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South Texas College of Law Houston
Field, Ted L.

Evidence Outline Spring 2018: Professor Field
South Texas College of Law Houston
Types of Evidence
Testimonial evidence
Tangible, physical Evidence
Testimonial Evidence
Content of testimony
Witness demeanor
Tangible Physical Evidence
Direct vs. Circumstantial Evidence
Direct evidence
Proves fact WITHOUT an inference
Personal knowledge gained from witness’s senses
Circumstantial evidence
Proves fact only WITH an inference
The Order of Proceeding
Pretrial conference
Pretrial motions (motions in limine)
Jury selection
Opening Statements
Presentation of evidence
Plaintiff’s/Prosecution’s case-in-chief
Plaintiff/Prosecution rests case
Motions for judgments as a matter of law
Defendant’s case-in-chief
Rebuttal and Surrebuttal
Defendant rests case
Closing arguments
Jury instructions
Jury deliberations
Post-trial motions
Examination of Witnesses
Direct examination
Redirect examination
Recross examination
Prevent introduction of evidence
Preserve error for appeal
Must be made BEFORE witness answers
Sustains the objection—OR—
Overrules the objection
Offers of Proof
Rule 26(b)(3)(A)
Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative***. But, subject to Rule 26(b)(4), those materials may be discovered if:
They are otherwise discoverable under Rule 26(b)(1); and
The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
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.
Rule 103. Rulings on evidence
Preserving a claim of error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party
CANNOT support witness’s credibility first
Can only defend Witness’s credibility after it is attacked
Rule 104. Preliminary Questions
In general. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
Relevance that depends on a fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
Rule 105. Limiting Evidence That is Not Admissible Against Other Parties or For Other Purposes
If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
Rule 301. Presumption 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.
Defending Against a Presumption
Proof of Fact Aà Presumption of Fact B
Attack Fact A—then the presumption CANNOT apply at all
Attack Fact B—then the presumption is rebutted
Rule 301. Thayer Theory of Presumptions
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 N

ase its decision on something other than established propositions in the case
Rule 403 Analysis
Is there a danger of unfair prejudice?
If NOàRule 403 does NOT exclude
What is the level of probative value of the evidence? (high? Low?)
What is the level of the danger of unfair prejudice? (high? Low?)
Does the danger of unfair prejudice substantially outweigh the probative value of the evidence?
If YESà The judge has the discretion to exclude the evidence
If NOà The judge may NOT exclude the evidence under Rule 403
Rules That Use a Rule 403 Reverse Balancing Test
            There is something to keep in mind when you think about a Rule 403 balancing test. Normally, evidence that has probative value is presumptively admissible unless substantially outweighed by a Rule 403 counterweight. In Rules 412 and 609, however, the balancing test is reversed. For evidence to be admissible under these rules, the proponent must show that the probative value of the evidence substantially or otherwise outweighs any counterweights. This creates a presumption of inadmissibility for this evidence, but allows it to come in when it is strongly important to the case.
Two Types of Character Evidence
Substantive character evidence
Rules 404 & 405
Used to show that a fact at issue in the case is true or not true
Character evidence used for impeachment
Rules 608 & 609
Used to discredit (or rehabilitate) a witness—to show he or she was not (or was) telling the truth while testifying
Character Evidence—Overview
The GENERAL RULE is that character evidence is NOT admissible to prove conformity with the character—BUT there are exceptions