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South Texas College of Law Houston
Crump, Susan Waite


Susan Crump

Fall 2016

CHAPTER 2: Process of Proof and Structure of Trial

what attorney’s present to the fact finder to help them determine the case; usually facts, sometimes opinion
evidence is designed to allow admission of facts that are relevant and reliable while excluding information that is tangential, confusing, speculative and unrelated to the issue of the case
good for every field so you know what will be used in trial
lay a predicate: what needs to be established before a piece of evidence can come in; i.e. someone needs to qualify as an expert before they can give an expert opinion

: live witnesses

Eye witness testimony is only as good as the witness’s powers of observation, recall, sincerity, and narration
Direct examination: must still lay a predicate; quick/short and to the point. It’s meant to paint a picture and you follow up on your questions

Tangible physical evidence, exhibits (with exhibit #/letter); can be touched and felt

: exhibits; actual stuff from the crime scene (the knife)
: show the fact finder background information; it would otherwise be difficult to visualize; show & tell evidence that you make up after the facts and doesn’t have to do with case as it developed (maps, photos, carts, experiments)
Both have different predicates

Lawyer is showing jury facts and circumstances of case as a coherent whole, in living color

Direct and Circumstantial

: based on testifying witness’s personal knowledge gained through the witness’s senses which prove fact without inference or presumption

But people can be biased, mistaken, lying, etc.

: must make inferences by fact finder to reach factual conclusion in case

The Judge: sets limits for lawyers in order to achieve justice and efficiency

: lets judge use FR Ev. to secure fairness and eliminate undue expense and delay
: let’s judge exclude evidence that would be admissible if it (1) confuses issues (2) misleads jury (3) causes waste of time or (4) is needless presentation of cumulative evidence
/614: let’s judge regulate order and presentation of evidence, call witnesses, and make comments to jury about evidence that has been presented

U.S. v. Reaves: criminal tax fraud (ended in mistrial); put time limits on various stages of trial. U.S. wanted 30 days to present, but had to do it in 10. (U.S./π: 60 hours + 6 hours rebuttal; ∆: 30 hours)

: commands court to exercise reasonable control over mode and order of interrogating witness/present evidence to:

make interrogation and presentation effective in ascertaining the truth
avoid needless consumption of time

to reverse on appeal, need to abuse his discretion

: courts time is a public commodity which should not be squandered

Public resources are squandered if judicial proceedings are allowed to proliferate beyond reasonable bounds
Setting time forces counsel to conform passion to need to conserve time/resources while remaining in control

Witnesses and Testimony

Stone v. Peacock: π says three cops fired him in retaliation for speaking out about their improper use of public funds. Stone was to testify first to establish the events and his lawyer protested because it was reordering the witness. π was called first; may have been his strategy to establish facts.

maybe not a good idea to call first, need to establish them, may not be ready to testify; if he’s strong better to call him last. Would be bad if they were not prepared.
if he goes last he can hear the whole case (evidence and other witnesses) because he’s exempt from the rule

Rule: 611(a) gives courts reasonable control over order and presentation of evidence.

Analysis: if there were any error from the reordering, it wouldn’t have hurt the case in any way. It’s only reversible error if you can show harm. Judge didn’t make the defense cross examine the π. Only way to reverse is if he can show irreversible error.

Judge’s Comments on the Evidence

Judge can explain or comment on evidence if he thinks it will help the jury; allowed to analyze and dissect evidence for jury so long as s/he does not distort or add to it

U.S. v. Yates: wanted statement of confession read aloud; opponent said jury can read it themselves on their own time – caused issue because reading distracts one from listening. judge may have ruined the case by saying “he already admitted he robbed the bank, so jury can read statement on their own time.” But whole point of the case was that he didn’t know that he was signing a statement and he claims he did not rob the bank. Judge was thus partial.

