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South Texas College of Law Houston
Crump, Susan Waite

Fall 2014
I.                     Mode and Order of Presentation of Evidence
a.        Control by the Court
                                                               i.      FRE 102.  Purpose and Construction
These Rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
                                                              ii.      FRE 403.  Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.              
                                                            iii.      FRE 611(a).  Mode and Order of Interrogation and Presentation
(a) Control by the Court.  The court shall exercise reasonable control over the mode and order or interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
                                                            iv.      U.S. v. Reaves
1.        Facts:  The Prosecution intended to bring forth voluminous tax forms as evidence without making any effort to organize them or present them in a coherent manner.  Much of the evidence was duplicative and a waste of the court’s time.
2.        Holding:  The Court has the right to set time constraints to move trials along.  The theoretical basis for this power comes from FRE 403 and 611(a).  Courts can also limit the number of witnesses called if they are also duplicative.
3.        See notes
                                                              v.      FRE 614.  Calling and Interrogation of Witnesses by Court
(a) Calling by court.  The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court.  The court may interrogate witnesses, whether called by itself or by a party.
(c) Objections.  Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
1.        Texas doesn’t like this rule.
b.        Leading Questions
                                                               i.      FRE 611(c).  Mode and Order of Interrogation and Presentation
(c) Leading Questions.  Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony.  Ordinarily leading questions should be permitted on cross-examination.  When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.      
                                                              ii.      Straub v. Reading Co.
1.        Facts:  Attorney for P continuously asked leading questions to its witnesses on direct examination, disregarding D’s objections and instruction by the court.
2.        Holding:  Where the control of the occur is lost or at least palpably ignored and the leading questions run the length of the trial that results in a warped version of the issues heard by the jury, a judgment based on that evidence must be set aside.
a.        However, when only an isolate remark in the ardor of advocacy, and in the excitement of trial is given, it is not ground for reversal.
b.        There must be calculated sustained improper conduct producing biased issues as they went to the jury.
                                                            iii.      When are leading questions ok?
1.        Rule 611(c) sets out four exceptions:
a.        When necessary to develop the witness’ testimony.
                                                                                                                                       i.      Ex. preliminary matters, child, mentally retarded
b.        When a party calls a hostile witness.
                                                                                                                                       i.      Takes more than mere identification with a party.
                                                                                                                                      ii.      Must be demonstrated either by contemptuous or surly conduct, by refusal to answer questions, or by consistent hedging on answers.
c.        When a party calls an adverse party.
                                                                                                                                       i.      On cross, you should lead, unless you have weighed the consequences and intentionally decide not to do so.
d.        When a party calls a witness identified with an adverse party.
                                                            iv.      Cross-Examination
1.        United States v. McKenna
a.        Facts:  Attorney for D attempted to cross-examine his witness with leading question, claiming that it was his constitutional right under the 6th Amendment.  The judge instructed him that leading questions were not allowed unless the witness demonstrated some hostility, which he did not.  D attorney voluntarily rested his case against witness in protest (apparently trying to invite error into the court.)
b.        Holding:  A judge may instruct an attorney not to use leading questions on cross-examination unless the witness is openly hostile.  This is within his power and is not a violation of the wording of FRE 611(b).
2.        One co-defendant can cross-examine another co-defendant only with nonleading questions.
3.        You would obviously want to ask narrow questions on cross.
c.        Scope of Cross-Examination
                                                               i.      FRE 611(b).  Mode and Order of Interrogation and Presentation.
(b) Scope of cross-examination.  Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.  The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
                                                              ii.      English Rule (Texas) – Can cross-examine witness on any matter relevant to any issue in the case.
                                                            iii.      American Rule (Federal courts) – FRE 611(b)
                                                            iv.      Douglass v. State
1.        Facts:  D took the stand to defend him against the murder of two men.  Claimed self-defense and insanity.  Prosecuting attorney attempted, in cross-examination, to bring forth letters written by D that would impeach his testimony of self-defense and insanity.  D’s attorney had not brought up the letters on direct.
2.        Holding:  Arizona follows the American Rule that states that only those issues that were brought up on direct may be rehashed on cross.  Although the court believes that the rule should be changed to the English model, it concludes that the evidence may still be used because they were related to the truth of D’s defenses that he had previously offered.
                                                              v.      United States v. Segal
1.        Facts:  D was charged with bribery.  Prosecution used excerpts of tapes of transactions and transcripts to prove D’s guilt.  On cross, D’s attorney was not allowed to replay some of the tapes or to play parts of the tapes that were not played by the prosecution.
2.        Holding:  In general, there is no error in the court’s suggestion that the transcript be used in reviewing material that had once been played.
a.        However, the court also prohibited D from using transcripts or playing parts of a recording that had not been heard during direct examination.  This restriction was based on the premise that cross-examination should not exceed the scope of direct and that D was free to present the proffered evidence in their case.  We think this limitation unduly narrowed the scope of cross-examination and hindered proper presentation of the defense case.
b.        If a matter has been raised on direct, generally cross must be permitted.  Moreover, questioning of the witness that tests his perception, memory, or otherwise tends to discredit him is proper.
c.        The scope of the direct examination is to be measured by the subject matter of it rather than by specific exhibits that are introduced at that time.
