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South Texas College of Law Houston
Williams, Kenneth A.

Evidence Outline
Fall 2015 – Williams
·         Study rules in footnotes
·         FINAL EXAM information
o   Primarily multiple choice
o   Some short essays
o   No need to memorize case names
·         Federal Rules of Evidence are what we study here
o   Govern trials
o   Allow facts that are relevant and reliable
o   Applicable in both CIVIL and CRIMINAL
§  A few rules apply differently depending on type of case
·         Differences:
o   Criminal:
§  Can only be brought by the state
§  Can lose your liberty or your life
§  Much higher burden of proof
·         Beyond a reasonable doubt
§  Double jeopardy
§  Criminal defendants have many more rights than civil defendant
·         Right to confront accuser
·         Does not have to take stand
·         Right to Counsel
o   If Indigent, state must provide attorney
·         *This is because government has so many more resources than individuals
o   Civil:
§  Can be brought by State/Person, etc.
§  Usually compensates for injury
§  Burden of proof
·         Preponderance of the evidence
o   51% proof…
o   “More likely than not”
§  Both sides may appeal
§  Limited right of jury trial
o   Trial judge decides and rules on admissibility of evidence
o   Before trial even starts, parties can get a ruling:
§  Motion in Limine (pretrial motion)
·         Motion filed before trial even starts
·         Judge will decide before the trial starts whether or not certain pieces of evidence can be used.
·         Ex: Ask judge to exclude clients prior criminal conviction
·         Both sides can file, more frequently filed by defendant
o   At trial, other party is offering evidence against your client
§  Counsel must make an objection, and the judge rules on it.
·         Preserves right to appeal
§  The only way an appellate court can consider an issue on appeal is if there has been an objection to it at trial.
§  Failing to object to evidence is malpractice, if there is a basis for an objection.
·         Do not make frivolous objections.
o   Offer of proof
§  After evidence has been objected and is withheld, you may ask a judge for an offer of proof.
§  Jury is excused (if jury trial)
§  Admits evidence on the record
§  Lets the appellate court see the evidence
·         Preserves error for appeal
§  Just MUST allow this
·         Types of Evidence
o   Witnesses
§  Testify to what the witness has first hand knowledge of.
o   Physical Evidence
§  Ex: The murder weapon,etc.
o   Demonstrative Evidence
§  Ex: Hire an expert to build a structure to demonstrate something to the jury.
·         Arson destroys a building.  Have an artist construct a diagram of the building.  Not physical evidence, but demonstrates some point to the jury.
o   Writings
§  Ex: Breach of contract action, offer the contract.
§  Ex: Contest of a will, offer the will.
·         How parties go about proving case
o   Direct Evidence
§  Any evidence that the actual event occurred.  Do not need to draw any inferences.
·         Ex: Surveillance camera catches what happens.
·         Ex: Eyewitness, someone overheard the event..
·         Ex: Confession
o   Circumstantial Evidence
§  Evidence that requires the jury to make inferences.  Doesn’t directly prove the case, but can reasonably draw the inference.
§  Ex: D on trial for murder.  D was going to inherit victim’s estate.  This is not direct evidence.  You can infer that he had a motive to kill the victim.
§  Ex: NFL argues Brady was involved in Deflategate by circumstantial evidence.  May draw the inference that he had something to hide by destroying the cell phone.
§  Most cases are proven through circumstantial evidence.
·         Relevance (Rule 401) – test for Relevant Evidence (page 87)
§  Evidence is relevant if it helps in some way prove or disprove something that is at issue in the case.
·         Very low threshold
o   Just have to prove that something slightly proves something that is at issue in the case, then it is relevant.
§  Credibility of a witness is always relevant.
·         Anything that helps raise or lower their credibility
·         RULE 403 (relevant evidence generally admissible; Irrelevant Evidence Inadmissable)
§  Excludes irrelevant evidence
o   EX: People v. Adamson
§  D on trial for murder.
§  Victims stocking tops were missing
§  D had stocking tops in his house, but they did not match the victim.
§  Court ruled that because the D had stocking tops in his house and the victim was missing them it may help the jury make a reasonable inference.
§  Question: Does it help the case?  Can you make any reasonable inference?