To be impartial, must say “you can take it as true or not true…”
This caused such substantial that it was reversed automatically

Questioning Witnesses

: gives judge right to call and question witnesses to clear confusion, but authority is limited

judge cannot ask questions that show their opinion or disbelief of the witness
even overly aggressive questioning though, wont result is reversal unless it affects the substantial rights of a party

Crandall v. U.S.: Child had spinal meningitis and parents are suing; they refused to settle. Judge was being rude to the attorney in questioning and didn’t even let expert witness answer questions. Expressed resentment and annoyance toward the parties when presenting their case; he thought it was a waste of taxpayers money.

He inhibited witnesses and counsel

prevented effective cross examination of defenses most important witness
he made determination that he was prejudice before the evidence came in
hypothetical’s allowed but if a judge wanted, he could prohibit the asking of hypothetical’s to experts

Points of error:

Refusing to settle
Financial considerations of the taxpayer
Badgered the witness

Order of Proceeding:

Pretrial conference: each party narrows legal and factual issues that will raised and identify witnesses and documents that will be evidence. Then draw up pretrial order that controls presentation of each party’s case at trial.
motions: they try to control admissibility of evidence at trial by filing motion in limine, requesting judge keep some evidence from the jury. If granted, cant bring up the issue until jury is excused and final admissibility is determined
selection: if bench trial, judge is judge and fact finder. Juries picked through voir dire, judge and lawyers ask jurors questions to see if they are qualified to hear the case (or for any reason). After selected, they vow to “true verdict render.” Voir dire of witness has to always be away from the jury.
statement: lawyers summarize theory and describe evidence to jury. Facts they say must be admissible. π/prosecution goes first, then ∆; or ∆ can waive and present later before case in chief
Presentation of evidence: party with burden of proof presents evidence in their case in chief

Direct examination: questioning witness by lawyer that called him. Goal is to elicit favorable facts. Must ask short, open ended, non leading questions (do not suggest a particular answer). Then lawyer passes the witness
Cross Examination: lawyer of adverse witness asks questions, testing accuracy and completeness of witne

ven with low probative value, must be weighted with counter weights
Flight as incriminating evidence: still has some probative value; becomes a brick in the wall. If Adamson has a reason to flee, jury must decide if they believe him

Exclusion of Relevant Evidence

: all relevant evidence is presumptively admissible; allows judge to prevent admissibility of evidence by considering other sources of legal authority that can outweigh relevancy (excluding evidence that was obtained by theft)

to be relevant, evdicne doesn’t have to be sufficient

: determining legal relevance (the balancing test)

lists counterweights that must substantially outweigh probative value; balancing power of evidence against counterweights is legal relevance

prejudice: distorts fact finding function of the trial by allowing jury to draw inferences that are improper, like based on upon emotions; regular prejudice is normal

e.g. not caring the Adamson did it, but that he is a sexual deviant and black.

waste of time

Abuse of discretion: standard on appeal where the trial judge misbalanced (so trial judge has discretion)

Carter v. Hewitt: π says he was severely beaten by three officers in a routine shakedown at the prison. During trial, Carter was asked to read the letter, he said no because of relevance. It was written six months before the beating. Letter was about how to file a complaint against prison guard brutality.

: was letter read in court that π wrote violation of F.R.Ev.? No. (Was carter beaten by guards? No.)
: letter is admissible, substantive evidence because it bears on central issue. the letter was prejudicial, but didn’t show unfair prejudice. It was offered to show there was no beating and he was lying (the central issue)
: may either mean by π, true brutality and false courts, or ∆, no respect for judicial system, referring to them as those who can be fooled, playing system

– relevance: It’s relevant if it has any tendency to make the existence of any fact that is of consequence to determination of the action more or less probable than it would be without evidence

(∆) the letter would show π’s plan to promote false brutality complaints OR (π) true brutality complaints

jury would infer his own complaint was false.
The letter is relevant because it tends to make his assertion that he was beating less likely to be true than without the evidence.

Because it’s relevant its admissible (unless otherwise restricted)

403 doesn’t apply because that only protects against unfairly prejudicial

unfair prejudice: if it has an undue tendency to suggest decision on an improper basis, like emotion
unfairly prejudicial if it appeals to jury’s sympathies, arouses its sense of horror, provokes its instinct to punish. Like saying once a thief, always a thief.