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South Texas College of Law Houston
Williams, Kenneth A.


Fall 2014

Professor Kenneth Williams

South Texas College of Law


Federal Rules of Evidence

– Govern the admissibility of evidence in Ct.

– Evidence consists of: witness testimony, physical evidence

– Purpose: Reliable evidence, no misuse

Types of Evidence

Direct Evidence: Confession, video

Circumstantial Evidence: Infer circumstances (EX: ∆ has murder weapon)

Sculpatory Evidence: Evidence favorable to ∆

Criminal Justice System (State v. ∆)

Burden of Proof: Beyond a Reasonable Doubt. Prosecution must prove every element

Appeal: Only ∆ can appeal

Evidence: Parties may offer direct or circumstantial evidence

Right to Trial by Jury: Right to jury trial in most cases, not all

Objections: TrCt rules. Failure to object waives objection on appeal

Jury Verdict

Acquittal: No appeal. Double-jeopardy provision in Constitution

Conviction: ∆ can appeal

Harmless Error Doctrine: Ct may uphold case ruling if error has no influence on outcome

Civil Justice System (π v ∆)

Burden of Proof: Preponderance of the Evidence

Appeal: Both parties can appeal

Evidence: Parties may offer direct or circumstantial evidence

Discovery: Parties share info

Harmless Error Doctrine: Admissible


– Can’t present evidence you know is false

Direct Examination: Questioning by lawyer who calls witness to testify

Cross-Examination: Other side asks questions of witness

Woodshedding: Preparing a W to testify

Jury: decides weight of evidence (broad discretion)

Judge: Decides admissibility, instruct jury on rules to apply, Fairness for both parties

Motion in Limine: Pre-trial motion for ruling on evidence. Aids trial strategy

Limiting Instructions: Oral or written statements from Judge that order jury to consider certain evidence for a particular purpose

Where State Law Applies: Alludes to Dead Man’s Statutes

– Limits survivor testimony against a deceased, where the deceased is a party

– Use where applicable



Evidence w/ any tendency to make existence of any fact of consequence to the action more or less probable than w/out it


1) Bear upon fact of consequence to the action (turns upon substantive law)

2) Must be probative (makes existence of a fact more/less likely


– Evidence presumed admissible

– Low standard

– Clarifies circumstances à Admissible

Probative Value

– Any increase or decrease in the probability of a fact will suffice, no matter how small

– AKA logical relevance

– Not an inherent characteristic of any evidence

– Doesn’t need to prove fact at issue (combine w/ other evidence)

Criminal: Casey Anthony

– Searching web for chloroform à Relevant. May show premeditation

– Lying for 31 days about child’s whereabouts à Relevant. Infers responsibility for death

– Dancing 1 day after daughter missing à Relevant. Shows no concern & knowledge of child’s death

– Casey molested by father à Relevant. Shows history of covering up family secrets

Criminal: Man murders wife who had life insurance policy à Relevant. Shows motive

Criminal: Drunk Driving Accident

– Open liquor bottles à Relevant. Shows possible drinking

– Closed liquor bottles à Relevant. Shows propensity to drink

Criminal: Stockings missing from homicide, ∆ owns, claims he wears them à Relevant. Doesn’t negate possession

Civil: Intoxicated operator killed using machine

– Machine Malfunction Claim: Intoxication irrelevant to machine function

– Negligence Claim: Intoxication relevant


Relevant evidence is admissible (except as provided by: Constitution, Congress, FRE, SupCt)

Irrelevant evidence is inadmissible


– Relevant evidence must help to prove or disprove an issue in the case !!!

– Relevant if jury can draw a reasonable inference to prove or disapprove an element (low standard)

– May be relevant but inadmissible

– Fingerprints à Always relevant

– Flight Evidence àAlways relevant. Infers that only guilty flee (EX: OJ Simpson)


May exclude if probative value is substantially outweighed by danger of

– Unfair prejudice

– Confusion of the issues

– Misleading the jury

– Undue delay

– Waste of time

– Needless presentation of cumulative evidence (proving same point)

Key Question: Will the evidence be too powerful in swaying the jury?

