perception
§  What the witness saw/heard
o   Memory
§  Does the witness actually remember what he/she was testifying about
o   Logic and clarity
§  Is the witness’ story credible/does it make sense?
§  Did they communicate clearly?
o   Veracity
§  Is the witness telling the truth
§  Is the witness a truth teller in general/do they have a reason to lie?
·         What is the difference between examination and cross-examination?
o   Cross-examination tries to lessen the witness’ credibility/argument, after he/she has been examined
o   You object for 2 reasons:
§  To preserve your right to appeal
§  To exclude the evidence
§  (have to object as soon as the question is asked)
·         On direct examination, you cannot ask leading questions:
o   If the question implies the answer, it is a leading question
o   Ex. What color was the light?
§  Open-ended question (suggests no answer); NOT a leading question
§  The witness is supposed to be the “star,” all eyes on him
o   Ex. The light was red, wasn’t it?
§  Leading question
§  Attempts to control the witness
o   On cross examination you can ask leading questions, it is almost always done.
·         You can object on examination but not on cross-examination
·         Direct and Circumstantial evidence
o   Direct
§  Evidence based on a testifying witness’ personal knowledge gained through the witness’ senses which, if found to be true, proves a fact without an inference or presumption
§  Proves fact WITHOUT an inference
·         Ex. Wake up and it IS snowing, no inference required
o   Circumstantial
§  Evidence from which the fact finder must make inferences to reach a factual conclusion in the case
§  Proves fact WITH an inference
·         Ex. Go to bed, no white on the ground, wake up and there is snow on the ground.
o   Inference: it snowed during the night
·         Not necessarily worse than direct evidence (depends on situation); i.e. blood evidence is circum when you have to infer that since the chances the blood found at the scene is the D’s is 99% then you can infer he bled at the scene.
The Role of the Judge
FRE 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
FRE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
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.
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

credit the witness by showing inconsistencies, bias, etc
·         Limited to matters asked on direct examination and witness credibility
§  Redirect examination
·         Whatever damage was done on cross-examination, prosecutor tries to undo this
·         Ex. “Why did you say….”
·         Limited to what was discussed on cross-examination
§  Recross examination
·         Cross examiner gets to go again
·         Limited to what was discussed on redirect
o   Objections
§  Purposes:
·         Prevent introduction of evidence
·         Preserve error in admission of that evidence over objection for appeal
§  Must be made BEFORE witness answers
§  Judge:
·         Sustains the objection – OR –
·         Overrules the objection
§  Offers of proof
·         Question
§  Presentation of evidence
·         Plaintiff’s/prosecution’s case-in-chief
o   Direct examination of witness
o   Defendant cross-examines, etc.
·         Defendant’s motion for JMOL (directed verdict)
·         Defendant’s case in chief
o   Direct examination
o   Plaintiff gets to cross-examine, etc.
·         Plaintiff’s/prosecution’s rebuttal
·         Defendant’s surrebutal
§  Closing arguments
·         Tie all the evidence and explain to jury why you should win
·         Plaintiff goes first because they have burden of proof
·         Defendant goes
·         Plaintiff gets to go again
§  Jury instructions
·         Tells jurors how to conduct themselves, gives them the elements/law that need to be applied to the facts
·         Both sides propose jury instructions to the judge, and he decides what jury actually receives
§  Jury deliberations
·         Jurors decide anyway they want and come up with verdict
§  Verdict
·         Losing party moves for error of law and ask for new trial; JNOV
§ Judgment