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South Texas College of Law Houston
Field, Ted L.

Evidence Field Fall 2016
The Process of a Trial
The Role of Evidence
Use it to prove or disprove facts
If evidence is not admitted then it might as well not exist because the jury or the judge are not allowed to consider it in determining the outcome
Must comply with the rules of evidence that is applicable in order to get evidence in
To get it out must just show that one element isn’t met
Sustained v. overruled
Agree v. disagree
Trier of fact
Assume it’s the jury
Types of evidence
Testimonial evidence (preferred)
Content of testimony
Witness demeanor
Tangible, physical evidence
Direct v. circumstantial evidence
Direct evidence
Proves the fact without an inference
Personal knowledge gained from witness’s senses
Proves fact only with an inference
The Order of Proceeding
Pretrial conference
Judge meets with the attorneys for the parties and talks about planning for the trial (how long, when, etc)
Pretrial motions (motion in limine)
Motion to keep certain evidence excluded or included
Gives judge time to think about it
Can write a brief and cite case law
Let’s the attorneys form their case around it
Renew objection to preserve the error on the record
When party introduces it in trial
Gives judge a second chance to fix the error before it gets taken up on appeal
Not final until it’s been introduced in trial
Jury selection
Voir dire
Question someone to determine their qualifications
Cause for juror not be on the jury — that juror get’s excused for cause
Opening statements
Not supposed to argue anything
A way to organize what the evidence will be (what’s coming)
Presentation of evidence
Plaintiff’s/Prosecution’s case-in-chief
Examination of witnesses
Direct examination
Non-leading questions
Cross examination
Leading questions
Try to discredit the witness
Can only address within the scope of direct plus credibility issues
Redirect examination
Can only address within the scope of cross
Recross examination
Limited to the scope of redirect
Prevent introduction of evidence
Preserve error for appeal
Must be made BEFORE witness answers
Judge sustains for the objection or overrules the objection
Use an offer of proof to preserve error
Read what the testimony would have been
Plaintiff/Prosecution rests case
Motions for judgement as a matter of law
Defendant’s case-in-chief
Examination of witnesses
Direct examination
Cross examination
Redirect examination
Rebuttal and surrebuttal
Defendant rests case
Closing arguments
Summation and arguing why you should win
Jury instructions
Instruct the jury what the law is that they should apply
Jury deliberations
Verdict and judgement
Post-trial motions and judgement as a matter of law
Move for new trial or judgement as a matter of law
Role of the Judge at Trial
The purpose of the rules
Fed. R. Evid. 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.
The court’s control
Fed. R. Evid. 611. Mode and Order of Examining Witnesses and 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
Standard of review at appellate court: abuse of discretion.
Comments on the Evidence
United States v. Yates
D convicted for bank robbery, Judge commented on the bias and D arguing it crossed the line into bias and not just clarification. Judge commented on the confession basically saying D was guilty.
Standard of review: abuse of discretion.
Court held it was an abuse of discretion because it was clearly bias.
Questioning Witnesses

fact A, then they should presume that fact B exists
Ex. Person missing for 7 years — presumption that person is dead.
May be rebutted (usually)
Presumptions in civil cases
Fed. R. Evid. 301. Presumptions in Civil Cases Generally
In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.
In re Yoder Co.
P’s claim barred for failure timely file a proof of claim. D claimed they used labels and sent out notice accordingly.
P argues that because others didn’t get the notice then it can be presumed that he didn’t get notice.
Defending against a presumption
Attack Fact A—then the presumption CANNOT apply at all
Attack Fact B—then the presumption is rebutted
Rule 301: Thayer Theory of Presumption
Say that party X attempts to use a presumption against party Y that if fact A exists, then fact B must be presumed.
Party X proves that fact A exists
If Party Y does not produce any evidence to rebut the presumption by showing that fact B does not exist, then the presumption of fact B stands.
But if Party Y does produce evidence to rebut the presumption by showing that fact B does not exist, then the “bubble bursts” — there is no presumption of fact B, and party X must prove fact B without using the presumption.
Presumption in this case: if a letter is posted and mailed, received in due course.
Initial fact A: Letter properly posted and mailed
Concluded fact B: Received in due course