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South Texas College of Law Houston
Field, Ted L.

                                                  Evidence Summer 2017 Field                                                               
Chapter 1 – The Process of a Trial
What is Evidence?
Something that tends to prove or disprove an element, argument, etc. of a case, e.g. live testimony, documents, tangible objects, demonstrative materials, etc.
Tells us something that is admissible in court such as:
Testimony: most evidence comes as this and it is the single most important
It doesn’t actually have to be tangible, but still can be physical evidence.
Used to help a case or refute your opponents case.
Normally, this is the jury for most of the time.
Most of the rules of evidence apply equally in other situations.
If something is not admissible, it is like it doesn’t exist and the jury is not allowed to look at it.
in order for evidence to be admitted, it has to apply to all evidence rules.
If it does, then the judge admits the evidence for the purpose that it offers.
We need to know what the evidence is offered to prove by the party.
If it doesn’t, then the judge excludes it and the factfinder can’t see it.
Evidence is the law of the trial AT TRIAL
Rules of Evidence applies to criminal and civil and their mostly the same
EX: you can use a criminal case to interpret a civil case as far as evidence goes.
For evidence, we will be study the rules and most states use these rules.
Many states, like Texas, use the rules of evidence almost verbatim.
We don’t need to know the Texas Rules of Evidence, so just know that they are almost the same.
Not responsible to know the common law rules.
What are the goals of evidence?
Fairly resolve the case and both sides get and equal shot, we are ultimately seeking the truth, through efficiency.
Testimonial Evidence: people talking under oath in court
Testimony of live witnesses answering questions under oath before the fact finder (main kind of evidence – important because of demeanor and credibility).
There are a couple of aspects of where it all comes from and how to judge credibility
Content of Testimony: what is actually said
Ex: the light was red at the time the car went through the intersection.
Witness demeanor: saying something confidently vs. not to judge credibility; how the person said it.
Did the person answer the question in a peculiar way or hesitant way or with confidence?
In the last decade, there has been a lot of neuro science and psychology findings to evidence law.
Science shows that there is not a lot of demeanor to show that the person is not credible.
Probably just because the person is nervous.
Traditionally, the law will use demeanor to judge credibility.
Assessment of Witness Credibility
Perception (usually sight and sounds, but the senses).
Logic and clarity
Veracity (usually character evidence, i.e., does the witness generally tell the truth)
Tangible physical evidence: evidence that relates to the case and are given an exhibit number or a letter that usually correlates with testimonial evidence, either:
Real: evidence generated by the case, i.e. the knife; things that are actually relevant to the particular case.
Jury can make own decision here because they can see the evidence.
EX: the actual gun in the case
EX: fingerprints, DNA, the written contract itself, any weapons allegedly used in a crime, X-Rays, etc.
Demonstrative: evidence used to show the real evidence, i.e. maps photgraphs, charts, experiments, or computer simulations
used to explain to the jury what was going on
EX: a diagram to show the jury what happened but the diagram actually wasn’t used in the crime.
EX: a type of gun that was similar to the one used in the case.
EX: photographs
Any physical exhibit has to be offered as an exhibit before it can be used in trial and then you have to show that it complies with the rules.
You have to authenticate the evidence (this was the actual gun used) and then it goes to become admitted evidence.
The way tangible evidence comes in is in conjunction with testimony
You have to use witness testimony to declare the admissible evidence as admissible by the judge.
Direct v. Circumstantial Evidence: evidence may be categorized as to whether it directly or circumstantially establishes a fact at issue in the lawsuit.
Direct Evidence: witness testifying it directly; he actually saw it
Proves a fact WITHOUT an inference
Evidence based on a testifying witness’s Personal knowledge gained from witness’s senses which, if found to be true, proves a fact without an inference or presumption.
EX: I open the window at 3am and it is snowing
Circumstantial Evidence:
Proves a fact only WITH an inference
evidence from which a fact finder must make inferences to reach a factual conclusion in the case, and the inference may be weak, moderate, or strong (does not have to be true – when showing the inference of other alternatives).
EX: if I dint open the window at 3am, but the next night you woke up and saw it wasn’t but the next day it was.
Well someone could have dumped a bunch of snow on the ground maybe for a commercial or some random reason but it is possible.
May be less likely, but the fact that there are competing inferences doesn’t mean that the other inferences cannot be admissible.
Sometimes there are questions of admissibility and others of weight.
Admissibility: is it admissible at all?
Weight: it is admissible but then the jury looks to see why it is admissible and which is more credible and which is more likely.
Which is better?
You can have weak direct and strong circumstantial
There is no straightforward answer
The Order of Proceeding
Pretrial Conference: the judge speaks to the attorneys of both sides, plans out how the trial is going to be, requires a trial brief, etc.
Rule 16(a): judge may hold a pretrial conference
Rule 16(b)(1): once the pretrial conference is determined, pretrial order is issued which controls the presentation of each party’s case at trial.
Pretrial conference (motions in limine): motions to control the admissibility of evidence.
Limine: “at the threshold”
Motions in limine: requesting that the judge keep from the jury certain designated testimony or documents which a party anticipates her opponent will attempt to offer.
At the outset; doesn’t just exclude it but you can use it to show that your evidence is admissible.
If it is granted, the opposing party is ordered not to raise the matter ruled inadmissible until the jury is excused and the admissibility of the evidence can be determined.
If not granted, when the evidence is offered at trial, the party making the motion has another chance to object and keep the jury from hearing the evidence.