3.        Rule of completeness:  If someone reads part of a transcript, then you can read the whole.
4.        Credibility issues can be brought up on cross.’
d.        Problem 1-1
II.                   Objections and Offers of Proof
a.        FRE 103.  Rulings on Evidence
(a) Effect of erroneous ruling.  Error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected, and
Objection.  In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context (you may want to allow hearsay testimony); or
Offer of proof.  In case the ruling is one excluding evidence the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.  (On cross, this rule is not as strict.  If a party makes a random comment, you would approach the bench and ask what the person would say; not similar to rule 103.)
(b) Record of offer and ruling.  The court may add any other or further statement that shows the character of the evidence, the form in which it was offered the objection made, and the ruling thereon.  It may direct the making of an offer in question and answer form.
(c) Hearing of jury.  In jury case, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error.  Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
b.        Hackenson v. City of Waterbury
                                                               i.       Facts:  P testifies that a hole that she fell in was only 2.5 inches from a rail.  Later, on rebuttal, P’s attorney asks P what the distance was and she says that it was 28 inches (which was necessary for the statute to apply).  D objects and court agrees that it was not proper rebuttal.  But objection is made after answer is given; D did not have time to object before answer.  Judge does not strike answer or direct jury not to take answer in to account.
                                                              ii.      Holding:  Usually, for evidence contained in a specific question, the objection must be made as soon as the question is stated, and before the answer is given, unless the inadmissibility was due not to the subject of the question, but to some feature of the answer.
1.        However, if the question is put and the answer given in such rapid succession that the party objecting has not fair opportunity to state his objection, it is the duty of the court to entertain the objection when thereafter promptly made.
                                                            iii.      Under theses circumstances, even in the absence of a motion to strike out the answer, no testimony indicating the hole was not within eight inches from the rail is available in support of the jury’s verdict.
c.        Procedure for making an objection:
                                                               i.      Opponent stands and objects, stating proof.
                                                              ii.      Proponent may respond briefly to the objection.
                                                            iii.      If argument is required and the case is being tried to a jury, the argument should be held outside of the presence of the jury.
                                                            iv.      Court will rule on the objection.
                                                              v.      If the court sustains the objection, the proponent should make an offer of proof to preserve the matter for appeal.
d.        Continuing objections (running objections):
                                                               i.      When you object to an entire line of questions.  Preserves the record for the entire conversation.  Court may make you state when your objection stops.
e.        Pretrial objections
                                                               i.      Motions in limine
1.        Merely asking the question at trial will do damage in the jury’s eyes.

                                                               i.      Must take an oath or an appropriate substitute;
                                                              ii.      Must have perceived something important to the case;
                                                            iii.      Must recollect what was perceived;
                                                            iv.      Must be able to communicate the testimony to the finder of the fact.
b.        Status
                                                               i.      FRE 601.  General Rule of Competency
Every person is competent to be a witness except as otherwise provided in these rules.  However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision the competency of a witness shall be determined in accordance with State law.
                                                              ii.      Competency vs. Credibility
1.        United States v. Bedonie
a.        Facts: Appellant’s are opposed to the court’s allowance of several witnesses that were apparently contradictory in nature.  Appellants argue that the judge should have disallowed the witnesses’ testimony because of there lack of credibility.
b.        Holding: The jury is the best arbiter of the credibility of a witness, not a judge.
                                                                                                                                       i.      Judge determines competency.  Jury determines credibility.
c.        Notes
b.        If a witness is apparently intoxicated, a judge may wait until the witness is sober before the witness is allowed to testify and the judge can strike anything that was believed to be stated by a witness believed to be intoxicated at the time of the trial.
iii.   Jurors
2.        FRE 606.  Competency of Juror as Witness
(a) At the trial.  A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.  If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect or anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.  Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for theses purposes.
3.        Tanner v. United States
a.        Facts: In a post-trial hearing a juror testified that multiple jurors were drunk, high, and otherwise incapacitated at trial.
b.        Holding: Jury testimony may not be used to impeach a jury verdict unless the influences are strictly extraneous in nature.
                                                                                                                                       i.      Ex. reading information in newspapers, comments about the defendant by the bailiff, bribe offered to the juror.
                                                                                                                                      ii.      The distinction is based on the nature of the allegation.
                                                                                                                                    iii.      Federal courts treat allegations of physical or mental incompetence of a jury as “internal” rather than “external” matters.
1.        Substance abuse must be considered an “internal” influence because it goes to the physical or mental incompetence of the juror.
                                                                                                                                    iv.      Finally, the fact that Congress explicitly considered, and rejected, a version of Rule 606(b) that would have allowed jurors to testify on juror conduct during deliberations, including juror intoxication, is proof that juror intoxication is not an “outside” influence about which jurors may testify to impeach their verdict.
c.        Notes
                                                                                                                                       i.      What constitutes “extraneous prejudicial information” or “outside influence”?
1.        Examples above plus if a juror conducts an experiment on his own and reports it to other jurors.  Also, review of documents not admitted in evidence
                                                                                                                                      ii.      What circumstances do not meet the exceptions?
1.        Juror inattention, drug and alcohol abuse, ignoring instructions, compromise verdicts, and pressure from other jurors.