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South Texas College of Law Houston
Williams, Kenneth A.

Professor Kenneth Williams – Evidence – Fall 2015
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 is relevant if it has any tendency to make more or less probable the existence of a fact that is of consequence to determining the action.
                    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 4-5-6, Congress, FRE, SupCt-discovery rules)
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)
Court may exclude relevant evidence if its probative value is substantially outweighed by danger of (1 or more):
                – Unfair prejudice
                – Confusing the issues
                – Misleading the jury
                – Undue delay
                – Wasting 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 over

Child Witness
            – No precise age determines competence
            – May have difficulty distinguishing reality from fantasy, adult influence
            – -3 years à Difficult to prove competence
            – May exclude for compelling reason (ex: child rape)
                        1) Know difference between truth & a lie
                        2) Remember & coherently narrate events
W can’t testify unless evidence supports W has PK (testimony can prove). Subject to 703.
Professor – W must have personal knowledge of the matter they are testifying about !!!
        – Must have heard, seen, or otherwise perceived
        – Perfect recollection not req’d
        – Can be from any of the 5 senses
        – Can’t be 2nd hand
        – Excludes testimony concerning a matter that W didn’t perceive or have opportunity to observe (low threshold)
        – Other W’s may testify to their presence
        – Subject to Rule 703 à Expert W doesn’t need personal knowledge
EX: W didn’t observe the fifth à Not admissible. W lacks personal knowledge
EX: W intoxicated when he saw the fight à Admissible. W has personal knowledge bc perceieved
EX: ∆ claims he was in Chicago at Grandma’s when arson occurred in Houston & wants W to testify.
        – W called Grandma & she said ∆ was in the shower. à May testify bc personal knowledge of the phone call.
Before testifying every W must oath or affirm they’ll testify truthfully
Oath: Swear to a higher being
Affirmation: People don’t believe in higher beings must affirm they understand their duty to tell the truth
General: May exclude W’s who refuse to give an oath or affirmation
Policy: Impress upon the mind a duty to speak the truth
W’s religious belief can’t be used to attack or bolster their credibility. May use to expose bias. !!!
        Professor – May ask if relevant to case !!!
Policy: Church-goers lie, Non-believers tell truth
        Commonality of Religion
        – Small, unconventional religious groups may present credibility issues
– May examine religious tenant that may affect credibility (EX: tenant of religion is lying)