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South Texas College of Law Houston
Field, Ted L.

Ted Field – Evidence – Fall 2015
I.                   The Process of Proof and the Structure of Trial
A.    Introduction
1.      Witnesses and Physical Evidence – 2 types of evidence
a.       Live witness testimony
b.      Tangible physical evidence
                                                i. Real evidence – tangible objects generated by the case
                                                ii. Demonstrative evidence – maps, photographs, charts, experiments, that which                                                    can be used to illustrate or explain the real evidence of the case
2.      Direct and Circumstantial Evidence
a.       Direct – evidence based on a testifying witness’s personal knowledge gained through the witness’s senses, if found to be true, proves a fact without an inference or presumption
b.      Circumstantial – that which a fact finder must make inferences to reach a factual conclusion in the case
            A(1) Standards of review in a court of appeals are
1.      Differential – at least de novo
2.      Abuse of discretion (concerning the judge’s allowance of evidence
B.     The Role of the Judge
1.      Time Limits for Presenting Evidence
a.       Rule 403 permits the judge to exclude evidence if it confuses the issues or misleads the jury, causes undue delay, wastes the time of the court, or is needless presentation of cumulative evidence
b.      Rule 611 & 614: The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
i.                    make the interrogation and presentation effective for the ascertainment of the truth
ii.                  avoid needless consumption of time
iii.                protect witnesses from harassment or undue embarrassment
c.       The policy behind these rules is to promote 1. Efficiency, 2. Accuracy, 3. Fairness, and 4. To find the truth
d.      Crossing the Line – Reeves, prosecution asked for a month to present evidence, but judge gave 10 days only.
e.       Trials as a Public Resource – modern courts time is a public commodity which should not be squandered, and the resources are squandered if judicial proceedings are allowed to proliferate beyond reasonable bounds
2.      The Order of Witnesses and Their Testimonies – lawyers typically determine the order of the witnesses, but the judge may have discretion in this area
a.       The Trial Judge’s Objective – In Stone, the district court required Stone to testify first to lay chronology at the beginning of the case
b.      Showing Harm – there was no harm shown: RULE: if the error is harmless – the judgment won’t be overturned on appeal
3.      Comments on the Evidence – after lawyers give closing arguments, the trial judge gives the jury substantive and procedural law, as it relates to the case, that they must follow and apply during their deliberations. CAN JUDGES COMMENT ON EVIDENCE? YES! But only to clarify, can’t sway the jury.
4.      Questioning Witnesses – Rule 614 –
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
C.     The Order of Proceeding
1.      Pretrial conference – judge must hold a pretrial conference with lawyers for each party to:
a.       narrow the legal and factual issues that will be raised at trial
b.      and to identify witnesses and documents that will be offered as evidence
c.       The matters are then drawn up in a pretrial order, which controls the presentation of each party’s case.
2.      Pretrial Motions
a.       Motions in limine – a motion requesting judge to keep from the jury certain testimony or documents which a party anticipates her opponent will attempt to offer, in order to control the admissibility of evidence at trial
3.      Selection of the jury
a.       Bench trial – the judge is the fact finder
b.      Voir dire – process by which a jury is selected through judge and attorneys asking questions of the prospective jurors to determine whether they are qualified to hear the case
4.      Opening statements – an opportunity for the lawyer to tell the jury in summary, the theory of the case and describe evidence the jury will hear to support that theory. Plaintiff/Prosecution gives first opening statement. Defendant may waive an opening statement
5.      Presentation of the evidence – the party with the burden of proof presents evidence in the case in chief by calling witnesses to the stand.
a.       Direct examination – questioning by the lawyer who calls a witness to testify, in order to elicit facts favorable to the party who has called the witness. Questions are short, open ended, and non leading.