A motion in limine, if a judge says it can’t come in, then the jury doesn’t have a clue it has been in offered.
Efficiency: you won’t have to focus on the other evidence because the judge has already dismissed it.
If it is an obscure question and you want to cite case law, you can cite it and lay out your argument to support whether it is admissible or not.
If this is the case, then you can present a better case with the supported case law rather than having the judge decide on the fly.
IMPORTANT: Motion in limine is not the final decision to decide whether it is admissible.
The decision is not final until the attorneys bring it out in trial and they have to do that during trial.
If you want to admit something and the judge says it is denied, then you can still object to it.
Jury selection:
They are usually decided it at random through various things.
Jury selection process of Voir Dire: judge and the attorneys as questions in turn of a panel of prospective jurors to determine whether they are qualified to be selected to hear the case.
During this process, need to ask questions that will reveal a juror’s bias in the type of case at issue.
Excused for Cause: if they personally know a lawyer or a party in the case.
Excused pursuant to a Peremptory Challenge: where each party can excuse a set number of prospective jurors for any reason that is not an illegal one, such as race or gender.
This can also refer to questioning of a testifying witness to determine whether that witness is qualified to testify as to matters which the other party believes to be inadmissible.
NOTE: when a jury is not used, the judge sits as both judge and finder-of-fact in what is called a bench trial.
Opening Statement:
Not supposed to be an argument; supposed to state facts of what will be showed.
Lays the groundwork, tells the jury what they are going to hear, and you can be persuasive.
You can state facts in a way that helps you and is persuasive by emphasizing certain words or phrases like in a persuasive brief in the statement of facts section.
Lawyers need to be certain that the facts they describe in opening statements are admissible.
Invoking “The Rule: Rule 615
Requires all witnesses (other than people essential to the case) to be excluded from the courtroom to prevent them from hearing the testimony of other witnesses and tailoring their testimony based on what they hear.
This may happen before opening statements or at any time during the trial.
Presentation of evidence:
π/prosecution’s case in chief: they go first
After opening statements, the party with the burden of proof presents evidence during her case-in-chief by calling witnesses to the witness stand, eliciting oral testimony, introducing evidence etc.
π/prosecution rests case
motions for judgments as a matter of law: the π has an obligation to present some evidence that will cover some element that they are wanting to prove.
EX: in a negligence case, the π will have to present evidence that proves all elements of negligence.
As a ∆, you should always move for these motions at this stage because you wont be able to do this later even if you know that you will probably lose it.
∆’s case in chief: then the

ct that the judge said it was clear basically took away the ∆’s entire case because his only argument that he had was that he did not participate in the robbery.
Abuse of discretion standard was used because the judge went too far according to the appellate judge.
The judge may make comments on the evidence but here ∆ claims that it exceeds the scope of permissible judicial comment on the evidence and is reversible but government states it is within the scope because the comment was mere observation and the document did not need to be published to the jury because it was self-explanatory.
So the court held the impression was created before the jury and had been proven so the ∆’s rights were infringed upon by having a jury weigh the evidence as proof.
Reversed à standard of review is abuse of discretion for the appeal.
Questioning Witnesses
Judges can question witnesses according to Rule 614
Judge can call and examine witnesses
Generally, a judge’s overly aggressive questioning of witnesses will not result in reversal unless it affects the substantial rights of a party. (Crandell v. United States)
Rule 614. Court’s Calling or Examining a witness
(a) Calling: The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.
(b) Examining: The court may examine a witness regardless of who calls the witness.
(c) Objections: A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.
this might turn the jury against you if you say that the judge can’t call the witness.
Crandell v. United States
The issue was aggressive questioning that didn’t allow them to argue their case at trial.
The Judge talked down at the key expert witnesses.
This is a comment case in addition to a questioning case.
This was not a jury trial, but a bench tiral so the judge was the finder of fact.
Go to page 17 for the general rule and limitations
The case was ultimately reversed and remanded and that is usually to the same judge, but here, they sent it to a new judge.
This isn’t an easy process because that is basically saying that one judge is saying to another that you are incompetent and we need a new one to rule on it.
Medical malpractice case where π claims trial judge predetermined their case because of their refusal to settle, financial considerations, judge badgering their expert witnesses, and their interference with π cross-examination.
But, π never objected; however, the court held for the π because it stated the judge clearly favored the state over the other party thus not impartial and fair.
Reversed and remanded à standard of review is abuse of discretion for the appeal.
This was a bench trial case.
Breunig v. Am. Family Ins. Co.
The Insurance company said that they weren’t given a fair trial because of two reasons:
Facial expressions: there was nothing in the record that showed the judges facial expressions.
The Judge said that you’ll need to find it in the record of his facial expressions, but obviously wasn’t in it.
What would you have to do to get the judge’s facial expressions? You’d have to object to it.
They can’t win on appeal because there wasn’t anything in the record.
G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.
Transgender boy trying to use the boy’s bathroom.
Judge was biased, but they never explicitly claimed that he was biased on the decision so they couldn’t appeal and get a new judge.
Note #3, pg. 19: Time Limits for Presenting Evidence
Judge can set reasonable time limits on the various stages of the trial.
The Judge has a great deal of discretion here
Judge want efficiency; attorneys want to be complete.
Under time limits, attorneys get to the point!
Note #4, pg. 19: The Order of Witnesses and Their Testimonies
The parties (the lawyers) determine the order of witness testimony.
BUT the judge has discretion to alter the parties’ desired order under particular circumstances.