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South Texas College of Law Houston
Field, Ted L.

Prof. Field
Fall 2016
*Rule 104(b) and Rules 408-411 was not on our final*
I. The Role of Evidence/What is Evidence
a. What is Evidence?
Evidence is something that proves or disproves, and can be used to come to a legal conclusion.
Evidence law is the law of a trial.
Trying to get evidence admitted, it has to comply with all of the rules of evidence.
            If you don’t want it admitted, just have to show that it doesn’t adhere to one of the rules.
Rule that says evidence can’t come in always trumps a rule that says it can come in.
Parties can object to the admittance of evidence:
            Overruled = objection overruled and evidence can come in.
            Sustained = objection sustained, evidence cannot come in.
Federal Rules of Evidence covers Criminal and Civil trials, unless otherwise noted.
1. Is the evidence sought to be admitted relevant? (Yes, go to step 2. No, not admitted)
2. Do the rules of evidence exclude the evidence? (No, go to step 3. Yes, not admitted)
3. Does the evidence survive a rule 403 balancing test? (Yes, evidence admitted. No, not admitted)
b. Types of Evidence
1. Testimonial – most common
            Most preferred, what witnesses say
            Content of testimony is most important
            Demeanor of the witness is also important
                        If the witness seems confident, or unsure, body language.  Supposed to allow the jury to tell if the witness is being truthful or not.
2. Tangible, physical evidence.
            A. Real
                        Anything that is directly related to the case itself
                                    EX: “the murder weapon”/a document/a x-ray
            B. Demonstrative
                        Something that wasn’t a part of the actual case, but was created for the purpose of the trial.
                                    EX: a map of a crime scene, a photo of a crime scene after the crime occurred.
3. Direct Evidence
            Proves a fact WITHOUT an inference
            Personal Knowledge gained from witness’s senses
4. Circumstantial Evidence
            Proves fact only WITH an inference
                        Jury has to take a “mental step” to come to a conclusion
            Circumstantial evidence infers a conclusion.
            Can result in more than 1 inference.
Direct vs circumstantial
            Which one is better?  It depends on the type of evidence.
            Both can be admissible, the issue usually is the weight of the evidence and not the admissibility.
                        Up to the trier of fact to decide how much weight to assign to the evidence. 
c. The Order of Proceeding
The rules of evidence apply to jury trials and bench trials. (Mostly will be talking about jury trials, but the rules still apply)
1. Pretrial Conference
            When the trial will be; status conference about the case
            Federal procedural Rule 16(a) provides that the judge may hold a pretrial conference with lawyers for each party in order to narrow the legal and factual issues that will be raised at trial and identify witnesses and documents that will be offered as evidence.
            Rule 16(b)(1) pretrial order controls each parties presentation of their case at trial.
2. Pretrial Motions (Motions in limine)
            Moving to the judge before a trial to exclude or include evidence.
            Know how to plan a case if the judge allows or denies the admittance of evidence.
            Have to object to the evidence again during trial to preserve the error for appeal.
3. Jury Selection
            “Voir Dire”
                        Questioning somebody to see if they are qualified
                        Can also happen with witnesses/experts
            Court will question jurors with a questionnaire.
            Then in open court the attorneys question the jurors.
            Jurors can be excused for cause
                        Ex: Can’t be impartial
            Peremptory Challenge
                        Can excuse a juror for any reason except for their race or sex.
4. Opening Statements
            Party with the burden of proof goes first (plaintiff/prosecution)
            Not argumentative, talk about what evidence will be shown.
            Sort of like a legal road map in legal writing.
5. Plaintiff’s/Prosecution’s Case in Chief
            Present evidence by examining witnesses and introducing evidence.
            Has to meet burden of proof for all elements of their claim.
6. Plaintiff/Prosecution rests their case
7. Motion for Judgement as a Matter of Law
            Defendant saying that the plaintiff didn’t meet burden of proof and all of the elements have not been met.
            Usually not granted
            Just have to get a little evidence of each element to be admit

            Don’t want jury to hear inadmissible evidence, hard to “un-ring a bell”
            Think: Can I object, or should I object?
Judge then either sustains or overrules the objection.
            Sustained: testimony isn’t allowed in.
                        If you want to preserve this testimony for appeal, then have to “Offer of proof” outside of the view of the jury and describe the testimony or do the testimony. [Rule 103(a)(2)]             All of this is done during direct, cross, etc.
f. The Purpose of the Rules
Rule 102 Purpose: Fairness, efficiency, ascertain the truth, secure justice.
Federal Rule of Evidence 102 allows the trial judge to use the Federal Rules
of Evidence to “secure a just determination” and “eliminate unjustifiable expense and delay.”
Rule 102. Purpose:  These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
g. The Court’s Control
Fed Rule 611 Mode and Order of Examining Witnesses and Presenting evidence
            Gives the judge broad discretion in controlling the trial and making decisions about how the trial is carried out.
Appellate Review Standards for evidentiary decisions is “abuse of discretion”
                        Hard standard to overcome.
                        Just because a trial judge rules one way and it is affirmed doesn’t mean that that is the only way of going about something.
1. Rule 611. Mode & Order of Examining Witnesses & Presenting Evidence
(a) Control by the Court; Purposes.
The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.