Probative Value: Make fact more or less probable

Policy: Streamline trial


– Decisions to exclude are seldom reversed

– Ct can cut off non-contested evidence to not waste time (cumulative evidence)

– Most common rule to use to disqualify eyewitness testimony

– Admissibility based on rule seldom overturned

– Trial judge in unique position to assess jury’s need for evidence

Unfair Prejudice

– Most common argument

– Must be unfair (distort fact-finding bc allows jury to draw improper inference)

– Judge will estimate likelihood jury will make improper inferences (not necessarily emotional)

– Probative value must substantially outweigh prejudicial effect

– If weight is close à Admissible

Types of Prejudicial Evidence

– Photographs àMay exclude if gruesome, fear it will anger jury

– Prior Convictions à Generally exclude bc fear jury will conclude prior conviction = present guilt

Confusing or misleading the jury: Distracts jury from deciding the case on a proper basis

Rule 403 Balancing Test

1) Does the evidence have probative value as relevance? (Rule 401)

2) Strength of probative value

3) Is the probative value substantially outweighed to exclude it? (Rule 403)

Criminal: Muslim terrorist on trial w/ Bin Laden on wall

1) Relevant? à Yes. Shows motivation for blowing up building

2) Excluded by other rules? à No

3) Unfairly prejudicial? à No. Shows motive

Civil: π lost legs in auto accident

– π offers video of π playing basketball before accident àRelevant. DAS if wanted to play pro

– π offers video of ∆ dancing at a disco day after accidentà Irrelevant

– ∆ offers evidence π was unemployed at time of accident àRelevant. Shows DAS



Every W competent unless otherwise provided. In civil actions where St law supplies rule of decision, St law presides

Professor: Every witness presumed competent !!!

Policy: Allow most people to testify & jury can consider their limitations


rsonal knowledge !!!

– Can give an opinion on something they perceived that doesn’t require specialized knowledge

– “In my opinion, ∆ was speeding” à OK

– “In my opinion, ∆ was angry” à OK

– “I saw him at the crime & he couldn’t tell right from wrong” à NOT OK. Requires specialized knowledge


Is the expert’s opinion is relevant (or assist?) to the trier of fact? !!!

Rule 702 – Testimony by Experts

1) If specialized knowledge will assist the trier of fact to understand or determine a fact in an issue

2) Expert W may testify an opinion or otherwise if:

a) Based on sufficient facts or data

b) Reliable principles & methods

c) W applies principles & methods reliable to the case facts

Rule 703 – Opinion Testimony by Experts

1) Facts which an expert bases on an opinion or inference may be known by EW at or before hearing

2) If reasonably relied on by experts in the field, doesn’t need to be admissible in evidence to state opinion

3) Data otherwise inadmissible can’t be disclosed by EW unless probative value substantially outweighs prejudicial effect

Expert: Someone with specialized knowledge, training, or skills.

Applies: May testify if their specialized knowledge is helpful to the trier of fact !!!

Doesn’t Apply

– If jury doesn’t need specialized knowledge or help to understand issue

– Can’t testify which W’s are credible. Up to jury, not helpful to trier of fact

– Can’t give an opinion on the ultimate issue of the case when ∆’s state of mind is the ultimate issue

– “In your opinion, could ∆ tell right from wrong?” Can’t ask, but EW an give opinion (704b)



Person who calls W

Leading Questions – Questions that suggest an answer

– Direct-ex of W à Can’t ask leading questions (Restriction) !!!

– Hostile Witness à Leading questions allowed

– π calls ∆ to the stand à Leading questions allowed

“Were you standing on Main & 5th?” à Leading question

“Do you work at 1st National Bank?” à Leading question

“Where do you work?” à Not a leading question

“Where were you standing?” à Not a leading question


Other side questions W

– Cross-ex of W: Leading questions allowed & recommended !!!

– Restriction: Limited to subject matter covered on direct-ex or credibility !!!

– Never ask w/out knowing answer

Criminal: State v. ∆ for assault/beating. Direct-ex, W: “On Aug. 1 I saw ∆ hit wife”. Cross-ex:

– “Didn’t ∆ buy wife a new car on Aug 1” à Not allowed

– “Isn’t it true you’re romantically involved w/ ∆’s wife?” à Admissible. W has interest in conviction (cred)