§  Ultimately, it’s the jury’s call as to how much weight to give that evidence.
o   EX:
§  Flight may be evidence of guilt: Admission by Conduct.
o   Probative value of evidence (page 93)
o   Yes relevant, because only 2% of people drive a white Ford Mustang.
§  Much more relevant in smaller towns, because less population, 2% would be more people…
o   In order for Evidence to be irrelevant, it must be clearly out of the scope of the case.
o   RULE 403 (exclusion of relevant evidence)
o   Allows court to exclude relevant information if it is unfairly prejudicial.
§  Most evidence is prejudicial, that’s why it’s offered.  To prejudice the other’s case.
§  It just may not be unfairly prejudicial
·         Ex: Fingerprints on the murder weapon is prejudicial (because it hurts the other case) but it is not UNFAIRLY prejudicial.
o   Unfairly prejudicial evidence
§  Only slightly relevant
§  Will lead the jury to decide the case based only on emotions
o   Generally, Criminal history is not admissible.
§  Jury may discipline based on prior case, instead of this case.
§  Entitled to fair trial, entitled to be heard.
o   EX: Carter v. Hewitt
§  Carter was a prisoner who allegedly was beaten.
§  Found letters that he wrote persuading other inmates on how to fake a claim.
§  Letters were admissible because it helps determine a fact that is at issue in the case.
§  PROBATIVE value far outweighed the danger of unfair prejudice
§  Evidence would confuse/mislead the jury
§  Evidence would cause an undue delay
§  Evidence would waste time
§  Evidence is cumulative
·         Evidence has already been presented in a different form
·         6th witness is too much; Objection “cumulative” – Judge will most likely sustain.
§  EX: Old Chief case.
·         Supreme Court said court should have allowed stipulation that he was a felon in lieu of evidence of his prior assault case.
·         Bringing in prior assault led jury to believe that he would commit assault again.
·         Prosecution does not have to stipulate just because Defendant wants it
o   Prosecution has

o   Policy behind this: We want people to repair the stairs without fear of legal jeopardy.  If it can be brought in as evidence, most people won’t correct the issue, and more people may get injured. This gives incentives to improve conditions or defects.
§  EX: Former players who have suffered from concussions have sued the NFL claiming that the league was negligent in not protecting its players.  After these suits were filed, NFL instituted polices to try to minimize concussions.  If players suing want to use those polices to prove negligence or wrongdoing, they could not under Rule 407 (subsequent Remedial Measures).
§  EX: Employee claims she has been sexually harassed.  After she made her claim, Employer fires alleged harasser, or imposed a new sexual harassment policy.  You cannot bring this up.  It is a Rule 407 (Subsequent Remedial Measure).
·         Exceptions to Rule 407:
o   Feasibility: If D argues, there is nothing I could do to make it better, and then D does something to make it better, you can use that.
·         EX: NFL says that there was nothing that we could do to make it better.  And then they make the policies which make it better.  You then can use these measures.
·         So you must make sure that as part of your defense you should never say there was nothing we could do better.
§  Anderson v. Malloy
·         Woman raped and assaulted at a hotel.  Sues hotel for negligence saying they should have had a peephole and chains on the doors.  Hotel says there was nothing more they could have done.  Said peepholes and chains would have offered only “false security.”  Then they installed the peepholes and chains.  They “opened the door” to subsequent remedial measures being allowed into evidence.
§  Exception only applies if the Defense is “there’s nothing more we could have done.”
o   Impeachment: To discredit a witnesses testimony
§  Anderson v. Malloy
·         Installing the peepholes impeaches the Defendant’s testimony that “peepholes would give a sense of false security.”
o   Ownership or Control: If this is an issue in the case.
§  EX: A defendant who gets sued may defend “well I didn’t own the property.” Then the defendant repairs the property.  This refutes his claim of lack of ownership. 
§  EX: There is an incident in the parking lot of a business establishment (strip shopping center).  Customer of one of the businesses sues the business saying you didn’t provide enough light.  Business says “that wasn’t our problem.  The landlord should provide the lighting.”  Then after the incident, the business brings in more light.  You can then bring in the fact that the business owner did this to prove he owns or controls the property.  This refutes claim that it wasn’t his problem.