b.      Cross examination – the accuracy and completeness of a witness’s testimony is tested
i.                    Rule 611b limits cross examination to the scope of the matters asked on direct examination and witness credibility (characteristics of questioning is the opposite of direct examination)
c.       Redirect examination – address the harmful testimony (limited to what came up on cross examine)
d.      Recross examination –
e.       Objections – must be made before witness answers the question. made for 2 reasons:
i.                    To oppose the introduction of evidence
ii.                  To preserve error in admission of that evidence over objection for appeal
f.       Offers of proof – when an objection is sustained, the party whose evidence has been excluded may preserve the ruling for appellate review. Rule 103a2
g.      Ask for motion to strike (trying to unring a bell) a curative instruction
h.      Ds motion for JMOL (directed verdict)
i.        D’s case-in-chief/ if the D has filed a counterclaim, they present as the P.
j.        Ps/Prosecution’s rebuttal, limited to subjects mentioned in the D’s case-in-chief
6.      Closing arguments
7.      Jury instructions
8.      Jury deliberations
9.      Verdict
10.  Judgment
V. Relevance – A primer
            A. Introduction – the process of sorting through evidence that will assist a judge or jury in resolving a dispute is known as determining relevancy, and is done before a court considers any other evidentiary barriers.
                        1. RULE 401: The evidence
                                    a. It must have “logical relevancy” “probative value” need only make disputed fact more                                       or less probable than it was before the evidence was offered.
                                    b. It must have legal relevance: materiality: the fact is of consequence in determining the                                       action; the relationship between the evidence and a fact at issue needs only to be slight/                                        ANY TENDENCY
                        2. 402: Relevant evidence is admissible unless the following provide otherwise
                                    a. Constitution
                                    b. statute
                                    c. F.R.E.
                                    d. other rules prescribed by the SC
                        3. 403: Relevant evidence may be excluded if its probative value is substantially outweighed by a                                     danger of one or more of the following:
                                    a. confusing the issues
                                    b. unfair prejudice
                                    c. misleading the jury
                                    d. needlessly presenting cumulative evidence
                                    e. undue delay

ence, he may not implement the measures to the detriment of future customers. Also, the remedial measures may be unrelated to the case, such as subsequent government regulation or a desire for product improvement.
·         Anderson v Malloy – DC refused to admit evidence that peep holes and door chains were installed after a guest was raped in hotel room, based on rule 407. CA ruled evidence should have been admitted because it proved feasibility of improvements.
·         Harrison v Sears – DC ruling was affirmed, that rule 407 should have excluded evidence of product improvement after an injury. P argued that the testimony would have been proof that P was lying. This may not have been the case. If an employee was told to make an improvement, he’s only doing what he is told, may not have anything to do with whether or not he thought the product was unsafe.
1.      The General Rule and the Feasibility Exception – rule 407 does not bar remedial measures if the evidence is admitted to prove feasibility of precautionary measures
2.      The impeachment Exception – rule 407 also does not bar remedial measures into evidence if admitted to impeach a witness.
·         Example: a D says there is nothing he could have done to prevent an injury to the P. P admits evidence that after the occurrence, D took measures to rectify the problem that caused P’s injury. This would not be barred by 407 because the evidence impeaches the testimony of the D’s statement, that there was nothing else he could have done.
C.     Settlement Matters
1.      When Offered Primarily in a Civil Case
·         Rule 408a: the following is not admissible on behalf of any party when offered to prove liability for, invalidity of, or amount of a claim that was disputed, or to impeach through a prior inconsistent statement or contradiction.
a.       furnishing promising, or offering – or – accepting, promising to accept, or offering to accept, a valuable consideration in compromising or attempting to compromise the claim AND
b.      conduct or a statement made during compromise negotiations about the claim – except when offered in a criminal case and when the negotiations related to a cliam by a public office in the exercise of its regulatory, investigative, or enforcement authority.
·         Rule 408b: EXCEPTIONS: the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution
·         Pierce v FR Tripler – admission of settlement offers, even if being made by the offeror, are not admissible, via rule 408a, because doing so could hinder further settlement discussions. If an attorney is called upon as a witness on behalf of his client, he must withdraw his representation.
·         Public policy favors compromise and settlement
2.      The Bias Exception – rule 408b
·         John McShain v Cessna – CA affirmed DC judgement to allow evidence that P had released a repair company from liability for the aircraft fault in exchange for an expert witness from the company. Evidence was allowed because it fell within the exceptions of 408b, because it proved bias of a witness.